Federalism and Constitution Day once more

OK, I relent. I was not going to say any more about this issue.

But Steven posted the other day a further clarification of a point he and I have been bouncing forth and back and forth again, with Scott also getting into the mix (and all of us making appearance in the comments to Scott’s post).

The main question, as I see it, is to what extent does Congress violate the principles of federalism when it imposes its policy will on the states through earmarks, mandates, and the like, outside its enumerated powers? My answer is, not at all, because the very principle of federalism is that the central and state governments each have their independent sovereignty and they are free to enter into mutually beneficial relationships or not, as each side sees fit. If states don’t want the mandate, they can refuse the cash and approach the policy their own way, with their own funds.

Steven, in his “fourth time” post, agrees that there is no real “federalism” issue raised when Congress sees a problem that states are more capable of administering and offers money in exchange for states addressing the problem under terms set down by Congress. He uses food stamps as an example (see the fourth paragraph of the just-linked post), and it is a good example. (As an aside, I am quite sure that he is right that this is an aspect of federalism that is not well taught in our schools, including, I would note, our universities. Outside of my classes, of course.)

So, what is Steven’s objection?

…what I find irksome is when the policy relationship entered into between the state and federal governments can then be used by the feds to adjust its demands on the states. Byrd’s rider in the appropriation bill is just that sort of ex post alteration to the contract…

But wait a second! This is the problem, I think: seeing policy bargains between sovereign institutions as contracts. That is the wrong analogy. It is an ongoing series of transactions, not a relationship governed by any single transaction as formalized as the word contract implies. A contract, properly understood, requires a neutral third-party enforcer. (Regular contracts among citizens and corporations, for example, being enforced under the government’s contract laws.)

Transactions between governments in a federation, on the other hand, are exchanges between independent authorities with only weak third-party enforcement. The judiciary can be involved if there is a question of constitutional jurisdiction, but it is not as if every individual transaction between federal and state governments is subject to judicial review. Besides, the judiciary in question is part of the federal government, even if the purpose of Senate confirmation procedures is to involve an institution that, at least in theory, represents states. (Increasingly it represents the party with the manufactured majority of seats, rather than the states, but that is another thread.)

I find it interesting—and it is a theme I am developing with coauthors on two projects, one on Mexican presidentialism and federalism, and the other on the US in comparative perspective—that the founders of the US Constitution were very explicit, in the Federalist Papers, about the transactional relationship they were setting up between the executive and the legislature: Institutions with separate agency that would have to work together to accomplish their respective goals. However, they did not elaborate a similar transactional relationship between national and state governments. They appeared to think of the levels as having a more separate existence.

Yet the very logic of the separate yet overlapping institutions of federalism mandate a theoretically almost identical transactional relationship as that between the separate but overlapping branches of any one level. If the founders did not foresee it this way, it is only because they imagined greater separation of tasks between the levels of government than between the branches of the federal government.

Yet, in their wisdom, the founders did not bar Congress from carrying out other functions beyond those explicitly enumerated. This allowed the functions of the federal government to grow without overtaking the sovereignty of the states. Each level still has to bargain with the other. And, because congressional power originates in part from the states (at least in theory), congress does not make laws in some sort of hypothetical vacuum in which the same interests arising out of the states are somehow not represented at the federal level.