Released October 12, 2020


(Introduction and faculty supervision by Andrew E. Busch)

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 a bitter debate over whether the federal government could or should charter a National Bank of the United States or leave the management of the currency up to the states.
  • In 1860, on the edge of the Civil War, the presidential race featured a four-way split between Republican, Northern Democrat, Southern Democrat, and Constitutional Union parties, the key issue is 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 the 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 10th Amendment 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.

Now, several specific issues between the federal and state governments are on the table for the 2020 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.

This stage of our investigation focuses on the Republican and Democratic parties’ 2020 Presidential Candidates: President Trump (R) and former Vice President Joe Biden (D).

Marijuana Legalization

State-level cannabis legalization has continued throughout the years of the Trump presidency. During the midterm elections of 2018, voters in Missouri and Utah passed measures legalizing marijuana for medicinal purposes and Michigan voters approved marijuana for recreational purposes. Federally, the possession, sale, and use of marijuana still violates the federal Controlled Substances Act (CSA) of 1970; however, there are currently only eight states where marijuana is completely illegal for both medicinal and recreational uses.[1] Around the world, other countries have legalized recreational cannabis including Canada, Georgia, South Africa, and Uruguay.

The Trump administration withdrew its plan to increase enforcement of federal law in Colorado, where recreational cannabis is legal, after Senator Cory Gardner (R-CO) blocked multiple confirmations of potential Justice Department nominees. While the federal government still does not enforce the CSA, more states have begun releasing and expunging criminal records for individuals who were arrested on marijuana charges. This federal debate has grown in importance, especially as it relates to criminal justice reform. Nonetheless, the Supreme Court’s ruling in Gonzalez v. Raich states that Congress – under the Commerce Clause– still has the power to regulate activities that substantially affect interstate commerce.[2] Thus, the Court held that the enforcement of the CSA against individuals who grow and use marijuana is within federal power. The Court has not overturned any States which have legalized marijuana, but the federal government can at any time still enforce the CSA against those state residents. The effect of this stare decisis is that employers can still have a zero-tolerance policy for marijuana in their employment contracts as it is illegal under federal law.



Amongst a global health pandemic, record unemployment, and an impending recession, the 2020 presidential candidates’ healthcare plans have come under renewed scrutiny. According to a Pew Research poll, 68% of voters say healthcare is a “very important issue,” second only to the economy.[1] Responding to these polls, both President Trump and Vice President Biden agree that healthcare is more important than ever. But this is where the disagreement ends–they offer competing visions of the healthcare system, with Trump pushing for a smaller role for the national government and Joe Biden promising to enhance Obamacare and with it the role of the federal government.

In 2016, then-candidate Trump’s healthcare platform could be summed up in one sentence: “repeal and replace.”[2] He was talking about The Affordable Care Act, commonly known as Obamacare, which since its inception in 2010 had become a central target for Republican healthcare policy. This year’s election casts Trump against one of the ACA’s architects and biggest proponents, Vice President Joe Biden. Their competing visions for the future of American healthcare, cast anew as a vital issue amidst the coronavirus pandemic, center primarily on the future of the Affordable Care Act.

In the decade since its creation, the Affordable Care Act has come under many challenges, and while it has not been completely struck down, many of the original provisions have been chipped away. The individual mandate, a key stipulation requiring everyone to have health insurance through the threat of penalty if you are uninsured, has been rendered ineffectual through court rulings and a congressional act reducing the penalty for being uninsured to zero dollars. This coming term The Supreme Court will hear a challenge from a group of Republican-led states that the individual mandate is unconstitutional. The Court heard a similar argument in 2012 but upheld the individual mandate as part of Congress’ power to tax.[3] However, since the tax on the individual mandate is now reduced to zero dollars, the states argue that it is no longer a tax. After the death of Justice Ginsburg, this case has thrust the future of the ACA into uncertainty.

While the two candidates disagree on the central feature of the American healthcare system, the ACA, they do agree on several specific policies. Both candidates have pledged to stop “surprise billing” from hospitals, lower drug prices, and create tax credits for lower and middle-income families seeking to purchase health insurance. Overall, while both candidates differ greatly on how to reform the system as a whole, they both claim they will lower healthcare costs for everyday Americans. President Trump argues that he will do so by divesting power from the federal government to the states, giving each state more flexibility over their healthcare plans. By increasing competition in the healthcare marketplace and repealing Obamacare, the Trump administration believes it would decrease healthcare costs while giving Americans more flexibility over their plans and reducing federal spending. Joe Biden’s plan would increase the role of the federal government, especially over the long term if his plan slowly morphs into a single-payer system. Under Biden’s plan, there would be fewer differences between states and less flexibility for states and businesses to provide healthcare. In these competing visions, both candidates hope to make Americans better off — Trump by giving people the option of cheap, flexible healthcare and Joe Biden by expanding healthcare coverage, even if that means more federal spending and less consumer flexibility.



The role the United States should play in fighting climate change was one of the key topics in the Democratic primary debates. Around the world protests from the younger generation have demanded that governments hold corporations accountable for greenhouse gas emissions and other practices leading to global warming. In the United States 2020 Presidential election, environmental policy stands as the eleventh most important topic for voters[1] with around 42% of registered voters proclaiming that climate change is “very important to their vote.”[2]  For Biden supporters, 68% claim that climate change is very important while only 11% of Trump supporters share that sentiment.

