Let’s Talk About Federalism

Ah, federalism! In the abstract, “laboratories of democracy” and a component of those “checks and balances” the Founders established.

Two hundred plus years later, a mess.

Very few students came into my classes with an understanding of the term or the multiple and often confusing ways in which federalism operates in the 21st Century. (That confusion was clearly shared by the author of a recent Washington Post essay who didn’t seem to understand when state-level prosecutors like Bragg can charge violations of both state and federal laws in a single prosecution. In all fairness, however–as I so often told my students– it depends, and it’s complicated.)

Actually, in addition to gerrymandering, the Electoral College, the filibuster, and the number/ terms of Supreme Court Justices, it’s also past time to revisit and revise the divisions of authority between state and federal governments.

Our relatively strong federal government was founded in reaction to the serious and multiple problems the country experienced under the Articles of Confederation, which gave states far too much authority.  In recent years, however, we seem to have forgotten about the very negative consequences of government fragmentation that prompted the Founders to establish a strong central government.

Obviously, not all policies need to be nationally uniform–there are plenty of areas where local control is appropriate. However, questions about who is entitled to fundamental rights–and what those rights are–isn’t one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully.

The (belated) application of the Bill of Rights to state and local governments was meant to establish a floor–to ensure that a citizen moving from say, New York to Indiana, would not thereby experience a reduction of her fundamental rights as an American citizen. Justice Alito’s evisceration of the substantive due process clause is–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

The need for substantial national uniformity isn’t confined to civil liberties. Over the 200+ years of American statehood, the need to rationalize and unify large areas of the law gave rise to the work of the Uniform Law Commission; that body developed the Uniform Commercial Code– a comprehensive set of laws governing all commercial transactions in the United States. It has national application, but it isn’t a federal law–it had to be adopted by each state’s legislature.

As the Commission’s website explains,

Uniformity of law is essential in this area for the interstate transaction of business. Because the UCC has been universally adopted, businesses can enter into contracts with confidence that the terms will be enforced in the same way by the courts of every American jurisdiction. The resulting certainty of business relationships allows businesses to grow and the American economy to thrive.

Commerce is hardly the only area where uniformity is desirable and/or necessary. Federal action in the face of a pandemic would certainly seem to qualify, and before the incompetence and massive ignorance of the Trump administration, the federal government largely directed public health responses to threatened outbreaks.  A lot of people died as a result of Trump’s decision to leave COVID response to the states.

I won’t even address the insanity of leaving gun laws to the states in a country as mobile as the U.S.

Then there’s the environment. ( Air and water don’t stay in Indiana.)

The Indiana Capital Chronicle recently reported on efforts by Indiana lawmakers to give the General Assembly power over decisions that are currently left to state agencies  staffed with experts who implement state and federal environmental laws— a move that  would put Hoosiers’ health and environment in jeopardy.

A sweeping, 54-page amendment was added last week to the administrative rulemaking bill, which additionally seeks to put lawmakers in charge of new pesticide regulations and prevent state environmental regulators from making stricter coal ash rules than federal ones.

Indiana’s legislators already believe they know more than doctors; now they think they’re experts in environmental science. Given their consistent subservience to the state’s utilities, passage of this bill would be a huge step backwards.

No serious student of governance believes that, in a country as large and diverse as the United States, all decisions should be made at the federal level. The question with which we should be grappling is “which responsibilities are properly federal and which matters are properly left to state or local governments?” .

What laws need to be uniform if we are to be the United States of America, rather than a haphazard collection of Red and Blue fiefdoms?

I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to guns, the environment or fundamental rights, not so much…


  1. It’s very telling that the oligarchs got their way first with a “uniform commercial code.” Business law was a sleepy class since I figured only lawyer types would make those decisions. Now I see its relevance.

    With global hegemony going toward socialist or central planning systems, what are the oligarchs to do?

    If we were a democracy, our media and universities would be researching to the best path to take and share those paths with the people so we can vote on them. However, we ranked 25th on the Democracy Index.

    Thus, our reactionary oligarchs are pushing for local decisions, with the USA calling the shots. Other countries aren’t falling in line. Global hegemony is splitting. See all the articles today talking about Xi’s good week.

    Our POTUS is a whipping boy for the oligarchs. Our intelligentsia whips him as well. If our Supreme Commander is a slave to the oligarchs, as the leaks just showed, what are we exactly?

    Wouldn’t it be nice if our media held them accountable versus printing and sharing propaganda to hold this mess together?

    I mean, if most American people are ignorant of the problem, they will make poor decisions. Give them what they need!

