Federalism Today Is as Important as Ever

States’ Rights

The Tenth Amendment, which reserves to the states the powers the Constitution does not specifically delegate to the national government, has been used over time to bolster the role of the states in the federal system. For much of the nineteenth century, when federal power remained limited, the Tenth Amendment was used to argue in favor of states’ rights. The extreme version of this position, known as nullification, claimed that the states did not have to obey federal laws that they believed exceeded the national government’s constitutional authority.

Prior to the Civil War, sharp differences between the North and the South over tariffs and slavery gave rise to nullification arguments that were most fully articulated by South Carolina senator John C. Calhoun. (Calhoun was a slaveowner and white supremacist, and his political positions were often informed by his support of the expansion of the institution of slavery.) Such arguments were voiced less often after the Civil War. But the Supreme Court continued to use the Tenth Amendment to strike down laws that it thought exceeded national power, including the Civil Rights Act passed in 1875, which would have eliminated discrimination against African Americans in public accommodations and transportation.

By the late 1930s, the Supreme Court had expanded federal power—so much so that the Tenth Amendment appeared irrelevant. Yet the idea that some powers should be reserved to the states did not go away.

For example, in the 1950s, southern opponents of the civil rights movement revived the idea in order to maintain racial segregation. In 1956, 96 southern members of Congress issued a “Southern manifesto” in which they declared that southern states were not constitutionally bound by Supreme Court decisions outlawing segregation. With the eventual triumph of the civil rights movement, the slogan “states’ rights” became tarnished by its association with racial inequality. The 1990s, however, saw a revival of interest in the Tenth Amendment and important Supreme Court decisions limiting federal power. Much of the interest stemmed from conservatives who believed that a strong federal government encroached on individual liberties. They favored returning more power to the states through the process of devolution, as we’ll see later.¹⁸

For example, in United States v. Lopez (1995),¹⁹ the Court, stating that Congress had exceeded its authority under the commerce clause, struck down a federal law that barred handguns near schools. This was the first time since the New Deal that the Court had limited congressional powers in this way.

State Control over National Policies

Since the 1970s, the idea of devolution—transferring responsibility for policy from the federal government to states and localities—has become popular. Its proponents maintain that states are potential innovators and experimenters, whose good ideas might spread horizontally to other states and even vertically to the federal government. Devolution’s supporters also assert that governments closer to the people can better tailor policies to local needs than can the federal government in “far-off” Washington, D.C.

An important tool of devolution is the block grant, federal funding that states have considerable leeway in spending. President Nixon led the first push for block grants in the early 1970s as part of his New Federalism initiative, when programs in the areas of job training, community development, and social services were consolidated into three large block grants. In addition, Congress provided an important new form of federal assistance to state and local governments, called general revenue sharing, which had no strings attached; recipients could spend the money as they wished.

In his version of New Federalism in the 1980s, President Reagan also looked to block grants to reduce the national government’s control and return power to the states. But, unlike Nixon, he used them to cut federal spending as well. The 12 new block grants enacted between 1981 and 1990 cut federal spending in those areas by 12 percent.²⁰ Reagan’s view was that states could spend their own funds to make up the difference if they chose to do so.

The Republican Congress elected in 1994 took devolution even further through more block grants and spending cuts in federal programs. Their biggest success was the 1996 welfare reform law, which delegated to states important new responsibilities.

Those who argue for state policy control note that states have often been important sources of policy innovations that have diffused to other states or to the federal government. For example, Minnesota first created charter schools in 1991; now 44 states and the District of Columbia permit them.²¹ In 1990, San Luis Obispo, California, became the first city to ban smoking in bars and restaurants. The state of California followed with a statewide ban on smoking in enclosed workplaces in 1995, and the federal government banned smoking on commercial flights in 1998. The Massachusetts health care reform of 2006 became the template for the federal Affordable Care Act of 2010 (“Obamacare”).