The Trump administration has emphasized the role of the federal government in its environmental policies, attempting to decrease the power of states such as California. For example, the current administration has decreased state emission targets set under the Clean Power Plan. A Supreme Court ruling in 2007 stated that greenhouse gases are within the Clean Air Act’s definition of an air pollutant, and thus can be regulated as such.[3] Therefore, The Clean Power Plan assigned states different emission reduction targets and provided them with the flexibility to reach these goals.[4] Opponents of the Clean Power Plan also brought forth lawsuits against the Environmental Protection Agency (EPA) stating it had exceeded its authority and this would cause States to, for example, increase reliance on natural gas and renewable energy sources for electricity generation. In place of the Clean Power Plan, the EPA has implemented a new Affordable Clean Energy (ACE) rule which requires that power plants meet much more modest emission targets through on-site improvements in their heat-rate efficiency.[5] The new ACE rule was done in response to President Trump’s Executive Order 13873 – Promoting Energy Independence and Economic Growth.[6]

Additionally, the Trump administration reduced the fuel economy standards target to an average of 37 miles per gallon, down from the 54 miles per gallon set by the Obama administration.[7] This created a large federalism dispute between the Trump administration and California. California had received EPA waivers during the Obama Administration to create its own – more stringent – policy guidelines but that waiver was revoked in 2019 leading to an ongoing legal battle.[8]

Finally, the Trump administration has shown a desire to revise the Waters of the United States (WOTUS) to eliminate protections for more than half of all wetlands and nearly a fifth of streams that do not have relatively permanent surface water connections to nearby waterways.[9]



Immigration is a cornerstone issue in the federalism debate and a key issue in the 2020 presidential race. According to the Bipartisan Policy Center, more than four out of five registered voters report that a candidate’s immigration plan is influential in their decision of who to vote for in the 2020 election.[1] The BPC report also found that Republicans tend to give more consideration to a candidate’s immigration policy. While 63% of Republican voters would call a candidate’s immigration plan “very important,” only 40% of Democrats would.[2] Article I, Section 8 of the U.S. Constitution permits Congress to “establish a uniform Rule of Naturalization.” The Supreme Court has limited the scope of state power through consistently ruling in favor of the federal government when immigration federalism conflicts arise.[3] At its core, the federalism conflict lies between both the state and federal governments and the state and city governments. Specifically, the conflict involves the extent to which city governments and state governments must enforce state and federal policies, respectively.

Recent case law has spurred tension in the immigration federalism debate. Kansas v. Garcia (2020) ruled that federal immigration law does not preempt states from prosecuting undocumented immigrants under their identity theft and fraud statues.[4] Federalism scholars believe that Kansas v. Garcia points to the growing tension regarding a state’s role in enforcing federal immigration policy, with some states instituting increasingly rigorous measures to enforce federal law, and others avoiding cooperation with federal authorities.[5] Also, Department of Homeland Security v. Regents of the University of California (2020) held that the Department of Homeland Security’s intent to limit or end DACA protections was judicially reviewable, and in violation of the Administrative Procedure Act.[6] Many other Trump administration immigration policies are percolating in lower courts, including the administration’s widened definition of who can be deemed a “public charge” as well as tightening restrictions to obtain asylum.[7]

Throughout the four years, the Trump administration heavily restricted asylum eligibility and entry for asylum seekers from the southern border. Allegations of border patrol agents physically blocking asylum seekers at ports of entry and turning asylum-seekers away surfaced.[8] Questions have arisen regarding the cooperation of border states and their state patrol officers with these restrictive policies. President Trump also declared a “national emergency” to transfer funds for building the southern border wall after a government shutdown failed to produce a congressional agreement for the funding. President Trump’s and Vice President Biden’s stances on continuing to build the wall will influence the role of states along the southern border in the coming years.[9]

A prominent topic in immigration federalism is the implementation and legality of the sanctuary jurisdiction. Sanctuary jurisdictions limit the enforcement of federal or state immigration policies in that particular area. For example, when the Trump administration implemented restrictive ICE policies regarding the reporting of undocumented immigrants, many cities became sanctuary jurisdictions by barring their agencies from cooperating with ICE regulations and agents. Consequently, both federal and state governments threatened to withhold funding from the sanctuary jurisdictions. Cities within states can also reject state sanctuary policies, becoming anti-sanctuary cities. In April 2018, the California city of Los Alamitos passed an ordinance that attempted to absolve the city from the state’s sanctuary policies.[10] By May 2020, Los Alamitos repealed the ordinance after charter cities with similar tactics lost their respective legal battles.[11]

Thus, the position of the presidential candidates on sanctuary jurisdictions and their visions for ICE are relevant to the federalism debate. The candidate’s position communicates the extent to which he believes that a state or city can constitutionally reject a federal policy, perhaps speaking to his perspective on federalism more broadly.

The past actions of the Trump administration offer a perspective into President Trump’s federalism theory on immigration, and Vice President Biden’s comments on these actions give insight into his plan for immigration.

While their immigration policies are politically opposite, both President Trump and Vice President Biden are intent on having states follow their respective immigration enforcement policies, which would work towards the centralization of policies. In both cases, states that oppose their policies will inevitably resist and take legal action.



FEDERALISM IN 2020 (March)