    The truth…

  2. Speaking of local control… How would you like to be the mayor of Richmond, IN this morning, or living downwind? I read where that mayor knew that recycling center was a fire hazard. So, why didn’t the local government do something to pre-empt the disaster now unfolding?

    MTG and her pathetic ilk want a red v. blue country. Clearly, their brains are way too small to understand what they’re presenting. In this case, Todd’s fixation with the oligarchs is accurate. They’ve found their best puppets ever in the personage of the Trump ideologues.

    If that clown show doesn’t get voted out in 2024, all the clowns will look like “IT”.

    I’m glad I’m old.

  3. Two things.

    Todd, even socialist countries have UCCs…..they just have it at the Federal level rather than by state. We’re somewhat unique in that.

    The underlying reason behind House Bill 1623 is fairly evident. How else is a corrupt Legislature to work if its members can’t sell their votes? Having decisions made by State Agencies populated by people with expertise who have no vested interest in a particular matter would be very hard on corrupt politicians. It would leave them with nothing to sell.

  4. In order “to revisit and revise the divisions of authority between state and federal governments” it seems to me that we would have to have a constitutional convention. Such a convention would have to be made up of men and women of good will. Where in heaven’s name would we find such people when so much of our present governments are made up of anti-democratic, right wing radical, religious, racist, nut jobs?

  5. “I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to guns, the environment or fundamental rights, not so much…”

    Vernon; local news reports say that the facility has been cited numerous times but nothing has been done to improve the situation. I can’t speak to Richmond (doubt I need to) but here in Indianapolis Zoning Regulation are haphazardly enforced if at all and in recent years there seems to be no return inspections on the few citations to know if the site is in compliance…or remains in compliance. I live across the street from two ongoing zoning violation situations; one is a fire hazard due to frequent burnings of who-knows-what and now access is virtually blocked by 6 ft. tall fence on one side and debris and vehicles on the other side for firefighters, this endangers close property on both sides. The huge oversize, enclosed trailer stored on the street blocks the owner’s vision when backing out of his driveway; he came within inches of hitting me one morning as he backed out talking on his phone, impossible to see my car already backed out and in the middle of the street. The drainage ditch overgrown with brush, weeds and trees in the stream and a problem with rats on two streets is ignored for years. I have been here 18 years and only twice has the city cleared the area which they have fenced off due to the danger of the 8 foot drop to the water with cemented enforcement on the banks.

    The Richmond situation is already a disaster and where have all the people gone? What about those who had nowhere to go and no money to find shelter? Will the Mayor and the Governor seek disaster relief from already overburdened FEMA due to weather disasters? Working in the Lawrence Township Zoning Compliance section, I cross-filed all complaints and all repeated complaints and repeatedly brought them to the Manager’s attention. Under Goldsmith the situations were ignored; the Manager was always “in the field” and the supervisor had no knowledge of Zoning regulations.

  6. “Our relatively strong federal government was founded in reaction to the serious and multiple problems the country experienced under the Articles of Confederation, which gave states far too much authority.”

    I would quibble with the characterization “relatively strong federal government.” Yes, the Founders created a STRONGER federal government than existed under the Articles of Confederation, but the new Constitution didn’t create a strong federal government. Almost all decisions under the new Constitution were left to the states or delegated by them to local government units of government. It was only later through the adoption and application of the 14th Amendment, a creative reading of the Commerce Clause, use of the Taxing and Spending Clause to “encourage” states to adopt certain polices and dismissal by the SCT of the 10th Amendment as a mere “truism” that greatly expanded the power of the national government. If the Founders were to suddenly come back to life, they would be absolutely stunned by the reach, and some would say overreach, of the national government into Americans’ daily lives.

    I have never understood why liberals are so dismissive of the benefits of federalism. When Trump was in the White House, did liberals really want the national government dictating policies for California and New York? Didn’t they want those state officials to make their own policy choices regarding the environment, education, etc. rather than members of the Trump administration or a Republican Congress? Federalism was a check on the power of Trump and a Republican Congress. Not sure why liberals want to throw that away, especially considering Trump could win in 2024 and Republicans will almost certainly win the Senate.

  7. That would make sense if we were a democracy, but we’re not, Terry. The oligarchs want to be protected from one state to another, yes?

    The USA is going in the opposite direction of the world and will pay a high price. As I have been saying here and on my website, it will get worse before it gets better.

    I’m sure Morton and Paul agree.

  8. If there’s a huge step backward to be taken, you can bet good money the ybmessA lareneG anaidnI will take it.

  9. I agree with Sheila on the topics we need to “revisit and revise.” I would add “and seek to rebalance.” I don’t think our government is fatally flawed but it does need a tune up. If our stubbornly intractable conflicts are the incentive we need to jump start that process, that could be the silver lining in the cloud in which we find ourselves.

