By Thom Little, Ph.D.
Recently, more than 45 state legislative leaders from thirty states gathered in the nation’s capital to discuss the history and current state of federalism in America. The discussion began with an acknowledgment that a shift in the balance of power toward the national government, which had been gradually occurring for several decades, has accelerated in recent years. So, the question is how we got to this point and what states in general and state legislators in particular can do to reverse or at least slow the shift in power?
While many in the federal government act as if the states are vassals of the national government, the historical reality is that the national government is a creation of the states. More than two hundred years ago, when representatives of the newly established states met in Philadelphia to create a government, their experience with the failed Articles of Confederation told them they needed a strong central government, but their experience with the British Monarchy and the very diverse populations of the nascent nation informed them that it could not be too strong. State governments needed to be able to tailor policies and institutions to their unique situations. The result was a system with an uneasy and ever-shifting balance of power between the national and subnational governments, created by representatives of those subnational states.
The nature of that balance was largely established in the new US Constitution, which gave the national government specific, enumerated powers (Article I) and stated that when a state law and a national law clashed, the national law would be supreme (Supremacy Clause). Early Supreme Court cases in 1819 and 1824 confirmed this relationship. However, the 10th Amendment (State’s Rights Amendment) indicated that all rights not expressly granted to the national government, and where state law did not clash with federal law, would fall to the states. That relationship remained mostly intact for more than 150 years until the 1930s, when the economic devastation of the Great Depression, followed by the challenges of World War II, provided the opportunity for more federal intervention. Over time, as political and policy concerns became more complex, states often ceded, and the courts defended an expansion of federal powers, to the point where the national government seems to be intruding on everything from education to voting rights.
So, what can state legislators do about this encroachment? Our program offered several potential responses that could strengthen their ability to push back. One session, moderated by SLLF’s Kate Levin, featured a conversation with Ohio Speaker Matt Huffman and Washington Speaker Laurie Jinkins about efforts to organize a nationwide coalition of states to respond in unison to federal overreach. By doing so, the states could provide a unified voice that those in Washington, DC, would find difficult to ignore. On a less ambitious front, another session focused on interstate compacts that would enable groups of states to address complex issues in a way the federal government would have to respond to. That session also offered the option of states reviving ACIR (Advisory Commission on Intergovernmental Relations) to refocus attention on the significance of federalism.
Another session focused on a different role for state governments and state legislatures, in which the state acted less as a unitary policymaker and more as a facilitator, bringing together the resources of government, the private sector, and nonprofit organizations to address difficult policy issues. By coordinating resources within the state, state legislative leaders could preempt unwanted national intervention.
Finally, we closed with a leaders-only conversation about strategies to strengthen the legislative branch so it could better compete with both the national government and the state’s governor. Legislators and legislatures with higher pay, better staff, and lower turnover are better equipped to face these challenges. Further, legislative leaders were encouraged to remember and reclaim the historically significant role of the state legislature and to vow to leave the institution stronger than they found it.
In that light, we closed the meeting with suggestions from leaders on steps they have taken or might take to reclaim their historic role relative to the governor and the federal government. These included exercising their budgetary power, refusing to accept strings attached to federal mandates, joining legal action against the governor or the federal government, and passing legislation directing state agencies not to cooperate with certain federal actions.
We did not answer all the questions about federalism, and perhaps we raised as many as we answered. But we began a conversation that will and must continue if the states are to remain relevant and independent.
