Uncooperative Federalism: State Resistance and Noncompliance is Essential

Is the idea of federalism dead? Does the concept have no relevance in the modern world? Not according to Ernest Young, who addressed the topic in an essay titled “Federalism as a Constitutional Principle.” The essay was given as the William Howard Taft Lecture on Constitutional Law at the University of Cincinnati College of Law on October 28, 2014. In fact, Young believes that federalism, and understanding its concepts, is needed more than ever. “The need for federalism has radically increased as the world has become more diverse, complex, and interconnected,” he said. He starts off citing the 1995 Supreme Court case United States v. Lopez. The case concerned a man convicted under the federal Gun Free School Zones Act, which the man argued went beyond Congress’s legislative power under the Commerce Clause. During the oral argument, Justice O’Connor asked Solicitor General Drew Days that if the Gun Free School Zones Act were constitutional, would there be anything left that Congress could not regulate. His response: He was “not prepared to speculate generally.” Such a response is alarming, Young said, because it displayed a disinterest in limitations on the federal government, a critically component of federalism. Also perturbing, he said, is the attitude that the Constitution’s provisions can be ignored or followed based on preference.

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“As a young lawyer, I just couldn’t wrap my head around the notion that the principle of enumerated powers could simply be read out of the Constitution because it seemed inconvenient or outdated,” he said. “We don’t get to treat the Constitution the way a six-year-old treats a slice of pizza—picking off the good parts, like the Free Speech or Equal Protection Clauses—and throwing out the rest.” As Young sees it, the relationship between the states and the federal government under federalism offers numerous benefits for individual liberty and to protect against one entity gaining too much power. Two ways they can do this he cites are nullification and noncompliance by the states, such as the Virginia and Kentucky Resolutions, penned by James Madison and Thomas Jefferson in response to the Alien and Sedition Acts, and state laws prohibiting local law enforcement from assisting the feds in enforcing federal laws such as the Patriot Act. Young notes that as he was taught in school, Andrew Jackson long ago squashed the idea that states could nullify federal laws, yet states like Colorado and Washington have successfully flouted federal drug laws on marijuana. “The reason this works is that enforcement of national drug laws effectively depends, in most instances, on the cooperation and resources of state and local law enforcement,” he said. “If a state opts out, there’s not a whole lot the Feds can do without a massive commitment of federal resources. Whatever one thinks of legalizing marijuana, there is no doubt that federalism is, literally, ripped from today’s headlines.” Preserving government authority within the states, Young argues, allows ideas and beliefs that are popular locally but in the minority on a national level a chance, such as marijuana laws and legal definitions of marriage. Another positive outcome of this system is that it allows states with different values to have separate laws without forcing the other to comply, something that happens under federal law. “Democracies lose their freedom when a particular party or group secures a permanent lock on power,” Young said. “…in America, the out-party in Washington will always be running any number of states, and politicians from those states can run for national office on a record of actual governing experience and achievement. It’s no coincidence that four of our last six presidents were governors of their states during a period when their party was out of power in Washington, D.C.” Young believes that the Founding Fathers emphasized the structure of the federalist system as key to its success and placed less importance on individual rights and judicial review as a way of preserving federalism, something he believes is demonstrated in Federalist 10 and 51. “They thought that if you get the structure of the government right, then government will be unlikely—even unable—to behave tyrannically. It’s easy to forget that nowadays, when the courts play a prominent role and we cherish legal rights like speech and religious exercise. But keep in mind that constitutions in the Soviet Union and other tyrannies purported to guarantee similar rights. Those guarantees weren’t worth the paper they were written on, because the structure of those governments neither permitted the People to control the Government nor obliged it to control itself.” Young also holds that the “doctrine of enumerated powers” originally used for protecting state autonomy was flawed due to clauses in the Constitution such as the Necessary and Proper Clause, which led to the notion of implied powers. Aside from the implications made in Justice John Marshall’s majority opinion in McCulloch v. Maryland, the idea of implied powers wasn’t much of a problem until SCOTUS dealt with FDR’s New Deal legislation in the 1930s. Another problem, he claims, is that Congress could use grants or federal benefits to get the states to do their bidding when it went beyond their Constitutional bounds. “We’re generally inclined to think of the Constitution as perfect, or at least highly successful,” Young said, “but I think the only fair conclusion is that the enumerated powers strategy for protecting federalism had failed.” Nevertheless, the fact that the states are still necessary to enforce federal laws can preserve federalism by what Heather Gerken and Jessica Bulman-Pozen call “uncooperative federalism.” Under this, state officials “bend the rules, exercise their discretion in a way that federal officials may not like, and even force concessions from federal agencies,” according to Young. While the feds can take over the program if they don’t like how a state carries it out, this isn’t practically feasible outside of a few instances, Young observes. Young proposes another solution, albeit one he feels is incomplete, comes out of Federalist 51, where Madison discusses how the Constitution’s structure creates a set of checks and balances. The importance of the states, Young argues, cannot be understated in preserving federalism. Without Americans maintaining an identity and loyalty distinct to their specific state, “federalism is unlikely to survive.” “We do not need modern-day Robert E. Lees, who turned down command of the Union army in order to fight for his native Virginia—but we do need a significant number of people who care enough for their States for it to affect how they vote, which politicians they support, and, in some cases, to invest their time and attention in state governance.” “Maintenance of a federal system requires, in other words, that Americans continue to care not just about results, but about the structure of government and the process by which it exercises power,” Young said.

One of the ways we can fight for federalism is by opposing attempts to either do away with the electoral college or undermine it through the enactment of laws that would require states to give all of their votes to the candidate with the largest number of popular votes.

Each state currently has different ways for voters to record their votes and for poll workers to tally those votes. States have different regulations on who can vote and how they can vote (by mail or in person or both?)

It was bad enough what happened in Florida vis-a-vis Bush v. Gore. It turns out that even within the borders of a state different districts had different methods for recording and tallying votes.

It was truly a difficult undertaking to attempt to recount an entire state. How much more difficult would it be to recount an entire country?

I think examples such as these make it clear that not everything should be centralized. Unless the feds force every state to purchase the same voting machines from the same vendor and require all states to homogenize their voting procedures, the result of any nationwide recount would be ambiguous at best.

I did some scratching concerning United States v. Lopez. I barely got my keyboard covered in time for the following ...

"In a 5–4 decision, the Supreme Court affirmed the decision of the Court of Appeals. It held that while Congress had broad lawmaking authority under the Commerce Clause, …” — United States v. Lopez, 1995.
"Held: The Act exceeds Congress' Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, …” — United States v. Lopez, 1995 .

So even as of 1995, misguided, institutionally indoctrinated Supreme Court justices are blindly following in the footsteps of FDR’s activist justices concerning the scope of Congress’s Commerce Clause powers, wrongly ignoring that a previous generation of state sovereignty-respecting justices had clarified the limits of Congress’s Commerce Clause powers.

”State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress [emphases added].” —Gibbons v. Ogden, 1824.

Also note that if the states had never ratified the ill-conceived 17th Amendment, foolishly giving up the voices of state lawmakers in Congress, I can imagine that the Senate probably would have protected the states by killing the bill that established the unconstitutional federal gun law that Mr. Lopez had broken.

The 17th Amendment needs to disappear, and a bunch of corrupt, state power-ignoring senators along with it.

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