FEDERALISM IN 2020

by Sevion DaCosta ’21, Henry Schulz ’22, and Tara Mehra ’23

(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.

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The Trump administration has withdrawn its plan to increase enforcement of federal law in Colorado, where recreational cannabis is legal, after Senator Cory Gardner (R-CO) blocked multiple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. Here are the proposed policies of top-ranked Democratic candidates on the topic of marijuana legalization and decriminalization. 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, as per 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 did not – and still has not – overturned any States which have legalized marijuana, but the federal government can at anytime 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.

Here are the top three Democratic presidential candidates’ visions on marijuana legalization:

Despite former Vice President Biden’s past history of being tough on drug crimes and his belief of marijuana as a gateway drug, he now says he will decriminalize marijuana federally. This would include automatically expunging convictions for marijuana possessions.[3] This is a byproduct of VP Biden’s criminal justice policy to decrease the number of incarcerated individuals.

Senator Bernie Sanders’ proposal includes fully legalizing marijuana at the federal level and would include an application grant with $10 billion in potential aid to help individuals create their own marijuana farms. Sanders is also an advocate for the Marijuana Justice Act and the Marijuana Opportunity Reinvestment and Expungement Act. These acts would help to overturn all federal justice policies on marijuana possession and expunge past convictions of those arrested for marijuana-related offenses.[4]

Senator Elizabeth Warren’s proposal is very similar to Senator Sanders’. She hopes to expunge all criminal records related to possession of marijuana for past convictions for marijuana possession. She favors an overhaul of federal criminal justice policies. Senator Warren has also sponsored the Marijuana Justice Act and the Marijuana Opportunity Reinvestment and Expungement Act.[5]

ACA

In 2017, a key Republican attempt to repeal the Affordable Care Act (ACA) took the form of a repeal bill that would have replaced the ACA with a system of federal grants to states to design their own health programs. After the attempt failed, the Trump Administration turned to its administrative powers to incrementally move in the same direction. Specifically, the Administration gave waivers to states that want to expand Medicaid under the ACA with certain restrictions like work requirements. The United States Department of Health and Human Services (HHS) used waivers under section 1115 of the Social Security Act to give states more flexibility in Medicaid implementation.[1]  Broadly, Trump’s strategy is to allow states to limit coverage which, in turn, results in differing levels of health care coverage.[2] Other Administration tactics include reducing the effect of the ACA through creating bureaucratic roadblocks on HealthCare.gov, the federal insurance exchange. Trump cut the enrollment period from 90 days to 45 days and reduced HealthCare.gov advertising by 90 percent. This, along with the end of the tax penalty enforcing the individual mandate, contributed to a five percent decline in enrollment from 2017 to 2018. The Administration said in June 2018 that small businesses could join health plans that would be exempt from ACA protections. These businesses would not be required to give “essential” benefits like mental health care, emergency services, newborn care, and prescription drugs. In October 2018, the Trump administration decided it would allow states that were seeking a waiver to operate their own health insurance exchanges to use federal insurance subsidies for their health policies. The courts intervened with US District Court Judge John D. Bates ruling that the Department of Labor’s rule on association health plans was not legal and “clearly an end-run around the [ACA].”[3] 

The Democratic candidates propose two types of health care policies: a single-payer, “Medicare for all” system and a buy-in option in which Americans can keep their private insurance or enroll in the federal program. The latter builds on the Affordable Care Act. The single-payer system has clear federalism implications: the federal government would be the central marketplace for the insurance exchanges which, unlike Trump’s efforts, will limit the states’ ability to maintain control over health care practices. States are innovative laboratories that experiment with delivery and payment solutions, reducing drug costs, and exploring the social roots of health issues, like poverty and housing.[4]  If a “Medicare for all” plan is implemented, governors may, depending on how the program is designed, be able to successfully acquire a waiver that allows them to operate the state’s single payer program.[5]  Nonetheless, a “Medicare for all” program would limit state policy innovation and create an imbalance between the states and the federal government.[6]  The policies that seek to build on the ACA do not have a clear federalism implication. Many federalism scholars, however, comment on the ACA’s current impact on the state-federal relations. Some argue that the policy allows for state and federal government bargaining and generally, the ACA’s implementation involves state political leverage, intrastate cooperation, and state autonomy.[7]  For example, states have a choice whether to run their own health insurance exchanges or rely on the federal exchange and (thanks to the Supreme Court decision in NFIB v. Sebelius) whether to expand their Medicaid system. There is wide acceptance, however, that the ACA’s federalism components are defined by a national structure that allows for state implementation.[8] 

