Whatever else it is supposed to do, a federal system of government should offer policymakers a division of labor. Perhaps the first to fully appreciate that advantage was Alexis de Tocqueville. He admired the federated regime of the United States because it enabled its central government to focus on primary public obligations (“a small number of objects”, he stressed, “sufficiently prominent to attract its attention”), leaving what he called society’s countless “secondary affairs” to lower levels of administration.1 Such a system, in other words, could help the central authorities keep their priorities straight.Thinking along those lines warrants renewed emphasis today. America’s national government has had its hands full coping with a deep and lingering economic crisis and onerous security challenges around the world. It cannot, or at any rate ought not, keep piling on top of those daunting tasks a second-tier agenda that injudiciously dabbles in too many decisions and duties best consigned to local entities. Turning every imaginable issue into a Federal case, so to speak, diverts and polarizes political leaders at the national level, and erodes recognition of local responsibilities. A kind of attention deficit disorder besets anybody who attempts to do a little of everything rather than a few important things well. Although not a root cause of catastrophes like the submersion of a historic American city by a hurricane in 2005, the terrorist attacks of September 11, 2001, the great financial bust of 2008 or the successful resurgence of the Taliban in Central Asia, an overstretched and distracted government stands less chance of mitigating such tragedies. When Washington Does It All
Let us glance at a small sample of local functions now monitored by U.S. Federal agencies and courts. Federal law these days is effectively in the business of determining the minimum drinking age for young adults, setting the licensing standards for bus and truck drivers, judging the fitness tests for recruits of local police or fire departments, overseeing spillages from thousands of city storm sewers, requiring asbestos inspections in classrooms, enforcing child support payments, establishing quality standards for nursing homes, removing lead paint from housing units, replacing water coolers in school buildings, ordering sidewalk ramps on streets, deciding how long some unruly students in public schools can be suspended, purifying county water supplies, arresting carjackers, mandating special education programs for preschoolers, influencing how much a community has to pay its snowplow operators or transit workers, planning athletic facilities at state universities, telling localities in some states how to deploy firefighters at burning buildings and instructing passengers where to stand when riding municipal buses.2Several of these illustrations may sound farcical, but none is apocryphal. The directives for firefighters, for example, are among the many fastidious standards formulated by the Occupational Safety and Health Administration.3 The specification of where to stand in buses is a Department of Transportation regulation conspicuously affixed at the front of every public bus.4 The trend toward Federal micromanagement shows few signs of abating. Case in point: If the massive energy (“cap-and-trade”) bill recently adopted by the House of Representatives becomes law, it would give the Federal government power over local building codes. Preoccupations like these are baffling. Why should a national cabinet department or regulatory bureaucracy be bothered with how “standees” ride local buses or how a town’s firefighters do their jobs? If municipal transit authorities or fire departments cannot be left to decide such particulars, what, if anything, are local governments for? Surely, most of the matters in question—putting out a fire, taking a bus ride, disciplining a troublemaker in school, removing perils like asbestos or lead from a house—rarely spill across jurisdictions and so do not justify intervention by a higher order of government. Nor can a plausible case be made that central overseers are needed for each of these assignments because communities would otherwise “race to the bottom.” How many states and localities, if left to their own devices, would practice fire prevention so ineptly that they require tutelage from a federally approved manual? Before Congress acted to rid the Republic of asbestos, the great majority of states already had programs to find and remove it. Long before the U.S. Environmental Protection Agency promulgated expensive new rules to prevent lead poisoning, state and municipal code enforcement departments were also working to eliminate this danger to public health. Why paternalists in Washington cannot resist meddling in the day-to-day tasks performed by state and local officials would require a lengthy historical treatise on bureaucratic behavior, congressional politics and judicial activism, all in the context of technological and normative change. Suffice it to say that the propensity, whatever its sources, poses a basic problem: A national government immersed in quotidian minutiae, and constantly elbowing local preferences aside, is less likely to be mindful of larger imperatives and less effective in dealing with them. In the Legislative Branch, something is clearly awry when the House of Representatives devotes, for instance, almost as much time to debating a bill to preserve the Pledge of Allegiance in local public schools and a bill to prevent the local selling of horse meat, as it does to deliberating legislation to overhaul the nation’s intelligence services. Subsidiarity
