Time To Rethink Federalism

I used to begin my classes in Law and Public Policy with what I call the “constitutional architecture,” the structures of U.S. government. As I would tell students, the Founders had divided authority both vertically and horizontally–through Separation of Powers and Federalism.

Most graduate students were familiar with those terms. Undergraduates generally knew that we had three branches of government, although the term “Separation of Powers” was less familiar to them, but very few could define federalism–the division of jurisdiction between the federal government and the states. Both mechanisms were intended to provide “checks and balances”–to limit the power of the central government.

The world we inhabit is very different from the world that confronted the nation’s founders. We still need federalism–but it is past time to review and adjust the current divisions of authority among local, state and federal levels of government.

A number of those divisions are still useful and should be retained. State and federal governments have no reason to assume responsibility for handing out zoning permits or policing domestic violence disputes, to choose a couple of examples, but other current assignments of responsibility no longer make much sense. State-level management of elections, for example, was necessary in the age of snail-mail registration and index cards identifying voters; in the computer age, it’s an invitation to misconduct–an invitation that  state-level lawmakers eagerly accept.

In a number of areas, there are awkward pretenses of state “sovereignty” where contemporary realities mean none really exists. (Think of federal highway dollars that are conditioned on state compliance with federally mandated speed limits. Or the similar “strings” attached to federal funding.) 

At the other end of the spectrum, there are an increasing number of issues, including but certainly not limited to the threats posed by climate change and the pandemic, that must be addressed globally.

Then there are the increasing tensions created by legislators in red states who want to be free of the constraints imposed by the Bill of Rights.

The GOP has never gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was premised on the 14th Amendment principle that fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but–at least until Donald Trump managed to pack the Supreme Court with rightwing ideologues–they have been forbidden to retract them.

There are multiple reasons to revisit the division of authority between the nation’s state and federal governments. I realize that any effort to do so would be met with alarm–much as we’ve seen with calls to eliminate the filibuster that currently prevents the Senate from actually governing. We humans are creatures of habit: we become accustomed to the world we have grown up with, and assume that the structures of whatever society we inhabit are just “the way it is.” (A great example: the people who argued against same-sex marriage by insisting that marriage “has always been between one man and one woman.” That’s demonstrably false. Even if you ignore biblical history, more than half of the world still recognizes plural marriage. But it was true within the confines of their limited experience.)

A recent guest essay in The New York Times pointed to the undeniably negative effect of our current federalism on public health.

Tennessee and North Carolina are both digging out from catastrophic flooding, while parts of Louisiana were flattened by Hurricane Ida, and most of New Orleans remains without electricity. Ida’s remnants also brought even more rain to areas of the South and beyond that were already dangerously waterlogged.

In the Utter Failure to Understand What “Pro-Life” Really Means tournament, normally a very close battle in the red states, Texas is currently uncontested: Its leaders just made it easier to carry a gun and harder to end an unwanted pregnancy in the same week.

Finally, in the Colossally Botched Medical Emergency competition, it’s neck and neck across the region as Republican governors double down on efforts to block mask and vaccine mandates, along with every other pandemic-mitigation attempt made by people who are not allergic to science.

The author points out that every single one of these disasters is a public health emergency that red state governors have worsened “in every way imaginable.” (A recent NBC poll confirmed that politics has played havoc with public health. It found 91 percent of Biden voters vaccinated opposed to 50 percent of Trump voters.)

 Citizens’ health and safety– and the extent of their civil rights–  should not depend upon their state of residence. 


  1. The basis and primary meaning of “Federalism” has gotten lost as elected officials at all levels have violated their Oath of Office at federal and state levels.

    “…the Founders had divided authority both vertically and horizontally–through Separation of Powers and Federalism.”

    It appears to me that there is no authority to require those at any level of government to honor their Oath of Office to uphold democracy, Rule of Law or the Constitution of the United States of America or the individual State Constitution of their respective state of residence. They have assumed full responsibility for decisions based on individual belief and enact laws to suit personal needs, using the believed level of powers of the office they hold. There appears to be no one in authority to rein them in.

    In other words “We have too many chiefs and not enough Indians!”

    “Citizens’ health and safety– and the extent of their civil rights– should not depend upon their state of residence.”

