by John D. Nugent. Norman: University of Oklahoma Press, 2009. 344pp. Hardcover $45.00. ISBN: 9780806140032.
Reviewed by Philip A. Dynia, Political Science Department, Loyola University New Orleans. Email: dynia [at] loyno.edu.
It is (arguably) the “oldest question of [American] constitutional law,” as Justice Sandra Day O’Connor suggested in NEW YORK v. UNITED STATES, namely, “the proper division of authority between the Federal Government and the States” (at 150). As with a leading competitor for “oldest question” laurels (i.e., the proper division of foreign policy and war-making authority between Congress and the President) the Constitution gives us not so much a clear solution as an “invitation to struggle” (Edward S. Corwin’s felicitous phrase).
Justice O’Connor was a key player in the Rehnquist Court’s relatively short-lived, tentative, and perhaps ultimately futile efforts to restore “state sovereignty” to its rightful role in “our federalism.” Other Justices, Blackmun most notably in GARCIA v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, argued (echoing scholars like Herbert Wechsler and Jesse Choper) that the interests of the states were best protected by the political process and that the Court should allow the political branches to work out the boundaries of federal and state authority.
Recent decades have produced a growing scholarly literature on how political and policy making efforts clarify the ambiguities and silences of the Constitution’s text (e.g., Keith Whittington’s notion of “constitutional construction”). But, as John Nugent notes in his introductory chapter, the focus of this literature has been on separation of powers and civil liberties questions more than federalism. Nugent seeks to fill the gap “by describing and explaining the many nonjudicial determinants of the state-federal balance of authority” (p.5). (Nugent eschews, because of their analytic weakness, concepts such as “state sovereignty” or “states’ rights.” He prefers his concept of “legalistic state-governmental interests” (p.28) which encompasses statutory, constitutional, and judicial demarcations of the boundaries of state and federal authority.)
Nugent argues that there is no single scholarly literature on federalism but rather (at least) two literatures. Political scientists (Nugent’s training and background) “almost never cite law review articles on the constitutional aspects of American federalism, and legal scholars rarely give more than cursory citations of the political science literature on federalism, intergovernmental relations, and public administration” (p.7). Nugent sets himself the task of synthesizing the constitutional and policymaking approaches to provide an explanation of how state officials perform a vital constitutional function by attempting to check and balance their counterparts in the federal government. Such a synthesis [*553] involves four streams of research by legal scholars and political scientists: the literature concerning the “political safeguards of federalism;” scholarship concerning the ways in which Congress and the President participate over time in clarifying and interpreting ambiguous constitutional text, a process variously “referred to as nonjudicial interpretation, constitutionalism outside the courts, constitutional construction, coordinate construction, and departmentalism” (p.10); political science and public administration works on federalism and intergovernmental relations; and the literature of public policymaking and public administration.
Little is said – a conscious decision on Nugent’s part – about the role of the judiciary in protecting the interests of state governments, for two reasons: much has already been written on the ways the federal courts safeguard state-governmental authority, and (more importantly) judicial review may invalidate actions outside the bounds of federal power but does little to constrain the exercise of power within those bounds. Nugent wants to discover “what states can do to protect their interests vis-à-vis the federal government even when perceived federal encroachments do not rise to the level of constitutional violations” (p.15).
Specifically, he poses and answers three questions: “How do state governments protect and promote their interests vis-à-vis the federal government today? What exactly are those interests? How do state officials’ efforts to protect and promote the various interests of their states affect our understanding of the U.S. Constitution’s division of authority between the states and the federal government” (p.4)?
The answers he develops come down to certain essentials. State governments protect their interests today through constructive engagement with the federal government rather than “brinksmanship” (e.g., Governor Wallace standing in the schoolhouse door). The interests that are of most concern to states officials are three-fold: legalistic (i.e., states’ legal authority to act independently of the federal government), fiscal (i.e., states’ desire for adequate and predictable federal funding), and administrative (i.e., states’ desire for at least some flexibility and autonomy when they implement federal policies).
Since the text of the Constitution contains few formal means by which states can check the federal government, state officials (governors, state legislators, and state administrators being the key players) utilize a set of informal powers and practices these officials have developed over time. They are by no means as decisive as a formal veto over federal action; rather, they provide state officials with ongoing opportunities for constructive involvement in making and carrying out federal policy. These opportunities exist at the prelegislative, legislative, and postlegislative stages of the federal policymaking process.
Thus, in any particular policy area, state officials may attempt to retain policymaking authority for themselves by passing quality legislation that obviates the need for federal policymaking in that area (e.g., the Uniform Commercial Code, whose uniformity is the result of the Code’s [*554] legislative adoption in each of the states). If Congress decides to act, state officials can attempt to influence the content of federal policies as they are being written by Congress (e.g., governors’ involvement – most notably then-governor Bill Clinton – during committee markups of the 1988 welfare-reform legislation). Finally, state officials can attempt to influence the rulemaking process through which federal agencies spell out the details of frequently sketchy federal law (e.g., state officials and lobbyists contacting agencies during the process of formulating and promulgating rules and regulations), and where states are given a role in the process of enforcing federal policies (as they are in a greater number of ways than often realized) they can promote their state interests in the enforcement process (e.g., states’ implementation of the “highly qualified teachers” requirement of the No Child Left Behind Act – a term that was largely left to the states to define).
