DOES THE LOGIC OF COLLECTIVE ACTION EXPLAIN FEDERALISM DOCTRINE?
By Huq, Aziz Z | |
Proquest LLC |
Recent federalism scholarship has taken a "collective action" turn. Commentators endorse or criticize the Court's doctrinal tools for allocating regulatory authority between the states and the federal government by invoking an economic model of collective action. The ensuing corpus of "collective action arguments" has been invoked by both pro-federal and pro-state scholars to underwrite either judicial acquiescence in broad national authority or robust judicial intervention to protect states' interests. Both strands of argument have also found echoes in recent
This Article reconsiders the relevance of collective action arguments for federalism doctrine. Without questioning the role of collective action dynamics in descriptive accounts of American federalism, it challenges their normative significance for the purpose of fashioning structural constitutional doctrine. At the Article's core is a simple claim with plural ramifications: there is no unique logic of collective action that can well explain American federalism. Instead, heterogeneous collections of states will, under different circumstances, follow distinct trajectories that end in divergent end states. Collective action dynamics among the several states can hence produce not only optimal but also highly undesirable equilibria depending on how initial parameters are set. Moreover, the various collective action dynamics animating American federalism are too heterogeneous and empirically contingent to point univocally in one direction toward any simple and stable judicial approach. Absent a single model that works as a reliable rule of thumb, the plural logics of collective action do not provide a stable analytic lodestar to guide judicial intervention. Nor do they provide an accurate proxy for the Framers' original understanding of federalism. Accordingly, the Article concludes that judicially enforced federalism cannot be vindicated in terms of collective action arguments. Instead, it suggests that to the extent the case for judicially enforced federalism rests principally on the availability and soundness of collective action explanations, there may be sound reasons for courts to abandon the field.
INTRODUCTION
Numbers matter in American public law. There are many states but only one federal government. When the national government acts, it can overcome the states' collective inability to organize and install their own solutions to pressing policy concerns. The observed inability of states to produce a collective good by acting together might therefore be a reliable signal of when federal intervention is needed. Courts might accordingly ratify federal initiatives pro- vided that they predict a failure of states' collective action. At the same time, a parallel dynamic of collective action can be isolated elsewhere in American federalism. This second dynamic arises from the fact that the federal government is itself a plural composite.1 Its complex representational structures are arranged not only to channel individual voters' preferences but also to reflect preferences and interests on a state-by-state basis.2 Whether or not the ensuing national policy decisions appropriately reflect the constitutional interests of the states qua states, though, may depend on whether the states collaborate effectively to fashion a decisive voice in the national political process.3 In the landmark opinion of Garcia v.
It should be no surprise then that legal scholars increasingly lean upon a social science and economic literature concerning collective action to explain and justify the jurisprudence of federalism-i.e., the body of law that parcels out regulatory authorities between the federal government and the several states.6 That literature begins with the simple model of collective action fa- mously applied to contemporary legislative politics by Mancur Olson.7 In his path-marking book The Logic of Collective Action, Olson identified a negative correlation between the number of participants in a collective enterprise and the likelihood of their success.8 Contrary to then-prevailing political science wisdom, Olson tendered the rough prediction that small collectivities would prevail more often in politics than more numerous groups.9 The transaction costs of identifying, organizing, and coordinating the large group, Olson explained, would often preclude effective political action.10 By underscoring the impedimentary force of Coasean transaction costs,11 Olson did not simply reorient understandings of effective political action. He also seeded the fruitful academic pasture of public choice theory. In federalism doctrine and scholarship today, Olson's elegant insight into the likely distribution of coordinated action by groups can be yoked to justify both expansive national authority pursuant to Article I, Section 8 of the Constitution and, in the alternative, aggressive judicial superintendence of federal action for potential infractions of states' constitutional prerogatives.12 At least in the federalism domain, the logic of collective action is wantonly promiscuous.
Two examples of collective action logic from the Court's recent federalism jurisprudence usefully illustrate how the diagnosis of a collective action shortfall can yield divergent remedies-even though it has been scholars, rather than judges, who have leveraged the insights of collective action theory best.
First, a nationalist logic of collective action loomed large in debates about the Patient Protection and Affordable Care Act.13 Academic defenders of the law styled its individual mandate, community rating, and guaranteed issue provisions as necessary federal responses to the several states' inability to act together on health care policy-and in so doing expressly invoked a concern about collective action failures as a justification for national legislation.14 In the ensuing
Second, a federalism jurisprudence protective of states' interests can be vindicated by diagnosing collective action deficiencies in what the legal scholar
The Court, however, soon edged away from Garcia's reliance on political safeguards-with the unraveling abetted by concerns about the efficacy of states' collective action in the political realm.20 A decade after Garcia,
The aim of this Article is to reevaluate such deployments of collective action logic by scholarly partisans of both states and the national government to warrant federalism doctrine.25 Both sides are correct that previously unobserved interactions within and between diverse collectivities play axial roles in setting and producing American federalism's distinctive effects. I demur, however, to the conventional normative and doctrinal entailments of this observation for two reasons, one descriptive and the other normative.
First, I advance the claim that there is no single logic of collective action that can explain comprehensively the dynamics of federalism. Instead, there is a plurality of potential dynamics and equilibria that arise in contingent and unpredictable ways.26 Collective action is not "a unitary phenomenon" but rather a plurality of mechanisms "too complex and diverse to allow simple generalizations about . . . causes, effects, or dynamics."27 Previous public law scholarship has not pressed this point as far as is warranted, or examined its consequences. Moreover, public law scholarship has yet to take the full measure of all the "necessary intellectual tools [and] models to understand the array of [collective action] problems"28 in the way private law scholars have. Accordingly, by way of threshold descriptive contribution I knit together lessons from economics, sociology, political science, and game theory to fashion a clear and generalizable vocabulary for distinguishing and modeling the diverse forms of collective action observed in American constitutional law.
Second, the heterogeneity of collective action mechanisms has normative consequences. Specifically, it defeats efforts to derive a unidirectional normative prescription for judicial action. Whether or not a collective action dynamic conduces to undesirable outcomes depends on many factors. For example, an exogenous and fixed feature of the collectivity, such as participants' heterogeneity or the common observance of a norm, may prevent any suboptimal outcome from arising in the first instance. This bites on both pro-nationalist and pro-state arguments. On the one hand, states do not inevitably fail to cooperate to achieve important shared policy goals. As a result, prevailing arguments in favor of national power require qualification in formal presentation. They also need empirical verification on the ground. On the other hand, states are not doomed to flounder as advocates in the national political process. This observed behavioral variation renders the need for judicial safeguards of federalism unpredictable. In consequence, advocates of such judicial safeguards cannot merely invoke the specter of collective action dysfunction to justify judicial intervention-at least not without empirical proof that states have failed to secure sufficient voice in the federal legislative process.
If the various collective action dynamics animating American federalism are indeed too heterogeneous and empirically contingent to point univocally toward any one simple solution, it is hard to see how they can serve as analytic foundations for judicial intervention. Of course, anecdotal evidence can always be assembled respecting specific instances in which states prevail or flounder. But such evidence tends to be inconclusive, and in any case is too often the product of cherry-picking. There is simply no parsimonious way to weigh com- prehensively the available piecemeal evidence to generate global recommendations. To put the matter more crudely, one single model of collective action can serve as a rule of thumb for lawyers and judges only if there is a secure reason to believe it is accurate more often than it misleads. My study here suggests that no such reason has been demonstrated.
Rather than resorting to the inconclusive and open-ended recitation of favorite anecdotes, I suggest that it would be preferable to recognize that univocal models of collective action necessarily operate at too lofty a level of abstraction to generate practical guidance.29 If, as some scholars have powerfully argued, models of collective action are the best available templates for judicially enforceable federalism doctrine-superior, say, to originalist or common law constitutional accounts-then it may well be that judicial modesty, rather than activism, is warranted on questions of federal structure and intergovernmental relations.30
My contribution here partially celebrates and partially resists previous scholarship on collective action federalism. Past work, including path-marking articles published in these pages,31 performed yeoman service identifying the possibility of precise and tractable consequentialist models in what previously was an analytically malnourished domain.32 Such cogent specification of collective action dynamics within the complex pathways of American federalism, if not entirely novel within the legal literature,33 constituted a major clarificatory contribution. I stand in its debt. My (perhaps modest) amendment is that previous work paid insufficient attention to the limits of parsimonious models. Legal scholarship has yet to investigate sufficiently the intricacies within collective action dynamics that have been limned in recent social scientific research. Attention to those complexities undermines some of the specific recommendations proffered in certain earlier scholarship while also casting into doubt any larger project of fashioning a judicially enforced federalism. At the same time, my more granular approach flings wide open new fields of inquiry into specific policy choices at the federal-state frontier using a wider array of more specific tools.
The argument proceeds in four steps. Part I explains how scholars press into service the logic of collective action either to justify or condemn federalism jurisprudence. Part II then develops a detailed taxonomy of divergent collective action dynamics by drawing on both empirical and theoretical studies from economics, sociology, political science, and game theory. The aim here is to refute the implicit assumption that collective action can plausibly be understood as a singular dynamic for the purpose of modeling and recommending constitutional doctrine. Returning to federalism doctrine in Parts III and IV, I show how a plural understanding of collective action undermines specific justifications for judicial ratification of broad federal power or alternatively judicial solicitude for states' rights. A brief Conclusion develops the suggestion intimated in Parts III and IV that American federalism may want for tractable standards amenable to judicial implementation. I tentatively suggest that the Article's analysis, in the aggregate, suggests that federalism questions may better be treated as nonjusticiable.
I. COLLECTIVE ACTION FOR AND AGAINST FEDERALISM
This Part explores the manner in which collective action mechanisms are deployed as hermeneutic instruments to elucidate the meaning of vague constitutional provisions and to generate guidance for courts' specification of "freestanding" federalism principles decoupled from specific textual warrants.34 Such arguments come dressed in both pro-national and pro-state colors. First, arguments for the generous construction of
My aim here is to show that despite their opposing normative entailments, a parallel logic of collective action animates both lines of argument. Both focus on the success vel non of collective action by the states. In nationalist accounts, it is the states' failure to produce national public goods in the first instance that licenses federal legislative intervention and hence judicial deference to
A threshold definitional caveat is warranted here before I unspool these federalism arguments: there is no standard definition of "collective action logic" or "collective action problem" in the legal literature.36 I will argue below that the term is often employed with some liberality, and even a touch of promiscuity. I accordingly do not offer a threshold definition. Instead, I take observed usage of the term in the literature as the starting point of my analysis. To anticipate one of my conclusions, I will say here that the term "collective action problem" is likely best understood as an umbrella term, a species that encompasses diverse and often conflictive genera.
A. Collective Action and the Case for National Authority
The collective action argument in favor of a relatively expansive gloss on ambiguous textual allocations of national regulatory power comes in both originalist and nonoriginalist garb. I address each version in turn, paying particular heed to the work done by models of collective action in the analysis.
1. Originalism and collective action
The originalist case for using collective action as a lodestar to define federal power begins with Resolution VI of the Virginia Plan.
Building on this historical account,
Suppose some states prohibit substandard conditions, while others do not. In the short run at least, firms in unregulated states will probably face lower production costs, and they can sell their goods more cheaply than firms in regulated states. In a national market, they will underprice goods from regulated firms; in particular they will be cheaper in the regulated states themselves. . . . [I]n the long run firms in regulated states may threaten to relocate to unregulated states to take advantage of lower costs and a friendlier business environment. . . . [T]his will put economic and political pressure on regulated states to allow substandard labor conditions.43
Stated slightly more formally, Balkin's references to collective action problems and spillovers might be understood to pick out the class of cases in which states' welfare functions are interdependent in the sense that one state's choices interact with and influence those of another state. Interdependence leads to a gap between individual rationality and collective good, generating collectively undesirable outcomes, and so provides a warrant for federal intervention. Hence, in the quoted example, the national government usefully supplies "coordinat[ion]" on a "single approach"44 via preemptive federal law.
One ambiguity in Balkin's presentation is worth flagging here. In ordinary parlance, the term "spillover" can just as easily refer to a bilateral situation as well as to a multiparty scenario. Imagine, for example, a confectioner whose drills and machinery vibrate, disturbing the consulting practice of his neighbor the doctor.45 In the passages cited above, however, Balkin appears to use the term "spillover" to refer only to situations involving many different individual states. Other collective action scholars, by contrast, seem to include interactions between two actors within the category of collective action.46 The distinction is perhaps more significant than it might first seem: it seems intuitive that coordination problems in bilateral contexts will be different in character from the problems that arise with a multiplicity of actors. Indeed, as I develop below, this distinction may have a large significance in practice.47
Relevant to my purposes, Balkin does not typologize in more granular fashion the set of interdependent state welfare functions. Instead, he presents the identification of spillovers as a "basic structural principle,"48 one that is "designed to be adaptable to changing circumstances," such that federal power will increase (or diminish) as collective action pathologies between the several states accrete or dwindle.49 Treating interdependent welfare functions as a sufficient condition for national intervention in this fashion is likely to yield a generous view of how far federal regulatory authority may reach-a substantive outcome that Balkin has endorsed in other work.50
2. Collective action and the structural argument for national authority
Originalism is not the sole modality of constitutional argument in which collective action arguments underwrite broad national authority.
Cooter and Siegel frame their "theory of collective action federalism" as explicitly singular and unitary.54 Like Balkin, they begin by postulating a gap between states' rational individual choices55 and collectively desirable outcomes: "[T]he Framers recognized that the actions of individually rational states produced irrational results for the nation as a whole . . . . By internalizing the effects, the federal government is more likely than the states to solve the problem of interstate spillovers [and coordination problems]."56 Also in harmony with Balkin, Cooter and Siegel identify negative externalities, or spillovers, arising between states as the cause of the undesirable gap between individual preferences and the collective good.57 Unlike Balkin, however, they seem to count interactions between only two states as potential collective action problems. For instance, they point out that highway construction requires coordination between two states "so that the roads meet in the same place," and they predict that highway funding without national coordination will lead to holdout problems as each state tries "to shift most of the construction costs onto the other states."58 Writing separately in a subsequent, solo-authored piece, Siegel confirms his view that a spillover between "two . . . states" can be fairly ranked as a collective action problem.59
It appears from their account that Cooter and Siegel, like Balkin, view spillovers as a sufficient condition for a collective action problem, and hence national intervention.60 They gloss the legislative powers enumerated in Article I, Section 8 of the Constitution as an enumeration of spillover-based collective action problems arising between the states.61 And a further supportive claim appears in their work: Cooter and Siegel consider and reject alternative voluntaristic solutions to collective action problems, at least when more than a handful of states are involved.62 Nor do they discuss at any length other potential solutions to collective action problems that do not rely on federal intervention. On their view, it therefore seems, the existence of interstate spillovers does not simply create a collective action problem between states that suffices to warrant federal intervention, such spillovers render a nationalist legislative nudge necessary because no voluntaristic solution will suffice and no other nonvoluntary solution is at hand.