  10. The absolute that could happen would be a Constitutional Convention. There are too many states in thrall of the MAGAts.

  11. Federalism, the mix of local and overarching federal systems, sounds like a useful
    concept, at first blush, but humans have a distinct proclivity for screwing up anything
    Richmond, and the plastic brimstone fire…will the owner ever suffer a consequence
    beyond a, maybe, $50.00 fine??? The videos of the ever-growing violations of the
    law, on the site, make it clear that enforcement was not a priority, right? So, what
    consequences will those charged with that enforcement suffer. How much car exhaust
    does that tons of smoke and associated pollution represent?
    I’m glad I’m not downwind, but the garbage going into the atmosphere will not remain

  12. “I’m willing to leave … a substantial portion of criminal justice measures up to the states.” Really? Shades of Reconstruction! Look what the Red states are doing with gun laws. We are going to make it the policy of our democracy that justice is not the same everywhere?? DeSantaclaus is already lovin’ it!

  13. The erudite of Sleepy Hollow remonstrate against federalism until floodwaters reach their threshold when state resources are overwhelmed and the Governor pleads for disaster relief that cannot come soon enough and Sleepy Hollow all of a sudden awakens to the virtues of federalism! Is it really wise to cherry pick Constitutional rights? Be careful what you wish for. Who do you blame now on the way to the landfill when flood waters destroyed cherished belongings?!!

  14. Nobody can define “big” government or “big” capitalism or “big” socialism.

    That’s why Democrats favor allegiance to the thinking of our founders who were informed by Age of Enlightenment thinking of effective government that avoids the trap of authoritarianism from the Dark Ages in favor of government chosen by the governed, defined by the Constitution, and is republican in that it doesn’t rely on royalty for anything.

    The Constitution doesn’t rely on propaganda words like undefinable “big” but precise language of those times to specify what government must do, can do, and must not do.

  15. MUSINGS ON THIS IDES OF APRIL. Madison with his quill was for a “separate but equal” breakdown between the executive, legislative and judicial in governing, The Articles of Confederation didn’t work – too much states’ rights – so in 1789 our predecessors dreamed up federalism with ill-defined parameters, thus assuring a strain on the “united” in United States and a playground for Todd’s oligarchs. The parameters became another playground – by politicians – who found a new blameworthy target for their contributors to (via the politicians) prosper.

    The politicians prospered, too. I read an article that around the turn of the Twentieth Century things became so corrupt that the oligarchs stopped hiding their bribes and were delivering bags of money directly to the desks of U.S. senators. Fortunately, that method has been proven unnecessary today with the advent of legislation and court decision to the effect that bribes can be paid in any amount and from unknown bribers via PACs and shell corporations and such as the Kochs (and for all we know, Putin andor Xi), and some domestically under the aegis of not for profit outfits so that Kochs’ and others’ contributions are tax deductible with the indirect result that you and I are making up the budget deficits and/or the deficit such bribes help create.

    I feel compelled to note the foregoing, having just completed my 2022 1040 in which my political contributions for the year were not deductible. It seems that Republicans want to return to an Articles of Confederation means of distributing power since they own a majority of the state houses, and that states’ rights have even extended to abortion rights since the Republican Supreme Court threw the issue to the states via Dobbs – speaking of chaos.

    I am warming to Todd’s probable view that the oligarchs wish to continue the chaos amongst the gentry via federalism’s uncertain parameters (among other such practices) as covers for their “charging what the market will bear” (and then some). Perhaps the oligarchs should be made to shoulder some of the pain. Perhaps the some 92% corporate tax of the Republican Eisenhower should be reinstated.

  16. Sheila, Your article on Federalism and the powers reserved for the Federal level and the States reminded me of my administrative law course required for a political science degree. The instructor often referred to “the fourth branch of government” as a necessary element that enabled the other three branches to avoid being overburdened in terms of the number of issues and new discoveries that required experts to make judgements. The “so called 4th branch” includes those agencies like the Interstate Commerce Commission, FCC, Environmental Agencies and other which have legislative, adjudicative and police powers provided those powers are in line with due process oversight. To the courts as an example it enable judges and juries to make decisions after hearing from experts.
    My point for bring this to your attention ( which I know you have far more knowledge that me) is that it appears these entities are the ones ( the deep state) that are under attack by the “far right” elements who, for instance are calling for the end of the U.S. Department of Education which plays into your article on Federalism, when one sees what Governor Ron DeSantis is doing in Florida to take over a Liberal Arts College and push his Gerrymandered Legislature to redefine education and what teachers and professors can say or teach. Your views? Hopefully I’m somewhat accurate in my recollection of the administrative law concept!

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