Blue States, Red States: The United States?

This essay focuses on the role of states, cities, and other subnational jurisdictions (collectively “localities”) in local incorporation of international law norms aimed at protecting the climate and immigrants. As a case study, this essay considers local innovation in climate and immigration policy in the United States within the twin concepts of federalism and glocalization—the interaction between “global scripts” and “local norms.” In a parallel project, I analyze climate change and immigration in developing a theory about federalism to justify lawmaking from above and below the nation-state as a critical role in addressing national political market failures—particularly when: (1) underrepresented minorities are systematically locked out of the political process (as immigrants quintessentially are) or, by contrast, (2) influential minorities can externalize the costs of their negative conduct through regulatory capture (as the fossil fuel sector in the climate context). The present essay builds on that project, but investigates a different dynamic. Taking as a given my point about the circumstances justifying local innovation to address particular failures of national politics, this essay looks to the process of transplanting legal norms across jurisdictions—horizontally and vertically. Since my starting point is that local innovation and transplantation of innovative ideas is useful under defined circumstances, this essay takes a closer look at the efficacy of federalism and glocalization as processes for tipping norms and creating norm cascades to address the negative distributional consequences of national policies. In examining the political geography of debates on climate and immigration law, this essay explores how both federalism and (its close cousin) glocalization serve as mechanisms for not only managing and shaping polite disagreement, but sharpening and consolidating forceful resistance to significant threats to rule of law we face today. More generally, political polarization and the “Big Sort” have resulted in a divide between blue states and red states on a range of issues. What is particularly interesting about the climate change and immigration disputes is that they are both inherently transnational matters (regarding, respectively, the future of the planet and the global labor supply).