Cooter and Siegel deepen the sophistication of their "collective action federalism" by linking it to two distinct political economy traditions. First, they predict that collective action problems will arise when states endeavor to supply "public goods," which they define as nonexcludable (i.e., it is not feasible to exclude anyone from their enjoyment) and nonrivalrous (i.e., one person's enjoyment does not reduce the amount available for others).63 According to Cooter and Siegel, collective goods are best produced by the "smallest unit of government that internalizes the effects of [a power's] exercise."64 On this point, Cooter and Siegel implicitly draw on
Second, moved by the concern that game-theoretic analysis can have "indeterminate results," Cooter and Siegel invoke Coasean terminology, conjuring "the encompassing term 'transaction costs'" to specify instances in which spillovers result in suboptimal results.66 Rather than grappling with an open-ended panoply of transaction costs, they identify one particular friction as especially significant: on my reading of their work, it seems that the numerosity of participants is the key variable in determining the scale of transaction costs. The more states there are that must work together, they assert, the larger the costs of cooperation, and the greater the chance of failure.67 Hence, with a larger collection of states, there is more reason to switch from what Cooter and Siegel characterize as the unanimity decision rule that applies to most dispersed action over to the majority decision rule employed in national legislative action.68 Their emphasis on numerosity tracks an element of Olson's pioneering work.69 Olson, however, did not rest his analysis on numerosity alone. He cautioned that collective action dilemmas are not solely a function of group size but rather "depend[] on whether the individual actions of any one of more members in a group are noticeable to any other individuals in the group."70
Cooter and Siegel equivocate a touch on the question whether their account of collective action federalism can appropriately guide the federal courts. On the one hand, they say plainly that their theory does not speak to questions of the scope of judicial review.71 On the other hand, it is hard to read their work as wholly agnostic on the operation of judicial intervention. Rather, like Balkin's work, Cooter and Siegel's theory of collective action federalism is quite plausibly read as a "guide" to "interpretation" of
Balkin, Cooter, and Siegel offer a common account of "collective action" as an analytic key to understanding the bounds of federal power. All three scholars identify a rupture between individual and collective rationality as defining a collective action problem. In subsequent Parts of this Article, I will interrogate more closely when this chasm will likely arise, and suggest that the answer is more complex and less amenable to parsimonious modeling than Balkin, Cooter, and Siegel might allow.
B. Collective Action and the Rights of States
In contrast to collective action arguments in favor of national power, collective action justifications in favor of states' interests focus upon the second-order question of which institution should settle federal-state boundary disputes. Such arguments arose first in response to the Garcia Court's reliance upon a concept of federalism's political safeguards drawn from Wechsler's seminal article.77 In setting forth those arguments, I draw together work by several different scholars that rests upon a logic of collective action. To begin, though, I summarize the political safeguards claim associated with Wechsler and Garcia.
1. Vindicating federalism through politics
The notion that federalism is vindicated by political compromise, not judicial enforcement, goes back to the Constitution's drafting and ratification. Framers such as
Rehabilitating scraps of this Founding-era logic in a famous 1954 article,
Hamilton and Madison furthermore assumed these political mechanisms would be supplemented by populist ones. They hence anticipated ongoing "competition for the political allegiance and affections" of the people between the states and the federal government.88 At its acme, they hypothesized that this populist competition might bubble over into insurrection. In this vein, Madison anticipated that federal incursions onto state authority would be met with a "general alarm" as "[p]lans of resistance [were] concerted," and an "appeal to a trial of force" issued.89 Only through "the visionary [i.e., implausible] supposition that the federal government may . . . accumulate a military force for the projects of ambition" could the downfall of the states be imagined.90
The Framers' emphasis on political institutions and the people as the primary mechanisms for calibrating the federal balance does not necessarily exclude by negative implication the federal courts in a "backup"91 role. Indeed, "Publius" twice fleetingly suggests that political safeguards need not exclude the possibility of judicial protection for the several states' distinctive role in American federalism.92 Yet these mere hints might also plausibly be read to suggest that federal courts act as last-ditch complements to, and not plenary substitutes for, federalism's political safeguards. The Federalist Papers nowhere explain what the reserved judicial role would be, or how strong it should be in comparison to the judicial enforcement of other constitutional values.93 On that point, the contrast between Publius's extended treatment of federalism's political safeguards and his relative neglect of its judicial safeguards counts perhaps in Garcia's favor.
2. Collective action and the political safeguards
Enter the logic of collective action-now not as justification for congressional action but instead as a device for undermining Garcia's political safeguards argument. The basic intuition is that just as there is a collective action friction between the several states warranting national intervention to produce primary public goods, so too there is a "classic collective action problem" impeding national legislators from adequately considering or vindicating federalism values within the representational structures of the federal government.94 The lacuna is theorized to arise from agency slack as a consequence of the infidelity of elected federal representatives. Focusing on the fiscal effect of federal law on the states, for example,
In other words, Garrett identifies what might be termed a tragedy of the federalism commons. Her shortsighted legislators each pursue their own narrow self-interest. In so doing, they together deplete a shared resource-the fiscal and regulatory capacity of the several states-that each legislator would like to preserve.98 Ringing a variation on the same theme,
Garrett's and Hills's accounts are amplified by other scholars.
All these arguments can be retooled in the public choice idiom of interest group competition. In the contest over national legislation, that is, states will persistently face defeat by concentrated, powerful interest groups that wield large influence over the national legislative process and that can therefore lure legislators far from the public good of federalism ideals.105 This is a collective action argument to the extent it focuses on the states' high cost of collective action, in comparison at least to the low transaction costs of other lobbies.
These arguments hence lead uniformly to the conclusion that "collective action problems undermine responsible decisionmaking" in the federal legislative process.106 Legislators' rational incentives do not lead to the production of a well-tempered federalism architecture as a useful collective good, but rather to a socially undesirable
about the perverse and socially undesirable consequences of failed collective action by states, in sum, animate both sides of the federalism debate. Partisans of both greater and lesser national power alike purport to identify a troublesome gap between states' individual incentives and the attainment of a collective good. For nationalist scholars and judges, identification of a collective action dynamic-or, in Coasean terms, an interstate spillover-justifies 105. federal legislative intervention and judicial deference. By contrast, advocates of decentralization focus on the aggregate action of states as "constituents" of the federal government unable to obtain due regard in the course of national policymaking. On this view, identification of a collective action shortfall warrants judicial intervention and the elaboration of a more robust federalism jurisprudence.109
The balance of this Article aims to think more precisely about these collective action arguments. Rather than a resolving diagnosis, I will argue, the logic of collective action is a complex and plural pathology-one that warrants rather more unpacking than the current public law literature endeavors. It is that taxonomical labor I undertake in Part II before looping back to reconsider current doctrinal deployment in Parts III and IV.
II. THE PLURAL FORMS OF COLLECTIVE ACTION IN PUBLIC LAW: A TYPOLOGY
Both lines of federalism scholarship described in Part I focus on the possibility of a rupture emerging between individual rationality and the collective good. This counterintuitive possibility can be illustrated by a simple gametheoretic model-the oft-invoked prisoners' dilemma.110 Consider two prisoners separately detained incommunicado, each offered the choice between remaining silent or incriminating the other. If both remain silent, both receive a light sentence. If both mutually incriminate the other, both receive heavier sentences. If only one incriminates the other, the latter receives a harsh punishment while the former goes free. Payoffs from the two players' possible options of cooperation (i.e., remain silent) or defection (i.e., incriminate the other) can be represented in a two-by-two matrix with the row player's payoff being followed by the column player's payoff.111
Comparing cells within each row, or within each column, reveals that each prisoner will incriminate the other, leading to the worst possible outcome from the prisoners' perspectives. In this way, the prisoners' dilemma illustrates how individually rational actions can yield collectively undesirable outcomes.112 Indeed, when played just once, the prisoners' dilemma is one of the few games with a single equilibrium,113 or
So far, so good. Identification of a collective effort by the states to attain some good indeed seems a sound proxy for federal intervention. Yet the federalism scholarship canvassed in Part I rarely stops to analyze whether the assumptions necessary to warrant external intervention (by the federal government or by a court) are indeed satisfied. It contains no recognition of the quotidian observation that collective efforts plainly sometimes succeed. And singularly wanting from the current public law literature is any more abstract account of when the observation of collective action should provoke concern about collectively undesirable outcomes-that is, a general typology of good and bad collective action.
This Part fills that descriptive gap. It draws on game-theoretic, sociological, economic, and political science studies to show that "collective action" is not unitary, but an unruly and diverse collection of dynamics. Less a single skeleton key, I contend, collective action is a heterogeneous category of differently shaped and sized keys for understanding political action. Each species is crafted to resolve a different puzzle. To invoke collective action is thus not to end conversation. It is rather to invite a messy and complex inquiry into precisely what species of collective action is at stake.
To that end, I identify five significant parameters of collective action that take diverse values in public law problems. Starting from a baseline of the prisoners' dilemma, I show how variation in any one of the five parameters can derail a normative prescription in favor of intervention. The first two parameters concern the nature of individual interests and payoffs at stake. The third focuses on potential voluntaristic solutions. The fourth considers how collective action dynamics play out when there are many players and many rounds of interaction. Finally, I consider wholly distinct payoff structures. These, to be clear, are not the sole parameters identified in the game-theoretic literature, and it is certainly possible to imagine many other ways of slicing up the universe of collective action theories.118 For example, there is an extensive technical literature on situations in which interacting parties have incomplete and potentially asymmetrical information.119 But the parameters that I examine are, in my view, the most useful for capturing the collective action problems of public law.120 And the presentation here proceeds in such a way as to build from relatively simple caveats to more complex objections to the most elementary models of collective action.
The typology developed here yields two overarching lessons. First, it is hazardous to treat any one dynamic (e.g., the prisoners' dilemma) as a "Pro- crustean bed[]"121 for collective action dynamics.122 Second, the precise dynamics of collective action can impeach quick normative prescriptions. Often, variances in any one of these parameters mean that there is no gap between individual and collective rationality. This means third-party intervention (either by a court or by the federal government writ large) is superfluous because of the availability of voluntaristic solutions. In such cases, the rush to external intervention is not plainly justified. Because observed variation in collective action parameters leads to such divergent prescriptions, I conclude that some effort to account for game theory's "indeterminate results"123 is warranted once it is conceded that collective action is a distinctive feature of American federalism.
A. Heterogeneous Participants
Simple models of collective action of a kind often invoked in public law implicitly assume symmetrical participants with identical interests in the collective good.124 In many contexts, including the political environment of federalism, such symmetry often breaks down. On the one hand, contributions can differ in kind and magnitude. States, for example, not only have to decide whether to participate in, but also how much to contribute to, a collective project such as lobbying Congress.125 On the other hand, a collective good may yield different benefits for different members of a group. Heterogeneity in benefits also arises, for example, when the national government selects between investments in naval and aerial defenses, with different participants having preferences with respect to the varying investment portfolios based on their geography and industrial base.126
Heterogeneities in contributions and benefits can prevent suboptimal outcomes from emerging and thereby undermine the case for external intervention.127 To see this, consider a case in which there is a subset of "highly interested and highly resourceful" large contributors.128 This critical mass of wellresourced participants may have sufficient motivation to act regardless of other group members' free riding because it has a disproportionate interest in seeing the collective project succeed. Its members may hence be more inclined to "play special roles in collective action."129
Such critical-mass effects bite hardest when a collective good is characterized by what is called pure jointness of supply-i.e., that there is no diminishment or exhaustion of the good through use.130 After a purely joint good is supplied, the number of persons using that good is irrelevant. For example, a tariff on a foreign good is a joint good if each of the domestic producers that benefits from the diminished foreign competition serves its own unique market.131 Economic theory suggests that when a collective good is purely joint, a larger group is more likely to contain the critical mass needed to supply the good even if others free ride.132 In the tariff example, for instance, one large producer may have a sufficient stake in the trade barrier to finance the necessary lobbying regardless of what other small producers do. The collective good of concerted political action will therefore be produced despite free riding.133 Furthermore, the more a collective good is characterized by jointness of supply, "the more likely group size is to have a positive effect on the provision of the good."134
Of particular relevance here, critical-mass effects provide an important constraint on the conventional dictum, conjured and alluded to, for example, by Cooter and Siegel, that group size inversely correlates with group efficacy.135 The conventional wisdom about the impotence of large groups is at least complicated by the possibility of critical-mass effects because the larger the group, the greater the possibility it contains a critical mass-and hence the more likely (ceteris paribus) that a collective good will be produced.136
<p>Under some conditions, a larger, heterogeneous group may also succeed in collective action better than a smaller group because it can engage in internal logrolling. Within a diverse group, internal heterogeneity of interests and resources "allows different kinds of people [or states], with different priorities, to join together in collective action" in which each person's particular priority is separately addressed.137 Even though creation of a lobbying institution to rep- resent states' interests on one specific policy issue may be inefficient, states may find it worthwhile to create an institution with jurisdiction over several issues. That joint lobbying institution is likely to be a product of logrolling across several issues of interest to states. The social welfare effects of such logrolling, however, are a priori ambiguous, since they can conduce either to the collectively desirable (if all relevant, affected interests are reflected in the ensuing bargain) or harmful (if there are absent parties to the deal).138
On the other hand, under different conditions a group's internal heterogeneity of interests can also undermine effective collective action. This happens in three circumstances of relevance to the present federalism-focused inquiry. First, when there are private substitutes for the collective good, heterogeneity may increase the possibility of exit in lieu of contribution.139 To see this possibility, imagine a neighborhood lobbying for better policing. If neighbors are economically diverse, the better-off members may opt for private security measures (e.g., fences and alarms), and depart from the lobbying effort.140 Heterogeneity thus conduces to fragmentation and a failure of collective effort.
Second, collective goods may generate sharply different levels of benefits depending on the number of defectors. In the canonical free rider problem, for example, the defection of one person from a status quo of universal cooperation may make little or no difference to the production of the public good. By contrast, in some circumstances, the defection of one person from universal cooperation may have a large adverse impact because "the very fact of cooperating creates the opportunity for a defector, or at least for a lone defector, to take advantage of cooperators."141 Imagine here the move from a Hobbesian state of nature to a situation characterized by a strong rule of law.142 Once all are cooperating, a defector, or "foul dealer,"143 can take advantage of the mutual peace. The possibility of exploitation by a foul dealer strengthens the case for an external enforcer able to ensure an agreement is subject to no violations, one that is even more powerful than in the canonical free rider case.
Finally, when there are multiple potential subgroups, uncertainty about which will step in to provide a good may vitiate the provision of the good.144 Where search costs are sufficiently high, moreover, it may be more costly for like-minded individuals to find each other and thus for the requisite subgroup to coalesce.145 These three possibilities merit attention because they undermine any linear equality between the heterogeneity of contributions and benefits on the one hand, and the ease of collective action on the other.
