We The People: These United Divided States

INTRODUCTION1This title draws inspiration—and quotes from—the song, Seriously, performed on This American Life, written by Sara Bareilles and performed by Leslie Odom, Jr. This American Life, Seriously —This American Life, Sara Bareilles, and Leslie Odom, Jr., YouTube (Oct. 28, 2016), https://‌www.youtube.com/‌watch?v=‌hI8TCA3fJcs (“In a history plagued with incredible mistakes—Still, I pledge my allegiance to these United divided States.”).

In the wake of President Trump’s announcement that he will withdraw the United States from the 2015 Paris Agreement on climate change, then-California Governor Jerry Brown called on the President to fight climate change or to “get out of the way” while the rest of the world works to reduce emissions and invest in clean energy.2The Latest: Jerry Brown to Trump: “Get Out of the Way”, Associated Press (Dec. 12, 2017), https://‌www.apnews.com/‌1098c54326f14a61b149e4e2030a40f4 [https://‌perma.cc/‌ZA6G-HG25] [hereinafter Brown to Trump]. Similarly, former New York City Mayor Michael Bloomberg—now a United Nations (U.N.) Special Envoy for Cities and Climate Change—said, “If Washington won’t lead, then mayors and governors will.”3Jonathan Watts, Alternative US Group Honouring Paris Climate Accord Demands ‘Seat at the Table’, Guardian (Nov. 11, 2017, 10:55 AM), https://‌www.theguardian.com/‌environment/‌2017/‌nov/‌11/‌alternative-us-group-honouring-paris-climate-accord-demands-seat-at-the-table-bonn [https://‌perma.cc/‌3L8M-3F3W]. Indeed, Trump’s threat to withdraw has not only been met with widespread criticism and derision abroad and at home, but as this Article examines, has also sparked more consequential action, with numerous U.S. mayors and governors pledging to meet emissions-reductions goals outlined in the agreement.4See discussion infra Section II.B.1.

A similar dynamic is playing out in the context of immigration. In the aftermath of Trump’s promise to “end” sanctuary jurisdictions by cutting them off from federal funding,5Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017). a growing number of state and local governments are refusing to participate in the enforcement of federal immigration law by disentangling their criminal justice systems from the federal immigration regime. This disentanglement process began well before the Trump presidency, but it has accelerated by some measures since the 2016 election.6For a discussion of trends in disentanglement policies since the 2016 election, see infra Part III. Rather than using an era of mass incarceration to facilitate a new era of mass deportation, these jurisdictions have adopted a set of reforms to protect immigrants from deportation when they interact with the criminal justice system.7See generally Christopher N. Lasch et al., Understanding “Sanctuary Cities”, 59 B.C. L. Rev. 1703 (2018) (making this point in the sanctuary cities context).

Climate change and sanctuary jurisdictions are but two areas that reflect the conflict between state and local progressivism and federal conservativism. Yet climate and immigration policy are somewhat unique in that they represent case studies of federalism conflicts that are inherently transnational.8Of course, state, county, and local governments have been policy innovators on a range of other issues that are beyond the scope of this Article, including marriage equality, health care, gun control, marijuana legalization, and living wage protections. I am limiting the focus to climate change and sanctuary jurisdictions, as both are inherently transnational and relate to the broader themes of this Article concerning sovereignty and international law.

