Federalism Not the Power Plan Do Like It Or Not, States and the Federal Government Need Each Other

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Scott Olson/Getty Images copy, Federalism not The Power Plan Do Like it or not, states and the federal government need each other. Big economic development projects, for example, sometimes require the efforts of both levels of government. President Donald Trump and former Wisconsin governor Scott Walker are seen here attending the groundbreaking of a massive factory in Walker’s state.

Chapter Objectives

After reading this chapter, you will be able to

• Identify the three systems of government and how they divide power,

• Explain what federalism is and why it was chosen as a system for the United States,

• Discuss the advantages and disadvantages of federalism,

• Describe the ways elements in the U.S. Constitution provide a basis for federalism,

• Summarize the different types of federalism that developed over time, and

• Discuss the Supreme Court’s role in U.S. federalism.

n 2017, roughly $1.5 billion worth of marijuana was be punished with stiff fines and jail time. Except it isn’t. Ilegally sold in the state of Colorado.1 Well, sort of. Or at least, not untildistribute it is. If this sounds confusing, it’s Technically, it was all illegal, even though the people because, well, it is confusing. When states started to doing the selling were running aboveboard, legitimate adopt full-on legalization of marijuana a half-decade or businesses. Huh? How can selling marijuana be legal so ago, the federal government basically said, “No wor- and illegal at the same time? Simple: federalism. ries, we’veor got bigger fish to fry.” The administration of Federalism is a political system in which national President Barack Obama adopted an official policy of and regional governments share powers and are consid- telling federal prosecutors not to expend their limited ered independent equals. The upshot of federalism in time and resources going after people selling pot where the United States is that the national government and the practice had been legalized. In January 2018, the state governments can have pretty different ideas about administration of Donald Trump formally ended that what should or should not be done. And you don’tpost, have policy. So where did that leave pot sellers in Colorado? to get too far into the legal weeds to figure this out. You Well, running a legal business by state law that was ille- just have to get into weed. See, the reason selling pot is gal by federal law. both legal and illegal in Colorado boils down to a dif- This confusing state of affairs is actually a good ference between state and federal law. In 2012, voters metaphor for federalism as it is practiced in the United in Colorado approved Amendment 64, a ballot initia- States. State governments want to do one thing and go tive that among other things permitted the commercial their own way, while the federal government wants the cultivation and retail salecopy, of marijuana. Since this new nation as a whole to go in a different direction. Clearly, law took effect in 2014, legal sales of marijuana have both of these things cannot happen. So, who ultimately skyrocketed, and at last count, taxes on those sales were has the power and the authority to get their way? The bringing about $250 million a year into the state trea- states or the federal government? In a nutshell, find- sury. Nothing that’s happened in Colorado or the other ing the answer to this question drives a good deal of eight statesnot and the District of Columbia (and counting) political conflict in the United States. The only way any that have legalized marijuana, however, changes any- of that makes sense is if you understand federalism. thing about federal law. Indeed, the bottom line is that you cannot understand At least in theory, federal law in this instance is sup- politics in the United States—and that means national Doposed to take precedence over state law, and federal as well as state and local politics—without understand- law takes a dim view of selling spliffs or herb-enhanced ing federalism. Certainly, a thorough understanding of candy. It classifies marijuana as a Schedule I drug, this system of shared powers is critical to understanding which basically means it’s treated more like heroin

than booze. As far as federal law is concerned, possess- Federalism A political system in which national and regional governing and/or selling marijuana is a serious no-no that can ments share powers and are considered independent equals.

Copyright ©2020 by SAGE Publications, Inc. This work may not be reproduced or distributed in any form or by any means without express written permission of the publisher. 24 Governing States and Localities the politics of states and localities and the important has a strong tradition of local and regional government; role they play in the political life of the nation. Figuring power is concentrated in the nation’s Parliament. If it so out who—the federal or state governments—has the chooses, Parliament can expand or contract the powers power to do what is not just the only way to resolve the and responsibilities of these lower governments or even legal status of pot; it is one of the most central questions shut them down entirely. of the entire American political system. This chapter In contrast to unitary systems, confederal systems provides a basic understanding of federalism, its history concentrate power in regional governments. A confed- and evolution in the United States, and its implications eracy is defined as a voluntary association of indepen- for politics and governance in states and localities. As dent, sovereign states or governments. This association you read through the chapter, keep in mind the follow- stands the power hierarchy of a unitary system on its ing questions: head. In a confederacy, the central government depends on the regional governments for its legal authority. The • What are the advantages and United States has experimented with confederal systems disadvantages of federalism? twice during its history. The Articles of Confederation was the first constitution of the United States. It orga- • Why has policy activity increasingly nized the U.S. political system as an agreement of union moved from the federal government to among sovereign states. The national government con- the states? sisted of a legislature in which all states had equal rep- • Why would some businesses prefer to resentation. There was no nationaldistribute executive branch, be regulated by the federal government such as the presidency, and no national judiciary, such rather than by state governments? as the Supreme Court. This confederal orsystem was adopted during the Systems of Power Revolutionary War and remained in effect for more than a decade. Many of the nation’s founders saw We typically think of a nation as being ruled by a its flaws, however, and wrote its replacement at the single sovereign government—that is, a government Constitutional Convention of 1787 in Philadelphia. that depends on no other government for its politi- The product of that gathering—the U.S. Constitution— cal authority or power. This does not mean, however, was ratified in 1788 and replaced the Articles of that every nation has one government. Power and post,Confederation as the basis of the U.S. political system.2 policy responsibility are distributed throughout any The second experiment with confederacy began in 1861 given political system in one of three ways, and all at the onset of the Civil War. Southern states seeking to typically involve multiple levels of government. (See secede from the Union organized their political system Figure 2-1.) The first option is to concentrate power as a confederacy. All this ended with the South’s sur- in a single central government. Nations in which legal render in 1865 and the return of the seceded states to authority is held exclusively by a central government the Union. are known as unitary systems. Unitarycopy, systems typi- Federal systems operate in a middle range between cally do have regional and/or local governments, but unitary systems and confederacies. Responsibilities in these can exercise only the powers and responsibili- a federal system are divided between the two levels of ties granted them by the central government. In other government, and each is given the appropriate power words, these governmentsnot are not sovereign; how much and legal authority to fulfill those responsibilities. The or how little power they are allowed to wield is up to system’s defining feature is that neither level of govern- the central government, not the citizens of the particu- ment is dependent on the other for its power. Within lar localities. The United Kingdom is a good example its defined areas of responsibility, each is considered of a unitary system. Historically, the United Kingdom independent and autonomous. In the United States, Do the two levels of government considered sovereign are the federal government and state governments. States Unitary systems Nations in which legal authority is held exclusively by a central government. are legally equal partners with the national govern-

Confederacy A voluntary association of independent, sovereign states or ment and occupy a central role in the political system. governments. Although required to operate within the rules laid

FIGURE 2-1 ● How It Works constitutions. Local governments are treated very differently than are states. Within their Systems of Government own borders, states are very much like unitary systems; substate governments such as Unitary System cities and counties get their power from the Regional Regional state, and they exercise only the policymaking Governments Governments authority the state is willing to grant. The spe- cifics of local governments’ powers and policy responsibilities are discussed in more depth in Central Government Chapter 11.

Why Federalism? Voters The Origins of the Federal Central government grants powers to the regional governments. System in the United States Confederal System The United States is a federal system for a number of reasons. Largely because of their experiences Central Government with the Articlesdistribute of Confederation, the framers of the Constitution rejected the possibility of a confederacy. The national government was so Independent Independent Independent weakor under the Articles that prominent figures Governments Governments Governments such as James Madison and George Washington feared it doomed the newly independent repub- lic to failure. These fears were not unfounded. Following Voters the successful conclusion of the Revolutionary War in 1783, the new United States found itself Independent states or governments grant legal authoritypost, to central government. in the grip of an economic recession, and the central government had little power to address Federal System the crisis. Indeed, it actually contributed to the Regional Regional problem by constantly threatening to default Governments Governments on its debts. Independence had brought politi- Central Government cal freedom, but it also meant that American- made products were now in head-to-head copy, competition with cheap, high-quality goods from Great Britain. This made consumers happy but threatened to cripple American busi- Voters nesses. The economic difficulties pitted state Responsibilities and powers are divided between central against state, farmer against manufacturer, governmentnot and regional governments or states; neither level and debtor against banker. The weak central is dependent upon the other for its power. government really did not have the power to attempt a coordinated, nationwide response to the problem. It could do little but stand by and Do hope for the best. down by the U.S. Constitution, states are considered As internal tensions mounted within the United sovereign because their power and legal authority are States, European powers still active in the Americas drawn not just from the U.S. Constitution but also threatened the nation’s very sovereignty. Spain shut from their own citizens as codified in their own state down shipping on the Mississippi River. The British

Copyright ©2020 by SAGE Publications, Inc. This work may not be reproduced or distributed in any form or by any means without express written permission of the publisher. 26 Governing States and Localities refused to withdraw from some military posts until the entirely new constitution. In doing so, the Federalists U.S. government paid off its debts to British creditors. who dominated the convention rejected confederacy George Washington believed the United States, having as an adequate basis for the American political sys- won the war, was in real danger of losing the peace. He tem. Their experience under the Articles had taught said that something had to change “to avert the humili- them that a central government subordinate to the ating and contemptible figure we are about to make on states was not much of a government at all. What they the annals of mankind.”3 wanted was a government capable of dealing effec- For a loose coalition of the professional classes who tively with national problems, and this meant a strong called themselves Federalists, that “something” that central government whose power was independent of needed to change was obviously the central govern- the states. ment. This group of lawyers, businessmen, and other Some Federalists, notably Alexander Hamilton, individuals, drawn mostly from the upper social were attracted to the idea of a unitary government, strata, sought to create a stronger and more powerful but such a system was never seriously considered at national government. Americans, however, were not the Constitutional Convention. Popular sentiment particularly enthusiastic about handing more power to did not favor a unitary system, which was under- the central government, an attitude not so different standable given that the Revolutionary War had been from that held by many today. Most recognized that fought in no small part because of the perceived arro- the Articles had numerous flaws, but few were ready gance of and abuse by a central government toward to copy the example of the British and adopt a unitary its regional subordinates (thedistribute states were originally system. colonies of the British Crown). Political realities also Two events in fall 1786 allowed the Federalists to argued against pushing for a unitary system. To have overcome this resistance and achieve their goal of creat- any legal force, theor new constitution would have to ing a more powerful national government. The first was be ratified by the states, and it was highly unlikely the the Annapolis Convention. This meeting in Maryland’s states would voluntarily agree to give up all their pow- capital was convened for the purpose of hammering out ers to a national government. Federalism was thus the an interstate trade agreement. Few states sent delegates, only practical option. and those who did show up had strong Federalist sym- Yet a federal system meant more than the political pathies. They took advantage of the meeting and peti- price that had to be paid to achieve a stronger national tioned Congress to call for a commission to rewrite the post,government. The founders were attempting to con- Articles of Confederation. struct a new form of representative government, The second event was Shays’s Rebellion, named for in which citizens would exercise power indirectly, on its leader, Daniel Shays, a hero of the recently won the basis of a paradox. Convention delegates wanted a Revolutionary War. The rebellion was an uprising of more powerful national government, but at the same Massachusetts farmers who took up arms in protest of time, they did not want to concentrate power for fear state efforts to take their property as payment for taxes that would lead to tyranny. Their solution to this prob- and other debts. It was quickly crushed,copy, but with further lem was to create a system of separated powers and civil unrest threatening to boil over into civil war and checks and balances. They divided their new and stron- with mounting pressure from powerful elites within the ger national government into three branches—legisla- Federalist ranks, the Continental Congress was pushed tive, executive, and judicial—and made each branch to call for states to sendnot delegates to Philadelphia in partially reliant on the others to carry out its own summer 1787. The purpose of the meeting, which came responsibilities. This made it difficult for any single to be known as the Constitutional Convention, was the group to gain the upper hand in all three divisions of rewriting of the Articles of Confederation. government and gave each branch the power to check Once convened, the group quickly abandoned its the excesses of the other branches. mandateDo to modify the Articles and decided to write an The delegates achieved a similar set of goals by making state and national governments coequal partners. By letting states remain independent decision Representative government A form of government in which citizens exercise power indirectly by choosing representatives to legislate on their makers in a wide range of policy arenas, they divided behalf. power between the national and subnational levels of