The interaction between participant heterogeneity (whether in relation to contributions or to benefits) and collective action, in short, is complex and scarcely monotonic.146 One lesson from attention to heterogeneity is that group size provides no satisfactory proxy for the difficulty of collective action. Large groups, in other words, do not always fail in practice. Nor do small groups inevitably prevail.
A second wrinkle concerns the good itself. Most public law discussions of collective action assume a production function in which incremental increases in contributions smoothly and linearly generate incremental increases in the collective good. But there is a class of step goods for which the relationship between contributions and benefits is monotonic but also discontinuous.147 For example, imagine a bridge that requires a fixed number of inputs in terms of girders and concrete. Anything less than the necessary level of inputs generates no collective good (i.e., an insufficient span). Anything more is superfluous. Pass/fail exams (such as most states' bar exams) have the same quality. Collective step goods can be discerned in electoral politics. In a plurality-vote election, a candidate needs a particular number of votes to win. Anything less yields nothing. Any more votes are technically superfluous.148 In each of these three examples, contributions are incremental,149 but the final good has a binary, all or nothing, character.150
Pure step goods may be rare. But "equally rare are perfectly linear goods- those with a smooth, continuous production function in which each infinitesimally fine unit of input is matched by a similar adjustment in output or utility."151 Graphically, a simple step good can be represented as follows (with the x-axis in both Figure 1 and Figure 2 representing the marginal cost of inputs and the y-axis the marginal change in output):
The step quality of a given collective good matters when it allows a subset of the group to produce it without external aid:
[C]onsider . . . profitable subgroups which are just large enough to provide the minimum amount (i.e., the smallest possible "lump") of the public good. If any member withdrew, the public good would not be provided at all, so that, by assumption, every member of the subgroup, including the member who withdrew, would suffer a loss. Thus, because of the discontinuous nature of the public good, such a subgroup is stable, and the game is therefore not a [prisoners' dilemma].152
This dynamic, however, can be fragile in large groups, although the precise sequences of play and outcomes here will be complex and unpredictable. Say that k of n supporters of a candidate need to vote for the candidate to secure her victory. If, and only if, a participant believes that k - 1 supporters intend to vote for the candidate, would she have reason to expend effort in order to exercise the franchise.153 Any lesser or greater expectation renders her contribution nugatory or superfluous. The participant must also reckon with the possibility of strategic behavior by different subgroups seeking to induce other subgroups to move first and provide a good. Under these conditions, "the strategy of not paying dominates the strategy of paying" and rational players anticipate the non-participation of others and thus decline to cooperate.154 Again, it is not at all clear that generalizations about the relative competence of small and large groups have predictive traction.
Nevertheless, this "knife-edge" problem can sometimes be blunted. If a step good's production function lacks a sharply cornered step, and instead takes the form of a smooth S-shaped curve (or, for the home improvement inclined, a sloping riser), there is a domain of effective contributions and not just one. Consider, for example, a collective effort to get a voluntary advocacy organization off the ground: the first few inklings of effort may seem hopeless, but once a sufficient number of individuals get involved, each may think that greater contribution is warranted to give the organization extended life. Here is another, more au courant example: consider what it takes to make a blog post or video go viral online: The first few posts matter little. At some point though, each new link has large, cascading effects until some saturation point is reached. Again, initial efforts may have minimal effects, but there will likely be some domain in which each increment of dissemination has outsized repercussions. Figure 2 presents a simple graphical representation of this possibility.
In such cases of a "sloping riser" production function, individual contribution can still be a rational strategy. To see why, notice that although initial contributions will increase the production of the collective good very little, at a certain point it is possible (although not certain) that the marginal gain from contribution starts to increase, leading to a steeply inclined output curve for the collective good. At this point, contributions may pay off despite free riding problems.155 But then there is a deceleration in the yield from new contributions as the curve flattens out.156 It is thus at least possible that the move from step good to sloping riser will be beneficial in terms of encouraging production of a collective good since, under some conditions, there is a larger range in which contributions do buy something.
At the same time, that same move can have a deleterious consequence along another margin. The cooperation-inducing effect of any marginal contribution is diluted because each contribution still purchases less than the single pivotal contribution to a step good would, and so is less likely to be individually worthwhile. Which set of background payoffs from marginal contributions is most likely to result in the achievement of a collective good accordingly hinges on a complex interaction between those exogenously given conditions and individual participants' welfare functions. No logical or necessary relationship determines outcomes, or the corresponding need vel non for external intervention of some sort. Rather, a complex, contingent, and empirically testable cluster of predictions emerges, requiring further and more intensive analysis of a whole range of parameters.
When a collective good's production function takes this S-shaped form, adaptive expectations may resolve the collective action problem in a socially desirable manner. That is, "[i]f one expected that others' contributions would fall short of the cost of providing a step good, one might then calculate that one's benefit from one's own contribution would exceed that contribution."157 Given such expectations, a contribution to the collective enterprise can be rational even under a narrow, individualistic definition of rationality. To resort to adaptive expectations in order to dissolve a collective action problem, however, raises the further question of how such expectations came to be held in the first place-a matter to which I now turn.158
C. Noncoercive Solutions
The third important parameter is the availability of voluntaristic responses to suboptimal
Key to voluntaristic collective action solutions is frequently the development of a social convention or norm respecting the resource's management. Writing in the 1730s, the Scottish philosopher
Consistent with this view,
It is important to see that invoking norms as a solution for collective action problems is, in an important sense, begging the question in causal terms. Norms must come from somewhere. The creation and enforcement of conventions thus poses a "second-order" collective action problem because of individuals' ability to free ride on the norm-enforcement efforts of others.166 Under rational choice assumptions,167 a norm may arise when a "norm entrepreneur" has the necessary incentives168 or through another costly procedure.169 Norms also work best in "tightly-knit and relatively small groups."170
Finally, even without the enabling scaffolding of conventions or institutions, groups trying to create collective goods can still sometimes succeed. A group's success turns not only on the size of its collective action problems but also on the collective action costs of its opponents. Especially in legislative contestation, that is, the logic of collective action has a comparative dimension. In legislative politics, collective action dilemmas arise for groups on both sides of an issue.171 Whether or not one group (say, the states) achieves its legislative goals requires analysis of both legislative "demand and supply,"172 i.e., a comparison of the collective action costs of both sides. In some instances, therefore, a group obtains a collective good simply because its opponents had a steeper hill to climb.173
D. Increasing the Number of Iterations and Participants
My fourth point concerns two important parameters in models of collective action: the number of iterative interactions and the number of members in a group. The collective action dilemmas at the heart of federalism are not oneshot affairs. States instead interact repeatedly.174 The two prisoners in the familiar prisoners' dilemma by contrast lack any expectation of future interaction. They have no future-oriented reason to work together. By contrast, in repeated play, participants evolve strategies to sustain cooperation even absent external coercion with an eye to capturing future surpluses.175 Even without an ability to communicate, repeat players may have a "tacit opportunity for making [their] choices contingent on those of [their] adversary-partner, that is, of threatening the partner with defection in return for defection."176 Iteration thereby can induce a level of cooperation that is absent in one-shot games.
Experimental evidence confirms this thesis. Even in finite sequences of interactions, experiments find surprisingly high incidences of cooperation (albeit with decay over time).177 For example, there are numerous experimental studies of what is called the "centipede game," in which two players iteratively choose to continue or terminate a game in which their payoffs rise with each round, and also in which it would be rational for each player to terminate and reap an asymmetrically large share of gains in each round. Many empirical studies find that individual players do not adopt the rational strategy of early termination, but coordinate despite the temptation to backwardly induce their way to defection.178 Studies of iterative play, that is, suggest limits not only to the solutions observed in one-shot games, but also to standard accounts of economic rationality.
Additionally, binary and multiplayer groups are not alike. If we move from a case in which there are two prisoners to one in which there are twenty, the distribution of likely end states can change dramatically. The analysis of iterated multiplayer collective action presents special challenges because there are many more than two potential strategies179 and often no single equilibrium. Confident predictions about outcomes are frequently infeasible absent complex modeling tools.180 Instead, "mutual [c]ooperation is sometimes rational but depends on precarious arrangements."181 Conditional cooperation within a subgroup (i.e., where a subset of the group cooperates if, and only if, other members of the subset do too) is most likely to emerge in smaller groups.182 In larger groups, by contrast, a cooperating subgroup "cannot punish other players who are defecting without hurting themselves at least in the short run," but nevertheless might resort to strategies such as bluffing and external commitments to secure universal cooperation.183 Further, "conventions that cover substantial groups or populations [can be] built up out of dyadic or very small number interactions."184 The game-theory literature suggests that in general increasing the number of players will diminish the likelihood of cooperation, whereas increasing the number of iterations increases that likelihood.
A further complication is worth flagging. There is now a vast technical literature about so-called evolutionary game theory. This work models "how behavioral regularities arise and spread through populations," inter alia through "learning and imitation" to harden into stable conventions or norms.185 The literature is emphatic, however, in concluding that not all the norms or conventions that emerge through cooperation evolution will be efficient.186 Indeed, whether it is an efficient or an inefficient end state that emerges is again hard to predict in advance without the application of sophisticated technical methods.
In summary, expanding simultaneously the number of players and iterations undermines strong predictions of a single, unique
E. Alternative Payoff Structures
The final parameter that warrants attention bears on the structure and distribution of payoffs. In many instances, payoffs from cooperation and defection will point away from collectively irrational outcomes, or engender quite different puzzles.189 Out of the many possible simple games with "two players, two discrete strategies, complete information, and simultaneous moves,"190 I single out here only one alternative because it may be especially important in the federalism context. It is often labeled the "chicken game."191 The intuition of this game is encapsulated in the story of two teenagers driving cars headlong toward one another. Each hopes to gain in status when the other one swerves first. If neither swerves, their vehicles collide with grievous injuries all around.192 The ensuing payoffs are as follows:
Here, participants' decisions necessarily have a strategic dimension because their welfare is not solely a function of their own actions but also is influenced by others' decisions.193 As in the prisoners' dilemma, interdependencies in welfare functions yield the potential for socially undesirable outcomes.194 But, unlike the prisoners' dilemma, analysis of the payoffs suggests there is no one stable equilibrium outcome.195 Rather, the optimal strate- gy depends on what one expects the other player to do. One possible result is the volunteers' dilemma, in which both participants hold out in the hope that the other provides the relevant good.196 As its name suggests, the "chicken" dynamic produces outcomes that turn on beliefs about the other player-and his nerves-rather than mere calculation of expected outcomes. Exogenous beliefs, not backward induction, determine outcomes.
Two forms of the chicken game are relevant here. First, imagine two participants in a game, each of whom would find it cost-effective to generate the good without the other's contribution. Each participant hopes (and will strategize to ensure) that the other moves first, and thus expends the costs of providing the good.197 The result is a chicken dynamic. The outcome may depend upon participants' beliefs and expectations.198 For example, there is an "incentive for each player to attempt to bind himself irrevocably to non-cooperation . . . , an incentive deriving from his expectation that such a commitment will compel some or all of the other players to choose co-operation (on which he is then able to free-ride)."199 This leads to a rush to precommit and potentially suboptimal outcomes.200 Alternatively, cooperative equilibria can emerge.201
Second, collective action problems involving the assembly of a set of entitlements into a useable whole can be modeled as a chicken game.202 In such "anticommons" situations, barriers to collective action arise when one entitlement holder strategically sets her price high in order to secure a disproportionate share of the surplus gained via collective action.203 The resulting competition between potential holdouts has the structure of a chicken dynamic.204 Several important justifications for national intervention concern anticommons problems. For example, consider again Cooter and Siegel's example of different segments of road being assembled into an interstate highway.205 This might reflect a chicken dynamic rather than a prisoners' dilemma because it turns on a holdout problem. A holdout in an anticommons situation also differs from a free rider. The former does not gain anything if cooperation fails, whereas the latter may.206 If the holdout stands to lose all from noncooperation, bargaining may be more likely to succeed than if she can free ride and still gain something.
When jurists and scholars invoke the term "collective action," they are not in fact pointing to a single phenomenon. Rather, they should be understood to be gesturing toward a plurality of mechanisms and social dynamics. This Part has developed a detailed (but still woefully partial) taxonomy of those mechanisms to allow more precise analysis of the forms of collective action observed in public law. At minimum, this abbreviated typology points toward the need to engage in more retail analysis of specific institutional parameters and dynamics within the institutional forms of federalism.
III. COLLECTIVE ACTION AND THE CASE FOR NATIONAL POWER REVISITED
In the next two Parts, I reevaluate the collective action arguments in federalism scholarship summarized in Part I. I begin by reexamining the collective action arguments developed by Balkin, Cooter, and Siegel in favor of expansive congressional power. Drawing on conceptual tools developed in Part II, I conclude that the mere invocation of states' need to act collectively or an interstate spillover effect cannot alone justify national government intervention. The identification of collective action dynamics instead should play a more chastened, retail role in the federal courts' efforts to describe
The argument in this Part has two elements. First, I offer three reasons to conclude that collective action arguments in favor of national authority provide no single "unifying principle"207 or "purpose[]"208 to liquidate the meaning of opaque textual commitments concerning federal power. Second, I situate collective action arguments of a nationalist hue in the context of constitutional in- terpretation more generally, with particular attention to originalist arguments of the kind that Balkin refines, in order to show why they cannot play an ambitious role in liquidating constitutional ambiguities.
A. The Weak Collective Action Case for
I begin by developing three reasons why states' collective action problems may not justify national intervention. In so doing, I demonstrate how the parameters identified in Part II (in particular, participant heterogeneity, critical mass effects, and the step nature of a collective good) can function in the federalism context to vitiate the need for federal intervention. By showing that states' need for collective action may not justify federal intervention, I aim to weaken the conventional link between any simple observation of a potential collective action dynamic and a prescriptive claim on behalf of legitimate national power. Previous invocations of collective action logic have been pitched, in my view, at too high a level of abstraction. Because not all collective action problems are identical, and because there are many ways in which such problems can be solved, the successful conjuring of collective action's specter needs to be accomplished on a retail, and not a global, level.
1. The frequency of interstate cooperation
As a threshold matter, one simple reason to resist a simple model of collective action is its failure to explain observed patterns of state contributions toward collective goods. Preratification historical practice demonstrates that states were capable of some cooperation even without federal coercion. Between 1777 and 1783, states provided fifty-three percent of the men levied for the
Nor is successful state collective action outside the shadow of national intervention limited to the preratification period. Consider a recent example from environmental law. The Cooter-Siegel strategy for identifying the appropriate regulatory unit-i.e., ask which one is large enough to encompass all relevant externalities-might seem to suggest a national (if not an international) solution for many environmental problems affecting large-scale aquatic and atmospheric ecosystems.213 But the historical path of U.S. policies on air pollution and climate change illustrates a different dynamic. It has been individual large states, in particular
The
2. Noncoercive solutions to interstate collective action problems
The second reason to reject a single logic of collective action turns on the existence of noncoercive solutions to states' collective action problems of the kind intimated in Part II.C. As Cooter and Siegel rightly observe, one such tool is the interstate compact.221 They dismiss the utility of such agreements, however, citing the putative difficulty of securing unanimity among any numerically large number of participants.222 They also decline to discuss other possible modalities of cooperation. Yet both compacts and other non-nationalgovernment-based forms of state-to-state cooperation merit more than passing attention as potential solutions to collective action problems.
