By Zachary Callen
American federalism doesn’t seem like it should be that complicated. After all, it’s the kind of thing that we are taught in grade school and then have explained to us – again and again – up through our introductory American politics class in college. So, defining it one more time should be easy: federalism is the division of power among national and local political actors. Each level of government has some degree of autonomy and independence, such as a power to tax or to enforce certain kinds of rules. While each level has discrete powers, there is also a tendency for these levels to cooperate. This is a useful system because it divides power, preventing tyranny. More practically, it’s also a great way to govern a large, diverse country. Finally, federalism also brings government closer to us as citizens: it is easier to influence politics on the state or local level, and those political actions can still have sort of meaning since states possess meaningful political powers.
But, of course, federalism isn’t quite as simple as all that. The problem is that this simple “division of powers” among levels of government is not a straightforward problem of dividing tasks between this legislature, that legislature, and whatever other political body we want to talk about. Instead, as is often the case, interest and politics interfere and confuse this division of political power.
Recently, The New York Times covered a particular federalism conundrum brewing in Texas. In this case, it’s not an issue of state nullification or cessation. Instead, it’s something more pedestrian, but just as compelling. In Texas, several cities have passed a number of local laws against fracking or stores using plastic bags. And the state legislature will not abide by this local legislating. The fear is that these kinds of laws make the state unfriendly to business interests. Thus, the state legislature is stepping into local politics and limiting what kinds of laws cities can – and cannot – pass. On the one hand, cities do not have constitutional status in the United States, and exist due to state charters – though the presence of home rule changes this in many place. On the other hand, there is an ideological sense that municipalities should have freedom to make choices about local issues. One Tea Party Republican, Darren Hodges, argues that if Republicans want to devolve federal power to states, why not return more state power to local governments? Now, there might be a legal limit to Hodges’s argument, but it’s certainly a politically compelling point – and it definitely exemplifies the kinds of problems that federalism produces. In particular, we see from the Texas case how it is not always clear who is responsible for a policy area and that this uncertainty produces tension. In addition, it also starts to become clear that one’s stance on federalism is probably not just shaped by serious legal concerns, but also by the issues at stake. In other words, Republicans like the idea of devolution – until devolution makes life harder for other issues they care about, such as economic development.
Not surprisingly, this is hardly a new problem for federalism. In the first part of the 19th century, the United States was a frontier nation with a burgeoning industrial economy. And a really, really terrible infrastructure system. But the United States was a liberal, constitutional republic whose Founders had not formally included the power to build turnpikes or canals into the national constitution. Instead, that kind of work was a state effort. It turned out, though, that not all states were equally good at constructing infrastructure. States often lacked the funding and technical expertise to erect rail systems or dig functioning canals. As a result, state legislatures argued internal improvements should be a national activity, based on their critical importance to national defense and economic growth. While eventually states that had trouble building railroads were able to secure national support, it was not easily won. Many states resisted federal action not just on legal or philosophical grounds, but also out of pure political spite: states like Pennsylvania, Maryland, and New York took incredible risks funding their own transit systems and their congressional representatives were, for many years, unmoved by the pleas of their colleagues from western states. In both the case of 21st century Texas and the 19th century United States, fundamental questions about legal responsibility, the realities of local resources limits, and self-interest collide to confuse the proper way that federalism is meant to function. Significantly, these kinds of debates over federalism – and the tension between local and national responsibilities – is a perennial problem. In addition to Texas’s debate over who has the final word on fracking laws, we only have to look at conflicts over drug legalization. More and more states are passing laws liberalizing their drug laws – but federal drug laws still override those state jurisdictions. Relatedly, the federal government is also considering more online privacy protections for students. Unfortunately, some of those laws are actually less stringent than existing state laws. There has been similar conflicts over state environmental law, where some states have passed more demanding requirements than those pursued by the federal government. Thus, debates around federalism are hardly settled, and are also by no means relegated to seemingly slight debates over plastic bags. These are very much alive, serious political issues that really do require sincere debate and deliberation.
Unfortunately, It is hard to not see that a great deal of our conflict around federalism is ideological, by which I mean that in many (but not all cases) our interpretation of how federalism should work shifts with the political issue at stake. When our state cannot afford a railroad, we suddenly find new national powers in the Constitution. When our state is becoming less attractive to businesses because of intrepid local activists, our dedication to local control starts to wane. What is interesting is the way that we deploy federalism as a cover to argue for more immediate political issues. Debates over federalism – what it should be, what level is responsible for what policy – are certainly important to a vital American republic. But, unfortunately, this debate is often subsumed in the name of cheap political points.
To be clear, I am not arguing against federalism. Confederalism is generally a bad idea: local control gives too much power to nasty local biases. Centralization also comes with costs, notably a loss to the competition, experimentation, and policy specialization that makes federalism so valuable. What we do need is a frank conversation about federalism, and in particular how it applies in the modern era. We know, better than ever, how actions in one jurisdiction can produce positive and (usually) negative externalities in contiguous neighbors. We know how local actors do not always have the means to address big problems. We also know that national control can generate waste and nonsensical policies that overlook local concerns. Rather than using claims about national supremacy or local sovereignty to bash other political positions, what is needed is a really serious national conversation about the fluid, changing nature of American federalism – and how to best make use of our overlapping system of governance.
Zachary Callen is an assistant professor of Political Science at Allegheny College. You can check out more of his work on federalism here.