We the People: These United Divided States

Abstract

Examining federalism debates in the context of climate change and sanctuary jurisdictions, this article offers a new theory in arguing that the federal government’s approaches to these inherently transnational concerns represent classic political market failures. Adapting John Hart Ely’s notion of addressing such failures – from Democracy and Distrust – the paper examines a dynamic overlooked by both constitutional law and international law scholars. I explore two political market failures: (1) how minorities (here, immigrants) can be systematically locked out of the political process and, by contrast, (2) how influential minorities (here, the fossil fuel industry) can externalize the costs of their negative conduct through regulatory capture. In such cases, policy making above and below the nation-state is helpful for addressing such failures, as we currently see with state and local policy innovation in the climate and immigration contexts.