There are three ways in which states voluntarily coordinate without federal coercion. First, states can align their regulatory policies to yield collective goods without any formal mechanism via an informal process of learning or policy diffusion. Empirical studies of smoking bans, welfare programs, teacher qualification rules, same-sex marriage laws, and other regulations identify "robust patterns of policies and institutions spreading from . . . state to state."223 Diffusion of this sort can generate legal uniformity, eliminating externalities and ensuring wide adoption of successful policies.224 Diffusion overcomes a collective action dilemma because the production of new statelevel policies is not costless. Rational states have an incentive to refrain from innovation because they will not be able to capture all its benefits. Instead, they prefer to free ride on the innovation of others. Despite this free riding problem, a significant amount of diffusion is observed in practice. Like many other collective action-related norms, the diffusion mechanism operates through observation, imitation, or economic pressure-and not federal coercion.225
Second, intergovernmental organizations such as the
Yet another example is the national organization formed by state attorneys general, which has overcome collective action hurdles to effectively deploy federal court litigation as a policy tool.230
Recent, high-profile constitutional cases demonstrate the potency of legal action in this vein by a minority of state attorneys general. It is thus worth recalling that one of the first legal challenges to the health care law was filed by a state attorney general, and many state attorneys general remained deeply involved in the case until its finale.233 In the ultimate
Of course, in the absence of a federal statute that vests states with the right to sue, the expected value of cooperation among state attorneys general is often a function of the Court's federalism jurisprudence-and one of the ultimate goals of this study is to interrogate the latter's generosity. I thus invoke the state attorneys general example here solely to illustrate the existence of voluntary collective action. If federalism jurisprudence were scaled back, that value might diminish. It would not vanish entirely, however, because of the likely continued existence of statutory causes of action for states to leverage.
To be sure, these voluntary organizations and ad hoc coalitions of states are no panacea for those concerned about excessive centralization by the national government. They do not impose binding constraints on participants. In consequence, it may be costly for participants to detect or punish infractions, as Cooter and Siegel rightly observe. Nevertheless, such organizations might still valuably diminish the frictions of collective action in three ways. First, by reducing interstate variance in legal regimes, they lower the epistemic costs of interstate commerce, thereby fostering the national free market (itself a public good). Second, they mitigate the risk of conflicting or inconsistent regulation that also might impede commerce. Third, uniform laws can mitigate the prisoners' dilemma mechanism implicit in interstate competition that induces a race to the bottom.236
Finally, formal interstate compacts themselves provide a surprisingly robust alternative to national legislative action due to critical mass effects.237 Cooter and Siegel identify their unanimity rules as a crippling constraint on the expansion of interstate compacts, suggesting that "[t]he probability of coopera- tion approaches zero as the number of states that must agree unanimously exceeds, say, ten."238 This, however, may be excessively pessimistic, even without accounting for the far higher participation rates in the ULC and the MTC. There has been a "sharp increase in the number of [interstate] agreements during the past six decades," albeit "with little attendant public visibility."239 Some of these accomplish policy change without any approving congressional imprimatur. The Regional Greenhouse Gas Initiative (RGGI), for example, was initially proposed by
To be clear, my claim here is not that either informal policy diffusion or institutions (i.e., multistate commissions and informal compacts) provide comprehensive solutions to all of the states' collective action dilemmas. In some cases, diffusion surely causes rather than cures collective action problems. Diffusion might even precipitate a "foul dealer" problem if one state can exploit an equilibrium created by otherwise unanimous concert.245 The salience of volun- tary solutions lies not in their comprehensiveness but rather in this: they demonstrate that mere identification of a barrier to states' collective action is inadequate guidance respecting the need for federal regulation. It is also necessary to consider the availability of one of several potential noncoercive alternatives that are observed arising in practice among the several states.
3. Comparing state and federal collective action
Arguments for greater national power based on states' inability to act collectively are essentially comparative in nature.246 More specifically, they rest on an assumption that collective action barriers confronting states will, at least as a general matter, tend to be lower inside the national political process than outside. But it is not at all clear that this assumption always holds true, or even represents a generalization that captures the empirical realities of states' promotion of federal values. It is well known that a federal bill must pass through at least three vetogates (bicameralism and the veto), and perhaps five (including two supermajority votes when the President opposes a law), to become law. Running this gauntlet requires that a bill appeal to diverse constituencies. On the one hand, the floor votes empower median legislators.247 On the other hand, both Houses have committees, which not only resolve interbranch informational asymmetries and cycling problems248 but also play an agenda-setting role, and decide the issues that reach a floor vote.249 The crucial committee members' preferences are likely to be distinct and distant from those of median legislators. Once a bill makes it out of committee, moreover, its fate is of course hardly assured. It can fail due to logrolling with another bill. Or it can run afoul of one or another of the minority vetogates that is erected by intracameral rules of procedure. In the
Cast in this light, it is hardly obvious that the federal legislative process will necessarily yield the optimal solution to a specific collective action problem more readily than independent action by the states. To make that assumption is to succumb to a nirvana fallacy about the national political process.253 There are likely many cases in which national legislative action is both desirable and feasible, and yet
This criticism would have little bite if federal legislative action tended to correlate with the need for national action. That is, if the federal government acts if and only if the need for policy change is acute, then the underinclusivity of national policy reach may not be a large cause for concern. There is no reason, however, to think that national legislative gridlock arises only when there is no need for federal intervention. In tax policy, for example, installation of centralized control might in theory be a desirable response to state efforts at strategically exporting taxes.256 But both theoretical and empirical evidence demonstrate that national intervention might lead to similarly suboptimal outcomes as a consequence of free riding by state delegates within the federal legislature.257
Similar dynamics can be observed with respect to substantive policy domains. In the context of health policy, for instance,
Federal action is further impeded by uncertainty as to whether a problem should be addressed nationally or locally. In some policy domains, there is persistent empirical uncertainty about the appropriate division of authorities between different levels of government for optimizing policy results. For example, there is an ongoing debate about how policing against terrorism should be organized and whether it is more desirable to have local control over investigative strategies or national leadership.260 The debate is animated by uncertainty about the precise social and governmental mechanisms that produce security against homegrown terrorism in the first instance, an epistemic gap unlikely to be bridged completely anytime soon.261 In consequence, observed distributions of policy-related authority are as likely to reflect path-dependent historical processes as any sensible allocation of powers. The frequent absence of any clear guidance for dividing regulatory authority between the state and national levels is likely to compound the cost to
The necessary comparisons between national and state policy solutions are further scrambled by dynamic interaction between the two regulatory spheres. Federal intervention, for example, might sap incentives for state collective action, thereby creating the need for external intervention. Alternatively, persistent federal inaction in domains of overlapping regulatory jurisdiction can prompt state regulatory interventions.263 Hence, state antitrust actions have increased at times when the federal government has reduced enforcement rates.264 On the other hand, states' nascent efforts may induce federal legislative action. State regulatory action might propel the national political process into overcoming impediments at pivotal points when interest groups are motivated to secure preemptive federal legislation to counteract states' regulatory efforts.265 And within the framework of temporally enduring cooperative federalism programs, states and the federal government engage in "iterative shared policymaking . . . and intersystemic signaling negotiations."266 The probabilities of state and federal action are, in short, not independent but entangled in complex ways. Simple models grounded in the prisoners' dilemma or any other parsimonious collective action model are unlikely to accurately predict the end result.
Leading accounts of national power, in my view, obscure the need for "extensive factfinding" and "contestable normative judgments"267 in properly identifying collective action dynamics in public law and then generating predictions on that basis. There are several ways in which the sheer plurality of collective action mechanisms might defeat the aim of fashioning a doctrinal tool that is not only parsimonious but also predictively sound. Heterogeneities in participants' contributions to and benefits from collective goods, as well as the step nature of those goods, confound simple predictions. The availability of noncoercive alternatives to federal intervention creates further complications. And a comparison of the transaction costs of national lawmaking with those of states' collective action without federal guidance yields ambiguous results. In sum, no simple principle of collective action in theory or in practice explains the observed plural forms of collective action mechanisms of our system of federalism. And because these variations in collective action parameters lead to dramatically different outcomes, they underwrite quite distinct normative prescriptions.
I am not of the view that it is possible to suppress this complexity through reliance on a parsimonious account of one species of transaction costs (e.g., the single parameter of numerosity). Parsimony in modeling is a virtue warranted if and only if the extraneous details cleaved from the analysis wreak no large alterations to predicted outcomes. Where, as here, significantly different normative recommendations fall out once details are added back in, the case for parsimony loses its luster.
B. Collective Action Arguments as Constitutional Arguments
Legal theorists of
My aim in this Subpart is to query whether the logic of collective action can be consistently employed at such a high level of abstraction consistent with accepted tenets of constitutional interpretation. For two reasons, I argue that it cannot. First, both Balkin and Cooter & Siegel imply that the Framers and present day scholars share a single conception of collective action. I suggest that no such conceptual plumb line exists. Just as collective action is a plural phenomenon today, so is its history more complex and multifarious than first might appear. Second, there is no close conceptual match between the heterogeneous mechanisms of collective action limned in Part II and the miscellany of federal powers enumerated in Article I. Given this mismatch, it is hard to discern how fair-minded readers of the Constitution, at least those who wish to evince some meaningful measure of fidelity to the Founding era, can reasonably employ a single "principle" of collective action as a heuristic for resolving textual ambiguities. Hence, not only is collective action an implausible source of simple heuristics for doctrinal application, it is also a poor fit with other methodological presuppositions of constitutional interpretation.
Consider first the point that there is no single "principle" or logic of collective action to knit together 1787 and the present day. This follows closely from the claim, developed in Part II, that collective action comprises a diversity of mechanisms. Of course, if each of these strands reliably generated a similar suboptimal
This last observation carries a special charge within an originalist frame of analysis. Even if there were a single "principle" of collective action, it is by no means clear that the Framers either perceived it or used it as a lodestar when designing the new national government. The absence of precise historical analogs means that collective action is not a sound guide to either original intent or original understandings.
It is certainly true that Madison's pre-
Where, in any case, would that abstract, general principle of collective action have come from at the time of the Founding? To assign Madison and his Convention confreres an understanding of even the basic lineaments of collective action as understood today is to indulge in prochronic transposition. The Framers, to be sure, were well versed in the writings of David Hume,273 who had identified en passant one free riding problem.274 (And they were also familiar with the writings of
Hume's critique in the critical passage of A Treatise of Human Nature was not the same as the logic of collective action with which we are familiar. Of course, Hume saw the possibility of valuable human cooperation as welfare improving, just as modern economists do. The difference between Hume's account and contemporary economic theory lies elsewhere: whereas the standard economic theory predicts that cooperation between rational actors will break down under normal circumstances, Hume perceived cooperation to be the ordinary state of affairs, and noncooperation to be the exceptional and unnatural event. To explain the aberrant emergence of noncooperation, Hume focused on the possibility that hyperbolic discounting would yield an irrational failure to cooperate.277 In Hume's account, the consequent failure to collaborate was not a product of ordinary, reasonable conduct, but instead a breakdown in the expected processes of individual-level ratiocination-a failure, that is, to act in harmony with "shared moral sense, acting uniformly to pursue and promote happiness."278 Accordingly, Hume and his intellectual heirs "almost invariably assumed that if [a] collaboration secured beneficial outcomes for the individu- als concerned . . . in principle [there was] a good reason for the individuals to contribute voluntarily to the enterprise."279
Hume thus viewed collective action through a wholly different model of human rationality than the one typically employed in modern rational choice economics.280 Merely identifying the need for collective action under conditions in which there are incentives to defect was not a reason for Hume to call for third-party (or state) intervention. This understanding of the rationality of collective action endured long past Hume's time. Even up to "the 1930s . . . the idea that we should not collaborate where the outcome would clearly be beneficial to all of us would have seemed very far-fetched."281 To ascribe to the Framers the modern conception of collective action as a justification for thirdparty intervention-as opposed to Hume's belief that in the ordinary course of things, individuals' "moral sense" would induce cooperation-may risk anachronism.
For these reasons, the mere reference to a perceived "lack of concert"282 among the states in Madison's pre-Convention notes (assuming arguendo that those notes are probative as to the meaning of the subsequently drafted and collectively enacted Constitution) cannot be assumed to encompass the more complex post-Olsonian conception of collective action.283 The anachronism is especially jarring because, in other aspects of Madison's thinking, the likely dynamics of collective action constitute an important blind spot that works to the detriment of his larger institutional ambitions. In limning the separation of powers, for example, "Madison in essence overlooked the logic of collective action, assuming instead that within a given institution each official would do what is in the interest of all."284 Closer to the federalist bone, Publius's famous account of legislative politics in the course of defending the extended republic missed the very same logic of collective action that today's collective action federalists attribute to the Founders by envisaging a government designed to counteract large majority factions, but not minority factions.285
My second point concerns the mismatch between the heterogeneous mechanisms of collective action limned in Part II and the miscellany of federal powers enumerated in Article I of the Constitution. Simply put, it is difficult to see how these two varied catalogs can be aligned without doing some violence to one or the other. In consequence, I do not see how collective action can be fairly extracted as an immanent general principle from
Interpreters of the Constitution through the first few decades of the early Republic recognized the incompleteness of Article I's enumeration. They did not think to gloss
The Article I enumeration is also substantially overinclusive in ways that cannot be mitigated by aggressive penumbral construction of the constitutional text. Consider, by way of example, the
The logic of collective action, in short, cannot serve as a faithful proxy for original understandings when resolving ambiguities in the scope of congressional regulatory power. Perusal of the observed varieties of collective action between the states illuminates many instances in which states collaborate suc- cessfully to harvest larger collective goods. Reliance on the national political process as a panacea, by contrast, may be chancy given
The complexity of collective action has further implications for the secondorder question of which institution should be tasked with drawing boundaries between domains of federal and state regulatory authority. Although collective action provides no crisp template for sorting powers between sovereigns, it is surely not implausible that governmental power should be divided between the federal government and the several states according to their respective competencies, as Cooter and Siegel lucidly suggest.293 If this consequentialist principle of institutional design were endorsed-and some interpretative approaches to the Constitution, such as originalism and textualism, do not obviously yield that conclusion-then a more granular understanding of collective action suggests that, at least as a purely epistemic matter, courts are ill positioned to draw boundary lines.294 In short, this analysis suggests that treating collective action dynamics as key to federalism doctrine presses toward either judicial deference to federal action (as Cooter and Siegel suggest, albeit for different reasons) or toward the wholesale nonjusticiability of federalism questions.
