Vol. 30 No. 1 (January 2020) pp. 6-11
CONSERVATIVE INNOVATORS: HOW STATES ARE CHALLENGING FEDERAL POWER, by Ben Merriman. University of Chicago Press, 2019. 232pp. Cloth $105.00. ISBN: 9780226620312.
Reviewed by Benjamin Kassow, Department of Political Science and Public Administration, University of North Dakota. Email: Benjamin.kassow@und.edu.
Overall, Benjamin Merriman’s book CONSERVATIVE INNOVATORS: HOW STATES ARE CHALLENGING FEDERAL POWER is a must read for three reasons. First, the book describes in considerable detail and nuance a recent change in intergovernmental relations; that is, the ability and interest of states to be able to effectively defy the federal government-federal bureaucracy, in particular against policies created by the executive branch that they may not agree with. Second, the book lays out an interesting discussion as to why these changes have largely occurred in the past ten to fifteen years. Third, the book contains three rich examples of areas of policy where conservative state executives have attempted to retrieve power from the federal government: the Balanced Budget Amendment, an increasing role for states with regard to voter rights, and a wide variety of policies, focusing most broadly on the Office of the Repealer in Kansas under the Brownback administration.
As is the norm, the first chapter focuses primarily on addressing the proverbial “so-what” question, and why readers should care about the rest of the book. This chapter centers around how recent history has changed the relationship between the federal government and state governments by addressing the historical relationship between the federal government and state governments over an extended period of time. It also discusses federal governmental issues that encouraged an increase of power to the executive branch, resulting in increased degrees of Congressional delegation to the executive branch (Kerwin and Furlong 2011) and a larger focus on the federal budget as a primary issue for Congress to address (see Sinclair 2011). The chapter concludes by laying out what will be discussed in the remaining chapters in a rather extensive way. [*7]
The second chapter builds off Chuck Epp’s conceptual idea of the importance of support structures for creating legal change, but shifts it in a rather different direction compared with THE RIGHTS REVOLUTION (Epp 1998). Merriman argues that three changes to conservative legal support structures in recent decades have made it easier to implement legal change, stating early in Chapter 2 that, “Whenever there has been intergovernmental friction or disagreement in recent years, multi-state litigation has rarely been far behind” (p. 30). Merriman notes the critical importance of multi-state litigation and an increased degree of professionalization in state attorney general (SAG) offices for allowing this movement towards challenging the validity and/or applicability of federal regulations and executive orders. Additionally, the Supreme Court in recent years has become increasingly receptive to limiting precedents such as CHEVRON that grant a relatively high discretion to federal agencies with regards to rulemaking in the absence of a clear Congressional mandate (see MASSACHUSETTS V. EPA, 2007, as an example of this). Finally, with more Republicans controlling SAG offices in states, an increased availability of resources towards conservative movements is now available compared to the past, when more of these offices were controlled by Democrats. This general framework makes sense and is not one that is restricted to one party (Democrats could use these same tools and advantages into the future).
Chapter 3 conceptualizes state “defiance” towards federalism, in what Merriman terms “uncooperative federalism.” While the chapter highlights to a large extent on how states have defied federal policy both by refusing federal dollars to implement desired policy and through the creation of interstate compacts, the chapter focuses more so on how interstate compacts facilitate things like multi-state litigation and serve as coordinating tools for states to work together. The book discusses a variety of recent examples of interstate compacts (some relatively controversial, others less so), but ultimately chooses to narrow in on the Compact for a Balanced Budget in the most detail. While I found this portion of the book to be interesting, I think perhaps including another in-depth example or two would have been helpful to provide the reader with a better sense of how these compacts are being used. However, the discussion of the Compact for a Balanced Budget is highly nuanced and essentially concludes that the compact requires minimal state resources, allows for easy coordination, and engenders little organized opposition due to it [*8] largely having a low degree of visibility. Interstate compacts also have several advantages over other state-based methods of organization, given that governors can veto the attempted removal of a state from a compact and are explicitly seen as a constitutionally valid method of organization in the U.S. Constitution. The discussion in Chapter 3 is quite compelling and lays out a strong conceptual map as to how states can systematically attempt to defy federal government policy if said states do not wish to go along with federal policy.
Chapter 4 focuses on issues related to voting rights and the history of such laws in the United States. The chapter provides an interesting discussion of the history of federal regulation of regulations, beginning with the Jefferson Administration and continuing through the National Voter Registration Act (NVRA), passed into law during the Clinton administration. Merriman continues by arguing that several policy and legal changes inadvertently created the conditions for state resistance of federal voting rights policy: most notably, HAVA and the Supreme Court decision, CRAWFORD V. MARION COUNTY ELECTION BOARD (2008), which upheld the constitutionality of a voter ID requirement in Indiana. Merriman shows that it has been difficult to challenge restrictions to voting passed by state legislatures for several reasons, including giving state officials less discretion how to enforce laws, and the localization and fragmentation of these laws, with federal courts generally giving states substantial leeway to create their own methods to verify who is able to legally vote, provided the laws are facially neutral (this comes from the fact that the Equal Protection Clause of the 14th Amendment and Article 1 give the role of guaranteeing equal districts to Congress).
