The federal government has come to rely increasingly heavily on the states to administer a broad range of federal policies. Yet as partisan polarization has risen and state legal and administrative capacity has grown, state officials have resisted and challenged federal policies with mounting force and momentous implications. As Ben Merriman points out in this compelling, well-written book, “Those interested in the future of policy about matters such as social welfare provision, voting rights, immigration, and environmental protection should look to the states” (p. 29). In this volume, Merriman focuses on how conservative state officials used the expanded powers of modern state-level executive offices to challenge and resist the Obama administration’s policies, including the Affordable Care Act and the Clean Power Plan.
The book begins by analyzing the confluence of factors that turned state offices such as attorney general into a “ready-made support structure for conservative litigation” (p. 31). The first of these factors, Merriman argues, is the expansion of state litigation capacity, which largely arose in response to the development of new federal rights regimes. As Congress over time became less prone to grant federal agencies expansive enforcement and investigative powers, federal courts became the principal mechanism for enforcement in matters such as environmental and consumer protection, leading to the emergence of the so-called litigation state and the growth in state litigation capacity (p. 34). Second, as the federal judiciary became less deferential regarding the exercise of federal agency power, it became more receptive to state-initiated suits. In particular, Merriman emphasizes the Supreme Court’s opinion in the 2007 case Massachusetts v. EPA that, when assessing legal standing to bring suits against federal agencies, states ought to be accorded a “special solicitude.” Third, the escalation of state litigation against federal agencies reflects the successes of the conservative legal movement, particularly the growing numbers of conservative lawyers both in state attorney general offices and in the federal judiciary. These forces have enabled conservative state officials to pursue a variety of novel legal claims, Merriman argues, including multistate suits against federal agencies focusing on matters of administrative procedure; the adoption of state immigration enforcement policies that rely on state assertions of administrative interests; and positive rights guarantees that conflict with federal law.
An increasingly prominent tool for coordinating opposition to federal policy is the interstate compact. Whereas interstate compacts had traditionally been used for nonpolitical administrative purposes, in an era of uncooperative federalism they have become increasingly partisan in nature and often “meaningfully associated with ongoing state litigation strategies” (p. 60). In some cases, state officials have used interstate compacts as a litigation fallback; for instance, nine red states adopted the Health Care Compact, which would have exempted them from provisions of the ACA (pending Congress’s consent), should the states’ legal challenges to the ACA fail. In other cases, state officials have used compacts as a means for facilitating litigation in policy areas such as immigration and gun control where federal-state conflict is common; examples include the Interstate Birth Certificate Compact and the Uniform Firearms Transfer Compact, both developed by Arizona but not adopted by any other states. Still others—such as the Compact for a Balanced Budget—serve as a device for coordinating state opposition to federal policy in the face of informational and political hurdles to interstate cooperation. Merriman notes that he is among the first to examine this “repurposing” of the interstate compact device; however, he also acknowledges that thus far these efforts have tended to have no direct effect on policy (p. 63).
Merriman next examines conservative state officials’ efforts to restrict voting by imposing procedural or documentary burdens on voters, particularly minorities and other groups that tend to vote Democratic. He traces the growing success of such strategies to the failure of federal electoral oversight and particularly a dearth of federal administrative powers that has left the federal judiciary to regulate the conduct of elections. Further, Merriman observes that state-imposed restrictions on voting have tended to survive judicial review because of an established “legal distinction between legitimate partisan and illegitimate discriminatory objectives—a distinction far removed from the realities of political life and one that overly prizes administrative uniformity” (p. 85). Ironically, Merriman argues, a piece of federal legislation—the Help Americans Vote Act of 2002—that required states to modernize and expand their electoral administrative capacity became a “key enabling condition for the recent wave of restrictive voting laws” (p. 92).
In the penultimate chapter, Merriman takes what feels like a detour from his central argument about federalism to examine Kansas governor Sam Brownback’s experiment in limited government. Although his analysis of the Kansas Experiment—and particularly the Office of the Repealer, a novel agency tasked with evaluating the repeal of unduly burdensome state laws and regulations—is compelling, its inclusion detracts somewhat from the book’s logical flow.
The book concludes by addressing the obvious question of whether the escalation of partisan intergovernmental tension during the Obama years represents an outlier or a sign of things to come. Based on a brief analysis of resistance and legal challenges from blue states during the Trump administration’s first year, Merriman concludes that “intergovernmental disagreement… will be no less significant in the decade to come than the decade past” (p. 145).
The book’s main strength is the author’s ability to expertly trace the evolution of intergovernmental relations to a complex web of political, legal, and administrative developments and to elegantly situate that analysis within various distinct scholarly literatures. Two additional elements would have further strengthened the analysis. First, the historical perspective is underdeveloped: How much were conservative innovators simply building on strategies used previously by progressives? Merriman acknowledges at one point that conservatives’ approach was largely based on “careful study and emulation of the techniques used successfully by liberal movements during the twentieth century” (p. 22) but does not elaborate. A more thorough accounting of the legal and administrative strategies employed by liberal state officials before the Obama years would help the reader appreciate just how innovative the subjects of the book’s title truly were. Second, apart from a handful of Kansas figures (such as Secretary of State Kris Kobach), state officials are curiously absent from the analysis. Occasional references to specific players and their motivations and actions would help illustrate and reinforce the book’s arguments.
These observations should not obscure my central point, however; Conservative Innovators is a carefully researched, persuasively argued treatise on an exceptionally important topic.
