A recent New York Times article reports that President Obama "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. . . ." To support this conclusion, the article cites to Obama's recent which directs the EPA to reconsider the Bush administration's denial of several states' requests to set higher emissions standards than federal law requires. Although I agree with Obama's decision, the article makes too much of this single order. Also, in an effort to portray Obama as fundamentally altering the nature of federalism and states' rights, the article ignores that fact that progressives have a long history of promoting change through state and federal politics.
Liberals Have a Long History of Invoking State Power to Create Change
Throughout history, both liberal and conservative causes have appealed to state autonomy. But slavery, the Civil War, and subsequent debates over racial justice have made states' rights almost synonymous with conservative politics. Southern states justified slavery and Jim Crow in part by appealing to principles of state autonomy -- a view most dramatically asserted through secession.
Abolitionists, however, also invoked state autonomy to challenge the institution of slavery. States began abolishing slavery long before the ratification of the Thirteenth Amendment. And prior to the national prohibition of slavery, "free states" frequently refused to comply with federal statutes that prohibited individuals from assisting runaway slaves. One of the most dramatic displays of a state's resistance to federal law occurred in 1854 when the Wisconsin Supreme Court purported to invalidate the Fugitive Slave Act of 1850. The court also ordered a federal marshall to release a local abolitionist whom he had arrested for freeing a runaway slave from federal custody.
And while the 1960s expansion in civil rights is commonly viewed as a triumph of national interests over local concerns, this description, though true to a great extent, distorts the vanguard role of states in the advancement of equality. For example, in 1945, New York enacted the nation's first law that prohibited employers from discriminating on the basis of race; the federal equivalent passed nearly twenty years later. The New York statute served as the model for federal legislation.
And during the latter part of the 20th century, liberal reform took place as a result of state and federal cooperation and from lobbying by state governments. The Violence Against Women Act of 1994, for example, passed with enormous support and encouragement of state governments. And the Low Level Radioactive Waste Policy Act of 1980, along with various 1985 amendments, resulted from years of negotiations between the National Governors' Association and Congress. Ironically, conservative Supreme Court rulings invalidated portions of both of these statutes as exceeding the scope of federal authority and as invading state autonomy, despite the heavy participation by states in the development of both laws.
By portraying Obama's EPA order as the novel recognition that state autonomy can advance liberal causes, the New York Times article distorts the history of liberal activism within states and the impact of liberal state policies on federal legal reform. This observation holds true in the environmental law context as well. When the Bush-era EPA rejected California's request for permission to apply more stringent emissions rules than federal law requires, this was the first time in 40 years that the agency refused a request by the state to exceed federal requirements. Contrary to the position of the article, the EPA has a history of allowing states to go above federal law.
The rhetoric of states' rights has served as an important instrument for progressive and conservative politics. When states want to pursue more liberal policies than the federal government, liberals support state autonomy and federal cooperation. But when states want to implement more conservative policies than the federal government, conservatives advocate federal restraint while liberals advocate federal preemption.
Obama seemingly embraces the idea of allowing several states to implement stronger emissions standards than the federal government. Had the states sought an exemption to weaken law in the area, liberals would not have supported their request. Accordingly, Obama's openness to state reform in this area has little to do with him subscribing to a new view of federalism. Instead, Obama is simply doing what liberals have done historically: He is using states to promote more progressive ideas than the national politics would tolerate.