It is also worth noting that innovation by subnational governments promotes not only progressive goals, but conservative aims as well, such as prohibitions on sanctuary jurisdictions (as with SB4 in Texas), restrictions on marriage equality (before the Supreme Court protected marriage equality), limitations on transgender rights (as in North Carolina), and religious exemptions to sexual identity and/or gender identity antidiscrimination protections. For an important discussion of state anti-sanctuary policies, see Pratheepan Gulasekaram, Rick Su & Rose Cuison Villazor, Anti-Sanctuary & Immigration Localism, 119 Colum. L. Rev. 837 (2019). While federalism is a staple of legal scholarship, this Article brings a new lens to this old debate: international law theory. Drawing on international law and its close cousin, international relations theory,9This Article enlists both international law and its cousin from political science, international relations theory, as the two are quite interconnected in international law scholarship and practice. As Anne-Marie Slaughter famously notes, “Just as constitutional lawyers study political theory, and political theorists inquire into the nature and substance of constitutions, so too should two disciplines that study the laws of state behavior seek to learn from one another.” Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 Am. J. Int’l L. 205 (1993) (noting that “the postulates [of international relations theory] . . . concerning patterns . . . in state behavior must afford a foundation and framework for legal efforts to regulate that behavior.”). I examine how—now, more than ever—federalism matters that are inherently transnational can be better understood by applying analysis at the border of constitutional and international law.10This Article builds on an earlier generation of federalism scholarship (prior to 2000) by international law scholars (including my own earlier work) but applies a new angle. For a summary and discussion of this earlier transnational federalism scholarship, see, for example, Catherine Powell, Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States, 150 U. Pa. L. Rev. 245 (2001); Peter J. Spiro, Foreign Relations Federalism, 70 U. Colo. L. Rev. 1223 (1999); and Peter J. Spiro, Learning to Live with Immigration Federalism, 29 Conn. L. Rev. 1627 (1997). Other more recent federalism controversies (following 2000) have international dimensions as well, including the debates over marijuana legalization (given international drug cooperation and agreements); guns (given the flap over the U.N. Arms Trade Treaty, which critics claimed would lead to additional registration requirements for small arms); and the treatment of foreign nationals on death row in states where the death sentence is available (in light of international protections under the Vienna Convention on Consular Relations (VCCR)). See, e.g., Wells C. Bennett & John Walsh, Marijuana Legalization Is an Opportunity to Modernize International Drug Treaties, Brookings (Oct. 15, 2014), https://‌www.brookings.edu/‌research/‌marijuana-legalization-is-an-opportunity-to-modernize-international-drug-treaties [https://‌perma.cc/‌ZWX7-XPNA]; see also Mike Weisser, What Does the New UN Small Arms Treaty Really Say?, HuffPost (Nov. 25, 2013, 11:04 AM), https://‌www.huffington‌post.com/‌mike-weisser/‌un-small-arms-treaty_‌b_‌4337810.html [https://‌perma.cc/‌BCW8-ZTET]; Paul Schiff Berman, Federalism and International Law Through the Lens of Legal Pluralism, 73 Mo. L. Rev. 1149 (2008) (discussing the interaction of federalism and international law in the context of the VCCR). Interestingly, in contrast to state and local initiatives to mitigate climate change or protect immigrants, the trend in state and local initiatives that have sought to legalize marijuana are not in sync with international drug treaties. See Bennett & Walsh, supra. As an advantage of taking a trans-substantive approach in considering federalism, climate change and sanctuary policy provide a helpful contrast with one another, because while international law in the climate area is gaining traction, international protections on immigrants’ rights are weak to nonexistent.

At the same time, the climate and sanctuary case studies represent similarities in that both can be understood within the context of the constitutional law scholarship on backlash, even though the response here is to White House policies, not court decisions.11Cf. William N. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 Yale L.J. 1279, 1326 (2005) (arguing that courts should avoid rulings like Roe v. Wade and Bowers v. Hardwick because of backlash, where Roe forced traditionalists to exit American politics, while Bowers prevented gays from entering it); Michael J. Klarman, How Brown Changed Race Relations: The Backlash Thesis, 81 J. Am. Hist. 81 (1994) (analyzing backlash to Brown); Cass R. Sunstein, Three Civil Rights Fallacies, 79 Calif. L. Rev. 751, 766 (1991) (discussing backlash against Roe v. Wade and attributing the birth of the Moral Majority to the case). See also Susan Faludi, Backlash: The Undeclared War Against American Women 230–31 (1991). But rather than view backlash as destructive, constitutional law scholars might view it as constitutive of normative progress—as critically important for sharpening, defining, and deepening traction for law reform.12Cf. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.–C.L. L. Rev. 373 (2007). Responding to Eskridge, Klarman, and Sunstein, supra note 11, Post and Siegel propose a theory on democratic constitutionalism to rebut concerns about backlash, noting: “Although the costs of backlash are well recognized, democratic constitutionalism identifies certain underappreciated benefits of backlash. Backlash can promote constitutional solidarity and invigorate the democratic legitimacy of constitutional interpretation.” Post & Siegel, supra, at 376.

Moreover, such federalism conflicts call for more serious attention to the broader international context, not only because they are inherently transnational, but also because these conflicts represent responses to the types of problems John Hart Ely aptly described to justify court intervention when political markets systematically malfunction.13John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 103 (1980). Ely famously notes: “Malfunction occurs when the process is undeserving of trust, when (1) the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out, or (2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system.” Id. This Article adapts Ely’s concept. While his theory focused on judicial review (horizontal separation of powers), I use his concept of political market failure as a basis for a theory of federalism (vertical separation of powers).

