Far be it for me, a certified fan of federalism and decentralization, to look a gift horse in the mouth. If Trump’s victory spurs my colleagues to endorse an institutional arrangement the benefits of which are timeless, that is a silver lining to a calamity, even if one suspects that the endorsing of federalism is a little bit opportunistic.For the rhetoric of federalism to sound convincing, however, one needs to have paid up one’s “federalism insurance premium.” Otherwise, one’s op-ed in favor of those labs o’ democracy, those deciding dissenters, will sound…. about as inspiring as the 1812 Overture played on a kazoo. What do I mean by “federalism insurance premium”? Think of a federal regime as an insurance policy, protecting the risk averse against loss of national power. When one’s Party loses the commanding heights of the federal government, federalism insurance allows that Party to retreat into the provinces as a semi-loyal opposition, a shadow government waiting in the wings, advertising its virtues with Massachusetts Miracles and the Texas Way with Deregulated Housing and so forth. Like all insurance, however, the protection comes at a price: One must pay the “premium” of protecting subnational power when one controls the national government, tolerating subnational experiments that one regards as more Frankenstein than Brandeis.So here is my question to all those new friends of federalism: Is your federalism insurance premium paid up? For instance, when the Obama Administration was forcing colleges and universities to adhere to federal procedural standards for sexual assault hearings contained in its “Dear Colleague” letter, did you stand up for those subnational institutions’ right to resist coercive Title IX conditions on federal money? No? Then do not be surprised if your pro-federalism rhetoric about the immunity of sanctuary cities to “coercive” conditions falls a little flat.We pay for constitutional insurance through self-control when we have power, not through rhetoric when we lose it.
December 20, 2016 at 3:47 PM EST