Loyola on America’s Government Collusion Problem

by Ramesh Ponnuru

NR contributor Mario Loyola has an essay in The American Interest on the deformation of federalism in the U.S. by state-federal “cooperation” on fiscal and regulatory matters–a kind of cooperation that subverts the constitutional goal of accountable and limited government. (Michael Greve’s terrific book The Upside-Down Constitution, which I reviewed for NR, covers the same ground.) I largely agree with Loyola on the diagnosis, although I would do more than him to emphasize state governments’ role as aggressors rather than victims, in part because I think conservatives are sometimes naive about their complicity in the decay of the Constitution’s federalism.

My more substantive disagreement concerns the proper role of the federal courts: Loyola seems to think they can and should end collusion between different levels of government. I think that’s institutionally implausible and constitutionally unwarranted, and that moving back toward the Founders’ federalism has to be a primarily political task. Loyola deserves praise, however, for trying to elevate this issue within the conservative agenda, and the essay is worth a read.