government. The national government was made more state-to-state differences engage in a winner-take-all powerful by the new constitution, but the indepen- policy struggle at the federal level, they can be accom- dence of the states helped set clear limits on this power. modated at the state level. This reduces the friction among interests and lessens conflict. The Advantages and Third, independent subnational governments allow for flexibility and experimentation. The states, as Disadvantages of Federalism Supreme Court justice Louis Brandeis famously put it, Federalism solved a political conundrum for the found- are “the laboratories of democracy.” Successful policy ers and helped achieve their philosophical aims of innovations in one state can be adopted by other states dispersing and separating power. Yet federalism is and copied by the federal government. Fourth, the not necessarily better than a confederal or a unitary achievement of at least some national goals is made system—it’s just different. In the United States, the pros easier by the participation of independent subnational and cons of federalism have benefited and bedeviled the governments. For example, the Patient Protection and American political system for more than two centuries. Affordable Care Act (popularly known as Obamacare) is There are four key advantages to the federal system. the most sweeping reform of health care regulation in (See Table 2-1.) First, it keeps government closer to the half a century. The primary goal of Obamacare was to people. Rather than the federal government’s imposing reduce the number of people without health insurance, one-size-fits-all policies, states have the freedom and and one of the law’s key provisions is the establish- ment of health insurancedistribute exchanges, basically central- authority to match government decisions to local preferences. This freedom also results in the local variance ized places where people can buy federally subsidized in laws, institutions, and traditions that characterizes health insurance packages. As state governments con- the U.S. political system and provides the comparative stitute ready-madeor centralized regulatory bodies geo- method with its explanatory strength. graphically distributed across the nation, it made sense Second, federalism allows local differences to be to have them set up and run these exchanges rather reflected in state and local government policy and than have the federal government do it from scratch, and that was the original intent when Obamacare was thereby reduces conflict. Massachusetts, for example, initiated. tends to be more liberal than, say, Alabama. California Along with its benefits, however, federalism confers has a much more ethnically and culturally diverse post,a set of disadvantages. First, while allowing local dif- population than does Nebraska. Rather than having ferences does keep government closer to the people, it the various interests and preferences that spring from also creates complexity and confusion. For example, if you own a nationwide business, you have to deal with TABLE 2-1 ● Advantages and Disadvantages state and federal regulations—51 sets of regulations in of Federalism all. That means, among other things, 51 tax codes and 51 sets of licensing requirements. And many commu- Advantages copy,Disadvantages nities have their own restrictions and requirements for Allows for flexibility among Increases complexity and businesses as well. state laws and institutions. confusion. Second, federalism can increase conflict as easily as reduce it. The Constitution is very vague on the exact Reduces conflict because Sometimes increases division of powers between state and federal govern- states cannot accommodate conflict when jurisdictional ments, and doesn’t mention local governments at all citizens’ interests. lines are unclear. (see the box “Local Focus: States and Cities Are Not Allows for experimentation Duplicates efforts and Equal Partners”). This results in a constant struggle— Doat the state level. reduces accountability. and a lot of litigation—to resolve which level of gov- Enables the achievement of Makes coordination ernment has the responsibility and legal authority to national goals. difficult. take the lead role in a given policy area. For example, while some states followed through on the Obamacare Creates inequality in intent of setting up exchanges, other states— services and policies. especially states characterized by conservative

Copyright ©2020 by SAGE Publications, Inc. This work may not be reproduced or distributed in any form or by any means without express written permission of the publisher. 28 Governing States and Localities

LOCAL FOCUS STATES AND CITIES ARE NOT EQUAL PARTNERS

Texas governor Greg Abbott famously doesn’t like taking thumb of the federal government are often the same orders from Washington, D.C. He made his reputation politicians actively seeking to put local governments as a crusading attorney general fighting federal govern- under the thumb of the state. ment overreach—he sued the Obama administration Certainly, critics of Abbott’s support for limiting 31 times—and championing the cause of states’ rights. local authority argue it is inconsistent with his staunch Abbott’s commitment to decentralization of gov- defense of states’ rights. If he’s so against the federal ernment power within the federal system, though, government intruding in states, it only seems logical pretty much stops at the state border. While Abbott to assume he would defend local governments from supports states having the freedom to chart their own regulatory overreach at the state level. political and policy course, he’s not a big fan of extend- Yet that seeming contradiction—favoring policy ing that philosophy outside the state capitol. Quite the freedom for state but not for local governments—is reverse. He might favor hands-off regulation by the not necessarily inconsistent with how federalism federal government, but he is considerably less keen works in the United States. It is important to remem- on the states giving local governments the same sort ber that although the Constitution divides sovereign of freedom. power between federal and statedistribute governments, it says The reason state governments want a free rein nothing at all about local governments. The upshot is from the feds while keeping a whip hand over local that local governments have no constitutional claim governments is not hard to fathom. Cities in big to exercise independentor sovereign power; they have states tend to lean liberal, and though local elections to make do with whatever power states allow them to are often nonpartisan, they tend to be dominated by exercise. Democratic officials. In recent years, cities controlled We have whole chapters devoted to local govern- by Democratic-leaning politicians have passed ordi- ment later in the book, but it is important to recognize nances on everything from banning plastic grocery now that local governments do not occupy the same bags; to extending civil rights protections to LGBT place in the federal system as state governments. The residents; to discouraging cooperation with federal bottom line is that if cities are doing things the state immigration efforts. post,government doesn’t want them to, legally speaking the Yet, while big cities lean liberal and Democratic, chances are that states can order them to stop. state governments have increasingly leaned right and While the legal position of local governments with Republican. Indeed, in the past five or so years, the the federal system might make that true, it does not Grand Old Party (GOP) has had historically high levels mean people have to like state governments pushing of control over state governments. The people control- around their local government. As Bennett Sandlin, ling state government, in other words, are often not executive director of the Texas Municipal League, put happy with the policy directions being pursued at the it, “Texans don’t want to be told they have to conform local level. That not only createscopy, political tension; it to one way of thinking or one way of living—whether it creates a certain paradox: the same politicians fight- comes from Washington or from the governor’s office ing to keep state governments out from under the in Austin.”

Source: Adapted from Daniel C. Vock, “The End of Local Laws? War on Cities Intensifies in Texas,” Governing, April 5, 2017, http://www .governing.com/topics/politics/gov-texas-abbott-preemption.html.not

RepublicanDo leadership—balked and left the job up to provisions of Obamacare—most notably by refusing to the federal government. Governments in many such take advantage of federal subsidies to expand Medicaid, states saw Obamacare as federal government overreach a program that helps provide health care coverage to into state sovereignty and not only refused to set up poorer citizens. When Republicans gained control of exchanges but also avoided participating in other key the White House and both houses of Congress following

2016, political support for Obamacare at the federal level plummeted, even though an effort to end it outright was unsuccessful. This left states that had embraced Obamacare and/ or expanded Medicaid still expect- ing the federal government to follow through on its Obamacare obligations, even though the leaders of the federal government were openly hos- tile to the program. In other words, throughout this program’s history, state and federal governments have clashed as much as cooperated, with both sides arguing that the other was ignoring the appropriate roles and limitations of the federal division of

powers. WintroathAP Photo/Mike Third, although federalism pro- SS distribute motes flexibility and experimenta- Emergency management provides a classic example of how different levels of government work together. The Federal Emergency Management Agency (FEMA) is critical to any tion, it also promotes duplication effective response to disaster, but that effectiveness is also dependent upon FEMA’s ability and reduces accountability. For to coordinate with state and localor agencies. example, local, state, and national governments have all taken on law enforcement public schools and welfare services more generally also responsibilities. In some areas, this means there may depends heavily on the choices state and local govern- be municipal police departments, a county sheriff’s ments make. This inevitably means that some states department, and the state patrol, plus local offices offer better educational opportunities and do more for of the Federal Bureau of Investigation and the U.S. the needy than others do. Drug Enforcement Administration. The responsibilipost,- ties and jurisdictions of these organizations overlap, which means taxpayers end up paying twice for some The Constitutional law enforcement activities. Also, when these agencies Basis of Federalism are unsuccessful or ineffective, it can be very difficult to figure out which is responsible and what needs to The relationship between national and state govern- change. ments is like a sibling rivalry. It is hard to imagine Fourth, the federal systemcopy, can make it hard to coor- either level of government getting along without the dinate policy efforts nationwide. For example, police other, yet because each is independent and focused and fire departments on opposite sides of a state bor- on its own interests, conflict is common. The ink was der, or even within adjacent jurisdictions in the same barely dry on the newly ratified Constitution before state, maynot have different communication systems. It the federal government and the states were squabbling is hard to coordinate a response to a large-scale emer- over who had the power and authority in this or that gency if the relevant organizations cannot talk to policy area. In writing the Constitution, the founders each other, but the federal government cannot force recognized that the differences between states and the state and local governments to standardize their radio federal government were likely to be a central and last- Doequipment. ing feature of the political system. Accordingly, they Finally, a federal system creates inequality in services attempted to head off the worst of the disputes—or at and policies. The uneven implementation of Obamacare least to provide a basis for resolving them—by making is an obvious example: Health care options can differ a basic division of powers between the national and fairly dramatically from state to state. The quality of state governments.

