Robert A. Mikos (UC Davis Law) has posted The Populist Safeguards of Federalism (forthcoming Ohio State Law Journal 2007) on SSRN. Here is the abstract:
Legal scholarship portrays citizens as the catalysts of federalization. Scholars say citizens lobby Congress to impose their values on people living in other states, to trump home-state laws with which they disagree, and to shift the costs of regulatory programs onto out-of-state taxpayers, all to the demise of state authority. And since Congress (usually) gives citizens what they want, scholars insist the courts must step in to protect states from federal encroachments. By contrast, this Article proposes a new theory that suggests citizens actually defend state prerogatives, potentially making judicial review of federalism unnecessary. The theory identifies several reasons, overlooked and under-appreciated in the scholarly literature, why citizens may oppose congressional efforts to expand federal authority vis a vis the states. First, citizens often deem state policy superior on the merits to any one-size-fits-all federal policy. Second, citizens fear that congressional action on one issue (however desirable) may pave the way for unwelcome federal action on related issues in the future. Third, most citizens prefer to have state, rather than federal, officials administer policies, not only because they trust state officials more, but also because they can keep state officials on a shorter leash. Fourth, citizens value political processes, and not just the outputs of those processes; they may be willing to sacrifice desired policy outcomes out of respect for direct democracy and federalism. For all of these reasons, citizens will cabin federal power. The Article closes by discussing some implications of the theory for ongoing debates over judicial review of federalism.