IV. RECONSIDERING THE CASE AGAINST FEDERALISM'S POLITICAL SAFEGUARDS
What then of the collective action case against Garcia's political safeguards? This Part argues that the logic of collective action fares no better when pressed into the service of states' interests. Recall that such arguments rest on the claim there is a "classic collective action problem" impeding federal legislators from adequately vindicating states' interests, hence licensing federal court intervention.295 Homing in on the troublesome claim that there is such a thing as a "classic" collective action problem in light of Part II's more complex typology, I offer four points in response.
First, collective action arguments do not necessarily predict an underproduction of federalism-related advocacy and representation in
A. Questioning the Tragedy of the
One of the most powerful arguments marshaled on behalf of federalism's judicial safeguards hinges on the observation that federalism-understood for the purposes of this Part as the adequate consideration of states' interests-is a collective good that will be undervalued by most national legislators.296 Rather than preserving the "commons" of state regulatory and fiscal autonomy, this argument suggests, each legislator will tend to overuse that shared resource as they pursue their interests in reelection and interest group satisfaction. This tragedy of the federalism commons-which has the structure of a multiplayer prisoners' dilemma-is linked to a public choice argument developed by Hills, McGinnis, and Somin,297 but also stands on its own. I begin by bracketing the public choice argument so as to consider first a simple version of the tragedy of the federalism commons argument.
That argument hinges upon an alleged asymmetry in federal legislators' incentives respecting states' interests. Legislators are thought to externalize the costs of excessively nationalistic federal legislation that improperly infringes on states' interests. The failure to internalize these costs then drives the tragic prediction. By contrast, the argument assumes that
But it is not clear that either element of the argument holds. Consider the assertion that the federal government, and in particular
Bringing this insight to bear on doctrine requires a prediction as to whether, either in the case of a specific bill or across the spectrum of legislation, profederalism and antifederalism biases are likely to offset each other. It is impos- sible, however, to assess offsetting effects without a theory of "framing" that determines when legislative offsets "count."304 Potential frames include a single provision, a specific bill, a particular session of
In sum, claims about a tragedy of the federalism commons in the legal scholarship tend to ignore the possibility that
B. Federal Legislative Solicitude for State Interests
If the argument for federalism's judicial safeguards cannot be made when framed at a high level of abstraction, can it succeed when pitched in the public choice argot of interest group dynamics? Critics of Garcia contend that federal legislation is, in fact, persistently biased against states' interests. Garrett thus identifies a "temptation to use unfunded federal mandates to shift political liability for higher taxes [that] will frequently overcome any predisposition of national legislators to protect states' interests."307 McGinnis and Somin complain that both legislators and political parties are, in fact, "more responsive to the demands of national special interests than those of state governments."308 Hills dismisses the political safeguards argument out of hand with a blanket statement that "[t]he recent history of intergovernmental relations does not suggest optimism that the national political process will correctly weigh the costs to federal and non-federal policy goals."309 And Baker and Young assert that
This argument from empirics is no more persuasive than its more abstract, theoretically infused cousin. To begin with, as Garrett carefully explains, the assertion that
For example, consider Baker and Young's concern about horizontal aggrandizement by some states through imposition of a uniform regulatory regime that disadvantages other states.313 Cases of horizontal aggrandizement are hardly straightforward to identify. One of Baker and Young's case studies is a national ban on same-sex marriage.314 Setting aside equal protection concerns implicit in this example,315 it is not clear how one determines this ban is properly labeled "aggrandizement." Would a rule against plural marriages raise the same concern? What of a law that imposed a uniform age of consent? Any uniform national rule conforms to some states' preferences, while flying in the face of other states' wishes. The mere fact that there are both winners and losers tells us little about whether national uniformity is socially desirable. Rather, it is necessary to posit a substantive, normative theory (e.g., efficiency, equality, or some version of state sovereignty) to pick out cases in which nationalization is appropriate.316 Absent such an account, merely positing the possibility of horizontal aggrandizement tells us nothing about whether any specific national law is undesirable or whether the net effect of national legislation is positive or negative.317 Federalism, that is, is not a theory of substantive justice.
Worse, contrary to the empirical claims developed by Garrett et al., even casual observation suggests that states' interests are in fact often protected in federal legislation as a consequence of the mechanisms described in Part II. Further piecemeal evidence of the kind I present below, to be clear, is not dispositive-mere anecdotage is no more conclusive when offered in rebuttal than when offered as part of a case-in-chief. But, at minimum, it elevates the burden of persuasion.
To begin with, there is little doubt that states have ample institutional resources with which to lobby Congress.318 Accordingly, even in domains where federal interests might be expected to trump state concerns, states' interests still receive special solicitude. In the foreign affairs domain, for example, the
Congressional solicitude for federalism concerns outside the foreign affairs context is even more robust. For example, the 1996 restructuring of federal habeas corpus review was spearheaded by "ardent restrictionists . . . intend[ing] to shield state interests from federal incursion."322 They can plausibly be said to have achieved this goal. In the same year, state attorneys general successfully persuaded
Four years after habeas and prison litigation reform were enacted,
In some instances, states may succeed in
All of these federal measures thus protect states' policy choices. They are all instances in which the several states succeeded in the federal legislative process, albeit through different strategies and to different degrees. Of course, this is not to say that states will always prevail. Nor is it not to deny that sometimes nationalist interests prevail, or to reject categorically examples of federal legislative action that extend only symbolic protection to states' interests. The central point here is rather that a simple and singular model of collective action does not always or fully capture the extent and success of states' input into the federal legislative process.335
How then do the mechanisms identified in Part II aid the states as participants in the national political process? Start with the consequences of state heterogeneity: it is likely that states have widely divergent rates of success in lobbying
Once a subset of states achieves its policy goal, moreover, the ensuing regulatory regime may well have the characteristics of a step good: it will often be supplied in a sharply discontinuous lump, rather than in increments that distinguish between different states.337 This means that other states can free ride on the lobbying states' efforts. Many of those noncontributing states, in addition, will play an analog and complementary lobbying role in other regulatory fields. In this fashion, heterogeneity of benefits can interact with the step character of many legislative goods to mitigate collective action pathologies.338
Next, reconsider the common complaint that there is no reliable federalism constituency in
Finally, states' collective action pathologies may be compounded, rather than solved, by increased judicial solicitude for states' interests. To see this possibility, consider perhaps the most important instance of cost shifting between states-the safety net created by
Identifying the underlying dynamic as a chicken game distinct from the classical logic of collective action has the important consequence of undermining the case for external intervention by the federal courts on behalf of the several states as a cure for political fragility in the national legislative process. Given those Southern states' existing precommitments, that is, a return to state regulatory autonomy may not yield enlarged social welfare. Instead, Newman and O'Rourke argue, the better approach may be to increase federal control.345 In this context, judicial intervention may perversely allow some states to exploit other states' willingness to sustain redistributive social policies.
In sum, historical and contemporary evidence hardly supports the intuition that states suffer from disabling collective action problems when lobbying
C. Noncoercive Solutions to the States' Collective Action
States' successes in the national political process can also be explained in terms of voluntary solutions to collective action dilemmas. Two merit special attention: intracameral norms of federalism and the twentieth-century development of a dense and effective state lobby in
First, the federalism context may at first seem an unpromising locale to root conventions, but the Constitution does create stable institutional contexts in which norms that favor the states are inexpensive to cultivate. Empirical studies of
Second, when a group of specific states or legislators has a history of working together, it may develop tools to mitigate holdout and free rider problems as "a by-product of whatever [other] function this organization performs that enables it to have a captive membership."352 The logic of collective action here is "path dependent" insofar as "[o]nce established . . . patterns of political mobilization, the institutional 'rules of the game,' and even citizens' basic ways of thinking about the political world will often generate self-reinforcing dynamics" to mitigate undesirable infringements on states' prerogatives.353 Of course, there is no reason to believe that such voluntaristic solutions will solely be conscripted into the service of desirable goals. One reason why the Second Reconstruction of the mid-twentieth century did not begin in
Twentieth-century institutional development has yielded resources for states to mitigate collective action dilemmas effectively on their own. An obvious vehicle for collective political action is the national political parties, which provide a focal point for states sharing common policy interests.356 Perhaps even more important, though, are state-specific lobbying organizations. In the last century, states have developed an "intergovernmental lobby," including the
To be sure, these solutions to collective action problems were not selfgenerating.361 Ironically, it was federal officials who defrayed the "initial costs of organizing."362 President
Once again, a caveat is necessary: I do not mean to suggest that states are always successful in federal legislative battles. Nor I do not mean to offer a precise or quantitative account of the degree to which
D. Comparative Analysis of States' Collective Action Costs
Collective action arguments for federalism's judicial safeguards tend to focus narrowly on the ability of the states to cooperate in the national political process. In so doing, they elide two other important comparative questions related to the political efficacy of subnational actors. First, what is the balance of power between states and opposing interests within
1. Collective action in
Drawing on public choice theory, some federalism scholars have argued that states are persistently outmatched in
Moreover, it is simply not empirically substantiated that states are ineffectual lobbyists on account of their numerosity. Rather, the heterogeneity of state contributions and benefits, the step nature of legislative goods, and the historical legacy of institutional development all make states potentially more effective lobbyists than the simple logic of collective action implies.379 As a result of these advantages, it cannot merely be assumed that states' opponents will be more "effective"380 than the intergovernmental lobby-especially when we recall that not all of the states' foes are as powerful as the business lobby. Consider, for example, the possibility that states will lobby for weakening federal environmental rules as a way to transfer costs onto future generations who are unrepresented in
The argument that states are systematically disadvantaged in
Rent extraction of this kind is likely to be a greater risk for private firms than states for two reasons.386 First, federal legislators can extract goods (most importantly campaign contributions) from firms in a way that they cannot from states. Members of
I have focused here on positive, descriptive problems in the public choice version of collective action federalism. These difficulties seem intractable to me. Even if they were not, arguments from public choice dynamics are often inconclusive in the absence of some normative theory telling us which group should prevail. Different normative intuitions might be sparked, for example, by legislative battles between, say, African Americans and pro-segregation Southerners in the civil rights context and tort plaintiffs and product manufacturers seeking preemption in the product liability context. That supplemental layer of normative concerns means that collective action arguments based on interest group dynamics need to contain an implicit theory of fair representation-an added complexity that renders their use as a heuristic implausible.
2. Are courts or
The collective action argument against Garcia assumes federal courts are good venues for states seeking to vindicate their interests. But, as McGinnis and Somin note, "why [should we assume that] the federal judiciary would prove better than political actors . . . at protecting federalism[?]"390 McGinnis and Somin's answer-that judges lack a "direct interest in undermining the distribution of powers" and have "first order" preferences that "may often help federalism"391-is unpersuasive absent evidence of judges' preferences (which they do not supply). The question therefore persists: why expect courts to do better?
It is, indeed, quite unclear that one should expect courts to be systematically more sympathetic to states' interests. Federal judges are hardly acoustically separate from political trends. Judicial appointments are made through an overtly political process in which the President392 and the
If judicial willingness to enforce states' interests correlates (with a lag) to political branch preferences,399 it is hard to see how courts can function as substitutes for absent legislative solicitude for states' interests. Instead, courts will vindicate states' interests only once national politicians have been similarly attentive. Judicial enforcement of federalism values will not smooth out variation in
Furthermore, critics of Garcia implicitly assume that the pathologies of national action they discern in
To give some more substance to this concern, imagine that several states confront a collective action problem, say, concerning the decision as to where disposal sites for low-level radioactive waste will be located. Those states secure congressional endorsement of a comprehensive accord settling the problem to the advantage of all, a Pareto-optimal deal embedded in a federal statute. A single recalcitrant state wishing to renege on its part of the bargain, however, can act as a foul dealer. It might turn to the federal courts to undo one element of the deal in a way that allows it to free ride on the efforts of others. This scenario, of course, is not a hypothetical. It arguably captures the basic facts of New York v.
The point here is not that courts are either just as "good" or "bad" as
The collective action argument against federalism's political safeguards relies on tenuous theoretical and empirical assumptions. In the abstract, it is certainly possible that collective action dynamics will lead
Along with the arguments developed in Part III, this critique of the judicial safeguards of federalism again points to the weakness of standard justifications for treating federalism questions as justiciable. The foregoing analysis suggests that just as federal judges will be hard pressed to identify instances in which national legislative action is warranted on consequentialist grounds, so too they will be systematically unable to pick out those cases in which states' interests have not been respected in the national legislative process. Absent some generally available heuristic to support a presumptive distrust of federal legislative outcomes, courts cannot effectively sort for more intensive review those instances in which the states' lobby was overwhelmed-even assuming they were able to conjure up a baseline to evaluate such claims in the first instance. Whatever the correct disposition of a given federalism debate, therefore, it would seem unlikely that judges will be best placed to render an accurate and faithful answer.
CONCLUSION
The central aim of this Article has been to evaluate the cogency of the collective action arguments that have come lately to haunt federalism doctrine. In contrast to treating collective action as a single dissolving template, thus accounting for current critique and enabling its critique, I have suggested that there is no one singular logic of collective action capable of being applied at a high level of abstraction. There is, in other words, no single model that can resolve, across the board, all of American federalism's many crosscutting tensions.
On the contrary, collective action is irreducibly plural. Efforts to staunch that complexity by settling on one parameter, such as numerosity, as a proxy for determining when collective action will succeed are, in my view, unlikely to bear worthwhile fruit. The loss of complexity attendant on such efforts, in my view, comes at too high a price in terms of predictive accuracy and analytic ambiguities. While it is unquestionably true that parsimonious models are useful tools in navigating complex empirical realities, parsimony is not warranted for its own sake. A simple model is only useful if its predictions prove sufficiently reliable in practice. It is not at all clear this basic precondition holds true for the simple models of collective action found in the extant federalism literature. This in turn suggests that there is no lodestar to be found there for judges or scholars seeking to understand or enforce federalism. My answer to this Article's eponymous question is, accordingly, "no": no single logic of collective action well explains federalism doctrine.
Instead, I hope that this Article triggers more granular analysis of discrete policy problems-be it health care or national security or environmental policy-on their own terms, enriched by close attention to the incentives, investments, and strategic options of each state participant within whatever logic of collective action is at work. At best, attention to the heterogeneous collective action mechanisms developed in this Article (although not limited to that catalog) will sharpen appreciation of the polymorphous welfare implications of American federalism.
