The Federalism Issue

Julian Sanchez concedes the point regarding "nanny state" activity being perfectly reasonable when the people being nannied are children. Instead, he's upset on federalist grounds about the idea of congress making snack regulations for public schools.

To which I say . . . eh.

In practice, arguments about federalism are almost universally made opportunistically. People favor devolving power to the states when they think doing so will produce policies they approve of, and people favor concentrating power in Washington when they think doing so will produce policies they approve of. Everyone knows this. And while one might condemn the hypocrisy of it all, this always strikes me as a good thing to be hypocritical about. I don't really have a principled view about the appropriate division of powers between states and the federal government and don't really intend to develop one. The congressional policy being enacted here seems to me to be a good one, so that's good enough for me.

Comments

"I don't really have a principled view about the appropriate division of powers between states and the federal government and don't really intend to develop one."

Sorry to hear it.

Posted by ostap | December 5, 2007 8:32 AM

The Twinkie Monster will haunt your dreams.

Posted by steve duncan | December 5, 2007 8:33 AM

"In practice, arguments about federalism are almost universally made opportunistically. People favor devolving power to the states when they think doing so will produce policies they approve of, and people favor concentrating power in Washington when they think doing so will produce policies they approve of. Everyone knows this."

Yup.

Posted by Petey | December 5, 2007 8:38 AM

In practice, arguments about federalism are almost universally made opportunistically.

I never quite know what this means. Most arguments are trotted out opportunistically. Where short term goals are given short shrift for some seeming ideal, it's because the arguer thinks that the total set of outcomes that result from respecting the ideal is worth more.

Posted by SomeCallMeTim | December 5, 2007 8:43 AM

The 'federalism' ploy might be opportunistic, but it's not derived by some set of otherworldly principles.

People in Utah and people in Chicago might have different thoughts about the optimal arrangement about such things making a 'one size fits all' policy necessarily inefficient.

Larger organizations are more difficult to manage than small ones and unless there are 'economies of scale' they are always a bad way to go.

The 'federalism' arguement is the same as 'taking seriously empirical facts about the world' arguement, also known as 'being stupid is bad' arguement.

Posted by j mct | December 5, 2007 9:03 AM

Where short term goals are given short shrift for some seeming ideal, it's because the arguer thinks that the total set of outcomes that result from respecting the ideal is worth more.

I think what Matt's trying to say here is that he thinks the inherent merits of neither the strong-federal-government model or the looser-confederation-of-states model are significant enough to justify policy decisions on the basis of their correspondence to one model or another. And in this I am inclined to agree with him.

Posted by James Gary | December 5, 2007 9:05 AM

What SCMT said.

This post is the blogging equivalent of plugging your ears and yelling "I can't hear you!!" when someone else is trying to talk.

Posted by southpaw | December 5, 2007 9:06 AM

That said, school cafeteria food is crap and always will be. 'Twas ever thus.

Posted by southpaw | December 5, 2007 9:08 AM

No, I think there's a little more to what Matt's saying here, SCMT et al.

Here follows an exhaustive list of principled, committed federalists holding elective or appointed office in the past 15 years:

Bob Barr.

It always drove me up a wall that John Ashcroft went to Southern Partisan magazine to talk up the noble history of federalism, then fought against democratically enacted laws in Oregon and California when he was AG.

That said, Julian Sanchez and Andrew Sullivan might be able to claim that they actually believe in that sort of thing. Regardless of whether or not you think this lunch policy is constitutional-- because most things are, what with all the interstate commerce we've got these days-- is it sound?

I say, "yes." The federal government generally has pretty good resources and information on this kind of thing. If local school boards were able to vote to opt out, that would be a happy middle ground.

Posted by Elvis Elvisberg | December 5, 2007 9:19 AM

The fact that the hacks who populate government today treat federalism as little more than a fig leaf to clothe whatever ends they happen to be pursuing, is not a very good argument for the proposition that the appropriate division of powers between various levels of government does not matter. Both the federalists and the anti-federalists thought this issue was crucial. Of course they disagreed about its resolution, but I'll take their judgment on the importance of the question over Matt's and the rent-providers, I mean members of Congress.

Posted by henry evans | December 5, 2007 9:32 AM

It really seems like the school lunch issue is the perfect type of issue for decentralization--it's not a life or death matter, it's not something where we really need uniform standards, and it's the sort of thing where a non-trivial proportion of people really care about the result and whether they can influence the process. Whereas if it's federalized, parents end up with essentially no direct influence.

Posted by Justin | December 5, 2007 9:40 AM

Here follows an exhaustive list of principled, committed federalists holding elective or appointed office in the past 15 years:

Bob Barr.

