Negotiating Conflict Through Federalism: Institutional and Popular Perspectives

Abstract

The contours of our federal system are under constant negotiation, as governments construct the scope of one another’s interests and powers while pursuing their agendas. For our institutions to manage these dynamics productively, we must understand the value the system is capable of generating. But no single conception of this value exists, because the virtues and costs of any particular federal-state relationship, in any given federalism controversy, will appear different depending on perspective: the federal, state, and even local will each perceive their own advantages. And none of these conceptions will map perfectly onto the people’s perceptions. In this essay, I attempt to answer the question of what federalism might be good for from each of these perspectives by considering how it has structured various regulatory and social controversies in recent years on matters such as immigration, marriage equality, drug policy, and health care reform. I focus on the administrative and enforcement judgments that each of these debates has required, in order to illuminate the discretionary spaces in which much of the work of federalism occurs. I argue that the value of the system common to all participants and that should govern the negotiation of inter-governmental relations is its creation of a framework for ongoing negotiation of differences large and small. In the spirit of this Feature, I emphasize that having many institutions with lawmaking power enables overlapping political communities to work toward national integration, while preserving governing spaces for meaningful disagreement when consensus fractures or proves elusive. This essay is part of a symposium in the Yale Law Journal exploring the concept of "Federalism as the New Nationalism," with contributions by Heather Gerken, Alison LaCroix, Abbe Gluck, and Jessica Bulman-Pozen.

Keywords: federalism, constitutional theory, immigration federalism, marriage equality, drug policy, cooperative federalism, negotiated federalism