Copyright ©2020 by SAGE Publications, Inc. This work may not be reproduced or distributed in any form or by any means without express written permission of the publisher. 30 Governing States and Localities

The Constitution grants the federal government Finally, this same section of the Constitution gives both enumerated and implied powers. Enumerated the national government implied powers. The basic powers are grants of authority explicitly given by the idea behind implied powers is that the authors of the Constitution. Among the most important of these is the Constitution realized they could not possibly list every national supremacy clause contained in Article VI. specific power that the national government would This states that the Constitution “shall be the supreme require to meet the needs of a developing nation. law of the land; and the judges in every state shall Accordingly, they gave Congress the flexibility to meet be bound thereby.” In other words, federal law takes unforeseen challenges by granting the federal govern- precedence over all other laws. This allows the federal ment a set of broad and largely undefined powers. These government to preempt, or override, areas regulated by include the general welfare clause, which gives the state law. In recent decades, the federal government has federal government the authority to provide for “the aggressively used this power to extend its authority over general welfare of the United States,” and the neces- states in a wide range of policy issues, so much so that sary and proper clause, which authorizes Congress preemption has been called “the gorilla that swallows “to make all laws which shall be necessary and proper” state laws.”4 to carry out its responsibilities as defined by the Other enumerated powers are laid out in Article I, Constitution. (See Table 2-2 for explanations of these Section 8. This part of the Constitution details a set of and other provisions.) exclusive powers—grants of authority that belong The Constitution says a good deal about the powers solely to the national government. These include the of the federal government butdistribute very little about the pow- powers to regulate commerce, to declare war, and to ers of the states. The original, unamended Constitution raise and maintain an army and navy. Article I, Section spent much more time specifying the obligations of the 8, also confers a set of concurrent powers on the states than it did definingor their power and authority. national government. Concurrent powers are those The list of obligations includes Article IV, Section 2, bet- granted to the national government but not denied to ter known as the full faith and credit clause. The the states. Both levels of government are free to exer- clause requires all states to grant “full faith and credit” cise these prerogatives. Concurrent powers include the to each other’s public acts and records. This means that power to tax, borrow, and spend. wills, contracts, and marriages that are valid under one state’s laws are valid under all. Under the privileges post,and immunities clause, states are prohibited from discriminating against citizens from other states. The Enumerated powers Grants of authority explicitly given by the Constitution. idea here was to protect people traveling across state boundaries or temporarily residing in a state because of National supremacy clause A constitutional clause that states that federal law takes precedence over all other. business or personal reasons from becoming the targets of discriminatory regulation or taxation. Preemption The process of the federal government’s overriding areas regulated by state law. The Constitution also sets out an often criticized sys- copy, tem for electing the nation’s president and vice presi- Exclusive powers Powers given by the Constitution solely to the federal government. dent. The presidency goes not to the candidate who

Concurrent powers Powers that both federal and state governments can wins the most votes but, rather, to the one who wins the exercise. most states. Article II, Section 1, charges the states with Implied powers Broad, but notundefined, powers given to the federal gov- appointing electors—one for each of a state’s U.S. sena- ernment by the Constitution. tors and representatives—who actually choose the presi- General welfare clause A constitutional clause that gives Congress an dent based on the winner of the state’s popular vote. (If implied power through the authority to provide for the “general welfare.” the Republican candidate gets the most votes in a state, Necessary and proper clause A constitutional clause that gives Con- the state’s delegation to the Electoral College is made up gress an impliedDo power through the right to pass all laws considered “nec- of Republican Party loyalists who vote for the Republican essary and proper” to carry out the federal government’s responsibilities as defined by the Constitution. nominee.) A presidential candidate needs a majority in the Electoral College, which requires the votes of at least Full faith and credit clause Constitutional clause that requires states to recognize each other’s public records and acts as valid. 270 of the 538 state electors, to be named the winner.

Privileges and immunities clause Constitutional clause that prohibits Other than these responsibilities and explicitly states from discriminating against citizens of other states. granting the states the right to enter into compacts,

TABLE 2-2 ● The U.S. Constitution’s Provisions for Federalism

What It Is What It Says What It Means Article I, Section 8 The Congress shall have Power . . . To regulate Commerce Gives Congress the right to regulate (commerce clause) with foreign Nations, and among the several States, and with interstate commerce. This clause the Indian Tribes. has been broadly interpreted to give Congress a number of implied powers. Article I, Section The Congress shall have Power . . . To make all Laws which An implied power giving Congress 8 (necessary and shall be necessary and proper for carrying into Execution the right to pass all laws considered proper clause) the foregoing Powers, and all other Powers vested by this “necessary and proper” to carry Constitution in the Government of the United States, or in any out the federal government’s Department or Officer thereof. responsibilities as defined by the Constitution. Article IV, Section 3 New States may be admitted by the Congress into this Union; Allows the U.S. Congress to (admission of new but no new State shall be formed or erected within the admit new states to the union and states) Jurisdiction of any other State; nor any State be formed by the guarantees each state sovereignty Junction of two or more States, or Parts of States, without and jurisdiction over its territory. the Consent of the Legislatures of the States concerned as well as of the Congress. Article IV, Section 4 The United States shall guarantee to every State in this distributeEnsures that a democratic (enforcement of Union a Republican Form of Government, and shall protect government exists in each state republican form of each of them against Invasion; and on Application of the and protects states against foreign government) Legislature, or of the Executive (when the Legislature cannot invasion or insurrection. be convened) against domestic Violence. or Article VI This Constitution, and the Laws of the United States which States that federal law takes (supremacy clause) shall be made in Pursuance thereof; and all Treaties made, precedence over all other laws. or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. post, Tenth Amendment The powers not delegated to the United States by the Guarantees that a broad, but Constitution, nor prohibited by it to the States, are reserved undefined, set of powers be reserved to the States respectively, or to the people. for the states and the people, as opposed to the federal government. Fourteenth All persons born or naturalized in the United States, and Prohibits any state from depriving Amendment subject to the jurisdiction thereof, are citizens of the United individuals of the rights and States and of the state wherein they reside. No state shall privileges of citizenship, and make or enforce any law which shall abridge the privileges requires states to provide due or copy,immunities of citizens of the United States; nor shall process and equal protection any state deprive any person of life, liberty, or property, guarantees to all citizens. without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Sixteenth The Congress shall have the power to lay and collect Enables the federal government to Amendmentnot taxes on incomes, from whatever source derived, without levy a national income tax, which has apportionment among the several States, and without regard helped further national policies and to any census or enumeration. programs. Seventeenth The Senate of the United States shall be composed of two Provides for direct election of U.S. Amendment Senators from each State, elected by the people thereof, for senators, rather than election by Do six years; and each Senator shall have one vote. . . . When each state’s legislature. vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided that the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Copyright ©2020 by SAGE Publications, Inc. This work may not be reproduced or distributed in any form or by any means without express written permission of the publisher. 32 Governing States and Localities or binding agreements, with each other on matters of spend; to make laws and enforce them; to regulate trade regional concern, the Constitution is virtually silent on within their borders; and to practice eminent domain, the powers of the states. This lopsided attention to the which is the power to take private property for public powers of the federal government was a contentious use. The reserved powers also have been traditionally issue in the battle to ratify the Constitution. Opponents understood to mean that states have the primary power of the document, collectively known as Anti-Federalists, to make laws that involve the health, safety, and morals feared that states would become little more than pup- of their citizens. Yet the powers reserved for the states pets of the new central government. Supporters of the are more implied than explicit, and they all rest in an Constitution sought to calm these fears by arguing that uneasy tension with the national supremacy clause of states would remain sovereign and independent and that Article VI. the powers not specifically granted to the federal gov- After the Tenth Amendment, the Fourteenth ernment were reserved for the states. As James Madison Amendment is the most important in terms of speci- put it, in writing the Constitution the Federalists were fying state powers. Ratified in 1868, the Fourteenth seeking “a middle ground which may at once support Amendment is one of the so-called Civil War due supremacy of the national authority” and also pre- Amendments that came in the immediate wake of serve a strong independent role for the states.5 the bloody conflict between the North, or the Union, Madison and his fellow Federalists offered to put and the South, or the Confederacy. The Fourteenth these assurances in writing. In effect, they promised Amendment prohibits any state from depriving indi- that if the Constitution was ratified, the first order of viduals of the rights and privilegesdistribute of citizenship and business for the new Congress would be to draft a set of requires states to provide due process and equal protec- amendments that would spell out the limits of central tion guarantees to all citizens. The Supreme Court has government power and specify the independence of the used these guaranteesor to apply the Bill of Rights to state states. Although Anti-Federalist skepticism remained, governments as well as to the federal government and the Federalists kept their promise. The First Congress to assert national power over state power in issues rang- formulated a series of changes that eventually became ing from the desegregation of public education to the the first 10 amendments to the Constitution, which are reapportioning of state legislatures. collectively known as the Bill of Rights. The implied powers of the federal government, the Most of these amendments set specific limits on gov- limitations set on states by the Fourteenth Amendment, ernment power. The aim was to guarantee certain indi- post,and the undefined “leftovers” given to the states by the vidual rights and freedoms, and, at least initially, they Tenth Amendment mean that the scope and author- were directed at the federal government rather than at ity of both levels of government are, in many cases, state governments. The Tenth Amendment, how- dependent on how the Constitution is interpreted. The ever, finally addressed the power of the states. In full, the Constitution, in other words, provides a basic frame- Tenth Amendment specifies: “The powers not delegated work for solving the sibling-rivalry squabbles between to the United States by the Constitution, nor prohib- the states and the federal government. (See Figure ited by it to the states, are reserved tocopy, the states respec- 2-2.) It does not, however, provide an unambiguous tively, or to the people.” This provided no enumerated, guide to which level of government has the primary or specific, powers to the states, but those implied by power, responsibility, and authority on a broad range the language of the amendment are considerable. The of policy issues. This, as we will see, means that the so-called reserved powersnot encompass all the concur- U.S. Supreme Court is repeatedly thrust into the role rent powers that allow the states to tax, borrow, and of referee in power disputes between national and state governments.

Bill of Rights The first 10 amendments to the U.S. Constitution, which set limits on the power of the federal government and set out the rights of individuals andDo the states. The Development of Federalism Tenth Amendment Constitutional amendment guaranteeing that a broad, Although clearly establishing a federal political sys- but undefined, set of powers be reserved for the states and the people. tem, the provisions of the U.S. Constitution leave con- Fourteenth Amendment Constitutional amendment that prohibits states from depriving individuals of the rights and privileges of citizenship and siderable room for disagreement about which level of requires states to provide due process and equal protection guarantees. government—federal or state—has the power to do what.

