Abstract
Ben Merriman has written an informed and engaging book on how American federalism is being altered yet again, and how the agents and dynamics influence that change. The book focuses on Republican state officials’ innovative methods to challenge Obama administration policies, and it concludes by showing that Democratic state officials are adopting the same methods to challenge Trump administration policies. The Republicans’ innovative challenges to federal policies came after shifting away from “states’ rights” and developing an expertise in administrative procedures. Their efforts have redefined American intergovernmental relations and, Merriman suggests, may have shifted the policy dynamic in favor of the states on issues such as social welfare, voting rights, and environmental policy.
Merriman’s analysis begins with an acknowledgment that modern American federalism’s “foundation in the Constitution and statutory law is relatively weak” and “surprisingly fragile.” That foundation relies, to a great degree, on three elements, all of which are being challenged. The first element is the federal intergovernmental grant system, which Merriman describes as “a negotiated arrangement arising from material inducements to cooperation,” and which is being challenged by some states rejecting federal dollars in favor of political principles. The second element is “bipartisan support for a large national government,” which has now “proceeded as far as [that] implicit bipartisan consensus allowed.” The final element is the judiciary’s 20th century “deference to the executive” now being challenged by state Attorneys General and a suspicious Supreme Court. Consequently, Merriman concludes, the present form of American government should not be treated as inevitable.
The state Republican officials’ challenge to federal policies erupted during the Obama Administration, but it was three decades in the making. Its roots rest in state Attorneys’ General growing capacity, which stems from three primary sources: Congress authorizing the states to challenge administrative agencies’ administrative decisions (beginning in the 1970s); the Supreme Court’s increasing skepticism toward federal administrative agencies’ discretionary claims (first expressed during the Bush Administration); and significant groundwork laid by conservative organizations (such as the Federalist Society) who shifted sympathy in the federal judiciary away from agency discretion and developed many of the legal arguments and strategies states used to challenge undesirable federal policies. In addition, state Attorneys’ General legal successes (e.g., against big tobacco) increased the resources, experience, reputation, and prestige of the state Attorneys General. Once Republican officeholders won a significant share of state Attorneys General seats, the pieces were in place for them to challenge federal policies. The Tea Party was more catalyst than cause.
The best-known tool state Republican officials developed to challenge federal policy is lawsuits. This strategy rests on a judicial decision that rejected a Bush Administration’s Environmental Protection Agency (EPA) decision (Massachusetts v. EPA, 2007), and granted states the privilege of “special solicitude” allowing them standing to sue federal administrative agencies where other groups were denied. Republican state officials used this privilege and growing judicial skepticism about federal agencies’ discretion to challenge federal policies in the courts. Coordinating with other friendly states, Republican state Attorneys General sued in multiple federal district courts hoping for either a favorable ruling or conflicting rulings that would elevate the case to the Supreme Court.
Republican state officials also claimed “administrative interests” to adopt novel policies and new positive rights that contradict and challenge federal policies. Examples of these include state immigration enforcement policies, right-to-try laws, and the right to a secret ballot (even in union elections). Despite no landmark ruling or major shift in how judges approach the law, these strategies achieved remarkable success challenging federal policy.
Republican state officials used many traditional means to obstruct and delay the implementation of federal policy, but they also refused large sums of federal money and created interstate compacts to facilitate their opposition to federal policies. Interstate compacts have yet to produce significant resistance to federal policy, but they possess potential as a fundamental and powerful workhorse in the intergovernmental system. Their success, however, relies on a complacent Congress, because Congress has the constitutional authority to reject interstate compacts.