Here are the proposed policies for the American healthcare system of three leading candidates for the Democratic nomination:

Vice President Joe Biden says that as president he will protect and build on the ACA. He opposes every action that Republicans and Democrats take to get rid of the law. He wants to give Americans more choice, reduce health care costs, and make the system less bureaucratic to navigate. Biden will give the option for public health insurance, like Medicare. He will increase the value of tax credits to lower insurance premiums and extend coverage and expand coverage for low-income Americans.[9] 

Senator Bernie Sanders advocates for a single payer, national health insurance program. He promises no networks, premiums, deductibles, copays, or surprise bills. His plan will include dental, hearing vision, home-based long-term care, mental health and substance abuse treatment, reproductive health, and prescription drugs.[10]  The plan would prohibit private insurance and is estimated to cost from $28-32 trillion over ten years.[11] 

Senator Elizabeth Warren supports Medicare for All, but the speed of implementation differs from Senator Sanders’ plan. Bernie will introduce a Medicare for All plan during his first week in office. Warren wants to pass a public-option plan as a first step during her first 100 days as president. During her third year she says that she will call for passing a full-scale single payer policy.[12]  Her plan prioritizes affordable mental health services as a part of Medicare for All. She believes the policy should include vision, dental, coverage for mental health and addiction, physical therapy, and long-term care.[13]

Of these Democratic candidates, Sanders and Warren would do the most to centralize the system and reduce the state role in health care. The others would also centralize, but not to the same extent, leaving the ACA’s state exchanges intact and building on the Affordable Care Act.

Environment

The role the United States will play in stopping climate change is 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. Thus, in the United States, environmental policy is at the forefront of the 2020 election.

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 Act. The Clean Power Plan, assigned states different emission reduction targets, and provided them with the flexibility to reach these targets.[1]  Opponents of the Clean Power Plan also brought forth lawsuits against the Environmental Protection Agency (EPA) stating they had exceeded their authority and this would cause States to, for example, increase reliance on natural gas and renewable energy sources for electricity generation. However, 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.[2] The new ACE act was done in “response to President Trump’s Executive Order 13873 – Promoting Energy Independence and Economic Growth.”[3]

Additionally the Trump administration altered the fuel economy standards to an average of about 37 miles per gallon, down from the 54 miles per gallon set by the Obama Administration.[4] 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.[5]

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.[6]

Democratic Candidates, spearheaded by the joint Bernie Sanders and Alexandria Ocasio-Cortez proposal, have discussed the potential of the federal government implementing a Green New Deal (GND). This proposal aims to create new high paying jobs while also overhauling the federal government’s use of fossil fuels. In essence, the Green New Deal would strive for the United States to be net-zero emissions no later than 2050.[7] Incentives would be rearranged to allow private corporations to receive tax cuts for transitioning to green energy sources. The Green New Deal places an emphasis on electric vehicles, improved electric public transportation, and attempting to ensure that this deal does not affect the most disadvantaged citizens in America. In addition, all candidates would like to rejoin the Paris Climate Accord and make the US the global leader in climate change reforms. The Green New Deal would increase the federal government’s power over the economy and the direction of corporations – especially manufacturing companies. However, the Green New Deal would be an expensive program to implement. In total the GND is estimated to cost between $51–$93 trillion over the next decade.[8] This is roughly between two to four times the GDP of the US economy in 2018, which was 21.7 trillion in the fourth quarter of 2019.[9] The economic burden on citizens for the implementation of the Green New Deal would differ by state. Part of the implementation would be focused on creating unionized jobs for workers. This could be a way to offset the growth of artificial intelligence and changing consumer habits that are decreasing the retail and trucking jobs across the United States. One consideration for the GND is whether or not it will include provisions to allow citizens to sue such as those in the 1970s Clean Air Act, Clean Water Act, and Endangered Species Act.[10]

