Chapter Three: Federalism

News Updates

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$271 Million for Research on Stem Cells in California
New York Times, Andrew Pollack, May 8, 2008

“California has awarded $271 million in grants to build 12 stem cell research centers in the state, even as one of the political rationales for the building program might soon disappear.”

The federal government has several means of compelling state governments to abide by the will of national majorities. It can offer reluctant states financial inducements for particular objectives or programs (see The Carrot, pp. 103-104). It can preempt state activity by enacting federal mandates (see The Stick, pp. 104-108). Where these fail, the logic of nationalization can prevent states from going it alone (The Logic of Nationalization, pp. 87-89). This story covers efforts in California to fund research on stem-cells over the objections of the Bush Administration. The initiative demonstrates that decades of nationalization have not completely effaced the “indefinite” authority reserved to states by the Constitution.

Beer Battle Brewing in Alabama
Los Angeles Times, Stephanie Simon, Mar. 10, 2008

“Two dozen guys are crowded into a basement, talking loudly over Triscuits, when Scott Oberman breaks the law. In defiance of Alabama Criminal Code 28-4-20, he pours his buddy a beer.”

Though the logic of nationalization has expanded the scope of federal activity in recent decades (see Shared Federalism, pp. 82-84), state governments do get the last word on certain public policy issues. For example, the repeal of the Eighteenth Amendment in 1933 shifted responsibility for regulating alcoholic beverages back to the states. Responding to the religious preferences of local constituencies (see Religion, pp. 414-415), many states levied restrictions on alcohol content. Today, recreational brewers and upscale bootleggers in Alabama and other states are attempting to eliminate Prohibition Era restrictions. This L.A. Times article finds that religious groups are running into the same problems that doomed prohibition on a national scale (see Punishing the Wets at the Polls, p. 511).

DHS to Unveil New Disaster Response Plan
Washington Post, Spencer S. Hsu, Jan. 19, 2008

“The Bush administration is set to announce an overhaul of the nation's emergency response blueprint Tuesday, streamlining a chain of command that failed after Hurricane Katrina in 2005, sources familiar with the plan said yesterday.”

Local communities and state agencies each possess assets for coping with natural disasters. However, the scale of many disasters transcends local and state capacities. To reduce coordination problems in deploying assets (see Coordination, pp. 10-11) and minimize free-riding, the federal government provides disaster insurance (see The Logic of Nationalization, pp. 87-89). Traditionally, the Federal Emergency Management Agency has been responsible for federal disaster relief efforts. In 2003, however, FEMA was merged into the new Department of Homeland Security. The two agencies have battled for control of relief efforts ever since, an example of bureaucratic infighting (see Bureaucratic Infighting, p. 327) that critics believe contributed to the poor response to Hurricane Katrina in 2005. This article reports on a new plan designed to clarify who is charge the next time disaster strikes.

Hate Crime Reporting Uneven
Washington Post, Darryl Fears, Nov. 20, 2007

“The FBI released its yearly hate crime statistics yesterday, showing that more than 9,000 offenses were committed because of race, ethnicity, religion, sexual orientation or physical or mental disability last year, an 8 percent increase over the year before.”

In 1990, Congress and the U.S. Attorney General directed the Federal Bureau of Investigation to begin collecting statistics on hate crimes. Hate crimes are acts of violence directed at individuals due to their race, gender, nationality, or sexual orientation (see Gay Rights, pp. 149-150). Unfortunately for proponents of hate crimes legislation, Congress failed to require participation, either by financial inducement (see The Carrot: Federal Grants to the States, pp. 103-104) or by mandate (see The Stick: Unfunded Mandates, pp. 104-105). This summary of the latest FBI report underscores the logic of nationalization as a solution to states’ collective dilemmas. Lacking incentives to contribute, states have interpreted their obligations as they see fit. California reported more hate crimes than any other state. Mississippi, with its troubled racial history, reported no hate crimes. Alabama, which does not recognize violent acts directed at homosexuals as hate crimes, reported one hate crime.

In Turnaround, Industries Seek U.S. Regulation
New York Times, Eric Lipton and Gardiner Harris, Sept. 15, 2007

"After years of favoring the hands-off doctrine of the Bush administration, some of the nation's biggest industries are pushing for something they have long resisted: new federal regulations."

