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Federalism for the Worst Case
David Landau, Hannah J. Wiseman & Samuel R. Wiseman*
ABSTRACT: Recent scholarship has argued that the United States is
vulnerable to a slide towards authoritarianism and that it may possess few
institutional features protecting against such a slide. This Article argues that
this literature overlooks the importance of federalism. Since the founding,
courts, policymakers, and scholars have envisioned federalism as a bulwark
against tyranny. But this Article builds off recent comparative experiences
with democratic erosion to provide a new, institutionally-focused account of
this relationship, which draws out structures that other work overlooks. It
highlights the importance of autonomous state officials carrying out sensitive
functions in areas such as electoral administration, judging, policing, and
prosecuting in blocking common pathways towards authoritarianism. Our
institutional account foregrounds often-overlooked designs that protect
separate structures in the states, like federal inability to remove state officials
even during emergency, and it sheds new light on old doctrinal problems like
the anti-commandeering doctrine. Further, it highlights a tradeoff between the
costs that U.S. federalism is often seen as imposing and the significant—and
unique—anti-tyranny protection that it provides during a democratic
emergency. Finally, it suggests ways in which federalism might be designed
abroad in contexts where democratic erosion is an especially salient risk.
I.INTRODUCTION ........................................................................... 1188
II.OUR DEFINITION OF MODERN TYRANNY ..................................... 1193
A.TYRANNY AS A SUBVERSION OF THE LIBERAL DEMOCRATIC
ORDER .................................................................................. 1193
B.HOW DEMOCRACIES DIE: COMPARATIVE EXPERIENCE .............. 1196
1.Venezuela ..................................................................... 1198
*
David Landau is the Mason Ladd Professor and Associate Dean for International
Programs at Florida State University College of Law; he earned his A.B., J.D., and Ph. D. (Political
Science) from Harvard University. Hannah J. Wiseman is the Attorneys’ Title Profess or at Florida
State University College of Law; she earned her A.B. from Dartmo uth College and J.D. from Yale
Law School. Samuel R. Wiseman is the McConnaughhay and Rissman Professor at Florida State
University College of Law; he earned his B.A. and J.D. from Yale Universit y. The authors thank
Jim Gardner, Tara Grove, Michael Morley, and Erin Ryan, as well as participants in the University
of Illinois Constitutional Law Colloquium, for helpful comments on drafts of this Article.
1188 IOWA LAW REVIEW [Vol. 105:1187
2.Russia............................................................................ 1199
C.THE WORST CASE: THE THREAT OF TYRANNY IN THE
UNITED STATES ..................................................................... 1201
III.HOW U.S. FEDERALISM PROTECTS AGAINST TYRANNY:
AUTONOMOUS STRUCTURES AND PERSONNEL............................ 1204
A.A NEW INSTITUTIONAL ACCOUNT .......................................... 1205
B.EXECUTIVE CAPTURE OF “REFEREES:” COURTS, LAW
ENFORCEMENT, AND ELECTORAL ADMINISTRATION ................ 1211
1.Independent State Courts .......................................... 1213
2.Law Enforcement ........................................................ 1217
3.Election Administration ............................................. 1220
IV.PROTECTING THE INDEPENDENCE OF STATE INSTITUTIONS:
ANTI-COMMANDEERING AND EMERGENCY POWER ...................... 1225
A.THE ANTI-COMMANDEERING DOCTRINE AND
ITS WORKAROUNDS ............................................................... 1226
B.EMERGENCY POWERS ............................................................. 1236
V.BEYOND EXISTING ACCOUNTS OF FEDERALISM AND
TYRANNY ..................................................................................... 1240
A.ACCOUNTS OF THE FOUNDERS ................................................ 1242
B.MODERN ACCOUNTS OF FEDERALISM AND TYRANNY ................ 1245
1.Judicially Enforceable Federalism Constraints ......... 1245
2.Political Safeguards ..................................................... 1247
3.Cooperative Federalism .............................................. 1249
C.THE UNIQUE ANTI-TYRANNY FUNCTION OF FEDERALISM ......... 1252
VI.CONCLU SION .............................................................................. 1254
I. INTRODUCTION
Democracy in the United States, for all of its faults, has rarely seemed at
risk of lapsing into authoritarianism. There have been only a few moments
when the threat of executive tyranny has seemed real.1 But according to some
observers, we are now living in such a moment. They point to President
Trump’s populist rhetoric; his attacks on the media and governmental
institutions such as the federal judiciary, FBI, and Department of Justice; and
his willingness to go to great lengths to subvert an investigation into his own
1. For example, some commentators point to the Roosevelt court-packing plan in 1937,
although both the president’s motives and the context are too complex to make the example an
obvious one. We analyze this example below in Section II.C.
