Constitutionalizing the Dispute: Federalism in Hyper-Partisan Times

Abstract

This article describes how partisan actors during the Obama years have escalated polarization by transforming policy disputes into constitutional contests over the ground rules of the federal system—contests, moreover, in which one bloc of politically like-minded states opposes another. The article examines in particular how Republicans have supported strong claims of state sovereignty, and in some cases resurrected the antebellum doctrine of nullification, to deny to either Congress or the executive branch the authority to reform state health care markets or to limit states’ emissions of greenhouse gases. Democrats have reinforced the partisan divide by declining to debate the constitutionality of their policies, instead invoking supposedly settled judicial precedent; and by enabling President Obama to create new federal policy through direct negotiation with like-minded states, thus circumventing congressional obstruction. Ironically, both parties appear willing to shrink the power and authority of an already diminished Congress, a development with unsettling implications for the future.