The chapter on “voter restriction laws” examines Republican-led states’ voter laws and their likely consequences. Although unintended, this chapter provides excellent background for understanding the Supreme Court’s 2019 majority decision to abstain from partisan gerrymandering cases (Rucho et al. v. Common Cause et al.). The chapter includes a thoughtful review of whether these laws prevent legitimate voters from exercising their right to vote, repeatedly qualifying that the laws “may” or “likely” prevent legitimate voters from exercising that constitutional right. However, the chapter should now be supplemented with new studies that both challenge and support these claims. One oversight is that the chapter fails to note that the Constitution gives Congress the authority to alter state regulations governing the time, manner, and place of federal officials’ elections, thereby providing another potential check on state election laws.
The data for this book come largely from public documents or open records requests. Merriman notes that he intended to interview state officials studied in this book, but he found that he could get the desired information through requests. However, interviews would have been helpful if only to verify his descriptions and analyses. For example, I do not think the officials he studied would agree with all of the seven goals and commitments he attributes to them as Conservatives. Consider the first objective which is, “Continuously reduce taxation and government expenditure, preferably by automatic or compulsory mechanisms” (p. 4). This assumes that Conservatives hate government and favor taking taxes and government expenditure to zero. Maybe in an ideal Conservative world, but Conservatives do not believe an ideal world is possible; and they favor order, law, and security, which requires a healthy government. Running these goals and commitments past his studied Republican officials in interviews would have been a good test of their accuracy.
Another complaint with the book is that some of the word choices take on an inaccurate and partisan flavor. This is no critique of the book’s chronicling and analysis, which is consistently balanced, well-supported, and very insightful. The most obvious example is the book’s title, Conservative Innovators, which, Merriman writes, “seem[s] to belie a standard idea of conservatism” that opposes reforms and experiments—it is an understanding Merriman allows to stand. Yet, few Conservatives, including Edmund Burke, Russell Kirk, or William F. Buckley, oppose change or innovation per se. The title, thus, reaffirms an inaccurate understanding of conservative beliefs and principles.
Similar problems arise in describing Republican state officials as “Choosing Conflict,” favoring “states’ rights,” and adopting “voter restriction” laws. “Choosing Conflict” creates an image of state Republican officials making a conscious choice to escalate their disagreements into unnecessary and illegitimate martial strife, but nothing in this book justifies such connotations for Republican officeholders using the constitutional and legal tools available to them in a checks and balances system, or in a judicial system that is, by design, adversarial. “States’ rights” is used by some conservatives, but many others recognize it as a loaded term hearkening back to unconstitutional justifications for slavery and Jim Crow laws that do not reflect a conservative understanding of either individual rights or states’ powers, responsibilities, and limitations. Choosing “voter restriction” as the label for these laws favors a partisan political slogan over a neutral term, such as “Election and Voting” laws. The author also consistently refers to the Republican officials at the center of his study as Conservatives. Yet, when considering the state Attorneys General using these tactics to frustrate Trump administration policies, they are called Democrats, not Liberals or Progressives. Why associate one group of public officials with their political party and the other with an ideology?
The consequence of these word choices is an implicit partisan bias that detracts from the book’s excellent and balanced analyses. These word choices may, unfortunately, lead some to reject that analysis, confirm existing biases that academics are not fair and balanced, and unnecessarily feed partisan fires. And, although the book focuses on state officials’ partisan activities, it is important to remember that bipartisanship still defines a considerable number of state officials,’ including state Attorneys’ General, interactions with other federal and state officials.
Overall, this is a valuable book for understanding the movement, tools, and strategies state officials developed to oppose federal policies, and which are currently reshaping American federalism. The writing is clear, concise, and engaging. It is appropriate for scholars in the field, and graduate classes seeking to understand those tools along with the background that led to their development.
As a result of these Republican innovations, states now possess powerful tools to challenge executive policymaking that bypasses Congress and the states. Whether policymaking momentum shifts to the states, as Merriman suggests, depends significantly on Congress, because Congress holds many financial and constitutional powers to constrain the states precisely in these areas. Until Congress asserts itself, Merriman shows that it is the states’ innovative and energetic efforts that are pushing federalism’s boundaries and giving the states greater influence in national policymaking.