One way to disencumber the government and sharpen its focus would be to rehabilitate federalism, in other words, to re-set the balance among Federal, state and local government according to the principle that problems should be solved as close to their source as possible—subsidiarity. And the key here is understanding in a detailed way what “close as possible” means in practice today, which is not the same as what it meant fifty or a hundred or two hundred years ago. The fact that conditions change means that the proper understanding and application of subsidiarity has to change, as well. That is one of the main reasons that theorists and jurists of the American Federal system since the Founding have proven unable to draw a bright line between the proper spheres of national and local authority. But that does not mean we ought to abandon the search for a middle ground between conceptions of “dual federalism” and the view that everything, including the garden-variety problems of local jurisdictions, is fair game for national aggrandizement.For officials at the national tier, applying the principle of subsidiarity today would require several fundamental changes. In general terms it would mean less fussing with the routine management of local public schools, municipal staffing practices, sanitation standards, common criminal justice and countless other chores customarily in the purview of states and localities. It also would call for less preemption of state initiatives in other, less prosaic questions of public policy. For example, if many state governments, acting individually or in concert, are already taking important steps to curb carbon emissions, is it necessarily better for Congress to take over climate policy? Finally, there ought to be greater willingness to denationalize disputes that may otherwise degenerate to bitter, diversionary polemics in Washington. Back to Basics
Generalities are a necessary starting point, but to define how subsidiarity should work today, to begin to restore some semblance of order to the respective competencies of the national and state governments, we must reopen the two-century-old great conceptual debate over federalism. The best way to start is to revisit the main arguments for central intervention.At various points in history, our sub-national governments have shown themselves to be ill-suited to four types of essential work: the provision of certain pure and costly public goods; the protection of basic rights; the ability to secure even a minimal social safety net for persons in need; and the regulation of various economic activities that spill harmfully from one jurisdiction to another. Had the original 13 colonies proven capable of providing for the common defense (the quintessential example of a pure and costly public good), the Articles of Confederation might have had a longer shelf-life. Had southern states not enforced white supremacy well into the mid-20th century, there would have been less need for a Federal Civil Rights Act in 1964. Had most states been able to rescue their impoverished citizens from the Great Depression, the New Deal would have seemed less urgent. If more states had had the wherewithal to address widespread environmental pollution, perhaps a national Clean Air Act or Clean Water Act would not have been essential. As James Madison foresaw in Federalist 10, derelictions like these derived in no small part from the ability of entrenched interests to capture small polities: How could the schools of southern cities be desegregated when state governors barred the doors to black students? Will a one-company town crack down on a factory that pollutes neighboring cities but is also that town’s economic mainstay? Abuse, inertia and freeriding are the dark side of local control. When bad laws enable such debilities to paralyze government, citizens will naturally seek redress from a higher authority. When freeriders enrich themselves at the expense of their neighbors, or inter-state rivalries induce a regulatory race to the bottom, or mischievous local factions violate the constitutional freedoms of citizens, the solution seems plain: “Extend the sphere” of governance, as Madison recommended, shifting power from the “smaller” polities to “the Union.”5 But should “the Union” continually extend its sphere when these maladies have abated? It is not self-evident today, for example, that there is less corruption on the national level than at local levels of government. Moreover, the remedy for all these problems, centralization, often proves to be, if not bogus, worse than what it purports to cure. Consider the worst malady: civil rights abuses. By the mid-1960s, redressing the wrongs being done to African Americans was long overdue. But what began in 1964 as a Federal effort to secure equality of opportunity for an egregiously repressed minority gradually expanded into an extensive apparatus of centrally mandated protections and preferences for many additional kinds of claimants. Something seems amiss with a body of Federal law that ushers into the courts plaintiffs who complain that, say, enforcing a seat-belt ordinance intended for the protection of motorists discriminates against people with claustrophobia, or who complain that a strength test is discriminatory because it requires applicants for a local fire department to simulate the real world by carrying a heavy weight through an obstacle course.6