FIGURE 2-2 ● Powers of National and State Governments

National Government Powers State Government Powers Coin money Run elections Regulate interstate and foreign commerce Regulate intrastate commerce Tax imports and exports Establish republican forms of state and Make treaties Concurrent Powers local government Protect public health, safety, and morals Make all laws “necessary and proper” Tax to fulfill responsibilities All powers not delegated to the national Borrow money Make war government or denied to the states by the Charter banks and corporations Constitution Regulate postal system Take property (eminent domain) Make and enforce laws and Powers Denied Powers Denied administer a judiciary Tax imports and exports Tax state exports Coin money Change state boundaries Enter into treaties Impose religious tests Impair obligation of contracts Pass laws in conflict with the Enter compacts with other states without Bill of Rights congressionaldistribute consent

Source: Adapted from Samuel Kernell, Gary C. Jacobson, and Thad Kousser, The Logicor of American Politics, 6th ed. (Washington, DC: CQ Press, 2013), Figure 3-2.

Disagreements about the scope and authoritypost, of the stick to its enumerated powers and interpret its implied national government arose almost immediately when powers very narrowly. He thus argued that the necessary the First Congress convened in 1789. The issue of a in the necessary and proper clause should properly be national bank was one of the most controversial of these interpreted as “essential” or “indispensable.” Hamilton early conflicts and the one with the most lasting impli- eventually won the argument, and Congress approved cations. Alexander Hamilton, secretary of the treasury the national bank. Still, the issue simmered as a contro- under President George Washington, believed a central versial—and potentially unconstitutional—expansion of bank was critical to stabilizingcopy, the national economy, the national government’s powers. but there was nothing in the Constitution that specifi- The issue was not fully resolved until 1819, when cally granted the federal government the authority to the Supreme Court decided the case of McCulloch create and regulate such an institution. v. Maryland. This case stemmed from the state of Lacking a clear enumerated power, Hamilton justified Maryland’s attempts to shut down the national bank, his proposalnot for a national bank by using an implied power. which was taking business from state-chartered banks, He argued that the necessary and proper clause implied by taxing its operations. The chief cashier of the the federal government’s power to create a national bank national bank’s Baltimore branch refused to pay the because the bank would help the government manage its tax, and the parties went to court. The Supreme Court, Dofinances as it went about its expressly conferred author- in essence, backed Hamilton’s interpretation of the ity to tax and spend. Essentially, Hamilton was interpret- Constitution over Jefferson’s. This was important above ing necessary as “convenient” or “appropriate.” Secretary and beyond the issue of a national bank. It suggested of State Thomas Jefferson objected, arguing that if the that the Constitution gave the national government a Constitution was going to establish a government of broad set of powers relative to the states. Key to this truly limited powers, the federal government needed to early affirmation of the federal government’s power was

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U.S. Chief Justice John Marshall, whose backing of a saw any expansion of that power as an encroachment broad interpretation of implied powers laid the founda- on the sovereignty of the states. tion for later expansions in the scope and authority of In the 1820s and 1830s, Calhoun formulated what the federal government. became known as the compact theory of federalism. The full impact of McCulloch v. Maryland, however, The idea was that the Constitution represented an agree- would not be felt for some time. For the most part, the ment among sovereign states to form a common govern- federal government began to feel its way into the gray ment. It interpreted the Constitution as essentially an areas of its constitutional powers pretty cautiously. extension of the Articles of Confederation, a perspec- Federalism went on to develop in four distinct stages— tive that viewed the U.S. political system as more con- dual federalism, cooperative federalism, centralized federal than federal. The compact theory argued that if federalism, and New Federalism—and the first of these sovereignty ultimately rested with the states, then the stages leaned toward the more limited role of the fed- states rather than the Supreme Court had the final say eral government favored by Jefferson. in how the Constitution should be interpreted. The states also had the right to reject federal laws and make Dual Federalism (1789–1933) them invalid within their own borders. This process was known as , and the compact theory took Dual federalism is the idea that state and federal nullification governments have separate jurisdictions and responsi- it to an extreme. Calhoun argued that states could reject bilities. Within these separate spheres of authority, each the entire Constitution and choose to withdraw, or secede, from the Union. In thedistribute 1820s, national policies— level of government is sovereign and free to operate especially a trade tariff—triggered an economic downturn without interference from the other. Dual federalism in the southern states, which created wide support for represents something of a middle ground in the initial nullification and arguments. These extreme interpretations of how the Constitution divided power. secessionor states’ rights views were not completely resolved until On one side of the debate were Federalists such as the Union victory in the Civil War ended them for good. Hamilton, who championed a nation-centered view of Dual federalism walked the line of moderation federalism. They wanted to interpret the Constitution between the extremes of as broadly as possible to give the national government nation-centered federalism and . Basically, dual federal- supremacy over the states. On the other side were fierce state-centered federalism ism looks at the U.S. political system as a layered cake. states’ rights advocates such as John Calhoun of South post,The state and federal governments represent distinct and Carolina, who served as vice president in the adminis- separate layers of this cake. To keep them separate, advo- trations of John Quincy Adams and Andrew Jackson. cates of dual federalism sought to limit the federal gov- Supporters of states’ rights wanted the federal govern- ernment to exercising only a narrow interpretation of its ment’s power limited to the greatest possible extent and enumerated powers. If the Constitution was to be interpreted broadly, that interpretation should favor the states

Dual federalism The idea that state and federal governments have sepa- rather than Congress. This became the central operating rate and distinct jurisdictions and responsibilities.copy, philosophy of the U.S. Supreme Court for much of the States’ rights The belief that states should be free to make their own deci- 19th century and is most closely associated with the tensions with little interference from the federal government. ure of Chief Justice Roger B. Taney, who served from 1836

Compact theory The idea that the Constitution represents an agreement to 1864. Compared with his immediate predecessor, John among sovereign states to formnot a common government. Marshall, Taney was much less sympathetic to arguments Nullification The process of a state’s rejecting a federal law and making it that interpreted the federal government’s powers broadly. invalid within state borders.

Secession The process of a government’s or political jurisdiction’s with- drawal from a political system or alliance. Even at the height of the dual federalism Nation-centeredDo federalism The belief that the nation is the basis of the federal system and that the federal government should take precedence era, state and federal governments were over state governments. collaborating as much as they were State-centered federalism The belief that states are the basis of the federal system and that state governments should take precedence over the fighting. federal government.

The dual federalism doctrine gave rise to some infa- federal governments were collaborating as much as mous Supreme Court decisions on the powers and they were fighting. The federal government, for exam- limitations of the federal government. Perhaps the best ple, owned vast tracts of land in the Midwest and West, known is Scott v. Sandford (1857). This case dealt with and it made extensive grants of these lands to the states Dred Scott, a slave taken by his master from Missouri, to help develop transportation and education systems. a slave state, to Illinois, a free state, and on into what Many of the nation’s best-known state universities got was then called the Wisconsin Territory, where slav- their start this way, as land-grant colleges. ery had been outlawed by the Missouri Compromise In the 19th century, the federal government also of 1820. This federal law stipulated which new states gave out cash grants to support Civil War veterans and territories could and could not make slavery legal. housed in state institutions, gave money to the states After his master’s death, Scott sued for his freedom, to support agricultural research, and lent federal man- arguing that his residence in a free territory had legally power—primarily U.S. Army engineers—to help state ended his bondage. Scott’s case was tied to the Missouri and local development projects.6 Rather than a layered Compromise, which the Supreme Court subsequently cake, some experts believe a more appropriate metaphor ruled unconstitutional. The justices’ justification was for federalism is a marble cake, with the different levels that Congress did not have the enumerated, or the of government so thoroughly mixed with one another implied, power to prohibit slavery in the territories. that they are impossible to separate. (See Figure 2-3.) Thus, Scott remained a slave, although his owners vol- Certainly as the nation became increasingly indus- untarily gave him his freedom shortly after the Supreme trialized and moredistribute urban, state and federal interests Court decision. He died of tuberculosis in 1858, having became increasingly intertwined. As the 19th century spent only 1 of his nearly 60 years as a free man. FIGURE 2-3 ● Theor Varieties of Federalism

Cooperative Federalism (1933–1964) Federal Federal In theory, dual federalism defines and maintains a clear division between state State State and national governments and sets a post, Local Local clear standard for doing so. If the federal government has the enumerated power to take a disputed action or make Dual or “Layer Cake” Cooperative or “Marble Cake” a disputed law, it has supremacy over the Federalism Federalism states in the particular case; if it does not have the enumerated power, then the Tenth Amendment reservescopy, that power for the states, and state preferences take precedence. The problem was that dual federal- Federal ism’s claritynot in theory rarely matched the complex realities of governance in State practice. State and national governments share interests in a wide range of issues, Local from education to transportation. To e Dodivide these interests cleanly into separate spheres of influence was not only

difficult; in many cases, it was impracti- Education Welfare Corrections Urban Renewal Health Car cal and not desirable. Even at the height Centralized or “Picket Fence” Federalism of the dual federalism era, state and

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During World War II (1939–1945), that power was centralized even further. The need to fight global conflicts pushed the federal government to assert its authority on a wide range of economic and social issues. Even more important to the long-term relationship between state and national governments was the Great Depression of the 1930s, a social and economic catastrophe that swept aside any

Tim Boyle/Getty Images Boyle/Getty Tim remaining vestiges of dual federalism. The central catalyst for a fundamental change in the nature of state–federal relations was the election of Franklin Delano Roosevelt to the presidency in 1932. In an effort to combat economic and social mal- SS aise, Rooseveltdistribute aggressively pushed The Sixteenth Amendment gave the federal government the power to levy an income tax. Some of the money collected by the federal government in income taxes is returned to the the federal government into taking states in the form of grants to support a wide range of domestic policies and programs. a lead role in areas traditionally left toor the states, and in the 1930s, the federal government became deeply drew to a close and the 20th century began, the fed- involved in regulating the labor market, creating and eral government undertook a significant expansion of managing welfare programs, and providing significant its policy responsibilities. In 1887, it began to regulate amounts of direct aid to cities. The general approach the railroads, a policy area with enormous significance of Roosevelt’s so-called New Deal agenda defined the for the economic development of states and localities. central characteristics of cooperative federalism— In economic and social terms, this was roughly equiva- post,using the federal government to identify a problem, set lent to the federal government of today announcing its up the basic outline of a program to address the prob- comprehensive regulation of the Internet and software lem, and make money available to fund that program manufacturers. By fits and starts, dual federalism gradu- and then turning over much of the responsibility for ally fell out of favor with the Supreme Court. The Court implementing and running the program to the states instead began to interpret the powers of the federal gov- and localities. This arrangement dominated state and ernment very broadly and to allow the jurisdictions of federal relations for the next three decades. state and national governments to mergecopy, gradually. Several events accelerated this trend. In 1913, the Centralized Federalism (1964–1980) Sixteenth Amendment was ratified, giving the federal Having all levels of government addressing problems government the ability to levy a nationwide income simultaneously and cooperatively paid dividends. It tax. The new taxing and spending authority helped not combined the need to attack national problems with further national policies designed during the next the flexibility of the decentralized federal system. decades.7 World War I (1914–1918) resulted in a signifi- Cooperative federalism, however, also signaled a sig- cant centralization of power in the federal government. nificant shift in power away from the states and toward Do the federal government. The key to this power shift was money, specifically federalgrants-in-aid , which are Cooperative federalism The notion that it is impossible for state and cash appropriations given by the federal government to national governments to have separate and distinct jurisdictions and that both levels of government must work together. the states. An ever-increasing proportion of state and

