Is Federal Power Shrinking or Growing?

New Debates on Federalism

 

John Paul Ryan

Once thought by many scholars and teachers to be an obscure topic about constitutional theory or intergovernmental responsibilities, the concept of federalism is attracting new attention among policy and legal scholars. The primary reason is that federalism is embedded in a series of contemporary policy debates about highly controversial issues.

The universal health insurance program proposed by President Clinton in 1993–94 raised vociferous debates not only about health care as a public value but also about federal power, including whether or how the federal government should implement a health care program for all. Many observers believe that it was not health care per se but the large federal role in delivering Clinton’s proposed plan that led to its demise. Welfare reform, enacted by Congress in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, generally granted the states more autonomy, while at the same time establishing national standards, including strict time frames for requiring welfare recipients to return to work. And in 2001, President Bush is engaged in debates about education policy—primarily a local responsibility—that are running rampant through the halls and committees of Congress.

Furthermore, the United States Supreme Court has issued a number of recent decisions in cases involving federal-state relations, usually ruling to place limits on federal power. Notably, the court has struck down several acts of Congress, including the 1994 Violence Against Women Act and the 1990 Gun Free School Zones Act, at least in part on the grounds that they trample the prerogatives of the states. Such decisions concern advocates of a strong national government, while providing support to those who believe that the states should (continue to) serve as a “laboratory for social experimentation.”

To explore these policy and legal controversies, the American Bar Association’s Division for Public Education assembled a small group of distinguished scholars for a discussion in cyberspace of the historical, political, cultural, and legal dimensions of federalism. The eight social science, humanities, and legal scholars who participated in this online conversation have contributed to the national dialogue on federalism through their books, articles, and media appearances. Taken together, their voices suggest that federalism is an important, indeed a highly contentious, dimension of the current political landscape of the United States.

 

A Shift toward States’ Rights?

In a recent review published in the Atlantic Monthly, historian Eugene Genovese argues, “A shift toward states’ rights has been discernible in recent decades, but within limits much narrower than those advocated by Jefferson and Jackson, not to mention Calhoun.”1 Nevertheless, many public policy scholars today believe that there is no linear trend toward states’ rights or away from the federal concentration of power, observing that federal-state dynamics are complex and constantly in flux. Jennie Kronenfeld, professor of sociology at Arizona State University and author of The Changing Federal Role in U.S. Health Care Policy,2 argues that the granting of some autonomy to the states is not new. Rather, federal-state partnerships date back to the 1930s for federal welfare programs and to the 1960s for the establishment of Medicaid. A partnership also characterizes the State Children’s Health Insurance Program, created by Congress in 1997. Kronenfeld observes that while states must follow certain federal rules about eligibility and benefits for low-income children, they are free to make a range of decisions about program administration and delivery.

In the area of education policy, there seems to be a trend toward growing federal influence. Kathryn McDermott, assistant professor of education and public policy at the University of Massachusetts at Amherst and author of Controlling Public Education: Localism Versus Equity, notes that in the presidential administration of George Bush [1989–93], the Republican party’s official position on the U.S. Department of Education was that it should be abolished. By 2001, Republican President George W. Bush advocates an expanded role for the federal Department of Education in the areas of testing and accountability. Further evidence of growing federal influence in education can be seen from a budgetary and staffing perspective. McDermott observes that nearly half of the Massachusetts Department of Education’s employees are now in federally funded positions, doing federally mandated activities.

A similar tale of growing federal influence appears in the area of environmental policy. Denise Scheberle, professor of political science at the University of Wisconsin-Green Bay and author of Federalism and Environmental Policy: Trust and the Politics of Implementation, observes that beginning with the Clean Air Act of 1970, Congress decided that environmental protection was a federal issue. As a result, Congress developed federal standards that the states were required to meet. Scheberle points out that much of the impetus for federal legislation came from increased public attention to the environment as a result of oil spills, highly visible air and water pollution, and the publication of Rachel Carson’s 1962 book about the dangers of pesticides, Silent Spring (then-Vice-President Albert Gore, Jr., long known for his environmental advocacy, wrote the introduction to the 1994 reprint edition of Carson’s book).

