The Supreme Court’s doctrine of expansive federal power is much weaker than the original meaning of limited government.
In a previous post, I explained how constitutional federalism uses two levels of governments to protect liberty and restrain the state. In contrast, the new school of national federalism uses two levels of government to create a more activist and burdensome state than one level does.
First, scholars advocating national federalism do not see much, if any, role for judicial enforcement of the Constitution’s textual limitations on the federal government. That failure alone allows the federal government to be much more intrusive than permitted by the design of the Framers. Moreover, failing to enforce the enumerated powers also can kill useful policy competition among the states, because a single federal policy then replaces many state policies. Sometimes such competition deadening federal statutes are passed at the behest of state officials who, not unlike private actors, would prefer not to compete if they can create a cartel and an easier life. Constitutional federalism, in contrast, protects a beneficent distribution of powers that the Constitution’s agents cannot undermine to the public’s detriment.
Second, so-called cooperative federalism—the form of federalism that national federalists most admire—is a recipe for bigger government. Cooperative federalism occurs when the federal government passes a regulatory framework with or without some federal funds attached and then the states carry out the program.
Federal money for local needs enlarges government. The nation will get higher levels of spending for local projects than locals want if the money comes from the national rather than the local kitty. Think of what happens to incentives when diners agree beforehand to split the check equally for a fancy dinner. And multiply the problem by a few hundreds of billions and you will appreciate the consequences of that kind of revenue sharing.
But even when cooperative federalism is not funded in whole or in part by the federal government, it is more likely that state officials will acquiesce in federal regulation of local problems, if they can get a piece of the enforcement action.
Such programs also blur the accountability prized by constitutional federalism. Who is responsible for the problems in the program—the feds who created it or the state officials who carry it out? And with less accountability we also get more government.
Heather Gerken, the Dean of the Yale School, proudly says that national federalism is not “your father’s federalism.” That may be well be true, but neither is it “our Framers’ federalism.” It hijacks a structure of liberty for progressive and activist ends.