Federalism in 2017

FEDERALISM IN 2017

Caroline C. Peck ’18, Ellen I. Lempres ’18

The balance between the powers of the federal government and those of the states has been a matter of contention since the Constitutional Convention. Article IV, Paragraph 2, of the Constitution, referred to as the Supremacy Clause, established that federal laws and statutes hold precedence over state laws within the federal government’s realm of constitutional authority, while the Tenth Amendment defended the residual powers of the states. The Supreme Court has elaborated on this relationship over the decades, further distinguishing the extensions and limits of both the federal and state governments. McCullough v. Maryland (1819) upheld Congress’s ability to create a national bank, and struck down Maryland’s tax on the national bank. Gibbons v. Ogden (1824) analyzed how the Commerce Clause of the Constitution applied to Congress’s power to regulate commerce between the states, and preserved the states’ power over intrastate commerce. While the Judiciary plays a large role in making these distinctions, the general public also looks to the Executive Branch when contradictions between state and federal law occur.

Several times in U.S. history, issues of federalism were at the center of presidential election contests, and they were seldom completely absent. For example:

• In 1800, the Alien and Sedition Acts, passed by a Federalist Congress under President John Adams, were highly controversial, having been challenged by Kentucky and Virginia Resolutions which asserted the rights of the states to refuse to comply with unconstitutional federal acts.
• In 1832, Andrew Jackson won reelection in a campaign marked by bitter debate over whether the federal government could or should charter a National Bank of the United States or leave management of the currency up to the states.
• In 1860, on the edge of Civil War, the presidential race featured a four-way split between Republican, Northern Democrat, Southern Democrat, and Constitutional Union parties, the key issue being the right of the federal government to limit the expansion of slavery into the territories and new states to the West.
• In twentieth-century elections surrounding the New Deal and Great Society, candidates and parties contended over the expanded role of the federal government versus the states in social welfare and, later, civil rights.
• In 1980, Ronald Reagan won election promising to restore the states to what he saw as their rightful place in the federal system, including a pledge to abolish the newly-created federal Department of Education in order to return power over education to the state and local levels.
• In 1996, candidate Bob Dole campaigned with a copy of the 10^thAmendment in his pocket, and the Republican platform referred to federalism or states’ rights issues explicitly or implicitly 49 times.
• As recently as January 2016, President Obama responded to Alabama Chief Justice Roy Moore’s stand against the legalization of same-sex marriage, which was imposed by the Supreme Court in June 2015. Obama stated that Moore’s suggestion that local judges not comply violates the Supremacy Clause: “When the federal Constitution speaks, then everybody has to abide by it, and state laws and state judges can’t overturn it.” [i] In the summer of 2016, the issue of “sanctuary cities” that decline to enforce federal immigration law became front page news when a young woman was fatally shot by an illegal immigrant in the sanctuary city of San Francisco.

True to form, federalism made an appearance in the parties’ platforms. Republicans declared that federalism, along with other key constitutional principles, “must be preserved uncompromised for future generations.”  As part of an extended discussion pledging a “Rebirth of Constitutional Government,” the Republican platform called the Tenth Amendment and federalism “the Foundation of Personal Liberty” and “the cornerstone of our constitutional system.” In this document, the Obama administration was harshly criticized for undermining federalism through a variety of centralizing policies. [ii]

For their part, Democrats did not emphasize the constitutional aspects of federalism, but put forward a vision of a powerful federal government that would protect civil rights and be active in “Investing in Communities Left Behind” and “Building Strong Cities and Metro Areas.” [iii]

Beyond general principles, several specific issues between the federal and state governments are on the table for the 2016 presidential election. From upcoming Supreme Court cases to contradictory state and federal laws, the next President will have a platform to address the role of federalism in state and federal policy. We examine four such issues here:

• Should states be allowed to legalize marijuana despite its federal status as a controlled substance?
• Should the federal government impose strict carbon standards on the states?
• Do the Common Core Standards go too far in taking away state and local autonomy in education?
• What role should the states play in health care policy?

Many assume that the Democratic and Republican parties are split on federalism, with one party the champion of the states and the other in favor of a strong federal government, just like the split between Hamilton’s Federalists and Jefferson’s Democratic-Republicans in the early 1800s. This assumption would suggest that the candidates for president in 2016 would either be in favor of state power or federal power in a consistent manner. And a general overview would indicate that, on balance, the Republican candidates place a higher priority on discussing and defending the structure of federalism. However, when candidates’ stances on the aforementioned issues are examined, a more complicated picture emerges. There are often variations within each party, and some issues show surprising results. Both the Democratic and Republican parties and their potential candidates for president are affected by a “fragmented federalism” caused by increased party polarization and the precedents recently set by the Supreme Court. [iv]

[i] “Ingrid Nilsen Interview Obama.” Interview by Ingrid Nilsen. YouTube. January 16, 2016. https://www.youtube.com/watch?v=K2OaaWjB6S8.
[ii] “Republican Platform 2016.” 2016 Republican National Convention. Accessed September 16, 2016. 15-16. https://prod-static-ngop-pbl.s3.amazonaws.com/media/documents/DRAFT_12_FINAL[1]-ben_1468872234.pdf.
[iii] “2016 Democratic Party Platform.” Democratic National Convention. July 21, 2016. 20-21. https://www.demconvention.com/wp-content/uploads/2016/07/Democratic-Party-Platform-7.21.16-no-lines.pdf
[iv] Bowling, C. J., and J. M. Pickerill. “Fragmented Federalism: The State of American Federalism 2012-13.” Publius: The Journal of Federalism 43, no. 3 (June 12, 2013): 315-46.

For previous Federalism articles: Marijuana, Clean Power Plan, Common Core, Affordable Care Act