States often complain about unfunded mandates—requirements on states imposed by the national government without accompanying funding. For example, a 1973 federal law prohibiting discrimination against disabled people required state and local governments to make public transit accessible. But the legislation provided no funding for the wheelchair lifts and elevators that would be necessary, leaving states to cover the multibillion-dollar cost.²²

Additional concerns with state responsibility are variation in policy outcomes and questions of who benefits or suffers from government action or inaction. For example, Congress enacted major welfare reform in 1996 that changed welfare from a combined federal–state program into a block grant, giving the states more responsibility for programs that serve people in poverty. Supporters of the change hoped to reduce welfare spending and argued that states could experiment with many different approaches to find those that best met the needs of their citizens.

Minnesota adopted an incentive-based approach that offers extra assistance to families that take low-wage jobs, while six other states imposed very strict time limits on receiving benefits, allowing welfare recipients less than the five-year lifetime limit in the federal legislation (the lifetime limit is shortest in Arizona: 12 months).²³ As of 2021, cash welfare benefits per month for a family of three were $712 in Rhode Island, $512 in Ohio, $308 in Texas, and $260 in Mississippi.²⁴ After the passage of the 1996 law, welfare rolls declined dramatically—on average, by more than half from their peak in 1994. In 12 states the decline was 70 percent or higher.

Federal–State Tensions in Two Issue Areas

One source of federalism-based controversy concerns whether states and localities have to enforce federal immigration laws. For example, the Secure Communities program, launched in 2008 and expanded under President Obama, required state and local authorities to check the fingerprints of people being booked into jail against a Department of Homeland Security database. The program led to a record number of deportations in 2009 and 2010 and then to several states and localities pulling out of it on the grounds that too many of the undocumented immigrants being detained had not committed a crime. The Obama administration softened its deportation policy in 2011 and ended the Secure Communities program in 2014, replacing it in 2015 with one containing a more limited deportation policy.²⁵

Having campaigned on promises for more rigorous immigration enforcement, President Trump signed an executive order days after his inauguration restarting Secure Communities and expanding the types of immigrants considered a priority for deportation, from those convicted of felonies or multiple misdemeanors (as under Obama) to those accused or convicted of minor crimes as well.²⁶ In response, a growing number of cities, counties, and states declared themselves “sanctuaries” that limit their cooperation with federal enforcement of immigration law. Trump pledged to withhold federal grants from these jurisdictions, but a federal judge’s ruling blocked him from doing so.²⁷ In 2019 a federal appeals court ruled that the Trump administration did have authority to withhold Community Oriented Policing Services (COPS) grants from sanctuary cities.²⁸ President Biden promised a thorough overhaul of immigration policies and has ended several Trump-era programs.

WHO ARE AMERICANS?

Who Benefits from Federal Spending?

Federal Grants to State and Local Governments, 2022 (estimated)

SOURCES: Office of Management and Budget, Historical Table 12.3, www.whitehouse.gov/omb/budget/historicaltables; Rockefeller Institute of Government, 2021, “Who Gives and Who Gets?,” https://rockinst.org/issueareas/fiscalanalysis/balanceofpaymentsportal (accessed 4/18/22).

FOR CRITICAL ANALYSIS

1. Which states receive significantly more in federal government expenditures than their citizens pay in federal taxes? Which states pay more federal taxes than they receive in government spending?
2. Fiscal federalism involves the federal government influencing public policy in the states using federal government dollars. What are some explanations for those differences? Why would states pay more in federal taxes than they receive in government spending?

With regard to marijuana policy, federal authority has also been upheld by the courts. In 2005 the Supreme Court upheld the right of Congress to ban medical marijuana, even though 11 states had legalized its use. The Court found that the commerce clause gave the federal government the power to regulate mari juana use. Nonetheless, by 2022, 37 states and the District of Columbia had legalized medical marijuana and several had legalized it for recreational use (see Figure 3.3). Amid this legal confusion, a medical marijuana industry began to flourish, and a number of states went further by legalizing recreational marijuana. The mismatch between federal and state laws has precipitated federal raids on marijuana dispensaries and growers, even if their states have legalized the practice.²⁹

FIGURE 3.3 Marijuana Laws across the States

While buying, selling, and possessing marijuana remain federal crimes, states have adopted policies that conflict with federal laws. Should this be allowed?

