The floor that isn't fixed

In June 2022, the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization returned abortion regulation to the states. Within eighteen months, fourteen states had enacted near-total abortion bans. A woman named Kate Cox petitioned a Texas court for an emergency abortion for a fetus with a fatal diagnosis — a petition that moved through three courts in nine days while her medical situation deteriorated, ultimately requiring her to leave the state for care. She carried her citizenship with her across the state line. She left some of her rights behind.

In 2012, Colorado became one of the first states to legalize recreational marijuana. Under federal law, marijuana remains a Schedule I controlled substance — in the same category as heroin, with no accepted medical use and high abuse potential. The Controlled Substances Act still applies in Colorado. Federal prosecutors can still charge Colorado residents for activity that is legal under state law. The federal government cannot, under the anti-commandeering doctrine that the Supreme Court established in Printz v. United States (1997), conscript state police to enforce federal drug law. But it can enforce federal law itself. Two legal systems occupy the same territory, governed by different sovereigns, producing different answers to the question of whether the same action is a crime.

These two situations look different — one involves a fundamental right claimed against a state, the other involves a state tolerance claim against federal law. But they share an underlying structure. In both cases, the central question is not what the policy should be. It is who gets to decide, and at what level of government that decision legitimately belongs.

That is the federalism question — not the procedural question it often pretends to be, but a deeply substantive one: whose community has authority over your body, your livelihood, and the terms of your belonging?

The hidden common structure

Mapped individually, the disputes in this cluster look like separate policy fights. Federalism and states' rights is an abstract constitutional argument about the Tenth Amendment and enumerated powers. Immigration enforcement is a practical dispute about sanctuary cities, ICE detainers, and the anti-commandeering doctrine. Executive power and emergency governance includes the question of whether a president can preempt or override state action through emergency declarations. Electoral reform involves the National Popular Vote Interstate Compact — an attempt by states to nationalize presidential election outcomes using state-level constitutional authority.

But every one of these disputes, looked at structurally, is an argument about the same underlying problem: there is no principled, agreed-upon mechanism for deciding which level of government has legitimate authority over which category of decision. The constitutional text provides a framework — enumerated federal powers, reserved state powers, the Supremacy Clause — but it has never resolved the boundary. It has only provided the vocabulary for the fight.

The federalism and states' rights map makes this visible in its starkest form. The same constitutional argument — that the level of government closest to the governed is the most legitimate — has been deployed by both sides of every major American political conflict since 1789. States' rights was the constitutional argument for slavery, for segregation, for antimiscegenation laws. It was also the constitutional argument for marijuana legalization, for sanctuary cities, for stricter environmental standards than the federal government required. The doctrine has no fixed political valence. It is a framework for fighting over who decides — not a principle that resolves what should be decided.

The immigration enforcement map shows the same structure in action at the operational level. Sanctuary policies don't prevent deportation — ICE still operates in sanctuary jurisdictions. What they do is limit local police from acting as federal enforcement agents, invoking precisely the anti-commandeering doctrine that conservatives championed in Printz to protect gun rights. The progressive federalism of sanctuary cities and the conservative federalism of gun rights are structurally identical claims — a state or locality asserting that it will not be conscripted to enforce federal law it disagrees with. The same doctrine; opposite political camps; neither side fully acknowledging the symmetry.

The floor/ceiling paradox

The deepest structural problem in federalism is that the same doctrine simultaneously enables two opposite things. It can function as a floor — a minimum level of protection that states cannot fall below, guaranteed by federal authority. Or it can function as a ceiling — a maximum level that the federal government cannot exceed, reserved to states. American constitutional history is a long argument about which it is, in which domain, and for whom.

After the Civil War, the Fourteenth Amendment tried to establish a floor. The amendment was written specifically to override state-level deprivation of equal protection and due process — to make a set of rights portable across state lines, attached to national citizenship rather than residence in a particular state. The Civil Rights Act of 1964, the Voting Rights Act of 1965, the Fair Housing Act of 1968 — each extended that floor into new domains. Each was, in some sense, an assertion that certain rights were too important to leave to state variation.

