Federalism Once More: Liberal States Relearn the Value of Federalism
If the past ten years has taught politically-oriented Americans any lesson, it is that the United States Constitution is successful in limiting the powers of the federal government and promoting the interests of states. In previous years, political factions have found Congressional rules or legislative processes in order to work around the controls meant to stop legislation that was not supported by 60 Senators. In other words, an insufficient number of state representatives sought to pass legislation, bypassing the interests of a plurality of states. Much to the dismay of conservatives and right-wing populists, President Trump’s agenda has been halted due to state-led litigation efforts or due to the lack of a broad consensus in the United States Senate. Constitutional conservatives seek a return to state governance and state-led efforts, despite many political activists regarding these actions as obstacles to raw political power.
Trump Administration v. the States
As a result of the Trump Administration’s conservative governance, progressive state attorneys general have addressed their grievances via litigation, alleging malfeasance with regards to enforcing statutorily required duties. In particular, state attorneys general have been joined by various activist and special interest organizations in opposing numerous administrative priorities, such as the addition of a “citizenship question” on the 2020 U.S. Census and the enforcement of the Flores Consent Decree. The Founders intended for states to be the primary centers of government, while the federal government was to be limited. States ought to be the “laboratories of democracy” and the check on a seemingly over-powerful federal government.
States have filled the void by enacting their own legislation, as the federal government has become more ineffective as a result of partisan bickering. As Acting-CFPB Director Mulvaney has said, “We are going to be looking to the state regulators and state attorneys general for a lot more leadership when it comes to enforcement.” States are more representative of their constituents than the federal government, and many times, possess the means to enact their constituents’ legislative priorities. As James Madison said, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
States have been an unusually active check on the federal government not only via litigation and legislation but through the promotion of policy. This is often referred to as “state’s rights,” a term tarnished by proponents of slavery during the Civil War. One of the most notable state’s rights efforts in recent years is the movement toward the liberalization of marijuana policy, despite federal law prohibiting such efforts. This effort is important in liberating individuals to decide whether or not to consume the product and in providing health care providers a natural alternative to pharmaceutical drugs. Despite President Trump’s seeming disapproval of marijuana, states have continued to legalize marijuana and develop comprehensive taxing and regulatory schemes. A few states, including Michigan, Utah, and Missouri, successfully passed laws liberalizing marijuana policies in the 2018 Midterm Elections. As a result of successful state-led efforts to legalize marijuana, elected officials have introduced bills to remove marijuana from the Food and Drug Administration’s Schedule 1 Drugs List. This effort has been symbolic of the importance of states leading by example in promoting policies.
Is this states’ rights effort likely to continue after President Trump’s tenure in office? Constitutional conservatives must continue to promote federalism, in order to demonstrate to the public-at-large the benefits of state-led efforts. States are accountable to each and every citizen, as a voter in local elections has much more impact than in national elections. In a large country, each individual voter has little impact on a federal election, which is the predominant reason for the Electoral College, in order to promote regional or state interests. The Founders premised our entire federal government on protecting the interests of the minority from the majority, as they had seen the failures of a “majority rules” democracy in previous societies.
President Trump has learned through experience that his agenda requires broad support in the United States Congress; a feat made difficult with the Democrats gaining a majority in the House of Representatives in the 2018 Midterm Elections. However, President Trump seems to have learned from his missteps. In turn, the “Law & Order” President has pledged to support a criminal justice reform bill that takes steps to reduce the burden on our overcrowded prison system. In addition, he has said that he will work with both parties on infrastructure and the opioid crisis, as long as the Democrats do not abuse their investigatory powers in the House Committees. There is a renewed sense of hope that bipartisanship is not lost in the midst of partisan demagoguery.
Can We Return to State-Led Governance?
Constitutional safeguards have endured to protect from an encroaching federal government and “majority rule.” It is important to acknowledge that institutions and ideas remain long after the individual politicians. These protections will remain relevant as both parties have become further polarized. Both parties are “doubling down” on their agendas rather than acknowledging that their successes in the 2018 Midterm Elections are the product of a favorable electoral map and the reaction to a polarized environment. While partisans continue to push their agendas at the federal level, states must become sources of governance. States are far more representative of their citizenry. Americans may conclude from the past ten years that states are better suited to be the primary source of accountable government, as the federal government has grown too large to govern effectively.