I would argue that Rehnquist belongs on that list.

Federalism is a tough principle for people who run the federal government to stick to, but that alone shouldn't make it a dead letter.

If you really do want to argue against the principle of federalism, I think you'll find better arguments by looking at the civil rights movement than you will analyzing the congressional rolls of the last 15 years.

Posted by southpaw | December 5, 2007 9:46 AM

I would argue that Rehnquist belongs on that list.

You would be wrong.

Anyhow, Matt's obviously right here. There are some areas where you obviously want to devolve policy control to the states, and some areas where you want to concentrate it at the federal level. To develop an entire ideological ontology that depends on all situations being either one or the other is ludicrous.

Posted by Daniel Munz | December 5, 2007 9:52 AM

'This post is the blogging equivalent of plugging your ears and yelling "I can't hear you!!" when someone else is trying to talk.'-Posted by southpaw

No, it is putting a hand over one ear to tune out the oldies radio station while you talk on the phone.

Posted by Njorl | December 5, 2007 9:55 AM

Thomas Jefferson owned slaves and took up the offer on The Louisiana Purchase.

"How Convenient" tends to trump "High Ideals".

Posted by Jeffrey Davis | December 5, 2007 10:02 AM

southpaw,

I don't mean to "argue against the concept of federalism"-- I am a faint-hearted federalist.

I just think in this instance, the federal government is likely to have more resources and access to more expertise, and is able to make a good policy here.

Like I said, as long as we're in a fantasy world, where federalism matters (ie, comment sections on blogs, rather than where the decision is actually made), I'd prefer to have local school boards able to opt out.

Posted by Elvis Elvisberg | December 5, 2007 10:07 AM

As far as I have been able to determine, there really are principled federalists out there that someone might actually have heard of. My best estimate is that there are 37 of them. The number that hold, have any realistic prospect of holding, or are seeking actual power is within the margin of error.

Posted by CJColucci | December 5, 2007 10:37 AM

Larger organizations are more difficult to manage than small ones and unless there are 'economies of scale' they are always a bad way to go.

So you're saying, larger organizations are always a bad idea... except when they're a good idea?

The 'federalism' arguement is the same as 'taking seriously empirical facts about the world' arguement

...like the empirical fact that a majority of the Dover, Pennsylvania school board believed in creationism? Was it important to take that fact into account?

Are Coke and candy bars healthy in Texas but not in Oklahoma? Or is this one of the many, many empirical facts that actually stay the same regardless of what state you're in?

, also known as 'being stupid is bad' arguement.

...noted without further comment.

Posted by Tom | December 5, 2007 10:45 AM

Everyone knows this.

I just hate it when I'm not part of "everyone".

Posted by Al | December 5, 2007 10:52 AM

"I just hate it when I'm not part of "everyone"

It must be a drag. But being liberals around here, Al, we love the slow children just as much as we love those who easily understand simple things.

Posted by Petey | December 5, 2007 10:58 AM

As MY and others have noted, the "principled" federalist position is just silly. We are a national community, with a national economy and a national culture. people identify much more strongly as Americans than as residents of some state or locality. They are far less likely to know the name of their state legislators than of their Representative or Senator, let alone the President. To the extent that there is a principle at stake here, it favors the federal government, which has the most democratic legitimacy.

And in practice, of course, federal agencies are far more competent and professional, and less completely captured by lobbyists, than their state and local equivalents. So I think MY is wrong to suggest that "both sides" use the federalism argument opportunistically. In fact, it's deployed almost exclusively by people who oppose the use of government in achieving goals with broad popular support. You can't come out and say "profits for junk food manufacturers are more important than kids' health" so you say "federalism!" instead.

Posted by lemuel pitkin | December 5, 2007 11:01 AM

One thing a lot of people gloss over in these debates is the issue of conditional aid. There are a lot of things the federal government simply cannot force states and local governments to do. But, we've developed many programs in which the federal government gives states and local governments money to do certain things--and in those cases, the government does have the right to attach conditions to that aid that, in effect, make states do things. For instance: Under the constitution (federalism) the federal government COULDN'T require all states to raise the drinking age to 21. But it could, and did, mandate a higher drinking age as a condition of federal highway aid.

I haven't seen Harkin's proposed legislation, but I'm guessing the food regulations would be similar--a condition for receipt of federal school lunch funds. There are lots of reasons someone might think this policy is dumb or disagree with it, but if this is conditional aid, the "principled federalist" argument really only makes sense if you think the federal government really shouldn't be giving states/localities money for this program in the first place. My guess is that Julian would probably agree with that, were the question put to him.

