Increasing Congress’ authority over SS weakens federalism.

For Bulman-Pozen, the states are already dead as autonomous independent actors: "[W]e should think more seriously about federalism's afterlife as a form of nationalism." For Gerken, "the federal government can increase its power by devolving it"; the task of federalism now is to expand the list of nationalist ends served by federalism and identify new institutional means for achieving those ends. For Abbe Gluck, federalism "mostly comes — and goes — at Congress's pleasure"; National Federalism goes beyond process federalism because it embraces "Congress as federalism's primary source."

The National Federalists have done the country a signal service by dispelling the myth that any of the variants of process or cooperative federalism can possibly coexist with the state's dual sovereignty when Congress decrees otherwise. They are surely correct, and the Supreme Court will hopefully soon take note that nobody on the right or left takes its affirmations of devotion to dual sovereignty seriously anymore.

Where the National Federalists present a most profound danger is in their confident argument that national control of states is a good thing. Luckily, their arguments on this front are demonstrably incomplete and misconceived. Gluck, for example, criticizes the Supreme Court's Obamacare decision (in the 2012 case National Federation of Independent Businesses v. Sebelius) on the Medicaid front because it "unrealistically assumed that erecting barriers to state implementation of federal law will stop Congress from enacting major federal legislation altogether. The New Deal, however, is here to stay. The question is not whether we will have major federal statutes, but what the continuing relevance of the states in this landscape will be." The "alternative to National Federalism is not state autonomy," she assures us; "it is more Washington-controlled federal legislation."

In fact, however, cooperative federalism allows the federal government to do many things it might not be able to do otherwise. Medicaid might never have passed if it had been unconstitutional for the federal government to rope states into match-funding a federal program, because the federal cost projections would have been staggering. Or consider marijuana decriminalization in Colorado and Washington: Without state and local police on hand to do its bidding, the federal government can't even enforce its own drug laws.

Unfortunately, the National Federalist account misses many of the troubling questions that its aggressive agenda raises for political economy and constitutional principle in the post-New Deal era. For example, the National Federalists laud the states' ability to vary from federal standards because it enfranchises local preferences while advancing national goals. What they ignore is that these benefits are a one-way ratchet: States can always pile taxation and regulation on top of the federal baseline, but they can never reduce the federal baseline. The National Federalists concede states the right to have more government than the national norm, but never less, except in the rare case that a special waiver program allows it. Wisconsin's mid-1990s welfare reform, for instance, is one of the few examples of a state reducing a cooperative-federalism program pursuant to a federal waiver.

Officials in regulation-heavy and tax-heavy states have an enormous incentive to collude with their fellows in other states to form coalitions in Congress aimed at imposing a high level of regulation and taxation on everyone. We saw why in the Child Labor case: With industrialization, labor and capital were becoming increasingly mobile and sensitive to seemingly small differences in state regulation. States with child-labor laws set at 14 years were furious that other states set theirs at 12. They cried out to Congress for a uniform national standard to counteract "the race to the bottom," a progressive pejorative for interstate regulatory competition.

One major objective of the New Deal was to safeguard states with high levels of taxation and regulation by neutralizing the effects of mobile labor and capital through federal programs meant to eliminate the competitive advantage of states with low levels of taxation and regulation. Modern federalism advances this vision with brutal effectiveness. The whole system is biased in favor of producing the highest level of overall government control and economic extraction that is politically sustainable — exactly the opposite of the competitive federalism of the original Constitution.

Another point the National Federalists overlook, again in keeping with their progressive forebears, is that their vision substantially neutralizes one of the great benefits of a modern economy. Keeping both capital and labor mobile encourages innovation, increases the velocity of exchange, and propels the market toward higher productivity and wealth creation. Consider, for example, one of the great legacies of the New Deal: the Rust Belt. Precisely when markets were needed to introduce a rapid re-allocation of human and material resources, the federal government stepped in to freeze everything in place with "protections from competition" and "economic security for the common man." The inevitable result of hitting efficient markets with these heavy interventions — which were driven by convictions that were as passionate as they were economically illiterate — was the desolation of an entire region of the country.

Bulman-Pozen unwittingly alludes to this problem when she sees states as "staging grounds for national networks seeking to further their agendas." There is one group of national networks that has increasingly little to gain from using the states as staging grounds, namely those with the agenda of reducing the overall level of taxation and regulation. The networks that have the most to gain from the system are, of course, special interests that masterfully pull government levers in order to extract special rents and benefits from the rest of society.

In championing massive delegations of rulemaking authority to the executive branch and the end of the states as independent actors within a structural framework of dual sovereignty, the National Federalists champion "integration" over "separation." They either fail to see, or blithely assume it doesn't matter, that their faith in integration runs totally counter to the checks and balances of divided government that the framers thought vital for protecting democracy from the power of faction.