In particular, I examine two forms of political market failures14I am adapting these two types of political market failures from an analysis of five forms that justify judicial intervention, identified by Niels Petersen. Niels Petersen, Proportionality and Judicial Activism: Fundamental Rights Adjudication in Canada, Germany, and South Africa 13–34 (2017) (applying John Hart Ely by elaborating on various types of political market failures justifying judicial intervention). Following Ely, Petersen focuses on judicial intervention, while my focus is on federalism. For discussion of other scholars who have extended the market analogy to the political process, see infra Part I. to explain—and support—a turn to lawmaking from below (and where possible, from above) the level of nation-state. The first type of political market failure this Article explores—in the immigration context—results when minorities are not only underrepresented, but also systematically locked out of political power,15See Ely, supra note 13, at 103. leading to a “tyranny of the majority.”16Alexis de Tocqueville, Democracy in America 183 (Harvey C. Mansfield & Delba Winthrop trans., 2000) (1835). The second form of political market failure I examine—in the climate context—represents the exact opposite problem: here, influential minorities (in this case, the fossil fuel industry and other powerful economic interests) “dominate the political process, and the public has to be protected against legislative capture”17Petersen, supra note 14, at 19. or (as with climate policy) regulatory capture (within the executive branch).

Bringing international law theory to federalism debates, this Article argues that federal law can be shaped from above and below—not only as a check on federal power, but also as a way to address entrenched market failures in our national political process. With regards to lawmaking from above, as discussed infra in Section III.A, while an earlier wave of sanctuary policies explicitly invoked international law, current policies do not18As noted infra in Section III.B, an earlier wave of city ordinances explicitly invoked the Convention Relating to the Status of Refugees (and focused on political refugees—in contrast to economic immigrants—to the extent the distinction holds). While current policies do not invoke international law, at least some sanctuary jurisdictions justify their protective policies based on commitment to values that are protected in international human rights law—including protections against racial profiling, measures to sustain inclusive communities, human dignity, family rights, due process, and fairness. —as mentioned, an important contrast with the climate context. In terms of lawmaking from below, federalism can be either cooperative or uncooperative.19Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256 (2009). For a discussion of the “cooperative federalism structure of [the] EPA’s recent Clean Power Plan” along with other cooperative examples, see generally Kirsten H. Engel, Democratic Environmental Experimentalism, 35 UCLA J. Envtl. L. & Pol’y 57 (2017). For a conceptual discussion of uncooperative federalism as illustrative of the value of “disloyalty,” see generally Heather K. Gerken, Exit, Voice, and Disloyalty, 62 Duke L.J. 1349 (2013) (adapting the ideas from Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (1970)). But, the idea of divided government is not simply structure for structure’s sake, as the notion of “dual sovereignty” might imply, but, ultimately, as the Framers envisioned, it is about preserving popular sovereignty—to maintain a government accountable to the People and that respects individual rights.20As James Madison said of the checks and balances built into our constitutional system, to protect rights, “[a]mbition must be made to counteract ambition.” The Federalist No. 51 (James Madison). At the same time, the raison d’etre for international law is, inter alia, to address collective action failures (such as climate change) and to bring international scrutiny to questions once considered the exclusive domain of the nation-state (such as human rights, including minority rights, the very concern that is at the heart of Ely’s theory).21U.N. Charter art. 1. Along with maintaining international peace and security more broadly, the U.N. Charter states that the primary purposes of the U.N. includes achieving “international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion[.]” Id. ¶ 3.

However, constitutional and international law scholars often talk past each other, failing to draw on the insights from the other field. Within constitutional law, a rethinking is underway to push constitutional theorists to reconceptualize the way we conceive of federalism. For example, as Heather Gerken argues that since sovereignty was long ago declared dead,22Heather K. Gerken, Federalism 3.0, 105 Calif. L. Rev. 1695, 1698 (2017) (noting “sovereignty has been declared ‘dead’ so many times”). we need a new intellectual framework—“Federalism 3.0”—that rejects the notion of states and the federal government as dual sovereigns confined to separate spheres,23Id. at 1696–98 (calling for an updated approach to federalism that moves beyond the constitutional theory constituted in the wake of the New Deal, reinscribing accounts of state sovereignty with those of state autonomy (Federalism 1.0) and moving past the rights/structure dichotomy that emerged in the debate over the legacy of the Civil Rights Era (Federalism 2.0)). and instead recognizes that they now “regulate shoulder-to-shoulder”24Id. at 1722. and often influence each other. In this rethinking, however, federalism scholars have yet to closely examine the role of international law in eroding the traditional notion of government sovereignty and the relevance of this for the reconceiving of federalism.