During the 1980s, the idea of “devolution” of power and responsibility back to the states gained considerable popularity, as President Reagan (himself a former governor of California) used the “bully pulpit” to urge a reduction in the scope and influence of the federal government. This idea never took firm hold in the policy arena, even though President Clinton significantly reduced the overall number of federal employees in the 1990s. Paul Posner, director for federal budget issues of the U.S. General Accounting Office, points out that there have been few proposals since the 1980s, let alone enacted laws, that provide for complete federal divestiture of a public policy. Indeed, the same Congress that “devolved” welfare further centralized transportation policy. Posner concludes that states gain authority and responsibility only when the federal government permits it (i.e., typically, only when there are sufficient accountability provisions to reassure national constituencies).

But the federal government is not the only agent seeking federal involvement in various policy areas. Michael Greve, the John Searle Scholar at the American Enterprise Institute and the author of Real Federalism: Why It Matters, How It Could Happen, observes that states now actively seek federal intervention, especially the more activist and innovative states. This trend is so strong that Greve identifies the central federalism problem to be the state demand for federal intervention, not federal impositions or mandates. Furthermore, states themselves are organizing, through such devices as the National Governors’ Association, to gain leverage and a unified voice, especially in policy areas that have strong revenue implications. In Posner’s view, this trend toward cooperation among the states is a voluntary and potentially promising way to prevent more preemptive—and unwanted—federal standards.

 

Federalism and Ideology

The arguments over federalism and states’ rights extend beyond the preferred or optimal working relationships between the federal government and the states. Federalism is also a concept, a normative signpost around which political and legal ideologies are debated. Sanford Schram, a professor in the Graduate School of Social Work and Social Research at Bryn Mawr College and the author of After Welfare: The Culture of Postindustrial Social Policy, argues that using the term states’ rights has often been a rhetorical device for asserting ideological positions (e.g., proslavery, restricting government regulation of business) that are not necessarily about states’ rights at all, a point that historian Genovese also makes. Michael Greve counters that most constitutional principles, such as free speech and due process, have also served other purposes; in this respect, federalism is no different. A constitutional principle, Greve asserts, without an actual political constituency to support it, will soon crumble.

In examining key historical events, Michal Belknap, professor of law at the California Western School of Law and an adjunct professor of history at the University of California, San Diego, finds that the most vigorous manifestations of states’ rights included the Nullification crisis of the 1830s, the Civil War, and the massive resistance to the civil rights movement in the 1950s. Belknap notes that views about federalism are often influenced by the underlying public policy issues. As an example, he acknowledges his own change in perspective. In his 1987 book Federal Law and Southern Order: Racial Violence and Constitutional Conflict in the Post-Brown South, Belknap advocated active federal intervention in local law enforcement to curb racial violence in the South. Now fifteen years later, he criticizes federal intervention in crime control at the local level, which in his view contributes to the usurpation of state criminal codes and abuses of defendants’ rights.

 

The Supreme Court and Federalism

In a series of recent decisions involving interpretations of the Eleventh Amendment, the U. S. Supreme Court has upheld and further clarified the concept of state sovereign immunity. In Seminole Tribe v. Florida, 517 U.S. 44 (1996), the court ruled that states may not be sued by private parties, even when federal funds are provided to the states to regulate their activities (such as casino gambling by the Seminole Tribe in Florida). In Alden v. Maine, 527 U.S. 706 (1999), the court ruled that Congress did not have the power to abolish state sovereign immunity, by holding that state workers—in this instance, Maine probation officers—could not sue their own state in state court to enforce a federal law (the overtime provisions of a 1938 Fair Labor Standards Act). Most recently, in Alexander v. Sandoval, decided on April 24, 2001, the court held that individuals cannot sue states for certain English-only policies (in this case, Alabama’s practice of administering driver’s license examinations only in English) by invoking federal civil rights and antidiscrimination laws. (It should be noted that the court was deeply divided in these three cases, rendering 5–4 decisions in each). Important though these decisions are to the individual parties, the impact of the so-called “Eleventh Amendment cases” is likely to be relatively small.

