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.


Donald Trump

“President Trump advocated for the states’ autonomy in deciding marijuana policy during his campaign. Senator Jeff Sessions (R-AL), Trump’s Attorney General appointee, however, has professed his strong opposition to legalization of marijuana, including medical marijuana, on multiple occasions … It remains unclear whether the President will allow Sessions to implement the aforementioned policies, with 28 states now allowing at least medical marijuana usage.[iv] Press Secretary Sean Spicer has stated that President Trump understands there are “genuine concerns… about how young people have handled drugs and alcohol,” but Spicer also asserted that Sessions understands “it’s the Trump agenda that you’re administrating and not your own” when nominated to a cabinet position.[v] Until the incoming administration announces its official policy on legalization, the Obama instructions to the Department of Justice still stand.”


POTUS Appointment: Sen. Jeff Sessions

“Sessions stated in a congressional hearing that, “Good people don’t smoke marijuana,” and that the drug poses a strong danger to the population.[i] During his confirmation hearing before the Senate Judiciary Committee, Senator Sessions asserted that enforcing federal marijuana law in states where the drug is legalized is “a problem of resources for the federal government.” Sessions suggested that he would use “good judgment” about how to handle marijuana cases and stated that a previous comment where he advocated the death penalty for second-time drug trafficking offenders was no longer his view today.[ii] … In an interview with the New York Times, John Hudak, a scholar who has researched the intersection of federal and state marijuana laws at the Brookings, asserted that, as Attorney General, Senator Sessions would be able to void current Attorney General memos that defer enforcement of marijuana regulations to the states. Sessions could also sue states that have passed legalization provisions and thus failed to enforce federal policy[iii] and could pursue aggressive enforcement of federal policy in the states that have legalized the drug. ”


Clean-Power Plan

Donald Trump

“Donald Trump’s presidential victory in November 2016 represents a marked shift in the prospects for Barack Obama’s Clean Power Plan. Overall, Trump promises a move toward resource development and decentralization to the states. In February 2016, the Supreme Court issued a “stay” on implementation of the Clean Power Plan. With an empty seat on the Supreme Court, Donald Trump has the ability to appoint a new Justice and consequently also has the opportunity to affect the decision on this regulation. Trump has repeatedly questioned climate change. Moreover, in terms of the Clean Power Plan, itself, Trump has emphasized opposition to the regulatory plan, explaining, “For too long, the Environmental Protection Agency has spent taxpayer dollars on an out-of-control anti-energy agenda that has destroyed millions of jobs, while also undermining our incredible farmers and many other businesses and industries at every turn.”[1] Moreover, he has signaled that he would attempt to curb regulations on the fossil fuel industry within his first 100 days in office, stating that he will “rescind all job-destroying Obama executive actions.”[2][3]

POTUS Appointment: Scott Pruitt and Rick Perry

“Donald Trump has appointed Scott Pruitt, Oklahoma’s Attorney General, to lead the Environmental Protection Agency when he comes to office. Pruitt will replace Gina McCarthy, the current Administrator of the Environment Protection Agency, and his appointment represents a significant shift from the policies of McCarthy. As attorney general of Oklahoma, Pruitt represents his state’s interests, which are largely staked in oil. Oklahoma has five oil refineries and ranks highly in the nation in onshore crude oil output.[1] Pruitt dedicated significant effort to curtailing the EPA’s reach, and he has stated, “The American people are tired of seeing billions of dollars drained from our economy due to unnecessary EPA regulations, and I intend to run this agency in a way that fosters both responsible protection of the environment and freedom for American businesses.”

“In another key appointment, Trump has named Rick Perry to be his energy secretary … Trump claims that, “as the Governor of Texas, Rick Perry created a business climate that produced millions of new jobs and lower energy prices in his state, and he will bring that same approach to our entire country as Secretary of Energy…My administration is going to make sure we take advantage of our huge natural resource deposits to make America energy independent and create vast new wealth for our nation, and Rick Perry is going to do an amazing job as the leader of that process.”[1]


Common Core

Donald Trump

“Donald Trump has emphasized that he plans to “end Common Core” immediately after assuming office, claiming, “it’s a disaster.”[1] Further, he has stated that he will “immediately add an additional federal investment of $20 billion towards school choice…by reprioritizing existing federal dollars.”[2] He plans to “give states the option to allow these funds to follow the student to the public or private school they attend. Distribution of this grant will favor states that have private school choice, magnet schools and charter laws, encouraging them to participate.”[3]


POTUS Appointment: Betsy DeVos

“Trump has named Betsy DeVos to be secretary of education. As citizens of Michigan, DeVos and her husband have contributed significantly to changing the Michigan school system by opening their own charter school, creating an educational advocacy group, and backing significant education funding legislation.[1] She is a strong supporter of school choice, and has explained, “I am not a supporter [of Common Core]—period.”[2] Further, she endorses high standards as important, so long as they are voluntary and driven by local policymakers.[3]



Donald Trump

“With the election of Donald Trump in November, a repeal of the Affordable Care Act seems probable, and both House and Senate have already taken the first steps toward repeal. Republican members of Congress are currently divided, however, about how to implement a repeal of the ACA. Three options have been considered: an immediate repeal alongside an immediate replacement plan, a delayed repeal to give more time for a replacement to be crafted, or an immediate repeal which will take effect at a future date, which would serve as a deadline for the creation of a replacement plan. As of January 8, Trump’s transition team has not professed support for any of the aforementioned legislative options.[i] Congress paved the way for the impending repeal on January 13, approving a budget blueprint that would allow a reconciliation bill repealing the ACA to be passed without a filibuster taking place.[ii] The blueprint requires repeal legislation to be written by House and Senate committees January 27.[iii]


POTUS Appointment: Rep. Tom Price and Seema Vernma

“Representative Tom Price (R-GA) has been nominated to be the next Secretary of Health and Human Services.[i] Before serving in the Georgia State Senate and subsequently the House of Representatives, Price was a practicing orthopedic surgeon and instructor.[ii] Since the Affordable Care Act’s passage, Representative Price has persistently introduced bills that offered a comprehensive alternative to the existing healthcare plan. The Empowering Patients First Act would have repealed the ACA, while instating age-based tax credits for insurance coverage and HSA contributions, as well providing grants to states to subsidize higher-risk patients, e.g. those with pre-existing conditions. Price’s proposal would also enable consumers to purchase insurance plans across state lines, a change that Trump strongly advocated during his campaign.[iii]

“President Trump also picked Seema Verma, whose consulting firm helped design Indiana’s Medicaid expansion, to oversee Medicare, Medicaid, and the Children’s Health Insurance Program. The Indiana expansion included provisions popular among conservatives, such as a required small monthly payment for insurance. Other states with Republican leadership have used Verma’s firm to implement the Medicaid expansion, which was a segment of the Affordable Care Act.[i]



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 10thAmendment 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:

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