Conversely, international law and international relations scholars have examined the disaggregation of sovereignty,25See, e.g., Harold Hongju Koh, Why Transnational Law Matters, 24 Penn. St. Int’l L. Rev. 745 (2006); Janet Koven Levit, Bottom-Up International Lawmaking: Reflections on the New Haven School of International Law, 32 Yale J. Int’l L. 393 (2007); Anne-Marie Slaughter, Disaggregated Sovereignty: Towards the Public Accountability of Global Government Networks, 39 Gov’t & Opposition 159 (2004); Global Urban Justice: The Rise of Human Rights Cities 9 (Barbara Oomen et al. eds., 2016). but theorists have not adequately applied these lessons to new questions concerning federalism. Much ink has been spilled over how international legal developments have effectively pierced the traditional veil of sovereignty in areas such as trade, refugee law, antitrust regulation, humanitarian law, and human rights.26Respectively, see, for example, John O. McGinnis & Mark L. Movsesian, The World Trade Constitution, 114 Harv. L. Rev. 511 (2000) (discussing how international trade law infringes on sovereignty); Joan Fitzpatrick, The International Dimension of U.S. Refugee Law, 15 Berkeley J. Int’l L. 1 (1997) (recognizing the shortcomings of U.S. conformity with international norms, while also noting the ways international refugee law has penetrated U.S. sovereignty through statutory incorporation of international standards, including, for example, the Refugee Act of 1980, to conform with the 1967 Protocol relating to the Status of Refugees); Anne-Marie Slaughter, Sovereignty and Power in a Networked World Order, 40 Stan. J. Int’l L. 283, 285–95 (2004) (describing the “new sovereignty,” a sovereignty separated from classic Westphalian sovereignty, as one which allows for a “transgovernmental network approach to global antitrust regulation”); Anne-Marie Slaughter, Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform, 99 Am. J. Int’l L. 619, 625 (2005) (discussing the evolution of sovereignty as a right to sovereignty as a responsibility, for example, in the context of the international Responsibility to Protect doctrine, which reflects the protection of civilians as a matter of international concern, given that international law has pierced the veil of sovereignty); Ruti G. Teitel, Humanity’s Law: Rule of Law for the New Global Politics, 35 Cornell Int’l L.J. 355, 385 (2002) (noting that contemporary international humanitarian and human rights law “penetrating national sovereignty” is seen as justified intervention). As Lou Henkin famously said of sovereignty, “Away with the ‘S’ word!”27See, e.g., Louis Henkin, The Mythology of Sovereignty, Am. Soc’y Int’l L. Newsl., Mar 1993, at 1; Louis Henkin, War and Terrorism: Law or Metaphor, 45 Santa Clara L. Rev. 817, 818 n.2 (2005) (noting he “was particularly troubled by the invocation of ‘state sovereignty’ in argument against an international law of human rights”); Louis Henkin, That “S” Word: Sovereignty, and Globalization, and Human Rights, Et Cetera, 68 Fordham L. Rev. 1, 1 (1999) (“I don’t like the “S word.” Its birth is illegitimate, and it has not aged well.”); Anne-Marie Slaughter & Catherine Powell, Louis Henkin (1917–2010): The Power of His Ideas Live On, Opinio Juris (Oct. 22, 2010), http://‌opiniojuris.org/‌2010/‌10/‌22/‌louis-henkin-1917-2010-the-power-of-his-ideas-live-on [https://‌perma.cc/‌W9P9-LVZ3] (discussing this insight as a central part of Henkin’s legacy). However, debates within foreign relations scholarship (such as the status of international law in the United States) turn on the type of outdated notions of federalism28For my own critique of this tendency in the international law and foreign affairs scholarship, see generally Powell, supra note 10. that new approaches to federalism persuasively criticize.