In a number of other cases not traditionally categorized as “federalism” cases, however, the Supreme Court has issued decisions that have had a substantial impact on the balance of power between the federal government and the states. These cases are of special interest and concern to policy scholars, including those who participated in ABA’s online dialogue. The most prominent example is Bush v. Gore (2000), which ultimately resolved the disputed 2000 presidential election. Like many liberal scholars, Sanford Schram argues that this was a most extreme example of federal usurpation of power at the expense of the states, and a hypocritical one given the court’s deference to the states in other cases, including those cited above.

Two other Supreme Court decisions from the 1990s having enormous implications for federal-state power relations are Planned Parenthood v. Casey, 505 U.S. 833 (1992), and City of Boerne v. Flores, 521 U.S. 507 (1997). In Casey, the court reaffirmed its landmark decision in Roe v. Wade, 410 U.S. 113 (1973), while also upholding some restrictive regulations on abortion in Pennsylvania, such as a requirement to obtain informed consent and a mandatory twenty-four-hour waiting period. Robert Nagel, professor of constitutional law at the University of Colorado Law School and the author of The Implosion of American Federalism, points out that in Casey, the court sharply criticized state legislatures that had enacted statutes resistant to Roe v. Wade. Most troubling for Nagel, though, was the court’s view that such legislatures were not merely wrong in enacting restrictive statutes that placed an “undue burden” on the fundamental right to reproductive choice, but that they were engaging in an “illegitimate defiance” of the court and its 1973 decision in Roe. Nagel cites the Boerne case, in which the court invalidated the Religious Freedom Restoration Act passed by Congress in 1993, as another example of the “triumph of judicial supremacy,” rather than normal judicial review. In this and subsequent cases, Nagel argues, the court has extended its own interpretive authority to an unwarranted degree, even against the power of Congress to enforce the Fourteenth Amendment.

But are these Supreme Court cases open to other interpretations? Michael Greve counters that the court is trying to build its own political capital and prestige in order to lay the groundwork for a more comprehensive and popularly accepted effort to limit the power of the federal government. Greve boldly asserts that the next federalism case that “really matters” won’t be about the Eleventh Amendment, preemption or anything else constitutional lawyers normally associate with federalism—it will be about abortion. But Michal Belknap is skeptical of the court’s commitment to federalism, suggesting instead that underlying policy preferences will trump the justices’ views on federal versus state power. In this vein, Belknap argues that the court’s majority is likely to find no problem with state laws disadvantaging homosexuals, while at the same time holding that state efforts to permit medicinal use of marijuana are preempted by federal laws (which the court recently held in U.S. v. Oakland Cannabis Cooperative, decided on May 14, 2001).

 

Federal, State, and Local Governments: A Complex Triangle for the Future?

The relationship between the federal government and the states is not the only significant one in discussions about federalism, states’ rights, and local control. Local governments, particularly large cities, often have bigger budgets and more resources than do many states. In some areas, the federal government may have direct working relationships (e.g., through grants, legislative earmarks) with large cities, school districts, and/or law enforcement agencies. Michal Belknap points out that the city of San Diego long bypassed the state government of California to deal directly with the U.S. Navy, which from 1900 to the end of World War II built most of the infrastructure of the city, including refurbishing a shallow bay into a harbor that serves as home port to the largest aircraft carriers afloat. Jennie Kronenfeld notes that research money from agencies such as the National Institute of Health does not flow through state (or local) governments, nor does funding for medical and nursing education; these dollars go directly to universities and colleges.