SOURCE: “State Medical Cannabis Laws,” National Conference of State Legislatures, www.ncsl.org/research/health/state-medical-marijuana-laws.aspx (accessed 11/9/22).

A third area in which federal-state tensions and, perhaps, conflicts among the states are likely to arise in the coming years is the matter of abortion. As we discuss in Chapter 4, in the case of Dobbs v. Jackson (2022), the U.S. Supreme Court overturned its own 1973 Roe v. Wade decision, which had safeguarded abortion rights for the past half century. The Dobbs decision did not outlaw abortion. Rather, it left the individual states free to restrict (or not restrict) abortion as they saw fit.

Soon after the Dobbs decision, 13 states enacted nearly total bans on abortion and 5 imposed significant restrictions. Abortion remained fully legal in 12 states and legal but with some limitations in 9 states. In several states, constitutional amendments were proposed either guaranteeing abortion rights or restricting abortions.

This patchwork of state policies may eventually produce conflicts between the federal government and the states. At the federal level, Democrats have proposed legislation that would establish a federal guarantee of abortion rights, while some Republicans have proposed federal legislation that would severely restrict abortion rights. Either of these federal actions would lead to conflicts between the federal government and the states that chose the opposite path.

Conflicts also may arise between states that permit abortion and those that prohibit it. For example, in Missouri, a state that has outlawed abortion, legislation was introduced that would penalize state residents who traveled outside the state to obtain an abortion. It might seem that such legislation violates the Constitution's full faith and credit clause or the long-established right of Americans to travel from state to state. There are, however, precedents for state power to enforce laws beyond their boundaries (see Skiriotes v. Florida, 313 U.S. 69 [1941]). The question of out-of-state abortions could become a major area of conflict in the federal system.

State–Local Tensions

Another notable development in the recent politics of federalism has been the willingness of state governments to preempt local policy. Just as states sometimes seize the policy initiative from the federal government, so too have cities made policy in areas where states have not or where policy preferences in the city differ from those in the state at large. In recent years some cities have set higher minimum wages than are in effect elsewhere in the state, required employers to provide paid sick leave, regulated the “sharing economy” of car- and home-sharing (such as Uber and Airbnb), prohibited gender-based discrimination in public facilities such as bathrooms, and attempted to establish public broadband services.

One of the most contentious areas in the relationship between state and local governments today concerns regulation of firearms. Quite a few states have enacted laws preempting local ordinances restricting the ownership of firearms. However, bowing to local pressure, six states—Colorado, New York, Massachusetts, New Jersey, Connecticut, and Hawaii—have recently repealed their preemption laws, opening the way for strict local gun control ordinances.

In each of these areas, however, some state legislatures have responded with laws preempting (limiting or prohibiting) municipal law or authority. As of 2019, 25 states preempt local minimum-wage ordinances, 23 prohibit local paid-leave ordinances, 44 limit local authority to regulate ride-sharing, and 10 ban local regulation of e-cigarettes. Michigan bans cities from banning plastic bags; Texas bans them from banning fracking. Twenty states prohibit localities from establishing municipal broadband service, and three—most famously North Carolina—preempt local antidiscrimination ordinances.³⁰

WHAT DO YOU THINK?

FEDERALISM

As described in the opening of this chapter, conflicts over voting restrictions and rights highlights the tensions inherent in a federal system of government. The United States’ history of federalism shows that Americans generally accept the idea that states should have the freedom to enact policies that best serve their residents, within the bounds set by Congress and the courts. But variation across the states may not be desirable in some policy areas. These are perennial questions in American government.

• In what ways is federalism a struggle over power and political ideas?
• Is it fair that a transgender person in California can legally change the sex on their birth certificate, but a transgender person in Tennessee cannot? Is it reasonable that a gun owner can openly carry a handgun in Georgia but not in Florida? Is it fair that voters in some states can use drive-through voting but Brittany Hyman can’t in Texas? Why or why not?
• How might your life be different if you lived in a different state? Imagine being a student in a state with very different state-college tuition levels. Or a state with a very different minimum-wage level. For example, in 2022 the minimum wage was $9.20 in Montana and $15.50 in Arizona.³¹ Or a state where you can vote early in person or where there is no pre–Election Day in-person voting option.

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