Participating in the federalism panel at FedSoc’s 2012 National Lawyers Convention, Yale Law Professor Heather Gerken said that she is a member of the pro-federalism tribe. She sought to make the “progressive” case for federalism. The biggest challenge for persuading progressives on this matter is the issue of race, she said. In Gerken’s view, federalism plays an important role in the economic and political integration of minorities.
Gerken credited the Federalist Society with being the “lawyerly tribe who actually thinks about importance of state power.” She addressed the audience: If you care about state power, then the spending clause is the place to look. Think of it as generating opportunities for uncooperative federalism; state sovereignty is rarely to be had in current system—since the federal government has too many paths available to achieve its ends. The key is that states can be powerful within the federal system. Those who study principle/agent law understand that there is the power of the servant in addition to that of the master. It is the power of dissent and resistance.
According to Gerken, the real question is: given the numerous areas the federal government regulates, do states want to stay on the sidelines? If you worry about growth of the administrative state, you must focus on the roles of states in that reality. She said ironically, “Good luck with trimming the administrative state.”
Addressing Chief Justice Roberts’ Obamacare spending clause ruling, which upset liberals, she said that she thinks of it as a rough first effort to find a principle that say you cannot pull rug out under an agent when the agent rebels. His decision might admittedly not be ideal, but involves an issue that should be talked about.