Moreover, local governments may have increasingly complex relationships with their states, as some policies are “devolved” from Washington to the state capitals. Indeed, some observers ask whether state governments have become almost as distant from the needs of citizens at the local level as the federal government of a bygone era. Michael Greve doubts that state governments have ever been “closer to the people”; rather, he sees them as closer to “mischievous factions.” Federalism, in Greve’s view, works best when states must compete with one another for businesses and citizens, thereby potentially becoming “rival, independent power centers, rather than supplicants, to the national government.” In examining the judiciaries at all levels, Robert Nagel asks whether decision making at the local level may be “more grounded, less abstract, more ordinary” than decision making at the national or state levels. But Kathryn McDermott cautions that, in the area of education, local school districts may lack the expertise or research and development funds necessary to the formulation of sound public policies. In her view, the reservation of particular responsibilities to local authorities should be based on a clear understanding of governmental capacity, not political philosophy.

Given the unsettled landscape of intergovernmental relationships, what are the implications for the future? Most scholars agree that federal funding is likely to remain, or become, crucial in various policy areas, given the comparatively more fragile condition of state budgets and resources. A number of consequences are likely to flow from this key budgetary reality. Sanford Schram envisions a strong possibility for the reassertion of federal authority and direction in welfare policy. Kathryn McDermott notes that the end of the Cold War may have prompted federal activism in education, which is likely to continue so long as federal budget surpluses permit. Finally, Michael Greve observes that there is an inevitable pendulum swing between centralization and devolution. When centralized programs fail, there will be calls for more flexibility and autonomy, for programs that are “closer to the people.” When decentralized programs fail, there will be complaints about implementation failures and a lack of accountability, followed by renewed calls for centralization. The irony of Greve’s statement is that the several policy areas discussed, such as education, health care, welfare, and the environment, are located in different places along the continuum between national authority and local control. Furthermore, the contemporary Congress and U.S. Supreme Court seem to have very different ideas about federalism, both with respect to the limits of federal power and the national scope of some individual liberties.

 

Terrorism and National Power

In the wake of the tragedies of September 11th, there has been considerable discussion of the powers of the national government. According to public opinion polls, nearly all Americans want and expect the federal government to take actions to secure safety at home and freedom from terrorists. This, in turn, has led both scholars and journalists to suggest that trust in the federal government is likely to increase, thereby leading to a shift in the balance of power between the national government and the states. For example, Linda Greenhouse, the Supreme Court reporter for The New York Times, queried in a recent Times article, “Will the Court Reassert National Authority?”3 Greenhouse noted that legal scholars are now predicting that the Court’s decade-long decisions to limit the powers of the national government and restore more power to the states may come to a halt.

But will this shift really happen? In the generally harmonious discussions of national security, the one area that has drawn debate involves airport security workers who screen passengers and carry-on luggage—specifically, whether these more than 25,000 workers who are now private employees of the airlines should be federal employees. Most Democrats in Congress advocate the “federalization” of these workers, whereas most Republicans are opposed, echoing more than fifty years of debates in Congress about the role and size of the federal government. President Bush has recommended that these workers continue to be private employees, but that they should be recruited, trained, and have their performance monitored according to new and tougher federal standards. The President’s position parallels the current balance of power between the national government and the states in such areas as education and the environment, as the accompanying section on Teaching Activies describes.

Nevertheless, in mid-October, the Senate unanimously passed an aviation security bill that would federalize all airport screeners, leaving the House of Representatives to debate the issue in its version of the bill. If the House passes the Senate version, President Bush is likely to sign the bill into law, demonstrating that policy concerns sometimes trump abstract preferences about the size of the federal government.

