Joanne Freeman has written a brilliant book, but she misses something crucial: a collapse of political space, not acts of violence, caused the Civil War.
As the 113th Congress winds to a close, there are a lot of complaints about its lack of productivity, not least from the President himself. The Senate and the House are controlled by different parties and do not agree on much. But the resulting gridlock has one great virtue. It promotes federalism by preventing Congress from preempting the policy choices of the several states.
This effect is all the more important in the modern era, because the Constitution’s original protection of the political space for state policy making—the enumerated powers—has been almost entirely destroyed. It is true that the Supreme Court slightly revived constraints on the federal government in United States v. Lopez, but the actual effects of that revival have been more symbolic than consequential. On economic matters, as a matter of positive law rather than the original meaning of the Constitution, the federal government enjoys almost plenary powers.
But happily federalism is also protected by the difficulty of enacting federal legislation—which is more than a parchment barrier. Federal laws can be only be enacted with the agreement of both Houses and the President. This requirement in effect creates a mild supermajority rule, making it harder to enact legislation to preempt the states at a time, like now, when the nation is closely divided between the parties.
For fans of federalism, this division has a silver lining that outshines the clouds of partisan rancor. Federalism has many virtues. It allows for a diversity of policy that reflects the diversity of sentiments in our vast continental nation, permits jurisdictional competition by which citizens can vote with their feet for the policies they prefer, and offers the opportunity for social scientists to study the result of those divergent policies. The latter enterprise has more value than ever before as the combination of greater computational capacity and greater methodological sophistication has allowed social scientists to use the variation among state policies to assess their effects.
For instance, because Congress cannot enact a higher minimum wage, decisions about raising it are left to the states. Their decisions reflect different preferences and tradeoffs and the results can be studied. The same is true for the President’s other current domestic priorities, like creating more infrastructure projects. State rather than national decisions about these projects are generally welcome because the greatest effects of the projects will be felt on the states that finance them, promoting fiscal accountability. The gridlock of today also reminds us that if it had existed in 2010 we would still be learning from the different state plans in health care. One of the worst consequences of Obamacare was to end much useful experimentation at the state level.
To be sure, there are some matters like reform of the federal tax code that states are powerless to push forward. But these matters may be fewer than thought on first reflection. And Congress can unite quickly on public goods essential to national security, as it recently did in voting material support for our closest ally in the Middle East.
Given the advantages that gridlock provides to federalism, it important to make sure that the President cannot go beyond the law out of a desire to promulgate policy that he cannot get through Congress. The Courts should not acquiesce in the notion that when there is gridlock in Congress, the authority of the President must grow. It is not a time for legal enhancement of executive authority, but for a return to state lawmaking.