Federalism: The Secret Cornerstone of Our Constitution
If you asked a dozen people on the street about the concept of federalism, you’d probably get a lot of blank stares. While Constitutional concepts like life, liberty, and the pursuit of happiness are well understood—or at least recognized—by most Americans, federalism has somehow fallen through the cracks, despite it being a significant tenet of the way our country is run.
Federalism—a form of government where state and local governments operate under the umbrella of a central government—was established by the founding fathers to provide a stronger central power that would manage issues such as foreign relations and national defense that affected all 13 of the newly-formed states. The idea was that the national government could make policy in some areas, but state and local governments had the right to regulate in others.
But the division of power between federal and state entities was never clearly delineated by the framers of the Constitution. They left the details purposely vague in order to obtain the nine-state approval needed for ratification, delegating the task of assigning roles to future generations.
Leaders have continued to defer that task, though, and a mishmash of decisions at all levels has transformed the country’s power structures into something the founders would barely recognize. “The Framers could hardly have envisioned today’s vast and varied federal bureaucracy,” Chief Justice John Roberts wrote in a 2012 opinion. “The administrative state with its reams of regulations would leave them rubbing their eyes.”
In many ways, the mismanagement of our federalist structure can be found at the root of our country’s largest conflicts: civil rights, healthcare, the war on drugs, and most recently, the COVID-19 pandemic. The cursory distribution of power outlined in the Constitution has failed to keep pace with emerging technology, growing populations, and an increased importance of international issues.
By examining the framers’ intent and making some common-sense ideological shifts, it’s possible for the US to use federalism to improve government efficiency, political accountability, and quality of life.
A Monarchy in Disguise?
When the founding fathers convened at the Constitutional Convention in 1787, their primary goal was to revise the system of government they had established under the Articles of Confederation. After only being in use for six years, it had become clear the loose organization of states would not be strong enough to solve national issues. The country needed the power to fund a national army, conduct foreign policy, and collect taxes needed to pay off the massive debt it incurred during the Revolutionary War.
But having just separated from a monarchy with strong central powers, many citizens were wary of a federal government having too much authority. They argued the proposed government was nothing more than a monarchy in disguise.
Knowing the Constitution wouldn’t be ratified unless both of these viewpoints were addressed, the founders compromised on a federalist structure that affords states a great deal of sovereignty. The 10th Amendment wrote state leaders a blank check: Any powers not specifically addressed in the Constitution was left to them.
As I’ve addressed in several previous articles, the framers had no intent of writing the Constitution in stone—they expected the document and the government’s structure to be fluid, changing with the country’s needs and challenges. According to a recent article in The New York Times, Thomas Jefferson said the ratified version wouldn’t last two decades without adjustment. Such is the case with the coordination of power between federal and state institutions. Scant discussion occurred among the founders about what various levels of government could and couldn’t do—they merely speculated on what each SHOULD do. They expected future leaders to make decisions and changes as necessary “The judgements of many must unite in the work: EXPERIENCE must guide their labor: TIME must bring it to perfection: and the FEELING OF inconveniences must correct the mistakes which they inevitably fall into, in their first trials and experiments,” Alexander Hamilton wrote in Federalist Paper no. 85.
Stay In Your Lane
But almost 250 years later, those conversations about who should control what have rarely happened. As the country has grown and problems have become more complicated, “the Constitutional boundaries between state and federal authority are increasingly difficult to ascertain,” Jennifer Sellin pointed out in a column for the Brookings institute. It’s not that officials aren’t staying in their own lane—the lanes were never drawn.
Take, for example, the way the US has handled its response to COVID-19. Former President Donald Trump took a significantly hands-off approach to the pandemic, leaving individual states to fend for themselves. When many states asked Trump for assistance in securing the necessary medical equipment, Trump balked. “The federal government is not supposed to be out there buying vast amounts of items and then shipping,” he said in a March, 2020 press conference. “We’re not a shipping clerk.”
While some cheered Trump’s response as federalism at work, others saw it as an Articles of Confederation-esque failure to unify efforts. States competed over ventilators and other medical equipment, and contradictory masking and vaccination policies continue to foster inter-state animosity into the present day.
