A Bad Paper about Federalism

Whoof. “Federalism and the End of Obamacare” has been sitting in a tab since this summer. Time to read it!

Let’s start with the abstract:

Federalism has become a watchword in the acrimonious debate over a possible replacement for the Affordable Care Act (ACA). Missing from that debate, however, is a theoretically grounded and empirically informed understanding of how best to allocate power between the federal government and the states.

Well…maybe? I’d like to see some evidence that that understanding is necessary…or missing…or desirable. Do we need to know how to “best” allocate power between federal government and the states? Best in what sense?

For health reform, the conventional arguments in favor of a national solution have little resonance: federal intervention will not avoid a race to the bottom, prevent externalities, or protect minority groups from state discrimination.

Well…preventing insurance selling across state lines helps with a race to the bottom. And health care was already significantly nationalised cf Medicare, Medicaid, and, you know, the employer health care deduction.

Instead, federal action is necessary to overcome the states’ fiscal limitations: their inability to deficit-spend and the constraints that federal law places on their taxing authority.

I think this is sorta reasonable. Enough on the abstract…it makes me a bit wary, but not despondent.

At the core of our federal system is the principle that the states should take the lead unless there is a need for national action.

No. This is tendentious. I’m not even sure what “take the lead” should mean. The core of federalism, if anything, is  that there is a division of power between the federal government and the states and this division is inherent. That is, it’s not a modifiable “gift” from one to the other. The UK government is not a federal system: the UK parliament is supreme and devolution of power is voluntary and revokable. Parliament could claw back all the power devolved to Scotland by mere majority vote.

Now, obviously, it’s one vision of whywe have federalism is that lots of things are better handled at the state level yadda yadda. The federal government is free to, with its own power, to act more nationally (a la Medicare) or devolve some to the states (a la Medicaid). The latter is definitely more in the spirit of “laboratories of democracy” vision of how US federalism should be. But that’s not a direct aspect of US federalism.

Federalism is said to foster political participation, to enable experimentation, and, especially, to allow states to tailor their laws to better suit the preferences of their citizens.

And screw other states or exclude large swaths of its citizens from political participation. Plus, when we look at states like California…c’mon. It’s huge. If it is “tailoring” so to can the federal government.

Purely as a strategic matter, the emphasis on federal law needs some defense. By way of comparison, consider same-sex marriage. When Massachusetts eliminated its prohibition on same-sex marriage in 2003, advocates did not turn immediately to the Supreme Court. They built the groundwork for a national strategy by winning in state courts and state ballot boxes.

Oh come on! You have to work a case up to the Supreme Court. And Lawrence v. Texas was in 2003. But also, you had Bush in the White House thus strong White House opposition. As this time line shows, there was a lot of legal activity, some of which made it to the Supreme Court. The fight over DOMA was federal!

My point is that this throwaway line presents the fact that there was a 12 year gap between the 2003 MA decision and the 2015 Obergefell decision as if it was a deliberate choice by activists with a suggestion that they were motivated by “federalism” concerns.

Aside from this almost certainly being false (there was no monolith, people were primarily motivated by tactical and strategic considerations, to a first approximation, all advocates of gay marriage would have been fine with a federal solution as early as possible.

And really, is it federalism if the states startsomething but then the feds (e.g., the Supreme Court) imposes it uniformly? What variance is possible then? How are we tailoring things to the local populations.

In any case, marriage is weird because marriage was traditionally something managed by the states. You get your marriage license from a state, hence going to different states to avoid annoying regulations in your home state. Federal involvement primarily is: All states must recognize all marriages from other states and the federal government makes uniform policies on all the diversely regulated marriages.

My point is that this is a shitty example, with shitty backup, presented in a shitty way. This is NOT what I want from someone purporting to give a careful theoretical and empirical analysis of federalism.

Given that I’m not professionally obliged in anyway to read this, I’m going to stop. Maybe there’s gold later on, but with this much upfront  garbage, I’m out.


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