Obama Seems to Be Open to a Broader Role for States

The Obama administration 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, several constitutional experts say.
Skip to next paragraph
Blog
The Caucus
The Caucus

The latest on President Obama, the new administration and other news from Washington and around the nation. Join the discussion.

* Election Results | More Politics News

A recent decision by President Obama that could open the way for California and other states to set their own limits on greenhouse gases from cars and trucks represents a shift in the delicate and often acrimonious relationship between the federal government and the states, legal experts say, possibly signaling a new view of federalism.

“I think it’s quite significant,” said Samuel Issacharoff, a professor of constitutional law at New York University law school. “It shows the Obama administration’s more benign view of government intervention,” Professor Issacharoff said, and “may indicate a spirit of cooperative federalism” in which Washington will look to the states for new ideas and even a measure of guidance.

Tom Miller, the attorney general of Iowa, who met with the transition team in December to discuss federalism and other issues, said he believed the Obama administration would “usher in a new era in federal-state relations.” Members of the new administration, Mr. Miller said, “are open to what we’re talking about, what we’re thinking.” They also appreciate, he said, the fact that state attorneys general often achieve a level of bipartisan cooperation when they band together to pursue lawsuits.

The general trend under previous administrations had favored federal pre-emption, the belief that the best law comes from Washington, a concept still favored by business leaders.

William L. Kovacs, a vice president for environmental and regulatory issues at the United States Chamber of Commerce, said free-for-all federalism was bad for business and would lead to a “patchwork of laws impacting a troubled industry.” Detroit, Mr. Kovacs said, would have to produce different cars for different parts of the country, and the environmental protection agency would grow tremendously to meet the new regulatory burden.

Many liberal thinkers skeptical of states’ rights and state actions since the days of segregation have begun to see that the states, to use Justice Louis Brandeis’s words from the 1930s, can “serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

Professor Issacharoff said states were often quicker than Washington to spot a problem when it emerged, and so “it may be the states that have the best initial take on it, and try different regulatory methods until we fasten on a single national solution.”

States have taken up the challenge of consumer protection, addressing issues like predatory lending well before the federal government took action, and often achieving reforms by suing the federal government to force it to enforce its laws and through legal settlements with industry. In October, 11 states reached an $8.4 billion settlement with Countrywide Financial in which it agreed to modify home loans to help people at risk of foreclosure. And in 2006, 49 states and the District of Columbia reached a $325 million settlement with the Ameriquest Mortgage company to change its policies.

Attorneys general also pressured major universities to adopt a code of conduct regarding their relationships with student lending companies. Eliot Spitzer, the former New York attorney general, achieved a settlement with the pharmaceutical company GlaxoSmithKline in 2004 in which it agreed to release more information about the risks to patients that had come out in clinical trials.

The Obama administration, then, is embracing a states’ rights movement that a liberal could love. “The pro-regulatory folks realized in the last eight years that the old line on federal power being the only good power wasn’t correct,” said William Marshall, a law professor at the University of North Carolina who was deputy White House counsel in the Clinton administration and a former solicitor general of Ohio.

“It doesn’t mean you abandon the federal regulatory process — you don’t, of course,” Mr. Marshall said. “But you treat it as a floor and not a ceiling.”

He added, “The Obama administration is signaling that state regulations may very well complement federal regulations, and they can both work together to achieve important goals.”

Still, James E. Tierney, the director of the National State Attorneys General Program at Columbia University Law School, cautioned against reading too much into a single presidential directive. “I don’t think we have a hallmark, sweeping view of states’ rights here,” Mr. Tierney said. He said “the Obama administration is going to take these one at a time” and “will be with the states as long as the states fit in with his view of the national interest.”

And Walter Dellinger, a solicitor general in the Clinton administration, said that the economic rise of the United States, compared with Europe’s, in the 1950s could be attributed in large part to the unified American market. Now Europe’s markets have unified, Mr. Dellinger noted. “There is a serious risk that if we decentralize regulations too much, we will, ironically, switch places with Europe,” he said.

Mr. Tierney, who is a former Maine attorney general, said that while he was an advocate for state power, there were areas where federal power should nonetheless hold sway. “What the federal government ought to do,” he said, “is open the door to the states, and let the states enforce the law that the federal government promulgates.”

He added, “This is the opportunity to have the attorneys general join their own government instead of suing their own government.”