American FEDERALISM Half-Full or Half-Empty?
Derthick, Martha, Brookings Review
Last August the Wall Street Journal noted that some taxpayers were claiming that they did not have to pay federal income tax because they were residents of a state, not the United States. A few weeks earlier the New York Times carried a story describing Vice President Albert Gore's plan to have detailed positions on a wide range of issues in his quest for the Democratic presidential nomination in 2000. At the top of his list was education, a function not long ago considered a preserve of state and local governments.
Gore's "blizzard of positions" included preschool for all children, a ban on gang-style clothing, teacher testing, "second-chance" schools for trouble-prone students, back-to-school parent-teacher meetings where a strict discipline code would be signed, and "character education" courses in the schools. Gore proposed to amend the Family and Medical Leave Act to permit parents to attend the parent-teacher meetings during working hours.
As these contrasting conceptions suggest, American federalism is a highly protean form, long on change and confusion, short on fixed, generally accepted principles. In the event, a tax court judge fined the taxpayers who claimed not to be citizens of the United States. And the Times reporter hinted that many actions Gore planned to "require" would need local school board cooperation to take effect.
As the 20th century ends, public commentators often suggest that this is a time of decentralization in the federal system. The view derives mainly from a series of Supreme Court decisions that have sought to rehabilitate the states in constitutional doctrine and from passage of a welfare reform act in 1996 that office-holders and analysts alike interpreted as radically devolutionary.
But matters are more complicated than that. American federalism was bourn in ambiguity, it institutionalizes ambiguity in our form of government, and changes in it tend to be ambiguous too.
To sort out what is happening, I will distinguish among three spheres of activity: constitutional interpretation by the Supreme Court; electoral politics; and the everyday work of government as manifested in policies and programs.
The Supreme Court
A narrow majority of the Rehnquist Court led by the chief justice attaches; importance to preserving federalism. To that end, it has made a series of daring and controversial decisions that purport to limit the powers of Congress or secure constitutional prerogatives of the states.
In Printz v. U.S. (1997) the Court invalidated a provision of the Brady Handgun Violence Prevention Act that required local law enforcement officers to conduct background checks on all gun purchasers. The Court objected that the provision impermissibly violated the Tenth Amendment by commandeering the state government to carry out a federal law. An earlier opinion, New York v. U.S. (1992), had begun to lay the ground for the anticommandeering principle. In another leading case, U.S. v. Lopez (1995), the Court held that Congress had exceeded its commerce clause power by prohibiting guns in school zones. Still other decisions signaled a retreat from federal judicial supervision of school desegregation, prison administration, and the judgments of state courts. Another line of cases has secured the state governments' immunity from certain classes of suits under federal law.
Some analysts profess to see a revolutionary development here, but qualifications are in order. The Court decides many cases in which it does give primacy to federalism, as for example a 7-2 ruling in 1999 that state welfare programs may not restrict new residents to the welfare benefits they would have received in the states from which they moved. This ruling struck down a California law and by implication a provision of federal law that had authorized it. Moreover, the majority that has decided the leading federalism cases is narrow (often 5-4) and tenuous, inasmuch as it includes some of the oldest members of the Court. …