Here are the top three Democratic presidential candidates’ visions on environmental policy:

Former Vice President Joe Biden hopes to reinstate the fuel economy standards that he and President Obama imposed during their time in office; in addition, Biden hopes to make climate change a national security priority and ensure that all Americans have safe and clean water.[11]

Senator Bernie Sanders hopes to achieve 100 percent renewable energy for electricity and transportation no later than 2030. In order to achieve fully electric vehicles, Sanders hopes to provide a trade-in system to allow low to middle class families to trade in their fossil fuel cars for new electric vehicles. Sanders will also sue fossil fuel companies and fully fund the Land and Water Conservation Fund.[12] As it relates to California’s battle with the Trump administration, Sanders wants to establish national standards for auto manufacturing, while also allowing states to go further in their mandates. Sanders says he will reverse Trump’s weakened mandate on fossil fuel emissions.[13]

Senator Elizabeth Warren hopes to establish a Green Manufacturing plan to incentivize the creation of clean energy made domestically.[14] Senator Warren’s will expand offshore renewable energy in an attempt to create 36,000 full-time jobs. In addition, Senator Warren will strive to rebuild American’s fish stock and support ocean-based carbon sequestration projects, including coastal ecosystem restoration programs.[15] Senator Warren would take the opposite approach to the Trump administration and not sue states that pursue more aggressive climate goals than her administration.

Immigration

Immigration is a cornerstone issue in the federalism debate, and a key issue in the 2020 presidential race. According to the Bipartisan Policy Center, four out of five registered voters report a candidate’s immigration plan is influential in their decision of who to vote for in the 2020 election.[1] The US Constitution grants the federal government the power to set immigration policy, and the Supreme Court has limited the scope of state power for immigration through court cases over time. At its core, the federalism conflict lies between both state and federal governments and state and city governments. Specifically, the conflict involves the extent to which city governments and state governments enforce state and federal policies, respectively.

A prominent topic in the immigration federalism debate is the implementation 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 undocumented immigrants, many cities became sanctuary jurisdictions by barring their agencies from cooperating with ICE regulations and agents. As a consequence, both federal and state governments threatened to withhold money from these sanctuary jurisdictions. Cities within states can also reject state policies, becoming anti-sanctuary cities. Thus, the position of presidential candidates on sanctuary jurisdictions and the role of ICE are relevant to the federalism debate. The candidate’s position communicates the extent to which they believe a state or city can reject a federal policy.

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, the only places that asylum seekers can enter, and turning asylum seekers away surfaced.[2] Questions arise on the cooperation of border states, and specifically, state patrol officers, with these restrictive policies. Many Democratic presidential nominees want to expand asylum and accept more refugees into the United States, for which they can expect resistances from states with Republican governors. When Obama accepted 10,000 Syrian immigrants in his final term, many Republican state governors asserted that they would not accept these immigrants into their state, and their respective counties did not provide support to the immigrants.[3]

Similarly, President Trump declared a “national emergency” to transfer funds for building the southern border wall, after a government shutdown failed to produce congressional agreement for the funding.[4] Candidates’ opinions on the building of the wall will influence the role of states along the southern border in the coming years.[5] Many Democratic presidential candidates also promise to use their executive power for immigration issues if the legislature does not cooperate to make immediate change. But this, too, will probably result in a decentralized state approach to immigration policy, as it has in the past. When executive action was taken to implement DACA and DAPA under the Obama Administration, a slew of more, and more varied, state law came in response.[6]

Presidential candidates’ comments on these and other immigration issues will communicate both their perspective on restrictive immigration policies and their opinion on the state and city right to defy orders from federal and state governments, respectively.