  2. I watched my Facebook page yesterday, and it was all over college football yesterday, but less on Twitter. The level of flag hugging and unity talking was amazing to watch. I heard that even the war criminal, GWB, got to make a speech at Ground Zero. Meanwhile, Julian Assange is being held in a maximum-security prison in London for holding war criminals accountable. It was a surreal day.

    When the Tea Party flourished, I also noticed that many of them were aged and on social security while the younger crowd all worked for the Republican-controlled state-financed university in town. They were all anti-government. I remember Matt Taibbi at Rolling Stone asking one of the retirees why they were against the federal government when clearly on SSI. They both responded, “We deserve federal benefits.” meaning that others receiving benefits didn’t. I wondered at the time who these non-deserving targets were?

    Even Florida and Texas rely on the federal government. Still, the remainder of the Red States all depend on income from the federal government, yet their populace is mainly against the federal government.

    It’s delusionary thinking. Not rational at all. I listen to our own Governor here in Indiana and our federal representatives, and they twist themselves into pretzels when they talk or explain why they vote a certain way.

    Then I remember what good ole Albert Einstein said in 1949, the oligarchy owns all the major institutions, including the political parties and the media. As a result of the propaganda, voters cannot differentiate what’s in their own best interests.

    The propaganda is the source of the delusion. The Koch’s are masters of propaganda and the dark arts. They operate in the dark and manipulate. You can bet they love events like 9/11 because it cements our fears and prejudice in place, which they use. Remember how the last dumbo president went from praising China to call the virus the Chinese flu? He was told to do that, and there are people today who still believe it…the whole QAnon craze is built around that conspiracy.

    The whole intent of the Koch network, which controls the GOP, is to eliminate the government from interfering in the marketplace and people’s lives. Win at any cost.

  3. ” Citizens’ health and safety– and the extent of their civil rights– should not depend upon their state of residence,” says it all!
    Yes, Todd, but the Koch plan goes beyond the marketplace, aims at establishing an elitist White male, probably Christian, country, in which the gov’t does not interfere in White lives.

  4. Not long ago I read an article (sorry, cannot cite) that provided two reasons why major infrastructure projects in the US cost, on average, 3 to 4 TIMES as much as similar projects using similar technology and quality in other countries in the world. The first reason cited was that US and state environmental laws are exploited by corporations and wealthy individuals who oppose such projects and can use the flimsiest of evidence to tie up a project in the courts for years, often resulting in modifications that drive up costs and drive down benefits.

    But the second was federalism, pure and simple. NO infrastructure of any size or impact has LESS than three government entities involved in it and often far many more. Each has its own bureaucracy, laws, regs and axes to grind and armies of lawyers and consulting engineers are paid $billions to waste time and money navigating all of it. This simply doesn’t happen in most other advanced economies where the federal system may distribute certain authority downward but it is more for administrative ease – not to relegate power.

    I’ve long thought any revisit of US federalism MUST included a serious discussion of the NUMBER of states that constitute The United States, and 50 is just Way.Too.Many. Today our largest state, California, has 66 times the number of residents as the smallest state and the mean is 6.5 million. I have no idea what the ideal number is, but 10 to 15 feels about right. This might require California to be broken into two states (a movement has been afoot supporting this for decades) but most states would be consolidated into much larger states, defined solely on population and not their acreage or how close they are to Eastern ocean ports supporting an agricultural export economy based on slavery.

    If that were to happen then poor Indiana could finally realize its dream of being physically split into North and South at the Washington St/US40 line through Indianapolis. Unfortunately, the Southern portion would be merged into something like “Tennetuckiana” and the Northern portion would become part of a new state called, well, “Chicago”.

  5. I have watched many engage in arguments against federal oversight or over reach with the argument of states’ rights even when the state(s) have passed laws that conflict with our Constitution. Many of those laws violate the 14th amendment.

    When FDR was in power, he used all the might of the federal government to address the Great Depression and soon thereafter WW II. I have not been able to learn yet if anyone accused him of “federal over reach.” I am sure he had his detractors.

    We are a long way from Roddenberry’s Star Trek vision. In that world, COVID would have been easily defeated by now. Why? Because all the countries of the earth would have united in their efforts to vaccinate the people of the earth. An organization like WHO would have had the power to push corporations toward creating enough vaccines to ensure that everyone got one and would have moblized leaders to create a powerful and effective supply line to ensure there were no inequities in the distribution of the vaccine. I can just hear the gruff McCoy making sarcastic remarks about the vaccine misinformation and the anti-vaxxers.