Posted by flippantangel | December 5, 2007 11:05 AM

While it is true that "arguments about federalism are almost universally made opportunistically" the fact that you "don't really have a principled view about the appropriate division of powers between states and the federal government" doesn't mean that "everyone" opproaches this issue cynically. It seems likely to me the Sanchez feels stronger about a Federalist approach to government than he does about school lunches. Your post indicates that feels so strongly about the school lunch issue that he "opportunistically" raises the Federalist issue, which strikes me as bass-ackwards.

Posted by phg | December 5, 2007 11:11 AM

Elvis Elvisberg, I'd add Ron Paul to your list of federalist officeholders. From what I've read of him, he's possibly the most principled federalist of them all. Another word for this sort of person is "ideologue". Federalism (his interpretation of it, anyway), is the solution to every problem facing this country. I happen to prefer Matt's pragmatic approach.

henry evans said:

Both the federalists and the anti-federalists thought this issue was crucial. Of course they disagreed about its resolution, but I'll take their judgment on the importance of the question over Matt's and the rent-providers, I mean members of Congress.

I assume, henry, that you are referring to the factions who debated the constitution back in the 1700s? Of course, when you "take their judgment", what you are really taking is your own interpretation of their judgment. This is sort of like an appeal to (one individual interpretation of) the Bible as the holy and infallible word of God.

Posted by Rob Mac | December 5, 2007 11:11 AM

Yes, I was referring to that generation. But I don't think it's controversial that they considered this question somewhat important. Perhaps I'm mistaken.

Posted by henry evans | December 5, 2007 11:14 AM

henry,

I assumed you were appealing to Hamilton and Madison to support your view of the proper role of the Federal government vs. the state governments. I was just trying to say that the views of people long dead on any subject are open to a lot of interpretation.

Posted by Rob Mac | December 5, 2007 11:19 AM

Actually I was appealing to them on the meta question of the importance of the division of responsibilities, not my view of what that division should be. And I'm open to arguments that they didn't consider the meta question important, but I haven't heard any yet.

Posted by henry evans | December 5, 2007 11:21 AM

I think it is pretty obvious that there are certain types of regulation that are well suited to federal control and other types of regulation that are better suited to local control. Historically, the nation has been well served by federal regulation of things like clean air and water, and worker safety under OCEA. In other words, environmental and health and safety regulations that limit certain kinds of potentially harmful conduct (and require certain levels of minimum safety). We're talking minimum standards.

Conversely, local control has worked well where limited budgets require spending decisions based on specific, local circumstances. In other words, we are talking about choosing from a menu of "good things" based on money. Other than some vague arguments about "values," budgetary control is the main reason education has remained under state and local control in this country. (No Child Left Behind has attempted to create "minimum standards" for education across the board to mixed reviews.)

I think a strong argument can be made that children's dietary needs fall under the former category: health and safety regulations that limit certain kinds of potentially harmful conduct (and require certain level of minimum safety). The main problem with this particular legislation is that it seems to go too far in terms of dictating what can and cannot be served to kids. Federal regulation works best when it dictates minimum standards while leaving it up to state and local government to go beyond the minimum if they choose.

So...I guess I disagree with MY. If you approach "federalism" from the perspective that certain regulations are appropriate for federal control while others are better suited with local control, it becomes less about "opportunism" than a rational cost/benefit analysis of the policy issue in question. On the other hand, I agree with MY that a lot of people reflexively yell "federalism!" and pretend it is some high and mighty principle whenever they disagree with a federal policy. In that sense, it is all about opportunism.

Posted by owenz | December 5, 2007 11:28 AM

So the founders thought federalism was important. The America of the 18th century was a very different place from the America of the 21st. And both the Civil War and the early decades of the 20th century saw major realignments of the roles of the federal and state governments. The Civil War established definitively that the US was not a collection of sovereign states, as many of the founders intended, but a single nation. The Progressive and new Deal eras saw a huge shift of regulatory and administrative functions from the states to Washington. So what Madison or Hamilton thought is not dispositive. I'm not sure it's even relevant.

Posted by lemuel pitkin | December 5, 2007 11:29 AM

So what Madison or Hamilton thought is not dispositive. I'm not sure it's even relevant.

Posted by lemuel pitkin | December 5, 2007 11:29 AM

=================================================

So let's just do away with that stupid Bill of Rights, just gets in the way all the time.