Grants-in-aid Cash appropriations given by the federal government to local budgets came from federal coffers. At the begin- the states. ning of the 19th century, federal grants constituted less

FIGURE 2-4 ● Key Dates in the History of American Federalism

Revolutionary War starts 1775 1776 Declaration of Independence adopted

Articles of Confederation ratiﬁed 1781 1783 Revolutionary War ends Annapolis Convention 1786 1786 Shays’s Rebellion Constitutional Convention drafts new constitution 1787 1788 U.S. Constitution ratiﬁed First Congress adopts Bill of Rights 1791

McCulloch v. Maryland establishes 1819 that the federal government has a broad set of powers over the states

Roger Taney sworn in as chief justice; adopts dual 1836 1832 South Carolina attempts to nullify federal law federalism as model for federal–state relations

1857 Scott v. Sandford demonstrates the limits of the federal governmentdistribute South Carolina secedes from the Union in December; Southern states experiment with confederacy 1861 1860 hostilities between North and South begin a month later as Civil War starts 1865 Civil War ends with Union victory; Thirteenth Amendmentor abolishes slavery Fourteenth Amendment passes 1868 1887 Federal government regulates the railroads Sixteenth Amendment passespost,1913 Great Depression begins 1930 1933 Franklin Delano Roosevelt takes ofﬁce; era of cooperative federalism begins

Era of centralized federalism begins 1964

copy, 1972 Richard Nixon begins revenue sharing Ronald Reagan is elected; New Federalism emerges 1980 William Rehnquist becomes chief justice; Supreme Court decides Bush v. Gore; 2000 1986 Supreme Court begins to look more favorably on George W. Bush receives Florida’s contested states’ rights arguments notelectoral votes and becomes president 2008 Great Recession

2012 National Federation of Independent Business v. Sebelius expands federal government power by upholding the government’s right to mandate that individuals purchase health care coverage; the Court Do upholds state sovereignty in the case by ruling that the federal government cannot force states to expand Medicaid. 2013 Supreme Court decides Shelby v. Holder; states with histories of disenfranchising minority voters no longer have to get voting laws and regulations approved by federal government

Copyright ©2020 by SAGE Publications, Inc. This work may not be reproduced or distributed in any form or by any means without express written permission of the publisher. 38 Governing States and Localities than 1 percent of state and local government revenues. localities with essentially no strings attached. Although By the middle of the 1930s, federal grants accounted for popular with states and localities—from their perspec- close to 20 percent of state and local revenues.8 tive it was “free” money—this type of grant-in-aid had For the next 30 years, the federal government contin- a short life span; it was killed by the Ronald Reagan ued to rely on grants to administer programs, including administration in the early 1980s. the 1950s construction of the federal highway system Federal grants, strings or no strings, do not sound so that Americans drive on today. The 1960s marked a bad on the surface. Money is money, and a government shift, however. Centralized federalism, ushered can never have too much. The problem was that the in with Lyndon Baines Johnson’s presidency, further grants were not distributed equitably to states and local- increased the federal government’s involvement in pol- ities, and a central feature of cooperative federalism was icy areas previously left to state and local governments. the often fierce competition to control and access these It is commonly associated with Johnson’s Great Society revenues. The politics became complex. One form of program, which used state and local governments to conflict arose between the states and the federal govern- help implement such national initiatives as the Civil ment over what types of grants should be used for par- Rights Act and the War on Poverty. This is sometimes ticular policies or programs. States and localities favored called “picket-fence federalism” because in practice the federal grants with fewer strings. Congress and the pres- relationships among local, state, and national govern- ident often favored putting tight guidelines on federal ments were centered on particular programs and the money because this allowed them to take a greater share agencies that managed them. These policy-specific of the credit for the benefits distributeof federal spending. agencies (bureaucracies dealing with education, trans- Perhaps the most important dimension of the politics portation, welfare, and the like) were laid across the of grants-in-aid, however, was the federal government’s levels of government like pickets on a three-rail fence. increasing desire to useor its purse strings to pressure states Those initiatives meant more money—and more and localities into adopting particular policies and laws. regulations—for states and localities. The federal govern- Beginning in the 1960s and 1970s, cooperative federal- ment began aggressively attaching strings to this money ism began a new, more coercive era with the rise of ever through categorical grants. Federal–state relations more stringent grant conditions. These included cross- evolved into a rough embodiment of the Golden Rule cutting requirements, or strings that applied to all of politics—he who has the gold gets to make the rules. federal grants. For example, one requirement a state or Richard Nixon’s presidential administration took a post,locality must meet to receive virtually any federal gov- slightly different tack. It cut some strings but contin- ernment grant is an assessment of the environmental ued to increase the number of grants doled out by the impact of the proposed program or policy. Accordingly, federal government.9 In the late 1960s, the administra- most state and local governments began writing—and tion pioneered the idea of general revenue sharing defending—environmental impact statements for any grants, federal funds turned over to the states and construction project that involved federal funds. The federal government also began applying cross- copy, over sanctions. Crossover sanctions are strings that Centralized federalism The notion that the federal government should take the leading role in setting national policy, with state and local govern- require grant recipients to pass and enforce certain laws ments helping implement the policies. or policies as a condition of receiving funds. One exam-

Categorical grants Federal grants-in-aid given for specific programs ple is the drinking age. As a condition of receiving federal that leave states and localities with little discretion over how to spend the highway funds, the federal government requires states to money. not set 21 as the minimum legal age for drinking alcohol. General revenue sharing grants Federal grants-in-aid given with few Increasingly, the strings came even if there were no constraints, leaving states and localities almost complete discretion over how to spend the money. grants. State and local governments were issued direct orders, essentially were commanded, to adopt cer- Crosscutting requirements Constraints that apply to all federal grants. Do tain laws or rules, such as clean-water standards and Crossover sanctions Federal requirements mandating that grant recipi- minimum-wage laws.10 These unfunded mandates ents pass and enforce certain laws or regulations as a condition of receiving funds. became a particular irritant to state and local govern-

Unfunded mandates Federal laws that direct state action but provide no ments. Even when there was broad agreement on the financial support for that action. substance of a mandate, subnational governments

resented the federal government’s taking all the credit practical and ideological combined to create pressure while leaving the dirty work of finding funds and actu- for a fundamental shift in state and federal relations. ally running the programs to the states and localities. Reagan was not the first president to raise concerns Congress eventually passed a law banning unfunded about the centralization of power in the national govern- mandates in the mid-1990s, but it is full of loopholes. ment. A primary reason for Nixon’s support of general For example, the law does not apply to appropriations revenue sharing, for example, was the attraction of giv- bills—the laws that actually authorize the government ing states more flexibility by cutting the strings attached to spend money. The National Conference of State to federal grants. It was not until Reagan, however, that Legislatures has estimated that in the period from a sustained attempt was made to reverse the course of 2004 to 2008, the federal government shifted $131 centralized federalism. Reagan believed the federal gov- billion in costs to the states in unfunded mandates.11 ernment had overreached its boundaries, and he wanted Congress, in other words, continues to pass laws that to return power and flexibility to the states. At the core subnational governments must obey, and Congress of his vision of state-centered New Federalism was the also passes on the costs of implementing these laws desire to reduce federal grants-in-aid. In return, states to the states. would be given more policymaking leeway with the money they did get through block grants. Reagan’s drive to make this vision a reality had New Federalism (1980–2002) mixed success. The massive budget deficits of the 1980s Centralized federalism’s shift of power toward the made cutting grants-in-aiddistribute a practical necessity. We can national government always faced opposition from see this in Figure 2-5, which shows federal government states’ rights advocates, who viewed the growing influence of the national government with alarm. By or the end of the 1970s, centralized federalism also was New Federalism The belief that states should receive more power and authority and less money from the federal government. starting to face a practical crisis—the federal govern- Block grants Federal grants-in-aid given for general policy areas that ment’s revenues could not keep up with the demand for leave states and localities with wide discretion over how to spend the grants. With the election of Ronald Reagan in 1980, the money within the designated policy area. post, FIGURE 2-5 ● Federal Grants to States, 1940–2022 (in billions of constant 2009 dollars)

700

600 500 copy, 400

300 not200 100

0 Federal Grants in Billions (Constant 2009 Dollars) 2022 Do 1940 1942 1944 1946 1948 1950 1952 1954 1956 1958 1960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1989 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014 2016 2018 2020 Year

Source: U.S. Office of Management and Budget,Budget of the United States, Historical Tables, Table 12.1, “Summary Comparison of Total Outlays for Grants to State and Local Governments: 1940–2012 (in Current Dollars, as Percentages of Total Outlays, as Percentages of GDP, and in Constant [FY 2009] Dollars),” https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/hist12z1.xls.