But the floor has never been fixed. Dobbs removed abortion from it; states were free to fall below what the federal constitutional floor had been. The Supreme Court's 2013 decision in Shelby County v. Holder effectively suspended the preclearance provisions of the Voting Rights Act, returning voting rule changes in historically discriminatory jurisdictions to state discretion. In both cases, something previously understood as a federal floor became a matter of state variation. The floor moved — not because the underlying values changed but because the constitutional interpretation changed.

Meanwhile, California has spent decades using state authority as a ceiling — a higher standard than federal law requires, which other states can voluntarily adopt but which the federal government cannot mandate. California's vehicle emissions waiver, granted under the Clean Air Act, allowed the state to set stricter standards than the federal baseline; thirteen other states adopted California's standards rather than the federal ones. When the Trump administration revoked the waiver in 2019, it was not arguing against federalism — it was arguing for federal supremacy over a state innovation. When the Biden administration restored the waiver, the argument reversed. The constitutional doctrine was the same throughout; the policy preferences determined which side of federalism each administration claimed.

This is what the floor/ceiling paradox actually is: neither side consistently believes in federalism as a principle. Both sides believe in outcomes, and use federalism when it serves those outcomes. The progressive who celebrates California's emissions waiver and condemns Dobbs, the conservative who celebrates Dobbs and condemns the Clean Air Act waiver — each is appealing to federal power in one case and state authority in the other. The underlying value is not constitutional structure. It is substantive policy preference about what the law should say.

This doesn't mean both sides are hypocrites or that the doctrine is worthless. It means federalism is not an answer to political disputes; it is a language for conducting them. The real question — which level of government has legitimate authority over this category of decision — has to be answered on substantive grounds, not constitutional ones. The constitutional text is available to both sides because it was designed to be.

The scale mismatch

There is a second structural tension in these disputes, separate from and harder to resolve than the floor/ceiling problem. Call it the scale mismatch: the level at which problems exist is often not the level at which governance is organized, and the level at which governance is organized is often not the level at which accountability operates.

Climate change is the obvious case. Greenhouse gas emissions from a single state affect the atmosphere globally. No state's climate policy can, by itself, solve the problem; and no state's refusal to act can, by itself, prevent other states' solutions from working. This creates a free-rider structure: it is individually rational for states to enjoy the benefits of climate action without bearing its costs, which means the action required is inherently cross-jurisdictional. When the federal government fails to act — as it did during the first Trump administration — states face a dilemma: act anyway, knowing their action is insufficient without federal coordination, or wait for a federal policy that may never come. The California climate compact and the Regional Greenhouse Gas Initiative represent state coalitions attempting to supply, imperfectly and partially, what federal inaction leaves absent.

The same mismatch appears in financial regulation. The 2008 financial crisis was not a state-level event: mortgage origination practices in Nevada and Florida created systemic risk that destroyed bank balance sheets in New York, triggered global credit contraction, and produced unemployment in Michigan and Ohio. The regulatory failures were partly federal — a national banking regulator that had not kept pace with financial innovation — but also structural. The problem operated at a scale that state insurance commissioners and local banking authorities could not possibly have caught. When the Federal Reserve and Treasury responded, they were asserting federal authority precisely because the problem had outrun any level of government that could be held accountable by the people it most harmed.

But the scale mismatch runs in the opposite direction too. The strongest argument for federalism is not abstract constitutional theory; it is democratic accountability. You can vote out your mayor. You can attend a city council meeting. You can run for your state legislature. These mechanisms are imperfect, but they are more accessible than national politics. A federal regulatory agency making rules that affect three hundred and thirty million people, through notice-and-comment processes that most citizens cannot practically access, is a real democratic deficit. The town meeting is not a romantic anachronism — it is a scale at which self-governance actually functions, which national politics cannot replicate.

The mismatch problem doesn't have a solution that can be derived from first principles. It requires case-by-case judgment: does this problem have spillover effects that make local variation dangerous? Does this problem require the coordination that only federal authority can supply? Or is this a domain where genuine value pluralism across communities is legitimate, and federal uniformity would substitute a national majority's preference for genuine local self-governance?