    America, unlike other countries, has many states, not just a few. The division of power between states and the federal government makes it more difficult to address a pandemic or other threats for the whole nation. It’s like trying to move a herd of wild animals in the same direction. It’s tragic that we have not been able to get everyone on board with arresting the spread of Covid 19, especially the delta variant. The extreme individualistic philosophies of our culture have undermined our ability to address the COVID threat. We were so united after 9/11 and yet are unable to unite against a more insidious, invisible threat. Where is Rosie the Riveter? (Right now she’d have on a nurse’s scrubs.) Hmm. I just had an image of making the syringe for a vaccine look like a gun that slaughters Covid viruses. Maybe we need a video game that attacks COVID and defeats it to help the anti-vaxxers get on board.

    I agree. We need to revisit the separation of powers between the federal government and the states so that in certain circumstances i.e. pandemics, global warming, the federal government is empowered to create legal mandates that allow us to arrest a pandemic or other global threats. Of course, in order to avoid undermining our democracy, those incidents in which the feds are given more power would have to be well defined and very limited.

  6. Robert Reich has a good column in the Guardian today.

    He writes: I’m old enough to remember when the Republican party stood for limited government and Ronald Reagan thundered “Government is not the solution to our problem, government is the problem.”

    Today’s Republican party, while still claiming to stand for limited government, is practicing just the opposite: government intrusion everywhere.

    Republican lawmakers are banning masks in schools. Iowa, Tennessee, Utah, Texas, Florida, Arkansas, Oklahoma, Arizona and South Carolina are prohibiting public schools from requiring students wear them.

    Across the country, Republican lawmakers are making it harder for people to vote. So far, they’ve enacted more than 30 laws that reduce access to polling places, number of days for voting, and availability of absentee voting.

    This is not limited government, folks. To the contrary, these Republican lawmakers have a particular ideology, and they are now imposing those views and values on citizens holding different views and values.

    This is big government on steroids.

    Many Republican lawmakers use the word “freedom” to justify what they’re doing. That’s rubbish. What they’re really doing is denying people their freedom – freedom to be safe from Covid, freedom over their own bodies, freedom to learn, freedom to vote and participate in our democracy.

    Today, Republican politicians have no coherent view. They want only to be re-elected, even if that means misusing government to advance a narrow and increasingly anachronistic set of values – intruding on the most intimate aspects of life, interfering in what can be taught and learned, risking the public’s health, banning what’s necessary for people to exercise their most basic freedoms.

    This is not mere hypocrisy. The Republican party now poses a clear and present threat even to the values it once espoused.

    Reich is correct: Today, Republican politicians have no coherent view. They want only to be re-elected. If being re-elected means taking the most extremist positions of the Reactionary Right so be it. If it means thousands of school children and their teachers must be sacrificed for twisted incoherent ideology – That’s OK.

  7. Cutting to the chase…the only way to significantly alter federalism is via changing the Constitution. The Righties are licking their lips at any possibility for discussing that. Watch what you ask for…

  8. I have been wondering when we were going to seriously undertake an adjustment to “federalism,” a difficult effort at best what with entrenched claims to jurisdiction from frothing politicians which the courts have sorted out judicially from township trustee through the Oval Office, the availablility of stare decisis to forever maintain the jurisdictional status quo, and the view by the polity (watever such jurisdictional divisions) that this is the way it always was, a polity that has forgotten the pre-Constitution gyrations of the Continental Congress and the unworkable Articles of Confederation.

    Always, like never, is a dangerous word when applied. Nothing is “the way it always was” other than, perhaps, gravity. Any human institution and the rules particular groups or dictators adopt to govern themselves can be changed to fit new or novel situations. Trouble is, those who are exercising the powers that are to be modified or extinguished have tradition on their side and our Constitution has itself set up barriers to change, one of which is even having a Constitutional Convention.

    The immediate issues of whether the governors of Florida, Texas, South Dakota and others have the right to kill people via rejections of science, tell women what to do with their bodies, set up free and fair elections, etc. cries out for 14th Amendment leveling, but even should the Supreme Court agree those areas of jurisdictional conflict are not the last. We need a Constitutional Convention but at best such a conclave is not likely to happen until many reading this observational note will not be around to see it. What to do in the interim? What we’re doing, i.e., fight for what’s right and best for the common good with the tools available to us.