With the New Deal in the 1930s and Great Society programs of the 1960s, the federal government assumed primary responsibility for economic management (see Historic Transfers of Policy to Washington, pp. 91-93). This nationalization of public policy solved an array of coordination problems among state governments (see Nationalization, pp. 93-97), but raised fears among affected industries. In recent years, the challenge to the laissez-faire approach favored by industry comes from states like California that have introduced strict health, safety, and environmental mandates. This report by The New York Times indicates that businesses have responded by pushing for federal regulations that would preempt state rules. Long opposed to any expansion of federal regulatory authority, business groups are bowing to the political logic of nationalization, seeking relief in the only venue in which they can hope to prevail (see The Political Logic of Nationalization, pp. 97-100).

Justices Push EPA to Act on Car Emissions
Los Angeles Times, David G. Savage, April 3, 2007

“The Supreme Court cleared the way Monday for a more aggressive attack by government on global warming, which could include the first national rules to limit carbon dioxide emissions from new cars, trucks and power plants.”

Global warming respects no political boundaries. The multi-jurisdictional nature of pollution and the competitive disadvantages to states enacting strict standards make global warming an ideal candidate for federal action (see Pollution Knows No Borders, p. 95). In recent years, however, states have taken the lead in enacting measures to reduce auto emissions. Rather than harmonize or supplant these efforts, the Environmental Protection Agency has sought to preempt new regulations by denying its (and others’) authority to regulate greenhouse gases (see Preemption Legislation, pp. 101-102). This federal-state conflict has thrust the Supreme Court into an increasingly familiar referee role: defining what the federal government can and cannot regulate (see A Fourth Era? Pp. 353-354). This L.A. Times article covers the Supreme Court’s ruling, which removes an important federal roadblock to additional state activity on environmental issues.

Even a Supreme Court Loss Can Propel a Cause
Los Angeles Times, David G. Savage, Jan. 3, 2007

“For activists who seek to change the law, nothing works better sometimes than losing a big case in the Supreme Court.”

Given a choice, proponents of a cause often choose to press claims in national institutions rather than battle it out in fifty states. When national institutions are unresponsive, however, proponents must pursue a state strategy, i.e., lobby receptive state legislatures (see The Political Logic of Nationalization, pp. 97-100). This Los Angeles Times article tracks efforts by opponents of recent Supreme Court rulings to change state laws on eminent domain and affirmative action. Not surprisingly, these efforts implicate the balance between government’s pursuit of the collective interest and individual rights. The Bill of Rights, drafted to alleviate the concerns of Antifederalists during ratification (see The Federalist and Antifederalist Debate, pp. 64-66), limits the ability of majorities to run roughshod over individuals (see The Bill of Rights Checks Majority Rule, pp. 160). The federal structure of the Constitution ensures that in setting the balance between collective interests and individual rights, the voices of multiple majorities will be heard.

Secretary Vows to Improve Results of Higher Education
New York Times, Sam Dillon, Sept. 27, 2006

“Saying she hoped to jolt American higher education out of a dangerous complacency, Secretary of Education Margaret Spellings vowed Tuesday to help finance state universities that administer standardized tests, establish a national database to track students’ progress toward a degree and cut the red tape surrounding federal student aid.”

Education issues have traditionally been the purview of state governments. Each state has its own school financing formula, university system, and procedures for measuring achievement. Nevertheless, federal policy-makers can induce states to cooperate with national education initiatives by wielding its extensive array of carrots and sticks. Carrots include money in the form of grants-in-aid targeted at specific programs (see The Carrot: Federal Grants to the States, pp. 103-104). Sticks include imposing federal standards or mandates, funded or not (see The Stick: Unfunded Mandates, pp. 104-108). This story reports on the findings of a federal panel that recommends the use of federal funding for standardized testing in higher education.

D.C., Md. Face Cut In AIDS Funding
Washington Post, David Brown, March 13, 2006

“The District of Columbia and Maryland may lose millions of dollars in federal AIDS grants if they do not agree to have local health departments collect and record the names of people with newly diagnosed HIV infection.” Under modern federalism, national and state governments jointly supply services to citizens; there is generally no clear delineation of federal and state responsibilities (see Shared Federalism, pp. 82-84). In this relationship, the federal government, not states, has the upper hand. Federal policymakers have an array of carrots and sticks to bring reluctant states along. This article describes how the federal government, via the Centers for Disease Control and Prevention, is using crossover sanctions to require states to switch to “name-based” reporting of new HIV cases (see The Stick: Unfunded Mandates, pp. 104-108). States that refuse to report new cases in this way risk losing their federal funding.

