In the Press
Tuesday, May 24, 2022New York’s Red-Flag Law Failed in Buffalo. Here’s How to Fix It. — A Commentary by Ian Ayres ’86 and Fredrick Vars ’99 The Washington Post
Tuesday, May 24, 2022A Conservative Lawyer’s New Target After Abortion: Affirmative Action The New York Times
Tuesday, May 24, 2022Abortion Questions for Justice Alito and His Supreme Court Allies — A Commentary by Linda Greenhouse ’78 MSL The New York Times
Monday, May 23, 2022SEC Prepares to Crack Down on Misleading ESG Investment Claims Financial Times
Tuesday, December 6, 2016
Q&A: Professor Heather Gerken Discusses Progressive Federalism
With Republicans about to take control of all three branches of the federal government following the November election, many progressives are rediscovering federalism. In a widely cited 2012 article for the journal Democracy, J. Skelly Wright Professor of Law at Yale Law School Heather Gerken reminded us that federalism isn’t just for conservatives. She pointed out that federalism and localism can be useful sites of politicking for people of all political stripes, pointing to examples of major progressive victories in states across the country, from marriage equality to gun control to increasing the minimum wage and even marijuana legalization. We asked Professor Gerken, who was recently cited by the New York Times as the progressive federalism movement's “intellectual guru,” to talk about her work.
1.) Can you explain what exactly progressive federalism means for those who are not familiar with the concept?
My main goal is to convince people that federalism, which most people associate with conservatism, doesn’t have a political valence. Progressives have long ignored the many democratic benefits associated with federalism and localism because they associate decentralization with racism and parochialism. They look to the national government to protect racial minorities and dissenters. But this is not your father’s federalism. Because minorities can rule at the local level, states and local governments have become sites for empowering racial minorities and dissenters, the very groups that progressives believe have the most to fear from decentralization. The same-sex marriage movement is just the most well-known example of progressives using state and local power to further their ends. But much of the work on the environment, immigration, the minimum wage, policing, etc. is being done at the local level these days. The same holds true on the conservative side – most of the action on gun rights, abortion, and the like is happening at the state and local level.
2.) When did you first become interested in studying this? What drew you to it?
I’ve been writing about these issues for more than a decade, but I don’t fit particularly well in any academic category. As I’ve written in the Yale Law Journal, I’m a nationalist who believes in federalism, for instance, which means I come to these issues with a different perspective than most of the people who value state power. I also spend a lot of time thinking about race and dissent. Most of the people who share those interests tend to write on the rights “side” of the Constitution – the First and Fourteenth Amendment. But I write about constitutional structure.
3.) In your opinion, what are some of the most effective examples of progressive federalism in action?
The same-sex marriage movement, the legalization of marijuana, environmental reform (particularly out of California), immigration (particularly providing government-issued i.d. to undocumented residents), and gun control.
4.) How do you anticipate progressive federalism might be used as a tool under a Trump administration?
I’m just an academic, so I’m not leading any movements. But I would predict that progressives will take a chapter from the playbook of their conservative counterparts. In addition to using state and local sites to push a progressive agenda, progressives are likely to refuse to cooperate with federal policies they oppose. Because the federal government depends so heavily on states and localities to carry out its policies, states and localities have a good deal of leverage over federal law. Red states, for instance, put pressure on the Obama administration to adapt and waive the requirements of the ACA by refusing to take part in the program without those changes. We’ve always called these arrangements “cooperative federalism.” But, as Jessica Bulman-Pozen and I have written in the Yale Law Journal, in fact we see a great deal of “uncooperative federalism” in the United States. My guess is we’ll see “uncooperative localism” as well. The sanctuary cities movement is an example. Cities across the country have been telling the Trump administration that they won’t assist with federal deportation efforts. We’ll see what the Trump administration does in response.