Drawing on international law and international relations theory, this Article fills a conceptual gap in the existing federalism literature, which focuses on the two levels of federal and sub-federal governments. This Article adds international governance as the third level, illustrating how international, national, and subnational institutional regimes29In a sense, this Article builds off of Robert Putnam’s classic game-theoretical model recognizing that national-level policymakers face two separate constituencies when making decisions: domestic-level groups and international-level groups. Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int’l Org. 427 (1988). can catalyze one another to address fundamental political market failures. As today’s climate and immigration debates demonstrate, policies developed within (and between) these three levels are often deeply intertwined. Importantly, the direction of influence moves in multiple directions. For example, while today, state and local governments are paving the way in addressing climate change, some national leaders are calling for a “green new deal”30Miles Kampf-Lassin, Bernie Sanders and Alexandria Ocasio-Cortez Are Pushing a Bold New Plan to Tackle Climate Change, In These Times (Dec. 4, 2018), http://‌inthesetimes.com/‌article/‌21615/‌bernie-sanders-alexandria-ocasio-cortez-climate-town-hall-green-new-deal [https://‌perma.cc/‌L7ZX-P4ZZ]. Note that since the notion of a green new deal gained prominence with the 2018 midterm election of Alexandra Ocasio-Cortez—largely following the period this author wrote the bulk of the present Article—the green new deal is not a focus here. While the idea of the green new deal is potentially quite important for moving climate policy toward addressing climate justice, the scope of this potential (and how it fits into the questions of federalism posed here) is not yet fully clear to this author. —raising the possibility of national leadership on climate policy if these calls can be eventually adopted into federal policy.

To demonstrate the relevance of international law and international relations theory to federalism, I build on the theory of dialogic federalism, which I have elaborated elsewhere.31Powell, supra note 10, at 249–50, 253 (adapting critique developed in the habeas corpus context to fit the international human rights law context, based on Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 Yale L.J. 1035, 1047 (1977)). In dialogic federalism, intergovernmental relations are a way to embrace, rather than avoid, conflict and indeterminacy. By envisioning a dialogic approach to work through policy differences, dialogic federalism calls for the involvement of numerous stakeholders and multiple levels of government as a way to more democratically and effectively incorporate international law into U.S. law. Id. at 249, 253. See also Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, 22 Wm. & Mary L. Rev. 639, 640, 642–43 (1981). This Article looks beyond dialogue to explore how international norms inevitably seep in, not only through traditional top-down treaty ratification, but also through “multiple ports of entry”32This phrase draws inspiration from Judith Resnick’s Article on this notion. Judith Resnik, Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry, 115 Yale L.J. 1564 (2006).. that enable bottom-up and horizontal forms of governance. While in recent years, scholarly analyses of bottom-up governance and popular constitutionalism have become widespread among constitutional law theorists,33For classics in this area, see, for example, Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267 (1998); Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Mark Tushnet, Taking the Constitution Away from the Courts (1999). in fact, similar ideas of devolution and decentralized authority animate core doctrine in international law as well.34Devolution and decentralization are pervasive in international law doctrine, including in notions such as, for example, (1) complementarity in the International Criminal Court statute and (2) subsidiarity in E.U. law. On complementarity, see, for example, The Principle of Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes, F. for Int’l Crim. & Humanitarian L. (Sept. 4, 2009), https://‌www.fichl.org/‌activities/‌the-principle-of-complementarity-and-the-exercise-of-universal-jurisdiction-for-core-inter‌national-crimes [https://‌perma.cc/‌QV7N-ZGRU] (“The complementarity principle on which the International Criminal Court (ICC) is based entails that the ICC can only investigate and prosecute core international crimes when national jurisdictions are unable or unwilling to do so genuinely.”). On subsidiarity, see Charles F. Sabel & Jonathan Zeitlin, Learning from Difference: The New Architecture of Experimentalist Governance in the European Union 6 (European Governance Papers, Paper No. C-07-02 May 10, 2007), https://‌www.researchgate.net/‌profile/‌Jonathan_‌Zeitlin/‌publication/‌28627560_‌Learning_‌from_‌Difference_‌The_‌New_‌Architecture_‌of_‌Experimentalist_‌Governance_‌in_‌the_‌European_‌Union/‌links/‌54060ec30cf2bba34c1e3ccf/‌Learning-from-Difference-The-New-Architecture-of-Experimentalist-Governance-in-the-European-Union.pdf [https://‌perma.cc/‌4DBL-486S] (citing earlier work by E.U. scholar Gráinne de Búrca, and noting, “Subsidiarity in this architecture implies that in writing framework rules the lower-level units should be given sufficient autonomy in implementing the rules to be able to propose changes to them”). See also Levit, supra note 25.