2020] FEDERALISM FOR THE WORST CASE 1189
possible misconduct, among other warning signs.2 Prominent scholars have
noted similarities between the rhetoric and actions of Trump and those of
authoritarian leaders abroad, arguing that Trump has “clear authoritarian
tendencies.”3
Is the U.S. constitutional order vulnerable to such a threat? This worst-
case scenario for democracy seemed real to the Framers of the Constitution
in light of experience in England and then the colonies, and they were, of
course, deeply concerned with preventing their new republic from sliding
intro tyranny. Theoretical accounts of the anti-tyrannical protections within
our governmental system abound.4 Indeed, some commentators have argued
that U.S. constitutionalism is unduly preoccupied by what is in reality a fairly
low risk, labeling the phenomenon “tyrannophobia.”5 But others have
recently concluded that our institutional design would provide little
protection against modern forms of authoritarianism.6 Indeed, some scholars
ass ert tha t if the Unit ed S tat es h as a ny exceptional protections against tyranny,
2. Vivian Salama & Jess Bravin, Trump Asserts ‘Absolute Right’ to Pardon Himself, WALL ST. J.,
https://www.wsj.com/articles/donald-trump-asserts-absolute-right-to-pardon-himself-1528116580
[https://perma.cc/Z4XN-FARA] (last updated June 4, 2018, 3:55 PM) (describing Trump’s
assertion of the availability of a self-pardon and his description of “the investigation by special
counsel Robert Mueller [as] ‘totally unconstitutional’”); see Devlin Barrett & Robert Costa, Justice
Department Heading for Clash with Trump, Lawmakers over Mueller Probe Memo, WASH. POST (May 2,
2018), https://www.washingtonpost.com/world/nationa l-security/trump-calls-justice-department-
rigged-threatens-action/2018/05/02/6a5686 08-4e19-11e8-b725-92c89fe3ca4c_story.html
[https://perma.cc/5P5P-7XWE] (discussing the Mueller investigation into potential Russian
meddling in the election and Trump’s statement that “[a]t some point I will have no choice but
to use the powers granted to the Presidency and get involved!”). Madeleine Albright describes
President Trump as “the first anti-democratic president in mo dern U.S. history,” who “flaunts h is
disdain for democratic institutions.” MADELEINE ALBRIGHT & BILL WOODWARD, FASCISM: A
WARNING 246 (2018).
3. STEVEN LEVITSKY & DANIEL ZIBLATT, HOW DEMOCRACIES DIE 2 (2018). These tendencies
include “reject[ing], in words or action, the democratic rules of the game,” “den[ying] the
legitimacy of opponents” and the electoral system, “tolerat[ing] or encourag[ing] violence,” an d
“indicat[ing] a willingness to curtail the civil liberties of opponents, including the media.” Id. at
21–24. Levitsky and Ziblatt argue that President Trump exhibits all four of these features, as
indicated by his making “the unprecedented suggestion that he might not accept the results of
the 2016 election”; his repeated assertion that his opponent “ha[d] to go to jail”; the fact that he
“embraced—and even encouraged—supporters who physically assaulted protesters” and offered
to pay their legal fees; and his threats “to punish unfriendly media.” Id. at 61–64.
4. See infra Section II.C.
5. See Eric A. Po sner & Adr ian V erme ule, Ty rannophobia, in COMPARATIVE CONSTITUTIONAL
DESIGN 317 (Tom Ginsburg ed., 2012).
6. Tom Ginsburg and Aziz Huq argue that the U.S. Constitution provides real protection
against the risk of sudden democratic breakdown in events like coups, but little protection against
many pathways of slower democratic erosion that have occurred around the world. See Aziz Huq
& Tom Ginsburg, How to Lose a Constitutional Democracy, 65 UCLA L. REV. 78, 162–65 (2018). See
generally Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 VAND. L. REV. 465
(2018) (noting various ways in which the federal courts could be attacked).