The President and Congress will probably face little opposition from the Supreme Court or other institutions in efforts to provide for national security, even at the expense of some privacy and a few “non-fundamenta#148; liberties. But I do not expect that the national government’s hand will be strengthened in the policy areas discussed here, such as education, the environment, health care, or welfare. Trusting Washington to provide for the national security is entirely different from extending such trust to domestic policy areas, where federal-state relationships have been debated for decades and are, for the time being, settled. We must rely on the federal government to protect us from terrorism. But no matter how successful U.S. military action in Afghanistan may be, there is little evidence to suggest that the federal government will gain sufficient popular support to claim any moral or practical authority in the delivery of domestic public services.

 

Note

1. Eugene D. Genovese, “Getting States’ Rights Right: A Review of Forrest McDonald, States’ Rights and the Union,” Atlantic Monthly 287.3 (March 2001): 82–89.

2. Full publication references for this and other books mentioned in this article can be found in the Teaching Resources section on page 451.

3. New York Times, September 30, 2001, p. 14.

 

John Paul Ryan (johnpryan@mindspring.com)
is founder and president of The Education, Public Policy, and Marketing Group, which provides program and editorial services for nonprofit organizations. He formerly served as director of School Programs for the ABA Division for Public Education.

 

Websites

 

ABA Division for Public Education
www.abanet.org/publiced/focus/spring_01.pdf
The ABA Division for Public Education moderated the online discussion of federalism among eight social science, humanities, and legal scholars that appears in this article. This is the full text of their discussion.

 

American Enterprise Institute
www.federalismproject.org
The Federalism Project of the American Enterprise Institute for Public Policy Research contains news and information, reports, recent court decisions, and other material related to federalism, and, in particular, to opportunities to limit the power of the national government and encourage competition among the states.

 

Assessing the New Federalism
newfederalism.urban.org
Database includes statistics and tracking for the fifty states, including fiscal, economic, and demographic data. Sponsored by the Urban Institute.

 

Center for the Study of Federalism
www.temple.edu/federalism
This institution at Temple University posts its publications, objectives, and international activities. See its federal report.

 

The CloseUp Foundation: Federalism
www.closeup.org/federal.htm
The CloseUp Foundation has a special topics section on federalism, which contains historical and current perspectives on federalism, including discussion questions; a timeline; a teaching activity; and an annotated list of hyperlinks to federal and state governments, historical documents, and media discussion of the topic.

 

INFOMINE: Government Information Resources
infomine.ucr.edu/govpub
An index that describes its page as a “comprehensive Internet/Web resource collection” allowing one to search selected federal, state, and local government Internet resources. INFOMINE is the UC Riverside Libraries web server.

 

U.S. Federalism Site
www.min.net
Offers definitions and different perspectives regarding federalism. Links to related articles and essays.

The ABA Division for Public Education offers handbooks, instructional materials, and many other learning tools for educators, students, and community members interested in increasing their understanding of the law and legal system, and their ability to become productive contributors to the civic life of their communities. For more information about these services, contact the ABA Division for Public Education, 541 N. Fairbanks Court, Suite 1500, Chicago, IL 60611-3314; (fax) 312-988-5494 or (e-mail) abapubed@abanet.org.

 

Teaching Activities

 

Margaret Fisher

1 Develop a working understanding of the concept of federalism by exploring the U.S. Constitution and charting what powers the Constitution grants to the federal government and to states. Brainstorm a list of problems that society faces. These may include terrorism, drugs, lack of health care, transportation, discrimination, homelessness, poverty, education problems, family instability, pollution, or other problems. Assign students in small groups to a single societal problem and have them research what is being done by federal, state, and local governments to solve the assigned problem. Have students provide details of how each level of government contributes to the solutions.

2 President George W. Bush has proposed using his executive authority to create a federal watchdog agency charged with determining whether any federal law or regulation deals with an issue better handled by states. If created, Bush’s proposed order could cover virtually every action that the federal government considers. Crime, health, education, environment, and other policy matters would be questioned to see whether states could better handle them. Investigate this proposed executive order. Who would serve on this watchdog agency? What criteria should the agency use to decide whether an issue is better handled by the states than by the federal government? Proponents see this as helping states deal with problems they face with more flexibility. Opponents to this proposed order believe it would lessen the federal government’s enforcement of civil rights. What do you think?

