Obama's "progressive federalism" a one-way road to more regulation

The New York Times attempted to coin a catchy new phrase recently, when, in a story about President Obama's laissez faire attitudes about states that regulate in excess of mandates Washington imposes, up popped the term "progressive federalism," which seems the very definition of an oxymoron. Here's the context in which it appeared:

"The Obama administration seems to be open to a movement known as “progressive federalism,” in which governors and activist state attorneys general have been trying to lead the way on environmental initiatives, consumer protection and other issues, several constitutional experts say.

A recent decision by President Obama that could open the way for California and other states to set their own limits on greenhouse gases from cars and trucks represents a shift in the delicate and often acrimonious relationship between the federal government and the states, legal experts say, possibly signaling a new view of federalism.

“I think it’s quite significant,” said Samuel Issacharoff, a professor of constitutional law at New York University law school. “It shows the Obama administration’s more benign view of government intervention,” Professor Issacharoff said, and “may indicate a spirit of cooperative federalism” in which Washington will look to the states for new ideas and even a measure of guidance.

Tom Miller, the attorney general of Iowa, who met with the transition team in December to discuss federalism and other issues, said he believed the Obama administration would “usher in a new era in federal-state relations.” Members of the new administration, Mr. Miller said, “are open to what we’re talking about, what we’re thinking.” They also appreciate, he said, the fact that state attorneys general often achieve a level of bipartisan cooperation when they band together to pursue lawsuits.

The general trend under previous administrations had favored federal pre-emption, the belief that the best law comes from Washington, a concept still favored by business leaders. William L. Kovacs, a vice president for environmental and regulatory issues at the United States Chamber of Commerce, said free-for-all federalism was bad for business and would lead to a “patchwork of laws impacting a troubled industry.” Detroit, Mr. Kovacs said, would have to produce different cars for different parts of the country, and the environmental protection agency would grow tremendously to meet the new regulatory burden.

Many liberal thinkers skeptical of states’ rights and state actions since the days of segregation have begun to see that the states, to use Justice Louis Brandeis’s words from the 1930s, can “serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”


The phrase "progressive federalism" seems designed to have conservatives and libertarians pulling their hair out, since it is the right, by and large, which has owned federalism (or should I call it paleo-federalism?) as an issue in modern times. Although federalism since the founding has served as an ideological ping-pong ball, it is the right that would like to restore a more equitable balance of power between the central government and the states, allowing the latter (in the famous image evoked by Justice Louis Brandeis) to serve as laboratories for civic experimentation, where "novel social and economic experiments" can be tried "without risk to the rest of the country.”

Far from putting the rest of the country at “risk,” such experimentation can fall to the country’s overall benefit, since states, if freed to be creative, could serve as the incubators for true innovation, as happened with welfare reform in the 1990s.

Not only are states better equipped to tailor policies that meet their particular needs, but under this model, Americans can vote with their U-Hauls for the governing approaches that best conform with their beliefs and values. A bit of this goes on now, when, for instance, we read about fed-up people fleeing California for Colorado. But so great has the uniformity become, as Washington's hegemony had grown, that the latitude for real experimentation is gone and the choices open to Americans are becoming very limited.

The insidious thing about "progressive federalism" is that it is a one-way street, selectively employed in a manner designed to relentless increase, but never decrease, government power and control. Obama and other statists are more that happy to see command-and-control California set higher-than-federal auto emission standards, in a case of wag the dog regulating. But states that decide to go another way, and regulate below the federal standard -- who decide, for instance, to opt out of certain provisions of the Clean Air Act or Endangered Species Act -- are out of luck, and will find the federal hammer coming down on them.

The point is made explicit by William Marshall, a law professor at the University of North Carolina who was deputy White House counsel in the Clinton years, when he's quoted by The Times as saying that federal rules should serve "as a floor and not a ceiling,” meaning that states would be allowed to pile new regulations on, but never remove or renounce them.

So much for experimentation. So much for choice. This "laboratory" is designed to produce only one outcome -- more regulation. "Progressive federalism" is another Orwellian attempt to rob words of their meaning -- and might more accurately be described as "faux federalism."