ACSBlog: The Blog of the American Constitution Society

column by Ian Millhiser, Editor-in-Chief

Following up on ACSBlog Editor Joel Zuercher's An Emergence of Progressive Federalism?, Salon has picked up on this meme, examining both angry cries for blue-state secession, and more serious appeals to localized power.

As Salon points out, progressive cries for decentralizing government are fueled by an equally vocal rejection of federalism by the right. In the past decade, a conservative nationalism has intruded upon state tort awards, upon education standards, and even upon state marriage laws. "Once conservatives got in power, they forgot federalism," says Cardozo Law Professor Marci Hamilton, one of the leading proponents of the Court's current federalism jurisprudence. "They left that principle in the dust and rushed to control the states that were now engaging in social experiments."

Hamilton explains that with conservatives controlling the federal government, the states become the only logical staging grounds for liberal initiatives. "The issue," she says, "is how do you get power in a circumstance where you don't control the federal government."

There are, however, limits to a single state's power, even within its own borders.

In enacting the Fair Labor Standards Act, the New Deal Congress recognized that certain regulations are only effective when applied to every state. They noted the "race to the bottom" which occurs when large employers can flee regulation simply by moving to another state.

The "race to the bottom" theory assumes that business owners wish to maximize profit, which can only be done by maximizing income while similtaneously minimizing expenses. Therefore, an employer who must choose between opening a factory in one state, where the minimum wage is high, or another state, where it is far lower, will choose the state with a lower miniumum wage. This places the more worker friendly state in a bind. A state wishing to protect its workers will soon find itself hemoraging jobs, and will inevitably choose to match the less protective regulation of its neighbors. The New Deal Congress sought to stop such declining conditions, and so they enacted worker protections at the federal level.

Thus, one could argue, given the race to the bottom phenomenon, certain regulatory goals might be realizable only at the national level. Opponents of living wages and mandatory overtime may accomplish their goals either by controling the federal government or by shifting power away from the federal government to the states. Conversely, workers' rights advocates can only accomplish their goals by controlling a strong, centralized federal government. Of course this race to the bottom is restricted to cases where one state's deregulation can infect another, and in areas such as stem-cell research, or marriage equality, "one courageous state may," in Justice Brandeis' words, "serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." In certain economic zones, however, the actions, or inactions, of the federal government will speak far louder than any state legislature.