Put another way, it should be an open question whether every new group of “rights” seekers should have standing to demand remedies similar to those that African Americans clearly deserved. So, too, for the question of whether each remedy should continue to be dictated from the center. After all, how many of America’s states today resemble the antediluvian polities—ruled by reactionary governors, malapportioned legislatures, feeble bureaucracies and kangaroo courts—that could be found in parts of the country a half-century ago? In the 21st century, to keep thinking of the states as unreconstructed laggards in the rights revolution is wildly out of touch. Their roles are diverse and uneven, to be sure, but the Feds have not been infallible, either. During World War II, the mass imprisonment of Japanese-American citizens was especially shameful, and that was a decision that came down from the very top. Equally outmoded is the presumption that society cannot entrust much of its safety net to the states. Dire warnings accompanied every stage of the 1996 welfare devolution process, yet the worst fears of its critics have not been borne out. In the period immediately predating reform, states that availed themselves of Federal waivers under the old Aid to Families with Dependent Children (AFDC) program did not slash benefits. On the contrary, the results were so reassuring that the Clinton Administration agreed to convert AFDC to a block grant (renamed Temporary Assistance to Needy Families, or TANF). With their added flexibility under TANF, many states actually liberalized aspects of the benefit structure—for example, permitting welfare recipients who took a job to keep a larger part of their earnings. By the end of the 1990s, the typical “earnings disregard” had reached 50 percent. Some states even started allowing welfare recipients with jobs to keep all their earnings up to the poverty line. A similar pattern prevailed in the Medicaid program: Overwhelmingly, states have sought waivers to expand, not constrict, coverage. The constitutions of the states (unlike the U.S. Constitution) largely require the states to live within their means, and their coffers naturally vary with economic conditions. In lean times states are forced to make adjustments to their social policies. During a downturn, the states will seek additional TANF and Medicaid funding from Washington. A widespread response of states to fiscal pressures accentuated by the capped block-granting of Federal dollars for various functions in the 1980s was to redirect outlays for programs like energy assistance to other social services that were deemed more urgent.7 It is a mistake, however, to reflexively assume that the net effect of such adjustments during bad economic times amounts to “balancing budgets on the backs of the poor.” The overall commitment of resources to low-income families has been especially striking during the current deep recession. TANF, Medicaid and Supplemental Nutrition Assistance (food stamp) spending are up sharply. And even after periods of extensive top-to-bottom restructuring—as when the Reagan Administration consolidated scores of categorical grant programs into a handful of block grants and then tightened their budgets—the states mostly managed to maintain services for the poor.8 There are two basic explanations for these more humane outcomes. First, state budget crises in the postmodern era are nothing like those our grandparents experienced, for the simple reason that now the countercyclical relief extended by fiscal and monetary managers at the national level is enormous, as the massive bailouts and stimulus programs of 2008–09 demonstrate. Second, the political environments in the states don’t tolerate gross indifference toward the truly needy. What about the problem of freeriding and spillover effects? Here, of course, environmental issues come to mind. Certainly a forceful argument could be (and was) made for national enforcement of the Clean Air Act in 1970, 1977 and again in 1990. Emissions that create smog and acid rain are not mere local vexations that dissipate when they reach a border. The case for Federal primacy seems conclusive. But wait. In confronting the most formidable challenge of the day, global climate change, which policymakers have been the true leaders, those in the states or those in Washington? As Barry G. Rabe, a political scientist at the University of Michigan, first reported in an impressive book published in 2004, the states had jumped way out ahead of the Feds.9 Observers of environmental policy today need to catch up with that inconvenient truth: At the end of 2008, a majority of states—28 out of fifty—had adopted renewable energy mandates to cut greenhouse-gas emissions. The nation’s leading