Posted by Ilya Somin: Federalism vs. Decentralization: http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239860012
Malcolm Feeley and Edward Rubin have published [1]an important new book that expands on their previous scholarship arguing that "federalism" - defined as a constitutional guarantee of autonomy for subnational governments - is undesirable in the modern United States. For a sympathetic summary of the book's thesis, see [2]this post by Sandy Levinson. Unlike some other critics of federalism, Feeley and Rubin are not advocates of comprehensive political centralization. Rather, they argue that all the putative benefits of federalism can be better achieved through what they call "decentralization." Even if states lack any constitutional guarantees insulating them from control by the central government, a rational central legislature can allow certain decisions to be made by the states as a matter of policy. Thus, if state officials can make policy in certain areas better than those in Washington, Congress can simply allow them to do so as a matter of policy. There is no need, Feeley and Rubin contend, for constitutional guarantees of federalism. Indeed, such guarantees are actually harmful, since they might hamstring congressional efforts to respond to changing conditions. The major flaw in Feeley and Rubin's argument is that Congress has little or no incentive to pursue anything approaching optimal levels of decentralization. To the contrary, there is likely to be a strong tendency to expand federal power far beyond that point. Federal officials have strong incentives to expand the scope of their power, and numerous interest groups would like to impose uniform rules that prevent dissenting states from going against policies that they advocate. Some scholars argue that overcentralization can be prevented by state governments exercise of their political influence, since they can lobby Congress to limit its infringements on their powers. However, as John McGinnis and I discussed in [3]this article, state governments themselves often have strong incentives to support overcentralization, especially if expansions of federal power are coupled with increased federal subsidies to the states. Others claim that the growth of federal power can be checked by voters, who might punish excessive centralization at the ballot box. But, as McGinnis and I explain, most voters are "rationally ignorant" and have little or no understanding of federalism issues; they are therefore unlikely to effectively check the growth of federal power. More fundamentally, Feeley and Rubin's argument can be used to justify eliminating virtually any constitutional restraints on government power. If Congress can be trusted to rationally determine the optimal use of its own authority, then we don't need constitutionally mandated protection for speech, religion, the rights of criminal defendants, and so on. Even if there is no Fourth Amendment constitutional restrictions on the use of search and seizure, a rational Congress can be trusted to enact appropriate statutory limits on law enforcement authority. Some would argue that limits on central government power have few or no benefits, and that federalism is undesirable for that reason. However, Feeley and Rubin, with their support for "decentralization" don't fall into that camp. Unfortunately, they fail to prove that Congress can be trusted to promote decentralization without the imposition of constitutional limits on its authority. References 1. http://www.press.umich.edu/titleDetailDesc.do?id=106254 2. http://balkin.blogspot.com/2009/04/federalism-political-identity-and.html 3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=578143 _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
