Is Federal Power Shrinking or Growing? New Debates on Federalism. (Looking at the Law)

Article excerpt

ONCE THOUGHT BY MANY SCHOLARS and teachers to be an obscure topic about constitutional theory or intergovernmental responsibilities, the concept of federalism is attracting new attention among policy and legal scholars. The primary reason is that federalism is embedded in a series of contemporary policy debates about highly controversial issues.

The universal health insurance program proposed by President Clinton in 1993-94 raised vociferous debates not only about health care as a public value but also about federal power, including whether or how the federal government should implement a health care program for all. Many observers believe that it was not health care per se but the large federal role in delivering Clinton's proposed plan that led to its demise. Welfare reform, enacted by Congress in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, generally granted the states more autonomy, while at the same time establishing national standards, including strict time frames for requiring welfare recipients to return to work And in 2001, President Bush is engaged in debates about education policy--primarily a local responsibility--that are running rampant through the halls and committees of Congress.

Furthermore, the United States Supreme Court has issued a number of recent decisions in cases involving federal-state relations, usually ruling to place limits on federal power. Notably, the court has struck down several acts of Congress, including the 1994 Violence Against Women Act and the 1990 Gun Free School Zones Act, at least in part on the grounds that they trample the prerogatives of the states. Such decisions concern advocates of a strong national government, while providing support to those who believe that the states should (continue to) serve as a "laboratory for social experimentation."

To explore these policy and legal controversies, the American Bar Association's Division for Public Education assembled a small group of distinguished scholars for a discussion in cyberspace of the historical, political, cultural, and legal dimensions of federalism. The eight social science, humanities, and legal scholars who participated in this online conversation have contributed to the national dialogue on federalism through their books, articles, and media appearances. Taken together, their voices suggest that federalism is an important, indeed a highly contentious, dimension of the current political landscape of the United States.

A Shift toward States' Rights?

In a recent review published in the Atlantic Monthly, historian Eugene Genovese argues, "A shift toward states' rights has been discernible in recent decades, but within limits much narrower than those advocated by Jefferson and Jackson, not to mention Calhoun." (1) Nevertheless, many public policy scholars today believe that there is no linear trend toward states' rights or away from the federal concentration of power, observing that federal-state dynamics are complex and constantly in flux. Jennie Kronenfeld, professor of sociology at Arizona State University and author of The Changing Federal Role in U.S. Health Care Policy, (2) argues that the granting of some autonomy to the states is not new. Rather, federal-state partnerships date back to the 1930s for federal welfare programs and to the 1960s for the establishment of Medicaid. A partnership also characterizes the State Children's Health Insurance Program, created by Congress in 1997. Kronenfeld observes that while states must follow certain federal roles about eligibility and benefits for low-income children, they are free to make a range of decisions about program administration and delivery.

In the area of education policy, there seems to be a trend toward growing federal influence. Kathryn McDermott, assistant professor of education and public policy at the University of Massachusetts at Amherst and author of Controlling Public Education: Localism Versus Equity, notes that in the presidential administration of George Bush [1989-93], the Republican party's official position on the U. …