producer of wind power is Texas (thanks in large part to a renewable portfolio standard signed into law in 1999 by then-Governor George W. Bush). California, followed by some other states, has adopted automotive tailpipe emission standards far tougher than any regulatory targets enacted by Congress (like those of the deeply flawed Corporate Average Fuel Economy regime). Currently, 23 states have begun banding together to form three multi-state regional zones for carbon-trading. At least one of these compacts, the so-called Regional Greenhouse Gas Initiative (RGGI) organized by ten states in the Northeast, is a model cap-and-trade program. Unlike the recent bills being contemplated on Capitol Hill, RGGI comes replete with an auction system for carbon allowances and a relatively stiff price per ton of carbon. Back to the Laboratories
The amount of creative state-level innovation going on in the environmental field seems counterintuitive: In a world of freeriders, what could possess so many states to join a race to the top? The simple answer is that, during periods of relative Federal inaction, the states in modern times have tended to compensate. But whatever the full story is, the effect extends beyond climate and clean air policy: In several other significant areas, too, state experimentation has been more interesting in some respects than what Congress has put on offer.Consider the top domestic dilemma of the day: health-care reform. As is well known, a number of states have moved toward various forms of expanded coverage. Their experiences—particularly Massachusetts, pioneer of the health-insurance mandate—have been instructive (although not always reassuring). Before going national with comprehensive health coverage, reformers might have been well-advised to continue to monitor state programs such as the one in Massachusetts, and wait to see how they played out. Some other states, too, have experimented with policies that embody greater common sense, fiscal prudence and sound incentives than much of what is being contemplated in Congress to date. In Alabama, for example, state insurance plans simply impose a monthly surcharge on smokers who refuse to quit. By law in North Carolina, state employees who won’t kick the smoking habit, or who are morbidly obese but don’t try to lose weight, face higher out-of-pocket medical expenses. In Indiana, Republican Governor Mitch Daniels engineered a financially responsible expansion of Medicaid: Persons who don’t meet poverty criteria, but earn too little to afford purchasing coverage for themselves, are able to enroll if they establish a Health Savings Account (to which the state, aided by a hike in cigarette taxes, makes a contribution each year). If an account runs dry, a catastrophic insurance plan—essentially a reinsurance pool—kicks in to defray extraordinary expenses.10 Among the “happy incidents” of American federalism, observed Justice Louis Brandeis in 1932, is the way one or more states can serve as a “laboratory” where novel policies can be tried “without risk to the rest of the country.”11 As the nation’s debt mounts alarmingly, Brandeis’s famous insight seems particularly pertinent. Especially today, national policymakers should think twice before launching big new projects that would seem unlikely to shrink the Federal deficit in the years ahead—no matter how alluring, politically or even morally, such schemes might be at first blush. Better to first field-test their components on a less grandiose scale—that is, sub-nationally. A similar point applies to the management of social issues that pose fewer fiscal hazards but can be deeply divisive nonetheless. One wonders whether cultural “wedge” issues would roil the country as much if they were left to the state legislatures to decide as their constituencies saw fit. The case for decentralization is especially strong for disputes for which no national consensus seems attainable, and where the sentiments of local or regional electorates vary widely. Take the abortion issue. This source of passionate cultural discord might have festered less if the Supreme Court had not handed down its verdict in Roe v. Wade. Suppose the Court had sent Roe back down to the state level. Political scientist Gerard N. Rosenberg has argued that a liberalization of state abortion policies was under way before the 1973 decision, and that the court actually may have fomented a backlash rather than accelerated a quiet transition.12 Granted, disparities in state law would have persisted and perhaps even widened in a few places. But paying that price might have been preferable to fighting a decades-long unwinnable national culture war about the definition of human life. The Roe conundrum is now too old and too calcified to dispatch, whether with a single stroke, by overturning the opinion, or under the onslaught of a thousand judicial cuts. In this instance, so belatedly relegating policy back to the states might ignite even wider conflict. But similar reasoning does not hold for several newer controversies, ones still fresh enough to be consigned to the states but that leading “conservative” advocates (and occasional sympathizers on the Supreme Court) have sought to nationalize. Arguments over same-sex marriage, government funding for stem-cell