In other instances, the federal government has intervened in menial affairs by dictating policy it has no ability to enforce. Marijuana has been illegal in the United States since 1937 and is still considered a Schedule I drug under the 1971 Controlled Substances Act. Despite shifting cultural feelings on the drug, Washington has been unable to make any meaningful changes to its policies. Congress says it’s a job for the Drug Enforcement Agency, which claims it can’t do anything until the Food and Drug Administration classifies it as medically useful, according to a 2016 Forbes article. Tired of the federal quagmire, states began legalizing marijuana in the 1990s, enacting legislation that is in direct violation of federal law. To date, recreational marijuana is legal in 18 states, and its medical use is legal in 36. Federal officials like former Attorney General Jeff Sessions, meanwhile, instructed US attorneys to continue enforcing the Controlled Substances Act. “It is the mission of the Department of Justice to enforce the laws of the United States, and [state legalization] undermines the rule of law,” Sessions said1.
The confusion over roles and responsibilities also occurs between the branches of government. Federalist principles outline a clear separation of powers between executive, legislative, and judicial branches. But the increasing inefficiency of legislative bodies—due to increased deliberation and finger pointing—has forced the other branches to overreach. As the Brookings Institute points out, only 29 state legislatures have passed policies related to COVID-19, whereas every governor has issued numerous executive orders. Now, rather than looking to their representatives for solutions, citizens are turning to executives to get things done.
A Shift of Responsibility
A realignment of responsibilities is long overdue, and it could be accomplished by implementing gradual philosophical changes.
The primary issue that must be addressed is reexamining the federal government’s role in implementing policy. In many ways, Washington is still operating the way it did a century ago, attempting to stay relevant by fixing problems that are far too complicated to solve at the state or local level. State governments are much larger and more sophisticated than they once were, and consistently granting them the ability to regulate their own services would improve quality and accountability. The closer to the people that policies are executed, the more likely they are to be effective—and the more citizens can hold politicians accountable.
An excellent example of this is the handling of the federal minimum wage. The flat wage rate of $7.25 per hour doesn’t effectively account for regional variations in costs of living, and while 29 states have implemented their own minimum wage that’s above the federal rates to combat this issue, the remainder has not. Rather than set a rate at the federal level and cause potential inequality, it would be much more effective for Congress and the Department of Labor to establish flexible guidelines that are based on income levels and cost of living expenses and then delegate the responsibility of implementation to the states.
Another avenue worth exploring is allowing neighboring states to band together and assume responsibility for regulating services that would meet their specific needs. Historically, states were viewed as sandboxes where new policies could be experimented with—such as open primaries and rank-choice voting in California and Washington state—but more complicated issues such as healthcare often require more infrastructure than is available in an individual state. Regional compacts could allow multiple states to devote necessary resources to executing policies without the need for the federal government to intervene. It’s a structure nine Southern states experimented with in 2011, when they proposed to regulate their own healthcare as a region under the Health Care Compact. But the compact has stalled because it requires Congressional approval, a nod they’re not likely to receive because it would undermine the federally-imposed Affordable Care Act.
The federal government would be much more effective if politicians realized they could remain relevant if they turned their attention to more global issues. At the time of the Constitution’s ratification, the country’s largest problems were national ones. Now, issues like the global economy, climate change, and world health concerns require an international response—a unified voice the states and the weakened federal government cannot adequately provide in its current form. A century ago, it might have been possible for the US to establish policies and expect the rest of the world to fall in line, but rising power from countries like Russia and China have demonstrated that’s now not the case. An increased focus on global issues would keep federal workers plenty busy—and please state officials tired of the feds meddling in their affairs.
The founding fathers hoped that federalism would allow for increased accountability and improve citizens’ quality of life, but without clear roles for each level of government, we’ll continue to spin our wheels. It is the lynchpin of government, intended to be fluid according to the country’s needs. In order to move forward, we need to more clearly delineate where the lanes are and ensure each entity stays in them while constantly reevaluating where the lanes are based on the political climate.
What’s Your Take?
I’ve shared my perspective on the separation of power, and I want to hear yours. How can we carry out the founders’ vision of federalism?
Regardless of the lip service paid to the “rule of law,” it’s unlikely federal authorities will enforce marijuana laws moving forward. Officials understand it’s potentially a multi-billion dollar industry, and many legislators —like Mitch McConnell (R–KY) and former House Speaker John Boehner (R–OH) have quietly put their weight behind it.