Here are the top three Democratic presidential candidates’ visions on immigration:

In 2007, Vice President Joe Biden did an interview where he voiced opposition towards sanctuary jurisdictions. Although he condemned the Trump Administration’s policy, including the administration’s reaction to sanctuary cities, Biden’s position on using enforcement to ensure cooperation between federal, state, and local governments is unclear.[7] Biden promises to reinstate “sensible” enforcement policies and ensure that employers do not take advantage of immigrant workers. But those states that have a Republican leaning may disagree with what is “sensible,” and refuse to adhere to such enforcement policies. If Biden does not tolerate non-adherence and forces states to enforce his policies, it will work towards centralizing the immigration policy that has become increasingly decentralized in the last ten years. However, in response Biden can expect litigation similar to that which came from sanctuary jurisdictions during the Trump Administration like in Philadelphia v. Attorney General of the United States. This case questions the ability of the Attorney General to withhold grants from jurisdictions that do not cooperate with ICE by sharing the immigration status of those arrested.[8] Biden also plans on using federal dollars to help integrate immigrants into their communities, and working to undo harsh, anti-immigrant state laws.[9] This action would also centralize immigration policy by Biden’s effort to ensure state laws align with federal priorities.

If elected, Senator Bernie Sanders promises to use his executive power to take prompt action regarding immigration. He plans to re-implement and expand DACA, developing a family-based immigration system. Precedent from the Obama Administration shows that the use of executive power to enact sweeping immigration policy incites a response of varying state law. Sanders voted yes in 2008 to continue funding to sanctuary jurisdictions, and in 2019, again asserted that sanctuary cities should receive federal funding.[10] He will also ensure that the Department of Justice drops litigation that would defund sanctuary jurisdictions.[11] Sanders’ precious support for a state’s right to not enforce federal policy raises the question of whether he will respect a state’s right to not enforce his policies. If so, this will further de-centralize immigration policy in the U.S., especially because Sanders’ policies are widely seen as leaning far to the left. Sanders condemns the family separation that occurred under the Trump administration, and says he will work to reunite separated families. Further, Sanders wants to broaden asylum, and envisions a demilitarized border.[12] Precedent shows that certain states and cities refuse to accept refugees, and thus this policy will potentially incite a federalism conflict. Overall, Sanders’ policies are more left-leaning than Biden’s, but Sanders also previously supported a state’s right to not enforce federal policy, unlike Biden. Thus, while immigration policy would become more centralized under Biden, there would likely be more polarization and may be more state resistance in immigration policy under Sanders.

Senator Elizabeth Warren believes that the immigration policies of the Trump Administration are racist and demonize immigrants. As president, Warren indicates she will separate law and immigration enforcement so that undocumented immigrants are not dissuaded from reporting crime. This reform addresses the issue that propelled cities to become sanctuary jurisdictions. In 2017, condemned Trump’s attempt to withhold federal funds from sanctuary jurisdictions, calling them “unconstitutional.”[13] Thus, Warren has communicated that she supports a state’s right to resist enforcement of federal policy. Warren plans to increase the number of refugees that will be accepted and promote asylum.[14] Like the other candidates, this promise will bring contention with states that do not want to accept immigrants or oppose the federal policies.

While both Sanders and Warren have supported sanctuary jurisdictions and a state’s right to resist enforcing federal policy, and their immigration policies are the two farthest left-leaning. Precedent from the Obama era shows that executive action regarding immigration incites intrastate immigration law. Thus, it will be interesting to see if Sanders and Warren stick to their state’s right mindset when the left-leaning policy that they push is at stake. One can see the scope of the Democratic debate by examining positions held by candidates who recently departed the race.

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 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.

True to form, in 2016 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]

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 competitive Democratic race, particularly the positions of the three strongest candidates after the Super Tuesday primaries, Joe Biden, Bernie Sanders, and Elizabeth Warren. In the future, we will add information about President’s Trump’s campaign positions and the party platforms.


FEDERALISM IN 2017