  9. ML, Republicans need power because they have no plan for progress or even adaption to the future that’s coming at us at light speed. If they get the power that they seek, the Constitution will become an archaic remnant of a distant past failed experiment in government of, by, and for we the people. That reality is, of course, that they disguise that in their entertainment media messages to their sycophants, saying that they are for small, limited government, meaning limited to Republicans and small as in weak and ineffective but oh so cheap. That way business could profit from everything and nothing would stand in the way of warp speed wealth redistribution up leaving everyone happy except for workers who created all of that wealth.

    We are witnessing the collapse of capitalism by greed and overconsumption hidden by culture wars rather than times of progress.

    It’s all interesting from a Machiavellian perspective.

    Could the circus succeed? Of course, it could because parts of the country and culture clearly are ready for war in order to avoid the extinction that they fear simply because their ways have became obsolete. Obsolescence has always led to extinction. It’s the prelude to the Civil War all over again. But, consider this, what would have happened if the Confederacy had won the Civil War? Would slavery have lasted any longer? No. The Confederate States of America would have failed because they would have been so out of step with the rest of the world. We’re in the same situation.

    Let’s hope that progressive heads prevail.

  10. Magats in red states need remedial education reminding them state laws do not trump the supremacy of federal law.

    Then they need to watch Sesame Street everyday to learn how to play with and share stuff with others that do not like pastey white.

  11. When I taught federalism, I emphasized that the powers were distributed horizontally not vertically. Our U.S. Constitution gives specific powers to our national government while the Constitution gives to states all powers not specifically denied to states. (Note: I was careful not to use the “word” federal to describe our national government our “federal” system technically includes national and state governments.) There is an area of overlapping powers that, thanks to the Supremacy Clause, the national government is supreme (assuming the national government chooses to act in that area). But the Supremacy Clause only makes the national government supreme in that area of overlapping powers, not the whole thing.

    We do have an example of a vertical power relationship in our system, namely the relationship between states and local governments. Local governments don’t have specific bequest of powers in our U.S. Constitution. Rather their power comes from states and states can take away whatever power they choose to give to local governments.

    Even though the national government’s power was intended to be severely limited in our system, its powers have expanded dramatically over the years. There have been several ways that’s happened. One is through the purse strings. The national government raises a lot of money via taxes and distributes that money with strings often attached. If the national government wants states to do something outside the authority of the national government, they often simply tie receipt of highway money to doing that thing. Another way the national government power has expanded relative to states is via an expansive interpretation of the Interstate Commerce Clause. The nat’l gov’t has been allowed to pass legislation as to non-commerce matters by tying that legislation to the receipt of goods in interstate commerce. For example, minimum wage laws. If a business did not receive any goods in interstate commerce, then the federal minimum wage law wouldn’t apply to that business. But in the real world, every business is involved in interstate commerce. Note, there is also a number of employee requirement usually applied to these types of laws.

    I don’t understand why liberals are always so quick to want to eliminate federalism so that our national government controls everything. They believe, wrongly, that our national leaders are always wise and state politicians are all uneducated country bumpkins. One would think that after four years of Trump being in the White House, with a Republican Senate all four of those years, and a Republican House two of those years, that they might reconsider their opposition to federalism. FEDERALISM saved us from the worst excesses of Trumpism. What also saved us was the filibuster. Yet, liberals thinking getting rid of both is a great idea. I don’t get it.

  12. Paul–I have seen no advocacy of “removing” federalism. That’s a straw man argument. The goal is to REVISIT the allocation of powers in light of current realities–and get rid of the cute evasions, like using the power of the purse to control state behaviors.

  13. Dear friend Sheila,

    Without the “cute evasion” of luring states to expand Medicaid via “the power of the purse”, a number of GOP-controlled states would have never done it, severely hurting the poor.

  14. Something that always stuck with me from a college history class, was DeToqville, in 1810, referred to us as “those united states”. After the civil war, the tone changed and it was not “The United States”. Before the Civial War, we were a loose confederation of states. After the Civial War, we were actually considered a single country. It took a national crisis over the question of slavery, strong executive, a Cival War, and several court rulings to create this unity. Several amendments to the constitution came out of this crisis cementing the authority of the Federal government.

    If the “originalists” on the court keep ignoring the subsequent amendments, then we may get back to the “those united states” pretty quickly.

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