Another principled voter for the "living Constitution". Keep the parts you like - ignore the parts you don't

Posted by Campesino | December 5, 2007 11:38 AM

One caveat to the above: I acknowledge that there is a certain fringe element in this country that believes that Congress lacks the constitutional authority to regulate activities occuring primarily within the states (e.g. a very restrictive reading of the Commerce Clause). Congress has had extremely broad authority to regulate since the 1930's, however, and that authority has only been limited twice in the last 70 years in two extremely narrow decisions set down by the Rehnquist Court in the 1990's. In terms of current constitutional law, Congress has nearly unlimited regulatory powers. Arguing to the contrary places you in the extreme minority (even if Clarence Thomas agrees with you).

With all that in mind, I would reiterate that "federalism" is best approached from the starting point that certain types of regulation are well suited for federal control while other types of regulation are better suited with state or local control. A practical approach allows us to weigh the merits of proposed regulation without getting all mucked up in "principles" of federalism that have been essentially rendered meaningless by 70 years of Supreme Court decisions.

Posted by owenz | December 5, 2007 11:50 AM

The doctrine of dual sovereignty is (last I checked) alive and well. What's really changed since the Civil War and the New Deal is the division of labor between federal and state governments. Not the idea that it's important that there be a clear understanding of that division. To say that knowing or having an opinion about the line between federal and state prerogatives is unimportant is almost equivalent to saying that the rule of law is unimportant.

Posted by henry evans | December 5, 2007 11:51 AM

Well, the Constitution IS a living document, whether you like it or not. Before the Civil War, the states were arguably sovereign; afterwards, they were not. Many of the protections we think of as being in the Bill of Rights are really creations of the Warren Court. And most relevant to this post, the powers Congress exercises under the Commerce Clause are much broader than they were a century ago. And what George Clymer or Caesar Rodney or whoever were thinking 200-odd years ago doesn't change any of those facts.

Posted by lemuel pitkin | December 5, 2007 11:58 AM

A practical approach allows us to weigh the merits of proposed regulation without getting all mucked up in "principles" of federalism that have been essentially rendered meaningless by 70 years of Supreme Court decisions.

Exactly.

Posted by lemuel pitkin | December 5, 2007 12:01 PM

If you could time warp the Founders to our time, I think Hamilton would hog out on Fritos and become a 400 lb couch potato, whereas Jefferson would be smart enough to realize that this is crap.

Posted by Jalmari | December 5, 2007 12:32 PM

One caveat to the above: I acknowledge that there is a certain fringe element in this country that believes that Congress lacks the constitutional authority to regulate activities occuring primarily within the states (e.g. a very restrictive reading of the Commerce Clause).

The Commerce Clause has nothing to do with this particular regulation.

Congress funds the school lunch program as part of its "general welfare" spending power. Congress can condition its grant of money on compliance with the rules.

A "no junk food in schools" rule not tied to any federal spending would plainly be unconstitutional. A "no junk food in schools if you're going to take our money" rule, however, is a different matter altogether.

Posted by rea | December 5, 2007 12:51 PM

Hey, not fair. I totally made a Federalist argument against this approach despite being strongly in favor of the policy in general over at Ezra's blog.

thpppt.

Posted by Punditus Maximus | December 5, 2007 1:23 PM

My fondness for federalism has grown over the last 7 years. I think it would be more difficult for a minority government to so badly damage the country if power was not so centralized. There is undoubtedly a cost for this protection; regulation is not as efficient. It seems that the cost would be small as most creation of regulations are intellectual effort, and this type of information if the type that has become easier to transmit and share (as opposed to enforcement which is not easily transmitted).
In addition, it would give us comparisons between approaches that are not possible in a standardized environment. What is the effect on group health if marijuana is allowed via prescription? California could have told us, now we won't know.
Centralized control of the regulatory progress favors the minority in rural states. As congress oversees the process, and the Senate is allocated on 2/state regardless of population, the unbalanced representation will favor the rural and agricultural over the urban and industrial. As it is, federal taxes collected in populous states (e.g. California, NY) are spent in inefficient ways in smaller states (e.g agricultural subsidies). For example see: http://www.calinst.org/bulletins/b1023.htm#_1_5

I am against this sort of blackmail to impose additional regulations. I'm concerned that it will be subject to regulatory capture (http://en.wikipedia.org/wiki/Regulatory_capture) and the most well intentioned imposition will become required cheese sandwiches(American cheese and vitamin fortified bread of course).

Thanks for listening
Mawado

Posted by mawado | December 5, 2007 1:57 PM

I care about ideological diversity, particularly as a means of testing out new ways of doing things. I think federalism is a good way to achieve this. I like federalism even when I dislike the particular decisions that localities make. And I really dislike it when people tell me that I don't really believe what I think I believe.

