Congress constantly does fiscal redistribution among jurisdiction because of equal representation between states

The analysis above gives powerful reason to question the now-classic "political process" argument that is frequently invoked when concerns are expressed about the scant protections afforded the states under modern readings of the Tenth Amendment and other federalism provisions of the Constitution. 144 The argument, which could similarly be invoked in the context of the spending power, contends that there is no need for the federal courts to invalidate federal legislation that may encroach on the autonomy of the states because of the role that the states themselves play in the enactment of federal legislation. That is, the structure of the federal political process arguably affords the states ample protection against federal encroachments on their autonomy, including fiscal redistribution among the states, so there is simply no need for judicially imposed, external limits on Congress's spending power.

Consider the reasoning of Professor Herbert Wechsler who, along with Professor Jesse Choper, is the scholar with whom this argument is commonly associated. 145 Wechsler has observed that the Senate, in which all states are equally represented, "cannot fail to function as the guardian of [*533] state interests as such." 146 He has therefore concluded that "the Court is on weakest ground when it opposes its interpretation of the Constitution to that of Congress in the interest of the states, whose representatives control the legislative process and, by hypothesis, have broadly acquiesced in sanctioning the challenged Act of Congress." 147

The central problem with Wechsler's analysis is that he misidentifies the problem. Although the state-based apportionment of representation within the federal government 148 may ensure that "state interests as such" are protected against federal oppression, federal oppression is not the problem. 149 The problem, rather, lies in the ability of some states to harness the federal lawmaking power to encroach on the resources and autonomy of other states to their own advantage. That is, the problem is ultimately horizontal, rather than vertical, encroachments on state resources and state autonomy. 150 Not only can the state-based allocation of congressional representation not protect an individual state against this use of the federal lawmaking power, it facilitates it.

[*534] Wechsler's observation about the Senate's role in protecting state autonomy is especially ironic in the context of fiscal redistribution among the states. The analysis in this Part IV.A above showed that under a scheme of purely proportional representation, such as the House provides, one would not expect Congress's spending legislation to reveal systematic fiscal redistribution from the larger states to the smaller states. This redistribution, with its attendant impingement on the autonomy of the large states that systematically bear its costs, occurs solely because of the disproportionately great - because "equal" - representation that the Senate affords small-population states.

As a theoretical matter, it is therefore clear that the state-based allocation of congressional representation cannot protect the large states against aggregate-welfare-reducing and autonomy-infringing fiscal redistribution.