“States’ rights” were once regularly invoked by states in the U.S. South to resist racial justice and civil rights.35See, e.g., Governor George Wallace of Ala., Inaugural Address (Jan. 14, 1963) (“Segregation now, segregation forever”). Today, federalism no longer has a definitive ideological valence. It would be, of course, naïve to say that “states’ rights” are no longer used to reject civil rights. But with the diffusion of the rights idea,36Cf. Louis Henkin, The Rights of Man Today 22 (1978) (describing how the rights idea became increasingly internationalized and universalized); Louis Henkin, The Age of Rights (1990) (same). today’s state and local governments occasionally embrace localism to protect human rights.37For a discussion of an example of localism as a mode of implementing human rights, see, for example, Catherine Powell, Lifting Our Veil of Ignorance: Culture, Constitutionalism, and Women’s Human Rights in Post-September 11 America, 57 Hastings L.J. 331, 378–83 (2005) (discussing state and local “adoption” of human rights treaties, where the federal government has refused to, for instance on women’s human rights). As Gerken notes, rights and federalism are not necessarily at odds with each other, but are “interlocking gears in a disaggregated democracy.” Gerken, supra note 22, at 1713. See also Olatunde C.A. Johnson, The Local Turn; Innovation and Diffusion in Civil Rights Law, 79 L. & Contemp. Probs. 115 (2016) (noting innovative responses by states and localities to inequality, as the prospect of sweeping new federal civil rights measures fades); Heather K. Gerken, Windsor’s Mad Genius: The Interlocking Gears of Rights and Structure, 95 B.U. L. Rev. 587 (2015). The questions facing courts and other legal decision-makers are who gets to decide these pressing policy questions, and whether and how the country can tolerate a multitude of responses.38As discussed below, the dilemma is reflected both in the climate change context (with regard to the dispute over the Trump administration’s plan to withdraw California’s waiver for more stringent automobile emissions standards) and in the immigration context (as reflected in suits and counter suits between states and the federal government over sanctuary policies). See infra Parts II &III, respectively.

Part I outlines the theoretical framework for this Article as well as its limitations. This Part analyzes the two forms of market failure in our national political process: (1) regulatory capture by influential minority economic interests (such as the fossil fuel industry in the climate context), and (2) systematic minority underrepresentation and vulnerability driven by outright hostility (in the immigrant context). Part II examines how—by shifting from a top-down centralized approach to a bottom-up decentralized approach—environmental governance is addressing the first type of market failure (regarding overrepresentation), both from above and below the nation-state. By contrast, Part III identifies how sanctuary jurisdiction policies respond to John Hart Ely’s insight about the second type of market failure (underrepresentation of minority rights), though the response here is primarily from below the nation-state, not from above. Part IV presents my conclusions on how federalism and international law would ideally work together to address political market failures, as they currently do in the climate policy context but not the immigration context.

As both case studies suggest, the value of federalism operates not only as an essential lynchpin of our democracy within the elaborate structure of our constitutional law, but also as a mechanism to address entrenched failures in our national politics—whether at the federal or sub-federal level. Where international standards are available to help further address these failures—particularly for issues that are inherently transnational—federalism can also serve a vital function in advancing international law norms, by facilitating internalization of international norms locally and by even assisting in fulfillment of these norms on the global stage.39While my earlier work examined how federalism can assist with internationalization of international norms, this Article goes further in theorizing how the interaction of federalism and international standards addresses political failures. Again, while the climate policy case study demonstrates the important ways that federalism and international legal norms can support each other, this is less so in the case of immigration policy, where international protection is less robust. Therefore, the federalism debate in immigration turns primarily on domestic allocation of power considerations—and thus on the issue of noncooperation with the federal government40In his canonical article on sanctuary policies, Huyen Pham frames these policies in terms of noncooperation. Huyen Pham, The Constitutional Right Not to Cooperate? Local Sovereignty and the Federal Immigration Power, 74 U. Cin. L. Rev. 1373 (2006). —as formal international human rights (and domestic constitutional rights) legal protections of these individuals are quite weak. As such, these two case studies set up an interesting contrast at the intersection of federalism, constitutionalism, and internationalism.

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