Posted by Anna | December 5, 2007 2:21 PM

There are a few different types of federalism in play here:
(1) The "hard law" of federalism -- some stuff the national government just can't do. Much of this has been eroded by more expansive readings of the commerce clause, but the practical trump is spending clause bribery, e.g., conditioning highway aid of a higher drinking age, which Congress wouldn't bother with but for the "hard law" aspect of federalism;
(2) The "practical" federalism of the sort owenz advocates. Some things just make more sense handled on a state or local level. No real principle about it, just what looks like good sense all things considered. I'm not sure if Matt disagrees with this. I suspect he doesn't.
(3) "Habit" federalism. There are issues where Congress has the raw, constitutional power to act, and uniform national laws seem to make more sense than a state-by-state partchwork, but that's just not how we do it in these parts. Congress could have imposed the Uniform Commercial Code on the states, but instead, states adopted it on their own, often making local changes that detract from the uniform regulation of commercial matters that the UCC was supposed to promote in the first place. The proposals floated by what would otherwise be states'-rights Republicans to regulate tort suits would be another example.
The likelihood of opportunistic federalism rearing its ugly head is usually highest in category (3).

Posted by CJColucci | December 5, 2007 2:58 PM

The federal government generally has pretty good resources and information on this kind of thing (Health and wellness as it relates to nutrition).

No.
They don't.

The Federal government uses BMI (which is slightly less useful than phrenology), the Food Pyramid (which would make anyone following it in proper portions into a blue whale), and, according to this proposal, thinks Red Bull is better for you than diet coke. Ever watch CSPAN? Is it really so surprising that a bunch of old, bloated politicians don't know the first thing about physical excellence?

If I wanted a nutritionist to tell my kid what to eat, I wouldn't exactly be speed-dialing Chris Dodd, Dennis Hastert and the snack food industry.

Posted by Shinyk | December 5, 2007 3:10 PM

Ron Paul is also a fairly principled federalist. He's pro-file, and would outlaw abortion in his state, but doesn't think there's any federal issue there.

I think it's odd that a smart guy like Matthew can't even seem to comprehend the arguments for our constitutional system.

Posted by too many steves | December 5, 2007 4:30 PM

Obviously I meant "pro-life." I don't really know what it would mean to be "pro-file." Paul's against filing your taxes, right?

Posted by too many steves | December 5, 2007 5:22 PM

"I think it's odd that a smart guy like Matthew can't even seem to comprehend the arguments for our constitutional system.

Posted by too many steves | December 5, 2007 4:30 PM"

This seems to me to be a bit of a strawman. He doesn't say that there shouldn't be separate spheres for the the states and DC here. He's just arguing against using federalism as a general principle when deciding if something is a good policy. I personally never figured out (beyond the racists who use state's rights as a cover for segregation) what it is that really motivates people who are really strong on one side or the other of this issue. A lot of the time the Constitutional barriers of action are rather vague, especially with how historical developments and modern technology have changed issues over the centuries. I don't really see how basing your ideology around this is anything less than a waste of time once you accept the fact that sometimes either DC or the states are better equipped to handle something and it's not unconstitutional. For me, it is more of a question of freedom. I'm in favor of Oregon's medical marijuana or euthanasia laws because they increase freedom. I'm against federal laws banning pot because they decrease freedom. I'm in favor of Roe v. Wade because it increases freedom. I am against the SD abortion ban because it decreases freedom... etc.

Posted by Reality Man | December 6, 2007 11:10 AM

Here's an issue that I believe may make some of the posters in this thread, Matt included, into instant federalists: gay marriage. If you don't care about vertical separation of powers, then you tacitly admit that it's appropriate for the federal government to get involved with passing laws (or constitutional amendments) regulating this matter, notwithstanding the fact that the law of marriage has been part of the States' police power since time immemorial. Moreover, if the federal government of the moment is dominated by conservatives in favor of banning gay marriage and/or civil unions, then your tacit endorsement of federalizing state issues extends to an endorsement of conservatives' ability to impose their views as a matter of national policy. The progressive advances of States like Massachusetts and Vermont will be on less-sure footing, and subject to veto by national electoral majorities, regardless of the preferences of citizens in Massachusetts and Vermont.

Another example might be the D.C. gun ban that the Supreme Court will take up next term. I would argue that is a great example of something we should let the states hash out, because it profoundly affects local interests, and it is highly contentious in that it is unlikely that a citizen of Houston TX and Boston MA will ever agree on it. Why force them to agree - or suffer the other's notion - by federalizing gun regulation?

Posted by Colin F. | December 6, 2007 2:19 PM