Copyright ©2020 by SAGE Publications, Inc. This work may not be reproduced or distributed in any form or by any means without express written permission of the publisher. 40 Governing States and Localities grants to state and local governments in billions of con- funds. They slowly and often painfully worked them- stant dollars from 1940 through 2014. There was a clear selves out of this dilemma by becoming less reliant on upward trend beginning in the 1960s that peaked in the federal government. States began aggressively pur- about 1978. After that, federal grants to states stayed rel- suing innovative policy approaches to a wide range of atively constant for about a decade—while the federal social and economic problems. By the 1990s, as one government was not really drastically cutting grants in author puts it, there was “a developing agreement the 1980s, in real terms it did not increase them either. among state and national political elites that states At least for a while, the federal government managed to should have greater authority and flexibility in operat- rein in the grant dollars flowing to states and localities. ing public programs.”13 Reducing the federal government’s influence over states The effort to take power away from the federal gov- and localities turned out to be another matter. ernment and give it to the states was broadly supported Reagan, like many conservatives, was a modern heir by public opinion, as polls consistently showed that to a states’ rights perspective that dated back to the Americans placed more trust in state and local govern- Anti-Federalist movement. This means he believed that ments than they did in the federal government.14 In the government should be as close to the voters as possible— 1990s, the Bill Clinton administration championed the in the city hall or the state capitol—rather than far idea of devolution, an extension of New Federalism that away in Washington, D.C. Yet believing that govern- sought a systematic transition of power from the federal ment should be closer to the people in the abstract is far to the state level in certain policy areas. different from putting that belief into practice. Taking Probably the best-knowndistribute example of devolution power from the federal government did advance a core is the Personal Responsibility and Work Opportunity philosophical belief of the Reagan administration, but it Reconciliation Act of 1996, popularly known as the also created problems for Reagan supporters, who were law that “ended welfareor as we know it.” The law, which not shy about voicing their displeasure. Clinton signed under Republican pressure during the Such core conservative constituencies as business 1996 presidential campaign after vetoing it twice, ended and industry quickly realized that dealing with a single Aid to Families with Dependent Children and replaced government was much less of a headache than deal- it with a block grant. In essence, the law embodied ing with 50 governments. They almost immediately the deal between state and federal governments that began to put counter pressure on the movement toward embodied devolution—the federal government would expanded state policymaking authority. The result was post,provide less money, and the states would get more poli- something of a push and pull, with the Reagan admin- cymaking authority. istration trying to shove power onto the states with Like its parent, New Federalism, the devolution revo- one set of legislative priorities and yank it back to the lution faced strong resistance, often from an old enemy. federal government with another. Ultimately, Reagan Conservatives, at least rhetorically, still were the stron- did succeed in cutting grants-in-aid. He consolidated gest states’ rights advocates. Yet when states’ rights con- 57 categorical grants into 9 new block grants. General flicted with key portions of the conservative political revenue sharing and another 60 categoricalcopy, grants were agenda, conservative groups fought tenaciously for fed- eliminated entirely. This reduced the amount of money eral supremacy over the states, just as they had during sent to the states while increasing the states’ ability to the 1980s. An example of this contradictory behavior act independently.12 Yet Reagan also engaged in a num- is the 1996 Defense of Marriage Act. This federal law ber of fairly aggressivenot preemption movements and was proposed in the wake of movements in Hawaii and backed a number of unfunded mandates. This reduced Vermont to legalize same-sex civil unions. Now, remem- the independence of states and forced them to fund ber, the full faith and credit clause means that a contract programs they did not necessarily support. made under the laws of one state is legally recognized The seeds of New Federalism had a hard time tak- and binding in all states. So if one state made same-sex ing root Doat the national level, but the roots sank fast unions legal, it raised the possibility that the other 49 and sank deep at the state and local levels. States were would have to recognize such civil unions as the legal caught between the proverbial rock of a cash-strapped equivalent of marriages. There was a strong push from federal government and the hard place of the demand many traditional states’ rights advocates for the federal for the programs traditionally supported by federal government to, in essence, grant states exceptions from

their full faith and credit obligations. The Defense of York than Democrats in Marriage Act did this. It also put the federal government California. These days, into the business of defining what constitutes a mar- that’s hard to imagine. riage, an area traditionally left to the states.15 In the past couple of decades, party polarization has gone national, Ad Hoc Federalism (2002–Present) with Republicans and MICHIGAN was the first state to plow its roads For a variety of reasons, the commitment to New Democrats at all levels and to use the yellow Federalism, at least at the federal level, more or less of government aligning dividing line on its dissolved entirely by the end of the administration of themselves with consis- highways. President George W. Bush. Bush came to the White tent and opposing ideolog- House from the Texas governor’s mansion and, at least ical agendas. As a number initially, was a champion of pushing power away from of scholars have noted, one Washington, D.C. Circumstances and policy priorities, result is that it is now not uncommon for members of however, led Bush to advocate for greater federal author- Congress to vote the interests of their party over the ity in a number of policy areas. For example, Bush’s sig- interests of their constituents, and for candidates com- nature domestic policy was the No Child Left Behind peting for state and local offices to run on issues aligned Act, which asserted federal control over important with national party positions.18 A big implication of this aspects of public education, a policy area traditionally political environmentdistribute is that who favors federal or state under the jurisdiction of state and local governments. supremacy on any given issue depends on its partisan Peter Harkness, editor of Governing magazine, summed implications. And even that support can be tempo- up the Bush administration’s record on federalism thus: rary. Whenor Barack Obama was president, conservative “The administration has mandated more, preempted Republican governors resisted a range of federal policy more and run roughshod over state initiatives that initiatives in areas like health care, immigration, and the didn’t conform to its own ideology.”16 environment, arguing federal overreach was unconstitu- This did not mean that federal–state relations in the tionally limiting the prerogatives of states. More liberal Bush era shifted from a commitment to devolution to Democratic governors tended to cheer on and support a commitment to centralizing power in Washington, these same initiatives. After Donald Trump was elected D.C. What it meant was that a principled guidingpost, phi- in 2016 and Republicans took control of the federal losophy of state–federal relations—such as dual feder- government, however, those positions flipped. Now it alism, cooperative federalism, or New Federalism—was was Republican state lawmakers cheering on the federal abandoned. Instead a new, more partisan or ideologi- initiatives while Democrats pushed back, filing lawsuits cally based approach to state–federal relations came and arguing the federal government should not limit to the fore, an approach described as ad hoc feder- state discretion on everything from marijuana legaliza- alism.17 Ad hoc federalism is the process of choosing tion to LGBT rights to establishing sanctuary cities.19 a state-centered or nation-centeredcopy, view of federalism This new, more confrontational face of ad hoc feder- on the basis of political or partisan convenience. In alism has raised real questions about the future of state– other words, the issue at hand, not a core philosophical federal relations and the ability of different levels of commitment to a particular vision of federalism, deter- government to work cooperatively with each other (see mines a policymaker’snot commitment to state or federal the box “States under Stress: Two-Speed Federalism”). supremacy. What we are currently witnessing is ad hoc federalism The rise of ad hoc federalism, which continues to with a vengeance. State as well as national leaders are this day, is explained at least in part by the nationaliza- increasingly varying their views of the appropriate role tion of party politics. Historically, national political par- of state and federal governments according to ideologi- Doties were little more than confederations of state party cal or partisan preferences on a policy-by-policy basis. organizations that were strongly focused on their own issues and priorities. The result of that sort of decen- Ad hoc federalism The process of choosing a state-centered or tralized party structure was that Democrats in Texas nation-centered view of federalism on the basis of political or partisan might have more in common with Republicans in New convenience.

Copyright ©2020 by SAGE Publications, Inc. This work may not be reproduced or distributed in any form or by any means without express written permission of the publisher. 42 Governing States and Localities The Supreme Court: Tenth Amendment. Once considered the constitutional lockbox of state power, the amendment, according to The Umpire of Federalism the Court’s ruling, now did little more than state “a truism that all is retained which has not been surren- Article VI of the Constitution contains the national dered.” In other words, the Tenth Amendment was supremacy clause, which declares that the Constitution, simply a basket for the “leftover” powers the federal laws passed by Congress, and national treaties are the government had not sought or did not want. “supreme law of the land.” This does not mean that the During and after the New Deal era, the Supreme states are always subordinate to the national govern- Court also accelerated a trend of broadly interpreting ment. Don’t forget—the Tenth Amendment also counts Congress’s powers to regulate interstate commerce. It as part of that supreme law. However, it does mean that did this through its interpretation of the interstate federal courts often have to referee national–state con- commerce clause. In Wickard v. Filburn (1942), the flicts. Because it has the final say in interpreting the Court ruled that the clause gave Congress the power Constitution, the Supreme Court is, in effect, the umpire to regulate what a farmer could feed his chickens. The of federalism. Its rulings ultimately decide the powers case involved an Ohio farmer, Roscoe Filburn, who was and limitations of the different levels of government. growing more wheat than allowed under federal pro- The Rise of Nation-Centered duction limits. He wasn’t selling the excess wheat; he was feeding it to his chickens. The Court reasoned that Federalism on the Court this reduced the amount of chickendistribute feed Filburn needed Throughout U.S. history, the Supreme Court has cycled to buy on the open market, and because that market through trends of state-centered and nation-centered was an interstate market, which meant interstate com- philosophies of federalism. As we have already seen, the merce, Congress couldor regulate what Filburn was doing. early Supreme Court under Chief Justice John Marshall In Heart of Atlanta Motel v. United States (1964) and pursued a fairly broad interpretation of the federal gov- Katzenbach v. McClung (1964), the justices ruled that ernment’s powers in such cases as McCulloch v. Maryland. this clause gave Congress the power to regulate private Marshall’s successor, Roger Taney, took the Court in a acts of racial discrimination. These cases involved the more state-centered direction by establishing dual federal- owners of a motel and a restaurant, respectively, who ism as the Court’s central operating philosophy. The shift wanted to refuse service to blacks. The Court ruled that from dual federalism to cooperative federalism required post,these businesses served interstate travelers, and that a return to a more nation-centered judicial philosophy. was interstate commerce, so Congress had the power Although the Court initially took a more nation-centered to force them to obey federal antidiscrimination laws. direction in its rulings following the Civil War, it was not A series of such decisions over the course of more until the Great Depression and Roosevelt’s New Deal that than 50 years led some judicial scholars to conclude a decisive tilt in the Court’s rulings cleared the way for that the Supreme Court had essentially turned the con- the rise of cooperative federalism and the centralization cept of enumerated and reserved powers on its head. of power in the national government.copy, In effect, the assumption now seemed to be that the The shift toward a liberal interpretation of the fed- federal government had the power to do anything the eral government’s powers dominated the Supreme Constitution did not specifically prohibit.20 The states Court’s operating philosophy for much of the next 60 and localities were drawn ever closer into roles as subor- years and is exemplifiednot by its decision inUnited States v. dinate satellites in orbit around the federal government. Darby Lumber Co. (1941). The substantive issue at stake This situation continued until just before the end of the in this case was whether the federal government had 20th century. At that point, the Court once again began the power to regulate wages. The Supreme Court said siding with the states over the federal government. yes, but the decision is of more lasting interest because of the majorityDo opinion’s dismissive comment on the A Tenth Amendment Renaissance or Ad Hoc Federalism? Interstate commerce clause Constitutional clause that gives Congress the right to regulate interstate commerce. This clause has been broadly By the mid-1990s, the Supreme Court was dominated interpreted to give Congress a number of implied powers. by justices appointed by New Federalists. Reagan,