Reach of Clean Water Act Is at Issue in 2 Supreme Court Cases
The New York Times, Felicity Barringer, February 20, 2006

“More than half of the nation's streams and wetlands could be removed from the protections of the federal Clean Water Act if two legal challenges started more than a decade ago by two Michigan developers are supported by a majority of the newly remade Supreme Court.”

Federal legislation like the Clean Water Act provides a convenient solution for states that lack the resources to solve large problems or cannot overcome collective shirking (see Nationalization—The Solution to States’ Collective Dilemmas, pp. 93-97). However, in passing legislation, Congress has the first, not the last, word on how policy is implemented. Once a bill is passed and signed by the president, federal agencies write rules to implement the law. The law and the rules are then subject to judicial review (see Courts and the Bureaucracy, pp. 334-336). Even entrenched laws require durable coalitions – unlike-minded interests that agree to a common course of action (see Politicians, pp. 27-28) – to protect policy gains in the implementation phase. This story describes how the Bush administration and environmental groups are enlisting in efforts to preserve the federal authority established in the Clean Water Act.

‘Blue’ States Tackling Energy On Their Own
Washington Post, Justin Blum, January 22, 2006

“Democratic-leaning states increasingly are regulating energy use and emissions, working around a GOP-controlled federal government that state officials say has not done enough.”

For more than a century, the sphere of federal government activity has increased markedly in a process known as nationalization (see The Paths to Nationalization, pp. 90-97). Federal involvement has been a convenient remedy for problems, like poverty, that are beyond the capacity of individual states, or for conflicts, like environmental degradation, that transcend state boundaries. Further, with Democrats firmly in control of the House of Representatives and often controlling the Senate and presidency during much of the 20th century, advocates of new initiatives to regulate the economy, provide for consumer safety, and protect the environment found ready allies in Washington (see The Political Logic of Nationalization, p. 97-100). With Republicans now in control of both houses of Congress and the presidency, environmental groups and other interests are finding the federal government a less willing partner for pursuing their policy goals. In lieu of these changes, environmental groups have sought out friendlier venues, such as Democratic-controlled state legislatures. Democratic-leaning states have responded by passing regulations to reduce power plant emissions, raise energy efficiency standards, and encourage use of renewable energy, while the Energy Department has declined to support new policies or failed to implement existing ones. The patchwork of regulations that results from this latest variant of U.S. federalism, however, is likely to leave many unsatisfied. The effectiveness of state efforts in combating problems like global warming is limited while state-specific strategies create problems for industries that must comply with different regulatory regimes.

9 States in Plan to Cut Emissions by Power Plants
New York Times, Anthony DePalma, August 24, 2005

The action came after the White House decided not to regulate the greenhouse gases that contribute to global warming.

Unsuccessful in elevating regulation of power plant emissions to national policy, the northeast corridor states are taking enforcement action against their own facilities. The effectiveness of this approach, of course, is that much of the region's pollution drifts in as an externality from polluting plants in the midwest. (See Politics and Policy box, p. 95)

Archived Articles

Limits on the Table for Food Warning Signs
Los Angeles Times, Richard Simon, February 9, 2006.

“A bill is gaining momentum in Congress that would give federal regulators the last word on when to require public warnings about food ingredients — an industry-driven move aimed at reining in California's Proposition 65.”

The U.S. federal system gives different levels of government leverage over the others while protecting each from encroachments by the other levels (see American-Style Federalism, pp. 80-84). This “shared sovereignty” virtually guarantees that policy disputes will occasionally arise. The supremacy clause in the Constitution was designed to resolve legitimate disputes (see The Supremacy Clause, pp. 84-85); however, the existence of multiple policy-making arenas gives interest groups incentive to seek out venues favorable to their views (see The Political Logic of Nationalization, pp. 97-100). This article tracks attempts by the food industry to coax Congress into using the supremacy clause to preempt (see Preemption Legislation, pp. 101-102) state laws deemed overly burdensome to producers.