Chapter 4 continues by discussing how voter ID laws may decrease voter turnout, such as requiring IDs and/or increased documentation to be able to vote, and then discusses the Crosscheck program. The Crosscheck program is based on states voluntarily submitting information about their rolls to the Kansas Secretary of State’s office. This program flags voter rolls for duplicate registrations and has found anywhere between 3.6-14.5M potential duplicate votes based primarily on the name of a potential voter and their date of birth. It is up to individual states to decide what to do with the flagged matches, but the book notes that African Americans are disproportionately affected by the matches due to specific distributional patterns of surnames resulting from the legacy of slavery (Haines 2006; Laversuch 2011). This case [*9] seems rather compelling, although it would be interesting to see more information as to how state legislatures and judiciaries have dealt with questions of voting rights laws passed by states, as there is a rather overwhelming focus on the state executive branch in this chapter.
Chapter 5 describes a variety of changes and conservative policies that occurred in Kansas during the Sam Brownback administration. Merriman argues that the inclusion of Kansas specifically is useful because it is seen as a laboratory by other states (although this seems somewhat of an endogenous rationale) and that the governor in Kansas is relatively strong compared with the state legislature, making it easy for a governor to affect policy. While this argument is valid, it does seem a rather extreme case, given that no other state has pursued the policies specific to Kansas to the same extent for a variety of potential reasons (intrastate competition, divergent economic conditions, among other possibilities). So perhaps a brief discussion of other highly conservative states would have been useful to create more of a comparison among states.
Merriman notes that the partisan control of Kansas has been very stable (strongly Republican) although the actual policy outputs coming from the Republican Party in Kansas has varied dramatically since its founding as a state. Governor Brownback had a great ability to reorganize the state government, subject only to a veto override, and created the Office of the Repealer, which was charged with finding waste in the Kansas state government and repealing laws that were seen as wasteful or duplicative. The office has complete discretion as to what policies get submitted to the legislature for potential repeal, and has the choice to listen to public suggestions or to decline to do so. While the discussion here is interesting, I think more information on the role of the Kansas legislature would be quite useful, given that it is ultimately the legislative branch that gets to decide what should be repealed after this office makes a recommendation.
Chapter 6 concludes the book and argues that President Trump, from an institutional perspective, has governed in a relatively conventional way. In addition, President Trump’s reliance on executive orders makes these policies potentially prone to defeat in the federal judiciary, therefore giving states latitude to try and defy President Trump (as some conservative states did during the Obama administration). Finally, the book notes that liberal states are now responding to the Trump Administration in very similar [*10] ways and using similar tools to those of conservative state who put up resistance to the Obama Administration. While quite preliminary, this finding perhaps suggests that the tools listed in this book may be used by both parties into the future, at least when they do not control the presidency.
I find the general gist of the book – focusing on how states have attempted to resist federal government policies that they disagree with – compelling. The examples given, especially with regards to voting rights and the Balanced Budget Compact, effectively illustrate Merriman’s key arguments. However, I wonder a bit about what the role of state legislatures is in this story. Are they merely passive observers to what state executives are doing? Are they tacitly fine with what state executives are doing? Or is the story something else? This general question may be interesting for a future book. Finally, the role of state judiciaries may also be important to examine, especially given recent developments in North Carolina regarding gerrymandering (see COMMON CAUSE V. LEWIS, 2019; North Carolina Superior. Ct., 18 CVS 014001). Having said that, I was hoping to see a greater accounting of the role of state courts and legislatures as a part of conservative innovation and would be able to tell a fuller story than is currently the case. Finally, I was also curious to hear about examples where conservative innovation was successfully stopped by the federal government (or more on why it wasn’t), as it would have been interesting to have some degree of a case that shows the limits of Merriman’s theory. That would have been helpful for evaluating the theory in full and would have added some additional nuance to the argumentation. Finally, it would have been very helpful to see more discussion about the role of state attorney generals (SAGs), perhaps by examining the joining of various amicus briefs authored by SAGs, and/or state attorneys, more generally, since this was described as an important part of the causal framework in Chapter 2. Despite these potential areas for new research, which in my view always come out of well written books, and desires for the book to cover some additional territory beyond what it does, this book is very much worth reading and is strongly recommended.
CASES:
CHEVRON U.S.A., INC. V. NATURAL RESOURCES, 467 U.S. 837 (1984). [*11]
COMMON CAUSE V. LEWIS, 18 CVS 014001 (N.C. Superior Court, 2019).
CRAWFORD V. MARION COUNTY ELECTION BOARD, 553 U.S. 181 (2008).
MASSACHUSETTS V. ENVIRONMENTAL PROTECTION AGENCY, 549 U.S. 497 (2007).
REFERENCES:
Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE
PERSPECTIVE. Chicago: University of Chicago Press.
Haines, Michael R. 2006. “Population, by Sex and Race: 1790-1990.” In HISTORICAL STATISTICS OF THE UNITED
STATES (millennial ed.) ed. Susan B. Carter, 48-51. New York: Cambridge University Press.
Kerwin, Cornelius M., and Scott R. Furlong. 2011. RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND MAKE POLICY. 4th ed. Washington, DC: CQ Press.
Laversuch, I.M. 2011. “May Change Name and Pretend to Be Free’: A Corpus Linguistic Investigation of Surnames Adopted by Fugitive Slaves as Advertised in Colonial American Newspapers between 1729 and 1818.” NAMES 59(4): 191-203.
Sinclair, Barbara. UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCESSES IN THE U.S. CONGRESS. 4th ed. Washington, DC: CQ Press.
© Copyright 2020 by the author, Benjamin Kassow.