My conclusion also has ramifications for the appropriate judicial role in vindicating federalism, as intimated in the closing words of Parts III and IV. Obviously, there is a great deal to be said respecting this question of the justiciability of federalism values, and I do not advance here a comprehensive case in favor of ousting judicial review of federalism questions.404 Rather, the lesson immanent in the foregoing appraisal of collective action arguments has a narrow gauge. In pressing on the empirical complexity of collective action claims, and pointing out the fragility of many posited mechanisms, I have expressed qualms about consequential arguments for the judicial review of federalism questions founded on the logic of collective action. To the extent one accepts those particular consequentialist foundations of federalism-rather than, say, the noninstrumental logic of constitutional originalism or textualism-one might further conclude that judges should play a more chastened role in calibrating the federal balance, or even no role at all.
To unpack this a bit further, both pro-nationalist and pro-decentralization scholars have argued for their respective positions by identifying a political process that is supposed to yield desirable results, and then identifying a flaw in that process. Based on that flaw, they have then pivoted to advocate judicial review as a compensating remedy. In that sense, their accounts can be understood as applications of what is known as the theory of the second best.405 This is the idea that that once a complex system peels away from its ideal parameter settings along one axis, welfare is not maximized by hewing to remaining firstbest conditions but rather by making compensating adjustments to account for other imbalances.
At least so far as collective action federalism is concerned, the foregoing analysis suggests that such second-best arguments for judicial superintendence are vulnerable to several objections. On the one hand, diagnoses of our deviation from a first-best state of affairs are more fragile than might first seem. In respect to both kinds of state collective action addressed here (for the production of collective goods on the one hand and for the production of political representation on the other), there are powerful reasons for thinking that the putatively missing state collective action will in fact be observed with some frequency. If this is so, there is no second-best condition to correct.
On the other hand, proposed treatments for collective action flaws are also vulnerable to second-best criticisms in their turn. Courts, that is, are ill posi- tioned to identify or predict collective action dynamics in practice because they lack the institutional capacity to resolve in a satisfactory fashion the knotty empirical and theoretical ambiguities inherent in any resulting federal-state boundary line.406 This is due to the complexity of the plural collective action mechanisms in observed operation, the absence of any close harmony between the constitutional text and modern economic concepts, and the inevitable distortions of the national political economy on the judicial appointments process.
Nor are courts well suited to policing federal legislation on the theory that they will be able to discover those instances in which the states' lobby in
The claims of collective action federalism on either the pro-national or the pro-state side of the ledger, therefore, depend on empirical and theoretical assumptions that are ultimately hard to sustain. As a result, no collective action logic can plausibly underwrite the practice of judicial review in the federalism domain (although perhaps such doctrine can be explained as instantiating static and unchanging historical commands derived from a conjuring of the Constitution's notional original public meaning-if such a jurisprudence is even possible and desirable).
The futility of judicial review of federalism matters, though, should not necessarily be a cause for large alarm. For the appropriate federal balance may well be far less fragile than the conventional rhetoric in public law scholarship might suggest. Whether engaged in the creation of collective goods or collaborating within the bounds of the federal legislative process, the states have a deep toolkit and a substantial track record of achievements. Practical experience demonstrates that the states are not as helpless as they are sometimes made out to be. As a result, it is quite plausible to think that the federalism balance is not really better off in judicial custody than in political hands-and indeed that it may well be worse off with judicial safeguarding.
It follows then that federal courts should not invoke collective action arguments as warrants for judicial review of federalism questions. Moreover, any furtherance of recent judicially enforced federalism tâtonnements should be greeted with trepidation and skepticism both by mavens of state authority and also by supporters of broad national power. For whether viewed from the aeries of national authority or the autochthonic heartlands of states' autonomy, the collective action foundations of federalism jurisprudence prove to be fabricated of fragile, fallible, and even fabular stuff.
1. For the locus classicus of this observation with respect to
2. The most obvious of these are the
3. This formulation raises an important normative question about the nature of representation in a federal government: how can elected institutions, including
4.
5.
6. It is common for judges and scholars to align the term "federalism" with claims and outcomes that favor the states over the national government. In this Article, I try to avoid this imprecise and selective usage, except when I am quoting and discussing sources speaking in such terms. Instead, I use the term "federalism" more abstractly to refer to an arrangement of governmental powers across jurisdictions of different sizes that coexist in the same geographic territory. For a useful history of the term, see generally
7. MANCUR OLSON, JR., THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1965).
8. See id. at 2.
9. See id. at 36.
10. See id. at 22, 33-36.
11. Coase famously explained that when transaction costs are zero, an efficient result is reached regardless of the initial assignment of a legal entitlement. R.H. Coase, The Problem of Social Cost, 3 J.L. &
12. See discussion infra Part I.A-.B.
13. Pub. L. No. 111-148, 124
14. See, e.g.,
15. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2612 (2012) (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part); see also
16. See, e.g.,
17.
18. See id. at 553-59.
19. Garcia v. San Antonio Metro. Transit Auth.,
20. For a succinct history of federalism doctrine in the past three decades, see
21.
22. Note that unlike
23. The most eloquent version of this argument is offered by
24. Consonant with the body of jurisprudence and literature analyzed here, I bracket the matter of collective action problems among localities within a state. For treatments of spillover effects between local government units, with attention to the problem of defining local boundaries, see, for example,
25. For an introduction to the diverse lines of doctrine at stake, see
26. See MIKHAIL FILIPPOV ET AL., DESIGNING FEDERALISM: A THEORY OF SELFSUSTAINABLE FEDERAL INSTITUTIONS 34, 227 (2004) (noting the possibility of multiple potential federalism equilibria). Filippov et al. argue that this premise suggests the necessity of fixed rules that define "the core institutional structure of the federal center and its relationship to federal subjects." Id. at 36. My argument is that those rules cannot be defined by mechanical application of the prisoners' dilemma.
27.
28.
29. This tracks
30. I should be clear about the limits of the claim advanced here: judicial safeguards for federalism might be justified on terms other than the failure of states' political safeguards, such as the Constitution's original meaning. I do not address such arguments here. Rather, my argument is focused on the interaction between one particular strand of political and economic theory (about collective action) and judicial doctrine. Of course, there have been cogent arguments advanced against other potential foundations for federalism doctrine, such as the inference from an original public understanding of the Constitution's diffuse structure. See, e.g.,
31.
32. By contrast, courts tend to offer only partially theorized accounts of federalism. In consequence, I focus here largely on scholarship and not judicial opinions.
33. Important earlier works demonstrating the importance of collective action mechanisms include
34. By this, I mean the extrapolation of broad constitutional federalism principles with at best weak links to specific parts of the constitutional text. On the legitimacy of such freestanding claims, compare Manning, Generality Problem, supra note 30, at 2008 (criticizing deployment of freestanding federalism claims), with
35. Cf.
36. Siegel defines it as "a situation in which individually rational action by states leads to collectively irrational results," a definition that suggests a causal relationship between the discrete rational actions and the collectively irrational result. Siegel, supra note 15, at 1941. The argument below suggests, however, that the deployment of the term in the literature (including Siegel's own work) does not always specify only those cases in which collectively inefficient outcomes are likely to occur.
37. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 20 (
38. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 37, at 21. The language of Resolution VI was later amended upon a motion by a
39. RAKOVE, supra note 37, at 178. This reading of the Convention's discussions has been disputed.
40.
41. Balkin, supra note 40, at 13; see also
42. Balkin, supra note 40, at 35.
43. Id. at 32.
44. BALKIN, supra note 40, at 147 (distinguishing "problems that are federal by nature [as they] require a federal solution" from "national problems that occur in many places but that do not require coordinated action and a single approach").
45. See Coase, supra note 11, at 8-10.
46. See infra text accompanying notes 57-59.
47. See infra text accompanying notes 179-87.
48. Balkin, supra note 40, at 6. Elsewhere, Balkin has explained that his argument "does not displace the list of enumerated powers; it merely offers a background structural principle for creating doctrinal constructions that apply the various enumerated powers in concrete cases."
49. BALKIN, supra note 40, at 145; accord Lash, supra note 39, at 2127 ("Under [Balkin's] approach, all congressionally identified 'collective action problems' by definition fall within the constitutional power of
50. Balkin is admirably candid about his substantive commitments. See, e.g.,
51.
52. See, e.g.,
53. See, e.g.,
54. For references to a singular "theory of collective action," see Cooter & Siegel, supra note 16 passim. In a subsequent paper, Siegel acknowledges and cogently dissects the internal heterogeneity of the term "externality," which he and Cooter on occasion use as a proxy for a collective action problem. Siegel, supra note 15, at 1961-67.
55. Note that this argument is distinct from the claim that individuals' actions will generate collectively suboptimal outcomes due to free riding, as has been argued in the context of the individual mandate provision. For a critical view of that claim, see
56. Cooter & Siegel, supra note 16, at 117.
57. Id. at 144 ("[B]enefits and costs that spill across state lines create an incentive for each state to free ride on the efforts of other states."); Siegel, supra note 15, at 1941 ("A collective action problem may also arise in cases of interstate spillovers . . . ."); accord
58. Cooter & Siegel, supra note 16, at 140.
59. Siegel, supra note 15, at 1940 ("[A] collective action approach . . . maintains that the existence of a significant problem of collective action facing two or more states is both necessary and sufficient for
60. See, e.g., id. at 1940-41, 1946.
61. Cooter & Siegel, supra note 16, at 147-51; see also Siegel, supra note 14, at 45-46 ("The various clauses of Section 8 form a coherent set . . . . Coherence comes from the con- nection that the specific powers have to collective action problems that the federal government can address more effectively than the states can address by acting alone.").
62. Cooter & Siegel, supra note 16, at 140-41 (discussing and rejecting the possibility of state compacts as "unpromising"); see also Siegel, supra note 14, at 45-46 ("The states cannot achieve an end when doing so requires multiple states to cooperate-that is, when doing so requires collective action."). Elsewhere they note that "[s]ometimes state cooperation is likely to succeed," as when only two states are involved. Cooter & Siegel, supra note 16, at 159.
63. Cooter & Siegel, supra note 16, at 135-36. Others offer different definitions of public goods. See, e.g.,
64. Cooter & Siegel, supra note 16, at 137 (emphasis omitted).
65. HARDIN, supra note 63, at 20 (emphasis omitted). To be clear, Cooter and Siegel do not cite Hardin's work: the linkage to his work is thus my inference, not part of their claim.
66. Cooter & Siegel, supra note 16, at 139.
67. Id. at 143; see also id. at 139-40 (using the Coase Theorem to underscore the relevance of transaction costs).
68. Id. at 142.
69. See OLSON, supra note 7, at 2 (arguing that "unless the number of individuals in a group is quite small . . . rational, self-interested individuals will not act to achieve their common or group interests" (emphasis omitted)); id. at 20-21 (same).
70. Id. at 45.
71. Cooter & Siegel, supra note 16, at 154 ("We further note that the theory of collective action federalism addresses the substantive meaning of Article I, Section 8, not the institutional roles of
72. Id. at 151, 159. In the cited passage, Cooter and Siegel expressly disclaim any intent to offer a "guide" in respect to the Reconstruction Amendments. A plausible negative inference from this comment is that their work does offer guidance in respect to Article I's enumerated powers. This observation also precedes an extended critical discussion of the Court's Commerce Clause case law. Id. at 159-68. Given that context, it is hard to read their remark as wholly sidestepping any judgment about the appropriate forms of judicial action.
73. Id. at 175.
74. Id. at 181. In later work, Siegel has made more explicit claims about federalism doctrine.
75. Siegel, supra note 15, at 1966; see also id. at 1942 (offering "resources" to generate a limited reading of the Commerce Clause "[i]n the context of judicial review").
76. See, e.g., Cooter & Siegel, supra note 16, at 159 (noting that "state cooperation is unlikely to succeed . . . [inter alia] when the need for cooperation involves numerous states"). There are elements of the argument that hint at greater complexity. For example, Cooter and Siegel say that they mean to draw attention to "congressional judgments about the existence and seriousness of collective action problems, and about the adequacy of
77.
78. THE FEDERALIST NO. 48, at 308-09 (
79. THE FEDERALIST NO. 45 (
80. The FEDERALIST NO. 17 (
The State governments will have the advantage of the federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.
THE FEDERALIST NO. 45 (
81. Contemporary economic analysis suggests that a national entity can dominate through a strategy of "divide-and-rule." See Daron Acemoglu et al., Kleptocracy and Divideand-Rule: A Model of Personal Rule, 2 J. EUR.
82. Wechsler, supra note 17, at 552.
83. Id. at 546-52. What if the understanding at the time of the Framing of Constitution was that political mechanisms would ensure the vindication of federalism values, but subsequent institutional development (including, but not limited to, the Seventeenth Amendment) has undermined that assumption? Much of the literature on the judicial safeguards of federalism seems to view the latter amendment as a catastrophe, rather than an exercise of popular sovereignty to be honored and respected. Cf.
84. Andrzej Rapacynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 SUP. CT. REV. 341, 373.
85.
86. Garcia v. San Antonio Metro. Transit Auth.,
87. Id. at 556.
88.
89. THE FEDERALIST NO. 46 (
90. Id. Lest this all seem far-fetched, we might recall the role that Madison, along with
91.
92. In The Federalist No. 44, Madison predicts "the success of the usurpation [by
93. The availability of political safeguards for federalism might justify a deflationary recalibration of judicial review's intensity. See, e.g.,
94. Garrett, supra note 23, at 1133.
95.
96. Garrett, supra note 23, at 1133-35 ("[T]he ability to shift some or all of the costs of a national program to states or localities may cause national lawmakers to underestimate the costs relative to the benefits and enact unnecessary or unwise programs.").
97. Id. at 1135-36.
98. For an excellent introduction to the tragedy of the commons problem, see
99.
100.
101.
102. Devins, The Judicial Safeguards, supra note 101, at 131 (concurring with McGinnis & Somin, supra note 101).
103.
104.
Cf. Baker & Young, supra note 103, at 163 (questioning "the longstanding assumption that states' rights are somehow importantly different from other areas of constitutioual [sic] law in which the necessity and value of judicial review are taken for granted"); Garrett, supra note 23, at 1179-83 (discussing judicial review of federalism values in the context of statutory interpretation); McGinnis & Somin, supra note 101, at 93 ("[C]ourts should vigorously protect constitutional federalism . . . ."). 108.
McGinnis & Somin, supra note 101, at 99-100. 99-100.
109. Both sides in the federalism debate are thus focused on a single, specific moment in the political economy of federalism-either the threshold government responses to a policy problem, or the ensuing national legislative and regulatory process that generates federal responses. Each side identifies a specific dynamic at play in that moment, and then draws general conclusions from that observation. Neither side, however, offers an integrated account of the entire policymaking process-from identification to resolution-that accounts for diverse kinds of collective action problems along the way.
110. The literature is divided on where the apostrophe goes in that phrase; since the core of the game is the plurality of prisoners, it makes more sense to speak of it in the plural. See HARDIN, supra note 63, at 24 (describing emergence and identification of the prisoners' dilemma).
111. A negative payoff here can be imagined as a prison term of years; a zero result reflects being set free. The row player's options are represented on the vertical axis while the column player's options are represented on the horizontal axis.
