Legal Commentary

Being a federalism nut, I naturally surf the ?08 election blogs and websites looking for signs that anyone cares about basic issues of federalism ? you know, statutory and regulatory preemption, dormant commerce clause, uniformity versus diversity of individual rights, etc.

Here is the bottom line from my investigations: Neither the voters nor the candidates give a darn about federalism.

Take preemption. As usual, the Court?s docket is crowded with important preemption cases: Altria Group v Good (are state claims about deceptive advertising by cigarette manufacturers preempted by federal labeling laws?), Kennedy v DuPont Plan (are state laws regarding divorced spouses? rights to insurance preempted by ERISA?), Chamber of Commerce v Brown (are state rules about the use of state funds preempted by the NLRA?) , and Wyeth v Levine (are state law claims that injected drugs were mislabeled preempted by federal FDA labeling requirements).

But none of the candidates? websites have anything to say about preemption. John McCain?s website has but a single line favoring tort reform, without elaboration.

It is not as if these preemption issues are small potatoes: The 2004 campaign involved prominent discussion of ?Patients? Bills of Rights,? federal bills that would have eliminated some ERISA preemption of state-law claims against HMOs. McCain was, indeed, the co-sponsor of one such bill (the McCain-Kennedy-Edwards Patient Protection Act). And the issue has been the source of raging controversy in DC, with the FDA, OCC, and other federal agencies taking strong preemption positions, opposed by the trial lawyers, one of the most powerful of the democrats' constituencies.

Preemption is not the only big federalism issue. Davis v Kentucky Dept of revenue involves the right of states to provide tax exemptions only for their own bonds, discriminating against bonds issued by other states. Does the dormant commerce clause bar such discrimination? The Court will tell us this term ? but, in the meantime, the political process is simply silent on the issue.

The silence of the Presidential candidates on federalism is all the more perplexing in that, according to the conventional wisdom, federalism is supposed to be protected through the national political process. Well, the national political process is chugging along in high gear, but no one is making federalism an issue.

Why not? Could it be that federalism, like most complex institutional arrangements, is simply far too obscure for voters to make a basis for their votes? Rob Mikos thinks not: in an interesting empirical study, he claims that voters actually care about which level of government makes decisions. (See working paper)

Maybe he is right. But you can?t tell from reading the campaign literature.