Monday, September 11, 2017

Fontana on the Lost History of Federal Decentralization

David Fontana, George Washington University Law School, has posted Federal Decentralization, which is forthcoming in the Virginia Law Review:
Constitutional law relies on the diffusion of powers among different institutions to ensure that no one person or faction controls power. Federalism and the separation of powers have been presented as the primary institutional arrangements generating this diffusion. Scholars and jurists alike, though, have largely neglected to consider another form of diffusion: federal decentralization. Federal power cannot be appropriately diffused if it is geographically concentrated in those in a single place. Federal decentralization ensures that federal officials in Washington and in places distant and therefore different from Washington compete with and constrain one another. This Article identifies and evaluates federal decentralization as a dimension of constitutional law.

This Article first uncovers the long but lost history of federal decentralization, and places it at the core of our constitutional experience from the Founding to its current moment on constitutional center stage. The First Congress located important federal officials in a different metropolitan area than the President and Congress, and arranged for the Congress and the White House to operate in different buildings in different neighborhoods. The current Congress is considering legislation proposed by both parties that would increase federal decentralization.

This Article then argues that federal decentralization makes visible the diffusions of power that federalism and separation of powers cannot provide, and executed properly attempts to provide them. It gives federalism the voice it needs, and separation of powers the exit it lacks. Federalism aspires to empower local majorities, and federal decentralization enhances the voice of local majorities by making them empowered neighbors rather than unfamiliar strangers to federal officials—or even permits local majorities to act as federal officials themselves. The separation of powers aspires to generate rivalrous branches, but rival interests can only be generated by ensuring that sometimes federal officials exit Washington rather than operate in it. Federal decentralization, though, risks injecting excessive diffusion into the American system. It therefore requires its own vocabulary to recognize and resolve the persistent set of institutional design challenges that it raises.

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