The absence of a principled mechanism for making those judgments is what makes American federalism debates feel so circular. The same arguments about constitutional structure recur in every domain, without the framework to determine where federal uniformity serves democratic values and where it merely serves the preferences of whoever controls the federal government.

What each position is actually protecting

Mapped against these structural tensions, the four positions in the federalism and states' rights map become more legible.

Constitutional federalism advocates — the Tenth Amendment traditionalists, the enumerated-powers originalists — are protecting the structural argument that distributed decision-making is a hedge against tyranny. Their deepest concern is the single-point-of-failure problem: a federal government capable of imposing one community's values on every other community is equally capable of imposing the values of whoever wins the next presidential election on everyone simultaneously. The Madisonian argument for federalism is not that states are wiser than the federal government. It is that dividing power makes the system more resilient against capture.

Federal supremacy and civil rights advocates are protecting the historical record that local majorities have been the most reliable agents of minority exclusion in American history. Their deepest concern is that state variation is not value-neutral pluralism — it is a mechanism through which communities with the least formal power are most exposed to the preferences of local majorities. The Fourteenth Amendment, the Voting Rights Act, the Fair Housing Act: these are not federal overreach. They are the constitutional record of what happens when rights are left to state variation.

Competitive and progressive federalism advocates — the Heather Gerken school of "dissenting by deciding," the sanctuary city mayors, the California climate coalition — are protecting the proposition that states in a federal system are not simply implementation agents for federal policy. They are independent political communities whose policy choices can generate information, pressure, and alternatives that national politics cannot. They are also protecting the anti-commandeering doctrine that the conservative Supreme Court established — the principle that the federal government cannot conscript state resources for federal enforcement purposes — and claiming it for progressive ends.

All three positions contain something true. The structural problem is that they are in genuine tension, and there is no constitutional text that resolves the tension. The level at which decisions belong depends on the nature of the problem, the distribution of its effects, and the democratic accountability of the decision-maker — none of which the constitutional text specifies.

The floor question

What all of these disputes ultimately turn on is a question that the federalism framework obscures: is there a floor?

Is there a minimum set of rights, protections, and material conditions that citizens can claim regardless of where they happen to live — regardless of which state they were born in, moved to, or cannot afford to leave? Or are rights genuinely a function of political community, subject to the variation of fifty different polities making fifty different choices?

The constitutional answer is complicated: yes, there is a floor, established by the Fourteenth Amendment and federal civil rights law; but the floor is not fixed, because constitutional interpretation changes, because Congress can repeal statutes, and because the line between federal power and state sovereignty is contested and shifting.

The human answer is simpler: Kate Cox needed an abortion in Texas. The fact that the same procedure was legal two states away was not an adequate response. She did not have a practical right to travel; she had a practical constraint. The theoretical floor — "you can go to another state" — is not the same as a real floor. A constitutional structure that leaves the most consequential decisions about bodily autonomy, reproductive care, and fundamental rights to state variation means that those rights, in practice, belong not to citizens but to residents — that your rights are a function of your geography, which is a function of your resources, which is not what citizenship is supposed to mean.

The floor/ceiling problem doesn't resolve itself because neither side of the federalism debate has a complete answer. Constitutional federalism advocates are right that distributed power is a hedge against tyranny. Federal supremacy advocates are right that local majorities have historically been the most reliable agents of exclusion. Progressive federalism advocates are right that state-level innovation can generate what federal stagnation cannot.

All of them are describing real dynamics. None of them has a constitutional principle that resolves which dynamic should prevail in any given case. That judgment has to be made substantively, on the merits, which is precisely what the federalism debate keeps trying to avoid by retreating to constitutional structure.

The floor that isn't fixed isn't a constitutional problem. It is a political one — a persistent failure to make explicit the substantive values that should determine where decisions belong. Until that conversation happens, the federalism debate will keep cycling through the same arguments, with the same constitutional vocabulary producing opposite results depending on who controls which level of government this cycle.