research, assisted suicide, medicinal use of marijuana—why not let the state governments variously test alternative solutions to these unsettled, ethically complex questions instead of seeking national regimentation? Cluttering the central agenda—indeed, the Constitution—with mandates and prohibitions for every new civil dilemma that surfaces in American politics seems a sure way to fan the flames of political polarization. Diverting too much of its limited attention to what de Tocqueville had termed “secondary affairs”, the U.S. Federal government overextends itself. This proclivity courts failure up and down the line, especially when state and local officials lapse into overreliance on the Federal government. That is in part what happened in the Hurricane Katrina debacle despite a formal structure of law, organized around the Stafford Act of 1988, that limits the role of the Federal government in the absence of direct requests from the state. The city of New Orleans and the state of Louisiana proved woefully ill-prepared for the storm, even though everyone knew that one like it would eventually strike the city. Whatever the multiple explanations for their fatal error, part of the story almost certainly was excessive dependence on direction and deliverance by Uncle Sam. Meanwhile, relentlessly pressured to spread their resources nationwide, and unable to plan centrally for every possible disaster that might occur somewhere in this huge country, agencies at the national level, only recently and incompletely recombined in the Department of Homeland Security, faltered just as badly every step of the way—in the flood prevention, the response and the recovery. Federalism, at least in its authentic form, is less a source of such difficulties than a possible answer to them. Arguably, a wider and less ambiguous scope of self-rule for the states would signal that, for most public purposes, most of the time, the buck stops at home, and that Washington’s omnivorous policy process will no longer bite off more than it can chew. But if this exhortation seems compelling, why does it make so little headway? Indeed, of all the policy domains the U.S. political system seems unable to tackle these days, rebalancing American federalism may be the hardest precisely because it goes to the very heart of the problems in our political process. Clearly, engineering an across-the-board disengagement of the Federal government from where it does not or no longer belongs remains a very tall order politically, despite or perhaps because of the lip service paid to the importance of federalism. Both political parties affirm states’ rights and prerogatives; both violate them without hesitation whenever it suits their interest. Nor can we harbor illusions that the presumptive final arbiters of the Federal system, the divided justices of the Supreme Court, will ever be able to end the resulting confusion for us. Moreover, there is evidence that, for all their growing distrust of the parties in Congress, most voters still reject the idea that the states should resolve more of society’s contentious policy debates, and continue to favor national answers instead.13 But who knows? One day, that inclination could change. With politicians in Washington increasingly embroiled in matters unbefitting, in Abraham Lincoln’s phrase, “the majesty of the nation”, Americans might eventually yearn to see more governance returned to their statehouses. That would be a very good thing.
1Tocqueville, Democracy in America, vol. 1 (Vintage Books, 1945), p. 281.
2See Nivola, Tense Commandments: Federal Prescriptions and City Problems (Brookings, 2002), especially pp. 21–3.
3According to the so-called “2-in, 2-out” procedure, at least two firefighters have to remain outside the site of an “interior structural fire” when two go inside. Standard Number 1910.134 (g) (4) (i) through (iii). OSHA, Regulations (Standards 0 29 CFR): Standard Number 1910.134.
4Motor Carrier Safety Administration, Federal Highway Administration, Regulation Number 393.90.
5Madison, Federalist 10.
6Wall Street Journal, June 22, 1995, and Walter Olson, The Excuse Factory: How Employment Law is Paralyzing the American Workplace (Free Press, 1997), pp. 182–3.
7General Accounting Office, Block Grants Brought Funding Changes and Adjustments to Program Priorities (February 11, 1986), pp. 10–12.
8Richard P. Nathan and Fred C. Doolittle, Reagan and the States (Princeton University Press, 1987), p. 7. In a study of 14 states for which fiscal 1984 data were available, ten spent more total funds on social services that year than they did in 1981. See George E. Peterson and others, The Reagan Block Grants: What Have We Learned (Urban Institute Press, 1986), pp. 13–5, 34–5.
9Rabe, Statehouse and Greenhouse: The Emerging Politics of American Climate Change Policy (Brookings, 2004).
10See the convenient summary by Steven Pearlstein, “One Problem with Republicans: They’ve Got the Wrong Mitch”, Washington Post, December 11, 2009.
11Paraphrasing from Brandeis’s dissent in New State Ice Co. v. Liebman (1932).
12Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (University of Chicago, 1991).
13Pew Research Center for the People and the Press, “Pragmatic Americans Liberal and Conservative on Social Issues”, August 3, 2006.