112. Cf.
113. See MICHAEL TAYLOR, ANARCHY AND COOPERATION 6-7 (1976) (exploring the emergence of a single dominant strategy in two-person and multi-person prisoners' dilemmas).
114. The
[t]he central solution concept in game theory. It is based on the principle that the combination of strategies that players are likely to choose is one in which no player could do better by choosing a different strategy given the ones the others choose. A pair of strategies will form a
DOUGLAS G. BAIRD ET AL., GAME THEORY AND THE LAW 310 (1994) (italics omitted).
115.
116. TAYLOR, supra note 113, at 10; accord
117. BAIRD ET AL., supra note 114, at 34.
118. The literature also contains a highly technical strand, which allows for the creation of highly particularized formal models of collective action. For a technical overview, see generally
119. See TADELIS, supra note 118, at 241-368. Introducing concepts of incomplete information into the analysis might add verisimilitude, but would also render it resilient to tractable nontechnical summary. To the extent my underlying aim here is destabilizing in nature, that constraint on the analysis is not ultimately debilitating.
120. My analysis, however, remains within a relatively narrow rational choice framework, and does not address the argument that "perceptions of efficacy . . . ideology, feelings of responsibility, social pressures, and other purposive/solidary dimensions of motivation" also change collective action dynamics.
121. BAIRD ET AL., supra note 114, at 45 ("[W]ell-known paradigm[s] such as the prisoner's dilemma . . . can become Procrustean beds, and, by rushing to one or another too quickly, one may miss important parts of a problem."). Most commonly, it is assumed that there is a prisoners' dilemma at work.
122. My argument tracks
123. Cooter & Siegel, supra note 16, at 139.
124. HARDIN, supra note 63, at 67.
125.
126. In addition to inequality of benefits and heterogeneity of benefits, which are discussed in the text, there is also the possibility of asymmetries between contributions and benefits. I do not address this possibility because it is not clearly of importance in the context being addressed here.
127. See GERALD MARWELL &
128. MARWELL & OLIVER, supra note 127, at 10.
129. Id. Heterogeneity of participants' interests and heterogeneity of participants' resources are distinct and not necessarily correlated. Nonetheless, they can have the same effect on collective action dynamics.
130. For slightly different, if overlapping definitions of jointness, see MUELLER, supra note 116, at 11 ("The extreme case of jointness of supply is a good whose production costs are all fixed, and thus whose marginal production costs are zero . . . . For such a good, the addition of more consumers . . . does not detract from the benefits enjoyed by others."); and TAYLOR, supra note 113, at 14 ("A good is said to exhibit indivisibility or jointness of supply (with respect to a given set of individuals, or public) if, once produced, any given unit of the good can be made available to every member of the public." (emphases omitted)). Note that jointness is distinct from whether the use of a good involves a discrete cost to users (e.g., an access fee or an opportunity cost). Further, the cost of a jointly supplied good such as national security may vary (say, as external threats increase or diminish), but will do so in a way that is not necessarily correlated with the number of users.
131. But cf. HARDIN, supra note 63, at 76 (noting the possibility of tailoring a tariff so it only benefits those who lobbied for it).
132.
133. Critical mass effects have been invoked to explain why trade associations are effective lobbies even when their members are numerous and therefore would be expected to face severe collective action hurdles.
134. Oliver & Marwell, supra note 132, at 4.
135. See, e.g., Cooter & Siegel, supra note 16, at 159; see also MUELLER, supra note 116, at 12-13 (distinguishing small and large groups for collective action purposes). Moreover, "[h]eterogeneity augments collective action when that action's success is most problematic, e.g., when the temptation to free-ride is great" and "impedes collective action when social cooperation is least problematic." Heckathorn, supra note 129, at 347; accord Oliver, supra note 27, at 293 (discussing further the "critical mass" phenomenon). Moreover, when there is a single organizer seeking to catalyze collective action, she will typically "approach those individuals whose contributions seem likely to be largest" first, and in this way rapidly secure the necessary critical mass.
136.
137. MARWELL & OLIVER, supra note 127, at 29; accord HARDIN, supra note 63, at 76 (arguing that the likelihood of voluntary cooperative action is enhanced when "members of a group . . . want a group good for various reasons, some of them especially valuing one attribute, others another"). Note that this requires the group to solve a separate collective action problem of stopping defections from the group by those whose interests are satisfied first. This possibility may be most relevant and most substantial in situations of indefinitely repeated strategic interactions.
138. I am grateful to
139. Cf.
140. See HARDIN, supra note 63, at 73.
141.
142. A Hobbesian state of nature is one in which the absence of centralized authority means "continual fear and danger of violent death," such that "the life of man [is] solitary, poor, nasty, brutish, and short."
143. Pettit, supra note 141, at 374.
144. This occurs through a "chicken"-game dynamic. See infra text accompanying notes 189-91 (defining and discussing the chicken game).
145. Moving beyond the constraints of a rational actor model, it is also possible to posit that the larger the group, the more free riders there will be, and the greater the resentment felt by members of the operative subgroup.
146. Oliver, supra note 27, at 275 ("Put simply, in some situations the group size effect will be negative, and in others positive.").
147.
148. HARDIN, supra note 63, at 59-61.
149. Contributions tend to have "strongly complementary elements"-as is the case with parts of a bridge or the walls that make up a house.
150. It is also possible to have a "step (especially binary) contribution." HARDIN, supra note 63, at 51.
151. Fennell, supra note 149, at 1959; see also
152. Taylor & Ward, supra note 147, at 355.
153. This point was first developed in
154. HARDIN, supra note 63, at 56.
155.
156. Heckathorn, supra note 27, at 251. This S-shaped production function can arise because of positive feedback loops. Initially, efforts to elicit collective action may be tentative, since it will be unclear whether enough others will join. As others do join, "adaptive expectations" spread, and the likelihood the good will be created rises sharply, only to level off when it is clear the good will be produced.
157. HARDIN, supra note 63, at 58. For support based on simulations of interdependent action, see
158. Cf.
159.
160. TAYLOR, supra note 113, at 122 (quoting HUME, A TREATISE OF HUMAN NATURE 490 (
161.
162. HARDIN, supra note 63, at 155; see also OSTROM, supra note 28, at 14-15, 34-37 (discussing a broad range of potential solutions to collective action problems, including norms). For applications in the legal scholarship, see
163.
164.
165. This may happen, for example, through third-party enforcement.
166.
167. Ostrom argues that "a more eclectic (and classical) view of human behavior" provides a larger and more illuminating set of tools for understanding how collective action problems are, in fact, solved in practice. Ostrom, supra note 159, at 141.
168. For a useful model of norm entrepreneurship, see
169.
170. Id. at 1246-50 (reviewing scholarship).
171.
172. STEARNS & ZYWICKI, supra note 171, at 71.
173. Beyond norms, recent work shows that some games may be solved by novel mechanisms such as money-back guarantees.
174. This is known as a supergame in game theory. TAYLOR, supra note 113, at 85.
175. See AXELROD, supra note 112, at 54. The most important of these is tit-for-tat, which "starts with a cooperative choice, and thereafter does what the other player did on the previous move." Id. at 31.
176. HARDIN, supra note 63, at 145.
177. Ostrom, supra note 159, at 139-41 (summarizing evidence). Indeed, there is a good argument that cooperation even in a finite sequence of games is rational. See HARDIN, supra note 63, at 146-47. In one fascinating natural experiment of one-shot prisoners' dilemma dynamics in the context of the game show Friend or Foe?, about a quarter of participants cooperated, leaving a substantial amount of money unclaimed.
178. TADELIS, supra note 118, at 159-60 (describing the centipede game, summarizing empirical results, and noting exceptions to the cooperation result).
179. Taylor organizes his analysis into four general classes of strategies. TAYLOR, supra note 113, at 44. But these do not seem to be intended by Taylor to be treated as exhaustive.
180. ELSTER, supra note 166, at 44 (noting the "highly precarious" nature of uniform cooperation in an n-person prisoners' dilemma).
181. TAYLOR, supra note 113, at 45, 92.
182. Id. at 92-93. Because cooperation may be contingent on what everyone else does, a game with a large n of players is more likely to have a defector in any given round. Moreover, behavior is more observable with small numbers.
183. HARDIN, supra note 63, at 194.
184. Id. at 196. Hardin gives the example of a liar who enters a community of truth tellers. He argues the liar would soon find the reputational costs of lying so great that she would switch to the community norm of truth telling. Id.
185.
186.
187. Where there are multiple equilibria, a final result may be the product of adaptive expectations, asymmetries of power, or instability. See ELSTER, supra note 166, at 10-11 (discussing the analyses of multiple equilibia problems in rational choice theory).
188. Mahoney & Sanchirico, supra note 185, at 2051 (noting that evolutionary "models that restore efficiency rely on perfect information, the absence of friction, and location availability that runs counter to common experience and practical application").
189. See MUELLER, supra note 116, at 16 (noting that while the prisoners' dilemma "is the most frequently used characterization of the situations to which public goods give rise," the latter can "generate other kinds of strategic interactions"); see also McAdams, supra note 115, at 211-12 (reaching the same conclusion).
190. McAdams, supra note 115, at 211. McAdams goes on to provide an excellent guide to other games, such as the "assurance game" and the (unfortunately named) "battle of the sexes game." See id. at 218-23. These dynamics, although important in some legal contexts, are not salient to my analysis in Parts III and IV below, and so I do not discuss them.
191. States' collective action dynamics can be modeled with several other games.
192. See BAIRD ET AL., supra note 114, at 44; see also
193. Cf. TAYLOR, supra note 113, at 8 (noting that in a prisoners' dilemma, "each individual finds it in his interest to exploit the commons . . . no matter what the others do").
194. Cf.
195. The best response is a "mixed" strategy in which one randomizes between options (rather like the best approach to a game of rock-paper-scissors).
196. McAdams, supra note 115, at 224 & n.54.
197. ELSTER, supra note 166, at 26, 27 & n.15. In a multi-person version of this dynamic, there is a coalition containing several large contributors, each of whom could independently supply the good, yet each of whom would stay her hand in the hope that others will step into the breach.
198.
199. Taylor & Ward, supra note 147, at 355.
200. See id. at 357.
201. Id. at 366-67.
202.
203.
204.
205.
206.
207. Cooter & Siegel, supra note 16, at 150.
208. Balkin, supra note 40, at 4.
209.
210. See DOUGHERTY, supra note 209, at 78-89.
211. Lutz, supra note 209, at 585.
212.
213. Cf. California State Motor Vehicle Pollution Control Standards; Notice of Decision Denying a Waiver of
214. See, e.g.,
215. Id. at 1128 ("With very few exceptions,
216.
Roderick Hills has explained, when
218.
219. Notice also that the CAA's safe harbor from preemption implicitly reflects a comparative judgment: it both reflects
220.
221. See U.S. CONST. art. I, § 10, cl. 3 ("No State shall, without the Consent of
222. Cooter & Siegel, supra note 16, at 140-41 ("The probability of cooperation approaches zero as the number of states that must unanimously agree exceeds, say, ten.").
223.
224.
225. These mechanisms are distinct from "horizontal coercion across states or localities in the American federal system," which remains "limited" in scope. Shipan & Volden, supra note 223, at 841-43.
226. Frequently Asked Questions, UNIFORM L. COMMISSION, http://www.uniform laws.org/Narrative.aspx?title=Frequently%20Asked%20Questions (last visited
227.
228.
229. See About the
230. One example is tobacco regulation.
231.
232. Id. at 6. It is not the only organization to play this role. The State and Local Legal Center also files amicus briefs on behalf of the major state and local government organizations.
233.
234. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2576, 2601-09 (2012). As of this writing, fourteen states have exercised the option created by the Court.
235. Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2621, 2631 (2013). The Court invalidated the coverage formula for section 5 of the Voting Rights Act. Id. at 2631. Since the likelihood of congressional reenactment of a new coverage formula consistent with the
236.
237. Not all interstate compacts require congressional approval.
238. Cooter & Siegel, supra note 16, at 141.
239.
240. See REG'L GREENHOUSE GAS INITIATIVE, ABOUT THE REGIONAL GREENHOUSE GAS INITIATIVE (RGGI) (2012), available at http://www.rggi.org/docs/Documents/ RGGI_Fact_Sheet_2012_09_28.pdf;
241. For an argument that no such approval is needed under current precedent, see Note, The Compact Clause and RGGI, 120 HARV. L. REV. 1958, 1962-67 (2007).
242. ZIMMERMAN, supra note 239, at 35.
243. Note, State Collective Action, 119 HARV. L. REV. 1855, 1863 (2006).
244. ZIMMERMAN, supra note 239, at 53.
245. An example of such a foul dealer problem is
246. See supra text accompanying notes 171-73 (discussing the comparative nature of collective action arguments in public law scholarship).
247. See CHARLES STEWART III, ANALYZING CONGRESS 15-22 (2001) (providing a formal proof of this proposition).
248.
249. See generally
250.
251. As defined by the
252. For a crisp account of the basic intuition, see KREHBIEL, supra note 248, at 23-24. Krehbiel's initial presentation of his model omits committees for the sake of expository clarity.
253. See STEARNS & ZYWICKI, supra note 171, at 112 ("Scholars commit the nirvana fallacy when they identify a defect in a given institution and then, based upon the perceived defect, propose fixing the problem by shifting decisional responsibility somewhere else.").
254. There is also some reason to believe enactment costs of environmental legislation in the states will be lower because of reduced interest group pressure.
255. Hasday, supra note 236, at 4 (noting the rarity of interstate compacts). Uncertainty about the extent to which a compact can survive without congressional approval is likely another source of friction interfering with state collective action. The current doctrinal test is framed in vague terms that provide little practical guidance. See id. at 39-40 ("[N]either the courts nor the scholarly literature has produced a coherent explanation of the status of noncompact interstate agreements under the contract impairment clause.").
256.
257. Id. at 328-29 (developing the theoretical point and collecting empirical evidence).
258. For evidence that legislative gridlock is unusually constrictive in the health care domain, see
259. 132 S. Ct. 2566, 2642 (2012) (joint dissent).
260.
261. For a critical review and reconsideration of potential causal theories, see generally
262. In fact, the problem of deciding on the propriety of federal action is even more difficult. Consider Siegel's assertion that the imposition of
263. See, e.g.,
264.
265.
266.
267. Cooter & Siegel, supra note 16, at 154.
268. Balkin, supra note 40, at 4, 12.
PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 74 (1982); see id. at 89 ("[S]tructural approaches are very powerful for some kinds of questions, particularly intergovernmental issues . . . .").