Slightly more than one-half the book is devoted to three chapters dealing with a variety of case studies that document in depth the examples in the above paragraph, in addition to a number of others. These chapters provide considerable empirical evidence for Nugent’s central claim that state officials currently have a variety of means of checking and balancing federal power (in a sense, the real political safeguards of federalism) and thus retain a significant reserve of authority in the American constitutional system. That conclusion, rooted in an understanding of state-governmental interests, was developed through “two streams of original qualitative research in the form of personal interviews and content analysis” (p.231). The personal interviews involved several dozen individuals working on state-federal relations in some capacity; the content analysis examined the 1998 policy positions adopted by the National Governors Association and the National Conference of State Legislatures and of the governors’ 2002 state-of-the-state addresses.
Among the personal interviews were 22 done with various staff members of governors’ Washington office staff. Many (this reviewer included) might be surprised at the notion of a state’s governor having a Washington office and staff. (As of the date this book went to press, 35 governors maintained offices in the nation’s capital – as did hundreds of individual counties, cities, townships, and other special districts.) Nugent was intrigued, when he learned of this fact in a brief conversation with a colleague at a political science convention, as to what staffers in those offices did. From that casual conversation came the research that led to Nugent’s dissertation and now this book.
Some of his initial conversations with these staff members convinced him that state officials perceive interests that frequently differ from those perceived by U.S. senators (their own included) and other federal officials. By the end of his project, Nugent had demonstrated that states have significant, manifold opportunities to protect those interests in the national policymaking process.
Nonetheless, Nugent notes in a chapter “summing up the political safeguards of federalism” (p.213) what he describes as the “apparently widespread scholarly and popular belief today that the federal [*555] government has swallowed up our state governments and that it is ever growing, all powerful, and generally successful at running roughshod over those helpless governments” (p.215). While even the neophyte political science undergraduate has heard of “Article VI” and “preemption,” Nugent shows that even if states “lose” their fights at one stage of the federal policymaking process, they generally have opportunities during the next stage to affect a policy’s content, interpretation, implementation, or reauthorization.
Nugent’s view of federalism is not, he explains, widespread for several reasons. First, media coverage of state-governmental policymaking and implementation “tends to be inconsistent at best” (p.214). Few people care what is happening in states other than their own, and political journalists have little incentive (or perhaps even requisite training) to present “a broad comparative picture of how officials in a variety of states interact with their federal counterparts” (p.216). Second, national politicians of both major parties (who tend to get disproportionate media attention) “have little incentive to tout the power and capacity of state governments” (p.216). Republicans interested in shrinking the federal government will exaggerate its size and scope to justify proposed tax cuts, deregulation, and “getting Washington off our backs.” Democrats interested in – (a) initiating (b) maintaining (c) expanding (d) all of the above – federal programs undoubtedly exaggerate the federal government’s capacities to cure our ills even as they question the ability of states to provide solutions. (Nugent also observes that even state officials often overstate the power of the federal government in order to promote the view that they are at its mercy.)
Nugent also responds to those who argue that American federalism is not “real” federalism but rather a pale reflection of what the Framers had in mind (how one knows what it is they had in mind is another story entirely). “Unless state governments possess at least some decision-making authority that cannot be trumped by the federal government . . . there are no real limitations on federal authority” (p.224). Nugent disagrees (even as he concedes that American federalism is certainly different today from what it was 50 or 100 or 150 years ago).
In the final analysis, states’ ability to check and balance perceived federal encroachments on state-government interests stems from their capacity to generate effective public policy, the expertise and experience they bring to the implementation of state and federal policy, their employment of large state workforces that give them considerable administrative capabilities, and the fact that elective state officials represent the popular will. If anything, Nugent argues, the evidence he presents suggests “that states have greatly increased their capacity for democratic, professional, and effective self-governance and that they have developed a robust set of institutions to facilitate interstate cooperation and to strengthen their individual and collective hands in dealing with federal officials” (p.225).
This reviewer agrees. At the same time, one must also agree with Nugent’s characterization of his conclusions – they are “preliminary and warrant further testing in a wider variety of [*556] policy areas” (p.217). The search for generalizations in these matters is complicated by the fact that every public policy generates its own particular grouping of supporters and opponents, takes place in a particular (political, cultural, social, and economic) context, and is driven by complex factors not all of which may be discernible by scholars. Moreover, federalism is not “a single relationship between states and the federal government but, rather, a heterogeneous set of relationships whose features and dimensions are not all agreed on or unidirectional” (p.227). Such problems notwithstanding, the approach that Nugent has laid out – fully recognizing the complexity of American federalism and the difficulty of saying in any given policy area exactly where federal power ends and state power begins – is sound and deserves further studies taking their inspiration from this important and valuable work.
Choper, Jesse H. 1980. JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS. Chicago: University of Chicago Press.
Corwin, Edward S. 1962. THE PRESIDENT: OFFICE AND POWERS. New York: New York University Press.
Wechsler, Herbert. 1954. “The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government.” COLUMBIA LAW REVIEW 54: 543-560.
Whittington, Keith E. 1999. CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING. Cambridge: Harvard University Press.
GARCIA v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY, 469 U.S. 528 (1985).
NEW YORK v. UNITED STATES, 505 U.S. 144 (1992).
© Copyright 2009 by the author, Philip A. Dynia.