Federalism for the Worst Case
69 Pages Posted: 22 Apr 2019 Last revised: 7 Apr 2020
Date Written: 2020
Recent scholarship has argued that the United States is vulnerable to a slide towards authoritarianism and that it may possess few institutional features protecting against such a slide. This Article argues that this literature overlooks the importance of federalism. Since the founding, courts, policymakers, and scholars have envisioned federalism as a bulwark against tyranny. But this Article builds off recent comparative experiences with democratic erosion to provide a new, institutionally-focused account of this relationship, which draws out structures that other work overlooks. It highlights the importance of autonomous state officials carrying out sensitive functions in areas such as electoral administration, judging, policing, and prosecuting in blocking common pathways towards authoritarianism. Our institutional account foregrounds often-overlooked designs that protect separate structures in the states, like federal inability to remove state officials even during emergency, and it sheds new light on old doctrinal problems like the anti-commandeering doctrine. Further, it highlights a tradeoff between the costs that U.S. federalism is often seen as imposing and the significant — and unique — anti-tyranny protection that it provides during a democratic emergency. Finally, it suggests ways in which federalism might be designed abroad in contexts where democratic erosion is an especially salient risk.
Keywords: federalism, authoritarianism, tyranny, anti-commandeering
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