270. Cooter & Siegel, supra note 16, at 146-50.
271. Id. at 154, 156.
272. See, e.g.,
273. See GARRY WILLS, EXPLAINING AMERICA: THE FEDERALIST 13-23 (1981) (describing Madison's education in Hume's works and tracing their influence in The Federalist Papers);
274. Hume's example involved a common interest in draining a meadow:
Two neighbours may agree to drain a meadow, which they possess in common; because 'tis easy for them to know each others mind; and each must perceive, that the immediate consequence of his failing in his part, is, the abandoning the whole project. But 'tis very difficult, and indeed impossible, that a thousand persons shou'd agree in any such action; it being difficult for them to concert so complicated a design, and still more difficult for them to execute it; while each seeks a pretext to free himself of the trouble and expence, and wou'd lay the whole burden on others.
275. See Brian Skyms, The Stag Hunt, 75 PROC. & ADDRESSES OF AM.
276. This cannot be taken for granted. Cf.
277. HUME, supra note 274, at 586-87 (complaining that men tend to prefer a "trivial advantage," when present, rather than a "very remote" but larger gain).
278. WILLS, supra note 273, at 31; see
279. TUCK, supra note 194, at 127; see also id. at 207 (noting the "acceptance of the rationality of large-scale collaboration continued all through the heyday of mass politics in the nineteenth century").
280. In more contemporary terms, we might understand Hume to be talking about Rawlsian reasonableness, rather than Rawlsian rationality. See JOHN RAWLS, POLITICAL LIBERALISM 50-51 (1993) (distinguishing in the course of a larger account of political liberalism the concept of rationality, which is understood in terms of maximizing self-interest, from reasonableness, which is framed as "fair social cooperation").
281. TUCK, supra note 194, at 15; id. at 192, 194.
282. Madison, supra note 272, at 71.
283. To be clear, I do not doubt that Madison saw "too little authority in the center to control the jealousies and animosities of the peripheries" as a problem, or that he believed that "[h]istory and experience . . . conjoined to produce a new theoretical understanding that a robust and independent central authority was indispensable if the Union (and so the states) were to survive."
284.
285. THE FEDERALIST NO. 10 (
286.
287. The conventional modern view-which I do not mean to dispute-is that the General Welfare Clause allows federal action with an economic redistribution effect. Although there is no
288.
289. Id. at 12, 15.
290. Id. at 13, 16-17. Madison was offering such proposals as late as 1826, by which time the internal improvement debate had taken on a different cast. Id. at 29-30.
291. Cooter & Siegel, supra note 16, at 146-50.
292.
293. See, e.g., Cooter & Siegel, supra note 16, at 158 (suggesting that the Article I enumerated powers correspond to specific collective action problems).
294. This brackets the question whether the epistemic gains from assignment of enumerated powers questions to the elected branches are overwhelmed by the costs of assigning those decisions to actors with shorter time horizons and the potential distortion of electoral incentives. In this regard, I should note that it is hardly self-evident that matters of constitutional law should always and inevitably be free of short-term, populist influence. See generally
295. Garrett, supra note 23, at 1133.
296. See supra text accompanying notes 94-100.
297. See supra note 105 and accompanying text.
298. For an account of how the collective nature of a good can lead to underproduction in this fashion, see
299. This is separate from, but complements,
300.
301. Figueiredo & Weingast, supra note 300, at 104. This claim rests on the plausible assumption that "the center's ability to provide central goods, including monitoring of the states, is correlated with its ability to extract rents [from the states]." Figueiredo et al., supra note 300, at 165 (emphasis omitted).
302. See, e.g., Figueiredo et al., supra note 300, at 178-81 (describing the problem of excessive extractions by a centralized power as it has played out in
303. I am grateful to
304. Cf.
305.
306. What of the argument that legislators will act systematically to advance the institutional interests of
307. Garrett, supra note 23, at 1135.
308. McGinnis & Somin, supra note 101, at 103.
309. Hills, supra note 99, at 1242.
310. Baker & Young, supra note 103, at 118.
311. Garrett, supra note 23, at 1119-20. Garrett "accept[s] the proposition that whatever the baseline, the political process falls short." Id. at 1120. Many of the normative claims in her article stand or fall with this wholly undefended assumption.
312. The baseline problem is exacerbated by the tendency of scholars to use the term "federalism" imprecisely to encompass a plural set of normative values-including sovereignty, democracy, and efficiency-related concepts-that lack any clear metric and are associated with a range of institutional actors.
313.
314.
315. To be clear, I do not mean here to express a view on the Equal Protection Clause questions at stake in respect to debates on same-sex marriage. Cf.
316. This parallels the problem in the individual rights context of figuring out "how we are supposed to distinguish . . . 'prejudice' from principled, if 'wrong,' disapproval. Which groups are to count as 'discrete and insular minorities'? Which are instead to be deemed appropriate losers . . . ?"
317.
318. See NUGENT, supra note 227, at 70-74 (documenting a "variety of forms" in which state officials participate in the federal policymaking process).
319. For useful discussions of this practice, see
320.
321. See U.N. Convention Against Transnational Organized Crime, Message from the President of
322.
323. Prison Litigation Reform Act of 1995, H.R. 2076, 104th Cong. tit. VIII (1995); see also
324. It bears noting that 1996 also saw enactment of the welfare reform legislation that increased states' policy control over social welfare policies dramatically.
325. 2 U.S.C. §§ 1501-1571 (2012).
326. Article II values, though, may be vindicated by the
327. Julie A. Roin, Reconceptualizing Unfunded Mandates and Other Regulations, 93 NW. U. L. REV. 351, 380 n.109 (1999).
328.
329.
330. Provisions of the Coastal Zone Management Act of 1972, for example, impose such state certification rules. See Coastal Zone Management Act of 1972 § 307, 16 U.S.C. § 1456(c)(1)(A) (2012).
331. See, e.g., PUD No. 1 v. Wash. Dep't of Ecology,
332. Pub. L. No. 79-15, 59
333. See, e.g.,
334. National Flood Insurance Act of 1968, Pub. L. 90-448, 82
335. The examples I give might also be explained in terms of the heterogeneous preferences of federal legislators over policy domains where states have an interest. Even if that explanation were compelling-and I am skeptical-it would still mean that states' interests were in fact protected in the federal legislative process, even if not as a result of states' political actions.
336. States' lobbies may also coalesce along party lines. See, e.g., NUGENT, supra note 227, at 146-59 (describing influence of Republican governors in the design of 1996 welfare reform legislation).
337. Consider, for example, carve-outs for state actors from generally applicable regulatory regimes. These tend to benefit all states, not just those who participated in the lobbying effort. See, e.g., 29 U.S.C. § 630(f) (2012) (exempting "policymaking" officials from the Age Discrimination in Employment Act of 1967). To be sure,
338. Two objections can be envisaged to this optimistic analysis. First, what if no state views a policy question as a priority, such that the policy falls through the gaps, so to speak, of state lobbying. This may indeed be a problem, although the intergovernmental lobby, see infra text accompanying notes 357-60, provides a partial solution. But notice that positing this problem as a justification for judicial intervention requires the further inference that states (or other interested parties) will choose to litigate these interstitial issues in federal court. Second, states may have conflicting regulatory interests, and their lobbying might be offsetting. Where states diverge evenly on the desirability of a national law, however, it seems reasonable to query whether we can be certain there is serious federal problem at stake.
339. See, e.g., Devins, The Judicial Safeguards, supra note 101, at 131; Hills, supra note 99, at 1243; see also supra text accompanying note 102.
340. See supra text accompanying note 130 (defining jointness).
341. For example, both environmental and industrial lobbies have alternated between support for local and national policymaking.
342.
343. Id. at 13-14, 33-50.
344. Consider a simplified two-state version of the dynamic: Both states are within a federal welfare system, and both want to enjoy federal benefits while not investing in a domestic safety net. If both shirk, the net effect is a collapse of the safety net, raising mortality and morbidity without either state gaining. But if one state ties its hands by committing to underinvest, the other state gains little by underinvesting, even as it is committed to the safety net.
345. See id. at 159-60 ("[T]he basic principle, that all American families are entitled to safety nets of equivalent value, should be made real by taking states out of the equation."). This assumes that reductions of crime, poverty, mortality, and morbidity are legitimate col- goods to be achieved via redistributive policies-a proposition to which some (not including myself) demur.
346.
347. See MICHAEL J. GERHARDT, THE FEDERAL APPOINTMENTS PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 143 (2000). For empirical evidence of this influence, see
348.
349. See, e.g., H.R. Con. Res. 299, 105th Cong. (1998) (specifying criteria for executive departments to follow when preempting state law consistent with the Constitution); H.R. Con. Res. 161, 101st Cong. (1989) (expressing the "sense of the
350. At least on the assumption that legislators have a preference for being seen as having consistent preferences over time. That is, I presume (reasonably, I think) that there is some credibility-related cost to politicians to taking mutually inconsistent positions at different points in time.
351. For some evidence of UMRA's efficacy, see NUGENT, supra note 227, at 73 (quoting a state lobbyist to the effect that UMRA "has really worked . . . it has really worked well").
352. OLSON, supra note 7, at 133; id. at 51. Olson at this point seems to assume the synchronous provision of private and public goods, whereas the argument in the main text alludes to the possibility that an institutional structure emerges at one point in time for the provision of private goods, and at a later time can be employed to produce public goods because the relevant start-up costs do not need to be expended.
353. PIERSON, supra note 156, at 10.
354. See KEVIN J.
355. I develop the point that the relationship between federalism and individual liberty is an unstable one elsewhere.
356. I am grateful to
357.
358.
359. See NUGENT, supra note 227, at 146-67 (cataloging successes).
360.
361. See supra text accompanying note 159.
362. Garrett, supra note 23, at 1121.
363.
364. Garrett, supra note 23, at 1121.
365. See, e.g., Permanent Policy Principles for State-Federal Relations, NAT'L GOVERNORS ASS'N, http://www.nga.org/cms/home/federal-relations/nga-policy-positions/ page-ec-policies/col2-content/main-content-list/principles-for-state-federal-rel.html (last visited
366. See NUGENT, supra note 227, at 48 tbl.1 (tabulating frequency of assertions of state governmental interests by state lobbies, and finding numerous shared interests).
367. Id. at 63 tbl.4 (listing examples of states' agenda-setting influence); id. at 71 (noting the role of state officials on federal advisory committees).
368. One reason that agenda control is overlooked is identified by Riker, who argues that the existence of "elaborate" legislative choices involving the simultaneous consideration of multiple amendments can obscure the existence of decisional intransitivities.
369. NUGENT, supra note 227, at 63 tbl.4.
370. Id.
371.
372. For example, the Clean Water Act's Phase II Stormwater Rule was negotiated by a "rulemaking advisory committee includ[ing] . . . municipal, environmental, and industrial stakeholder groups." Ryan, supra note 266, at 56. States can also resist the results of negotiated rulemaking, as occurred with the REAL ID Act of 2005. Id. at 56-58.
373. For inferential evidence of socially undesirable rent-seeking through state taxation, see
374.
375. Cf. Roin, supra note 327, at 376 ("The case against unfunded mandates relies either on the presence of unsophisticated voters or on a systematic pattern of weaker interest groups at the local cost-bearing level than at the federal benefit-enjoying level." (footnote omitted)).
376.
377. FRANK R. BAUMGARTNER ET AL., LOBBYING AND POLICY CHANGE: WHO WINS, WHO LOSES, AND WHY 237 (2009).
378. Id. at 26 (noting "a surprising tendency for sides to be heterogeneous").
379. States may also benefit because they typically seek to defend a status quo, which is perhaps the best predictor of federal lobbying success. Id. at 241-43.
380. McGinnis & Somin, supra note 101, at 103; accord Garrett, supra note 23, at 1124.
381. For the reasons developed in the main text, the claim that decentralizing federalism concerns are identical to or substantially overlap with some neutral concept of the public good seems implausible to me. But see Devins, Congressional Factfinding, supra note 101, at 1194-200 (arguing that judicial enforcement of federalism ensures that legislation serves the public good).
382. States' comparative advantage may also be deepened by an epistemic edge they have on private interest groups (although the empirical evidence for this effect is sparse). Recent studies of lobbying suggest that lobbying operates "as a form of legislative subsidy- a matching grant of costly policy information, political intelligence, and legislative labor."
383. There is evidence that interest group contributions foster access.
384.
385. Guy Halfteck, Legislative Threats, 61
386. In addition, it is possible that intraindustry competition will conduce to "races to the Hill" in order to secure exclusionary regulation that enables a lobbying firm to capture monopoly rents.
387.
388.
389. See, e.g., Sossamon v. Texas, 131 S. Ct. 1651, 1658 (2011) (concluding that absent an "unequivocal expression of state consent," the phrase "[a]ppropriate relief" in the Religious Land Use and Institutionalized Persons Act of 2000 could not be construed to permit money damages);
390. McGinnis & Somin, supra note 101, at 128.
391. Id.
392. See CHRISTINE L. NEMACHECK, STRATEGIC SELECTION: PRESIDENTIAL NOMINATION OF SUPREME COURT JUSTICES FROM HERBERT HOOVER THROUGH GEORGE W. BUSH 111, 12728 (2007) (arguing that Presidents who believe themselves freed of confirmation constraints select nominees from the pool who are the most ideologically compatible).
393. For studies of rates of senatorial disapproval, see
394. There is a large body of empirical work to this effect.
395.
396. Clayton & Pickerill, supra note 395, at 91.
397.
398. I do not wish to overstate the case here. As noted, judges' attention to politics surely declines in the period after their appointment, and the judiciary's agenda may imperfectly overlap with that of the elected branches.
399. Is it possible that the time lag between congressional and judicial preferences will have a smoothing effect on outcomes? It is certainly possible that the preference divergence necessarily created by the lag has a stabilizing effect at some moments. But it might also be that federal judges are appointed to satisfy more ideologically committed factions of a party, such that they run a little ahead of legislators. This possibility would help explain why states may go to federal courts even though they have already sought and failed to obtain a result in
400. Baker, supra note 103, at 961-62.
401.
402. Decisions that fit this profile might include Bailey v.
403.
404. For example, Prakash and Yoo make three arguments for judicial review of federalism values: (1) there is no textual exception for federalism in the scope of judicial review; (2) the Supremacy Clause requires judges to enforce federalism values as much as they enforce other constitutional concerns; and (3) given the absence of the Bill of Rights in 1788, judicial review must have been intended as a bulwark of structural constitutional values. Prakash & Yoo, supra note 91, at 1462-71. But their arguments are unpersuasive quite apart from the point developed here. First, federal courts are not vested with the power of judicial review by the plain constitutional text, and so the scope of such power must be a matter of inference and construction, rather than a matter of textual coverage. The absence of an exception for federalism is hence neither here nor there. Second, courts have excised substantial swatches of federal constitutional law from the fabric of justiciability under the political question doctrine and its ilk, notwithstanding the Supremacy Clause.
405. For a general statement of the theory, see
406. Writing in these pages last year, I offered an analogous institutional capacity argument respecting certain separation-of-powers questions.
* Professor of Law and Herbert and Marjorie Fried Teaching Scholar,
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