STATES UNDER STRESS TWO-SPEED FEDERALISM

At first glance, the policy topics of immigration, LGBT much or as little as their politics permit. These initia- rights, health care, homeland security, education, and tives include the following: abortion seem to have little in common. Substantively, that is true enough. Structurally, though, they all share some- • Partial preemptions These establish a floor thing important: Congress and/or the Supreme Court has but not a ceiling for new regulations, allowing taken actions intended to guarantee equal and uniform some states to go beyond a federally required application of laws and policy regulation nationwide. Yet level of regulation. California, for example, has that uniformity is breaking down, as there are now large long taken advantage of this with the Clean policy differences among the states in all these areas. Air Act, which allows states to impose stricter Widening differences in politics and policy priorities, limits on automobile emissions than what is many of them rooted in differences in political culture, federally mandated. are contributing to increasing policy—and ideological— • Waivers These tools have been used for several polarization among the states. These differences are decades, first in welfare reform and later readily apparent in the public policies originating in the in Medicaid. States have been able to tailor states, whether they be legalization of marijuana use, federal entitlement and grant programs to “stand your ground” gun laws, or climate change poli- achieve cost distributesavings, shifts in service-delivery cies. The yawning ideological gulfs between states are approaches, and other innovations. also affecting the implementation of federal programs. Recent elections brought a good deal of polarization to • Opt-outs These have allowed conservative states state governments. In 2018, state government was con- to oravoid participating in some federal programs trolled by a single party in roughly two-thirds of the states: altogether. In the case of regulatory opt-outs, Half the states had a Republican governor and Republican the federal government typically stands by legislative majorities, and seven states had a Democratic to enforce federal rules in nonparticipating governor and Democratic legislative majorities. One- states, thereby ensuring some level of national party dominance at the state level emphasized and, in uniformity. This has been most notable with the many cases, exacerbated the growing ideological distance Affordable Care Act, which allows states to opt between the two parties that also underlies partisan con- out of operating their own insurance exchanges. flict in Congress. Republican Donald Trump became pres- When states opt out of grants, however, there is ident after losing the popular vote and, at leastpost, through typically no federal fallback. the early part of his administration, suffered historically low approval ratings. That provided Democratic lawmak- Where is all this leading? No one is quite sure. People ers with plenty of incentive to mount serious challenges to increasingly talk of a two-speed European Union, federal mandates and policy prescriptions. where, for example, some member states adopt the At a minimum, growing ideological differences euro while others do not. It seems as though some- across states clearly help to explain the widely vary- thing similar is happening in the political system of ing levels of participation by states in major federal the United States; a sort of “two-speed federalism” is policy programs. For example, the Affordable Care Act emerging where states opt in or out of federal policy intended for states to copy,expand Medicaid (a health care initiatives based on their ideological and partisan lean- program for the poor) and to set up their own online ings. Whether this is good or bad remains to be seen. health insurance exchanges. Roughly a dozen states On one hand, states could emerge as newly empowered have refused to do either. State participation in federal actors in charge of federal programs. On the other, the programs is increasingly reflective of the ideological polarization that gave rise to wide variations among and partisannot composition of state government. What the states could become institutionalized, further seg- can the federal government do when state govern- menting the nation into radically different policy worlds. ments flat-out refuse to work with it, even to the extent Two-speed federalism could also be temporary. If the of turning down big federal monetary incentives to par- goals of national programs become more deeply rooted, ticipate? The answer seems to be, work with the states this may prompt a push for stronger forms of national- you have rather than the states you want. Out of neces- ization of policy programs. In other words, if state gov- Dosity, national officials have taken ad hoc federalism to a ernments will not implement policy programs that state new extreme by adopting flexible strategies that largely citizens decide they want, they might ask the federal enable states to participate in new federal initiatives as government not to take away state options to opt out.

Source: Adapted from Paul Posner and Timothy Conlan, “The Future of Federalism in a Polarized Country,” Governing, February 2014.

Copyright ©2020 by SAGE Publications, Inc. This work may not be reproduced or distributed in any form or by any means without express written permission of the publisher. 44 Governing States and Localities who had campaigned on his intention to nominate At the same time it was narrowly interpreting the federal judges who shared his conservative philoso- Constitution to limit federal power, the Supreme Court phy, appointed four. He also elevated a fifth, William after 1990 began to interpret the Constitution broadly Rehnquist—originally appointed as an associate justice to expand state power. Notably, the Court made a by Nixon—to the position of chief justice. Reagan’s series of rulings that broadly interpreted the Eleventh vice president and presidential successor, George H. W. Amendment’s guarantee of sovereign immunity Bush, appointed two more justices. The end result was a to the states. Sovereign immunity is essentially “the mid-1990s Supreme Court chosen largely by conserva- right of a government to be free from suits brought tive Republican presidents who wanted limits set on the without its consent.”21 In cases such as Seminole Tribe federal government’s powers and responsibilities. The of Florida v. Florida (1996) and Alden v. Maine (1999), justices obliged. the Supreme Court adopted an interpretation of the In a series of narrow (mostly 5–4) decisions in the Eleventh Amendment that limited the right of citizens 1990s, the Court began to back away from the nation- to sue states for violations of federal law. These rulings centered interpretation of the Constitution that had not only lessened the power of the federal government dominated its rulings during the era of cooperative fed- over the states but also arguably gave the states more eralism (see Table 2-3). United States v. Lopez (1995) was power over their own citizens. a significant victory for states’ rights and a clear break Although these and other rulings resurrected the from a half-century of precedent. This case involved the Tenth Amendment and underlined the independent Gun-Free School Zones Act of 1990, which made it a power of the states, there has beendistribute an element of incon- federal crime to possess a firearm within 1,000 feet of sistency to Supreme Court decisions since 1990. In Bush a school. Following a good deal of precedent, Congress v. Gore (2000), the Court abandoned its commitment to justified its authority to regulate local law enforcement states’ rights by overrulingor the Florida Supreme Court by using a very liberal interpretation of the interstate and ordering a halt to the contested recount of presi- commerce clause, the basic argument being that the dential ballots. Democratic presidential nominee Al operation of public schools affected interstate com- Gore indisputably won the popular vote in 2000, but merce, so the federal government had the constitu- the outcome of the presidential election was decided by tional authority to ban guns near schools. The Supreme Florida’s electoral votes. Gore and Bush ran neck and Court disagreed and argued that the commerce clause neck in this state, the decision so close that a series granted no such authority. post,of controversial and hotly contested recounts were The justices used similar reasoning in United States undertaken with the approval of the Florida courts. v. Morrison (2000) to strike down the Violence Against In effect, the U.S. Supreme Court overturned the state Women Act. Congress had passed this law in 1994 out court’s interpretation of state law—which allowed the of concern that the states, although having primary recounts—and decided the presidency in favor of George responsibility for criminal law, were not adequately W. Bush. Another decision that favored federal power dealing with the problem of violence against women. over state power came in Lorillard Tobacco Co. v. Reilly The key provision of the act gave copy,assault victims the (2001). Here, the Court overturned a Massachusetts law right to sue their assailants in federal court. Congress that regulated the advertising of tobacco products. The argued that it was authorized to pass such a law because Court argued that federal law—specifically, the Federal fear of violence prevented women from using public Cigarette Labeling and Advertising Act—legitimately transportation or goingnot out unescorted at night. Such preempts state law on this issue. fears, the reasoning went, placed limits on economic The Court also trumped 10 states that had legalized opportunities for women. This argument made the con- the use of marijuana for medical purposes. In Gonzales nection to commerce and Congress’s constitutional v. Raich (2005), the Court, led by its more liberal jus- authority, but the Supreme Court rejected this broad tices, ruled that federal law enforcement officers, pros- interpretationDo of the commerce clause. ecutors, and judges can prosecute and punish anyone possessing marijuana. This ruling is interesting because, while it upheld federal laws, it did not overturn state

Sovereign immunity The right of a government not to be sued without its laws and left state and local officials free not to partici- consent. pate in any federal efforts to seize medical marijuana.22

TABLE 2-3 ● Key U.S. Supreme Court Rulings Regarding Federalism, 1995–2018

Case Decision

United States v. Lopez (1995) Court strikes down a federal law prohibiting possession of firearms near public schools. First time since World War II that Court placed limits on Congress’s powers under the interstate commerce clause.

Seminole Tribe of Florida v. Court rules Congress cannot allow citizens to sue states in a federal court except for civil Florida (1996) rights violations. State claim upheld.

Printz v. United States (1997) Court strikes down a federal law requiring mandatory background checks for firearms purchases. State claim upheld.

Alden v. Maine (1999) Court rules that Congress does not have the power to authorize citizens to sue in state court on the basis of federal claims. State claim upheld.

United States v. Morrison Court strikes down the federal Violence Against Women Act. State claim upheld. (2000)

Reno v. Condon (2000) Court upholds a federal law preventing states from selling driver’s license information. State claim overturned. distribute Bush v. Gore (2000) Court overrules a Florida Supreme Court action allowing hand recounts of contested election ballots. State claim overturned. Alabama v. Garrett (2001) Court rules that state employees cannot orsue their employers in federal court to recover monetary damages under the provisions of the Americans with Disabilities Act. State claim upheld.

Lorillard Tobacco Co. v. Reilly Court strikes down Massachusetts laws regulating the advertising of tobacco products. (2001) State claim overturned.

Kelo v. City of New London Court rules that government can seize private property for public purposes, including (2005) economic development.post, State claim upheld. Gonzales v. Raich (2005) Court rules that federal laws outlawing marijuana can be upheld by federal law enforcement officers in states where medical marijuana has been legalized. State law enforcement groups, however, do not have to participate in federal efforts to seize marijuana.

Gonzales v. Oregon (2006) Court rules that the U.S. attorney general overstepped his authority by threatening to eliminate prescription-writing privileges for doctors who follow state law allowing copy,physician-assisted suicide. State claim upheld. Arizona v. United States (2012) Court rules that states do not have the authority to enact and enforce immigration laws; however, it allows states to implement “show me your papers” regulations that require law enforcement officers to determine the immigration status of anyone they stop or detain.

National Federationnot of Court rules that the federal government can require individuals to purchase health Independent Business v. insurance and that doing so does not violate powers reserved to the states under the Tenth Sebelius (2012) Amendment.

