Robert A. Mikos

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Ohio State Law Journal

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federalism, states rights, judicial review


Conflict of Laws | Constitutional Law | Law


Extant legal scholarship often portrays citizens as the catalysts of federalization. Scholars say that citizens pressure Congress to impose their morals on people living in other states, to trump home-state laws with which they disagree, or to shift the costs of regulatory programs onto out-of-state taxpayers, all to the demise of states' rights. Since Congress (usually) gives citizens what they want, scholars insist the courts must step in to protect states from federal encroachments. By contrast, this Article proposes a new theory of the populist safeguards of federalism. It develops two distinct but mutually reinforcing reasons why populist demands on Congress do not portend the demise of states' rights. One reason is that the demand for federalization (assuming it even exists) may be ineffectual. Due to the heterogeneity of citizens' policy preferences and the anti-majoritarian structure of federal lawmaking, proponents of national legislation may be unable to garner the votes needed to pass congressional legislation that trumps state prerogatives. The second more fundamental reason is that citizens may be inclined to limit federal authority rather than to expand it. The theory identifies several reasons, overlooked in the scholarly literature, why citizens may oppose congressional efforts to expand federal authority vis-à-vis the states, even when Congress could enact a policy that most citizens would prefer on the merits. First, citizens may fear that congressional action on one issue (however desirable) may pave the way for unwelcome federal action on related issues in the future. Second, citizens may prefer to have state, rather than federal, officials administer policies, not only because they trust state officials more, but also because they can keep state officials on a shorter leash. Third, citizens may value political processes, and not just the outputs of those processes; they may be willing to sacrifice desired policy outcomes at the federal level out of respect for direct democracy and federalism. The Article closes by discussing some implications of the theory for ongoing debates over the judicial review of federalism.



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