Did a vision of progressive federalism die in the desert of Arizona? No, but the recent (anti-)immigration legislation there reveals the Grand Canyon dividing the concept of federalism from particular policy outcomes.
In the wake of a conservative resurgence in national politics, some commentators (including this one) noted the progressive potential of federalism. We cited examples of “blue state federalism,” in which states stepped into the breach left by federal inaction and provided innovative solutions for problems ranging from climate change to predatory lending, from gay rights to health care. Here, and elsewhere, I argued that a key to understanding the achievements of the states was to abandon outdated notions of distinct and non-overlapping realms of state and federal prerogative (bye bye dual federalism). Climate change was not really a federal issue or really a state issue. Rather, federalism provided an opportunity for both the states and the federal government to address pressing concerns. Federalism functioned through the dynamic overlap and interaction of state and federal authority. Or so I argued in my book, Polyphonic Federalism: Toward the Protection of Fundamental Rights.
But where does this leave Arizona? Or for that matter, the lawsuits filed by numerous state attorneys general against federal health care legislation. Are these examples of illegitimate state meddling in federal matters or ongoing expressions of dynamic or (as I term it) polyphonic federalism? The answer is yes.