Environmental Protection Court rules that the Environmental Protection Agency can regulate greenhouse gas DoAgency v. EME Homer City emissions over the opposition of state governments. Generation (2014)

Copyright ©2020 by SAGE Publications, Inc. This work may not be reproduced or distributed in any form or by any means without express written permission of the publisher. 46 Governing States and Localities

Just 6 months later, however, the Court upheld a state a nation-centered view is more ideologically pleasing, law related to serious illnesses when it ruled in Gonzales whereas a Court dominated by liberal appointees will do v. Oregon (2006) against the federal government’s chal- the opposite. The Supreme Court, like the president, finds lenge of Oregon’s law that allows physician-assisted sui- it hard to resist the temptations of ad hoc federalism. cide. In recent years, the Court has reviewed a number of preemptions of state law on everything from banking regulation to labor arbitration, and, for the most part, it has sided with federal authority.23 Ideology—not a firm commitment to This was certainly the case in the Court’s 2012 land- a particular vision of state–national mark ruling in National Federation of Independent Business relations—is what ultimately decides v. Sebelius, which bitterly disappointed many conserva- how a justice rules in a particular case. tives. This case decided the federal government’s power to enact the Patient Protection and Affordable Care Act, in particular the federal government’s authority to require individuals to purchase health insurance. Chief Conclusion Justice John Roberts, appointed by President George W. Bush and typically seen as a member of the Court’s con- The Constitution organizes the United States into a servative bloc, surprised many by voting with the more federal political system. This means that the states are liberal justices to affirm that power. Yet in another land- powerful independent politicaldistribute actors that dominate mark case decided the same year, the Court put caveats important policy areas. Many of these policy areas are on federal supremacy. In Arizona v. United States (2012), those with the most obvious and far-reaching roles in the Supreme Court essentially ruled that only the fed- the day-to-day livesor of citizens. Education, law enforce- eral government has the power to set immigration ment, utility regulation, and road construction are but policy but affirmed that states have the right to check a handful of examples. The independence states are the immigration status of people within their borders. granted under the federal system allows them broad In other words, the Court sort of split the difference leeway to go their own way in these and many other between state and federal claims to power. Similarly, policy areas. the Court in 2014 ruled in Environmental Protection The resulting variation has a number of advantages, Agency v. EME Homer City Generation that the federal post,such as making it easier to match local preferences with Environmental Protection Agency could regulate major government action and allowing states and localities producers of greenhouse gas emissions—something to experiment with innovative programs and policies. opposed by coal-producing states—but then in 2016 There are also a number of disadvantages. These include issued an order that blocked the Obama administra- the complexity and difficulty in coordinating policy at tion’s attempts to implement such regulations. the national level. The interests of state and national So over the past quarter-century or so, the Supreme governments overlap in many areas. Because of this and Court has sometimes zigged and sometimescopy, zagged on because the Constitution does not clearly resolve the state–federal relations. In the 1990s, its rulings seemed question of who has the power to do what in these are- to herald a resurrection of states’ rights by conserva- nas of shared interest, conflict is inevitable. tive justices, but this commitment was never consis- What is the future of federalism? That is a hard tent, and something ofnot that inconsistency is seen in the question to answer because across the partisan and landmark cases affecting state–federal relations in the ideological spectrum it has become increasingly dif- past few years. Some scholars argue that these sorts of ficult to see any sort of consistent commitment to inconsistencies have always been characteristic of the an overarching philosophy of federalism. The eras of Supreme Court’s federalism rulings. Ideology—not a dual, cooperative, and centralized federalism are his- firm commitmentDo to a particular vision of state–national tory. The federal government’s commitment to New relations—is what ultimately decides how a justice Federalism essentially collapsed during the George W. rules in a particular case.24 Therefore, a Court domi- Bush administration. What has emerged since then is nated by conservative appointees will occasionally ad hoc federalism, with views on which level of gov- depart from the state-centered notion of federalism if ernment has primacy shifting from policy to policy on

the basis of partisan and ideological preferences. Under openly partisan and ideological lines. This creates a the Obama administration, the federal government situation ripe for continued conflicts between state increasingly worked with the states that were willing; and federal governments, conflicts that in many cases other states sought opt-outs or even effectively sought will have to be resolved by the Supreme Court. The to nullify federal programs and laws. The administra- Court recently has exhibited some inconsistency in its tion of Donald Trump sought to impose a new set of own commitment to favoring states’ rights in resolv- federal policy priorities in areas such as immigration ing state–federal conflicts. Yet, regardless of how these and environmental regulation only to encounter fierce conflicts are ultimately resolved, the future undoubt- resistance, often from the same states that had worked edly will find states and localities continuing to play a enthusiastically with the Obama administration. The central role in the U.S. political system, both as inde- era of ad hoc federalism is one of fractured state– pendent policymakers and as cooperative partners federal relations, with conflicts breaking out along with the federal government.

THE LATEST RESEARCH

Federalism in the United States is dynamic. The characterized by ideological and partisan division. roles and responsibilities of federal and state gov- Notably, they finddistribute a sharp reversal of partisan per- ernments are constantly evolving based on political spectives of state-federal relations in the wake of the and economic context, policy demands and innova- 2016 elections. With the GOP controlling the White tion, Supreme Court rulings, and the political phi- House and Congress, Republicans suddenly become losophies, ideological preferences, and partisan much moreor supportive of federal primacy, espe- fortunes of lawmakers at both levels of government. cially in areas such as immigration, LGBT rights, and Current scholars of federalism find themselves in a the environment. In contrast, Democrats and pro- particularly interesting period in the development gressives—traditionally more supportive of nation- of intergovernmental relations. The growing ideo- centered governance—became much more aggressive logical and partisan divisions within and between in defending state prerogatives. states, and between states and the federal government, are leading to a resurgence of independentpost, • Conlan, Timothy J., “The Changing Politics state policy activity. Federal, state, and local gov- of American Federalism,” State and Local ernments are resetting their relationships to deal Government Review 49, no. 3 (2018): 1–14. with a political system that is increasingly politically polarized. This is an interesting companion study to the Below are summaries of some of the most recent Goelzhauser and Rose article. Here, Conlan looks research on federalism. Two constant themes emerge at three political trends that have affected inter- from this stream of scholarship: First, intergovernmen- governmental relations and policy: nationalization, tal relations are increasinglycopy, defined by partisan and polarization, and delegitimation. Conlan argues that ideological differences, and second, states are aggres- politics, especially party politics, have increasingly sively seeking to assert their independence as policy become nationalized, to the point where even state actors. and local races are fought on national issues such as immigration. Concurrent with that nationalization • Goelzhauser, Greg, and Shanna Rose, “The is an ever-growing ideological gap, with the two now Statenot of American Federalism 2016–17: Policy largely national political parties planting their flags Reversals and Partisan Perspectives on on opposing sides of an ideological canyon that is Intergovernmental Relations,” Publius: The increasingly difficult to bridge. At the same time, the Journal of Federalism 47, no. 3 (2017): 285–313. national government itself is suffering from delegiti- Do mation, a steady erosion of trust and confidence in its In this article Goelzhauser and Rose report on the ability to represent the public interest and effectively contemporary state of American federalism. What they respond to social and economic problems. This cre- find is that state–federal relations are increasingly ates a volatile situation where the level of government (Continued)

Copyright ©2020 by SAGE Publications, Inc. This work may not be reproduced or distributed in any form or by any means without express written permission of the publisher. 48 Governing States and Localities

(Continued)

least favored by the public is increasingly setting the • McCann, Pamela J. Clouser, Charles R. terms of policy debates. Shipan, and Craig Volden, “Top-Down Federalism: State Policy Responses to National • Nicholson-Crotty, Sean, Governors, Grants, Government Discussions,” Publius: The Journal and Elections: Fiscal Federalism in the American of Federalism 45, no. 4 (2015): 495–525. States (Baltimore: Johns Hopkins University Press, 2015). While many scholars are investigating how states are increasingly acting as independent policy actors and In this book, Nicholson-Crotty examines how governors frequently disagreeing with the federal government on strategically pursue and use federal grant dollars for a range of policy issues, it is worth pointing out that their own political ends. At the heart of the book is a the two levels of government are far from going their massive comparative study that looks at federal grant separate ways. Regardless of whether either side is revenue and expenditure in all 50 states across several happy about it, the state–federal relationship is symbi- decades. Based on these revenue and expenditure pat- otic, with the actions and decisions of one level of gov- terns, Nicholson-Crotty concludes that governors use ernment affecting the other. This study is an example federal grants to serve their own political purposes—to of that. McCann and her colleagues examine how the fund programs favored by key constituencies in their federal government influences state policies in ways states and to attract funds that support the governors’ other than through direction action,distribute such as provid- own policy agendas. This puts a somewhat different ing grant incentives or imposing legal mandates. They spin on the traditional story of fiscal federalism, of the find that when the federal government pays particu- federal government setting policy priorities and provid- lar attention to a policy issue—the example they use ing money to the states, which use the money to imple- is antismoking initiatives—statesor also pay attention, ment those policy targets. Nicholson-Crotty’s findings often taking independent action even when they are suggest that governors are strategically using federal not explicitly encouraged or directed to by the federal grants to improve their own political fortunes. government. post, CHAPTER 2 copy,

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Top Ten Takeaways

1. A unitary political system concentrates are derived in large part from the Tenth power in a single central government. Amendment. Confederal systems concentrate power in 6. Disagreements about which level of regional governments. In federal systems, government has the power and authority power and policy responsibilities are to do what inevitably lead to conflicts divided between central and regional between state and local governments. These governments. conflicts ultimately have to be resolved by 2. The framers of the U.S. Constitution chose the Supreme Court. a federal system for several reasons. Their 7. Relationships between state and federal experience with the confederal system governments have evolved considerably, under the Articles of Confederation being characterized by dual federalism convinced them of the need for a more initially and by cooperative and centralized powerful central government. Their federalism for much of the last century. experience under a unitary system—as This evolution generally shifted power colonies of the United Kingdom—made distribute toward the federal government. that option unpalatable to many. 8. The New Federalism movement of the late 3. A federal system also fit with the framers’ 20thor century sought to push power away preferences for division of powers and from the federal government and back to allowed states to retain sovereign powers. the states. 4. Federalism has advantages and 9. Current state–federal government relations disadvantages. For example, it allows policy are characterized by ad hoc federalism, experimentation by the states, but it also where political actors favor state power or creates legal and political complexity and federal power based on the issue and their confusion. post, own political preferences. 5. Federal–state division of powers is governed 10. After signaling a return to supporting by the U.S. Constitution. While the states’ rights in the 1990s, Supreme Court Constitution provides a number of explicit rulings have been inconsistent in the 21st grants of power to the federal government, century, favoring state authority in some powers of thecopy, states are more vague and cases and federal authority in others. Keynot Concepts ad hoc federalism (p. 41) categorical grants (p. 38) concurrent powers (p. 30) Bill of Rights (p. 32) centralized federalism (p. 38) confederacy (p. 24) block grants (p. 39) compact theory (p. 34) cooperative federalism (p. 36) Do (Continued)

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crosscutting requirements general welfare clause (p. 30) preemption (p. 30) (p. 38) grants-in-aid (p. 36) privileges and immunities crossover sanctions (p. 38) implied powers (p. 30) clause (p. 30) dual federalism (p. 34) interstate commerce clause representative government enumerated powers (p. 30) (p. 42) (p. 26) exclusive powers (p. 30) nation-centered federalism secession (p. 34) federalism (p. 23) (p. 34) sovereign immunity (p. 44) Fourteenth Amendment national supremacy clause state-centered federalism (p. 32) (p. 30) (p. 34) full faith and credit clause necessary and proper clause states’ rights (p. 34) (p. 30) (p. 30) Tenth Amendment (p. 32) general revenue sharing New Federalism (p. 39) unfunded mandates (p. 38) grants (p. 38) nullification (p. 34) unitary systems (p. 24) distribute Suggested Websites or • www.nga.org. Website of the National • www.supremecourt.gov. Website of the Governors Association; includes a section U.S. Supreme Court; includes text of the devoted to state–federal relations. Court’s opinions.

• www.publius.oxfordjournals.org. Website of Publius, a scholarly journal dedicated to the study of federalism. post,

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