3Explore the devolution revolution, in which the federal government turns over more authority to the states. Divide students into three groups: state rights, federal rights, and new voters. Use as your topic the changes in the welfare law. Read about this at www.min.net, which includes a debate on the pros and cons of the federal and state positions. Alternatively, do this same activity on any topic (see newfederalism.urban.org for a range of topics). Have the students in the state and federal groups develop arguments in support of their positions. The new voters group, representing immigrants who are not yet sure which position to hold, should develop questions about the best way for a welfare legislation to be structured. Reconfigure the class in small groups of three, with one student from each of the three groups. The state and federal representatives should present their arguments to the new voter, who should decide which policy the new voter will support. Bring the new voters out of each of the individual groups to the front of the class to announce decisions and reasons. They should cite the most persuasive argument made by each side.

4Visit sites such as www.ktas.org or www.sweetliberty.org, which promote a conservative interpretation of the Tenth Amendment to the U.S. Constitution, and caselaw.findlaw.com/data/constitution/amendment10.01, which explains the history of the Tenth Amendment. Draw a political cartoon featuring a conservative or liberal view of the Tenth Amendment.

 

Teaching Resources

Beer, Samuel H. To Make a Nation: The Rediscovery of American Federalism. Cambridge, Mass.: The Belknap Press of Harvard University Press, 1993.

Belknap, Michal. Federal Law and Southern Order: Racial Violence and Constitutional Conflict in the Post-Brown South. Athens: University of Georgia Press, 1987.

Curriden, Mark, and Leroy Phillips, Jr. Contempt of Court: The Turn-of-the-Century Lynching That Launched 100 Years of Federalism. New York: Farrar, Straus & Giroux, 1999.

Donahue, John D. Disunited States: What’s at Stake as Washington Fades and the States Take the Lead. New York: Basic Books, 1997.

Greve, Michael. Real Federalism: Why It Matters, How It Could Happen. Washington, D.C.: American Enterprise Institute, 1999.

Kronenfeld, Jennie. The Changing Federal Role in U.S. Health Care Policy. Westport, Conn.: Praeger, 1997.

McConnell, Michael. “Federalism: Evaluating the Founders’ Design.” University of Chicago Law Review 54 (1987).

McDermott, Kathryn A. Controlling Public Education: Localism Versus Equity. Lawrence: University Press of Kansas, 1999.

McDonald, Forrest. States’ Rights and the Union: Imperium in Imperio, 1776–1876. Lawrence: University Press of Kansas, 2000.

Nagel, Robert F. The Implosion of American Federalism. New York: Oxford University Press, 2001.

Posner, Paul. The Politics of Unfunded Mandates. Washington, D.C.: Georgetown University Press, 1998.

Scheberle, Denise. Federalism and Environmental Policy: Trust and the Politics of Implementation. Washington, D.C.: Georgetown University Press, 1997.

Schram, Sanford F. After Welfare: The Culture of Postindustrial Social Policy. New York: New York University Press, 2000.

Schram, Sanford F., and Samuel H. Beer, eds. Welfare Reform: A Race to the Bottom. Baltimore, Md.: Johns Hopkins University Press, 1999.

Theobald, Neil D., and Betty Malen, eds. Balancing Local Control and State Responsibility for K–12 Education. Larchmont, N.Y.: Eye on Education, 2000.

Wildavsky, Aaron, David Schleicher, and Brendan Swedlow, eds. Federalism and Political Culture. New York: Transaction Books, 1997.

Zimmerman, Joseph F. “National-State Relations: Cooperative Federalism in the Twentieth Century.” PUBLIUS: The Journal of Federalism 31 (Winter 2001).

 

Margaret E. Fisher is an attorney/educator with many years’ experience in teaching law to the public. She is also an adjunct professor at the Seattle University School of Law and assists the state courts of Washington with educational programs.