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The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.
By Benjamin H. Deitchman
January 27, 2017
As an unprecedented chapter of the American experiment in democratic governance at the Federal level begins with the new presidential administration, there are also changes afoot in the laboratories of democracy: the states. With the Republican Party controlling the White House, Congress, the majority of governors’ mansions and state legislatures, a devolutionary philosophy could drive policy decisions. As stated in the 2016 Republican Party’s platform, “Federalism is a cornerstone of our constitutional system. Every violation of state sovereignty by Federal officials is not merely a transgression of one unit of government against another; it is an assault on the liberties of individual Americans.” Democratic Party leaders, however, may also strengthen state institutions in pursuit of their visions of the future of the United States.
During the administration of President George W. Bush, Democrats and other opponents of the policy agenda in Washington turned to the states to expand initiatives beyond traditional subnational roles. The former Republican governor of California and current host of The New Celebrity Apprentice, Arnold Schwarzenegger, pursued international cooperation on climate change, sidestepping Federal inaction in that arena. In 2006, Governor Schwarzenegger signed a pact with British Prime Minister Tony Blair committing California and the United Kingdom to “build upon current efforts, share experiences, find new solutions and work to educate the public on the need for aggressive action to address climate change and promote energy diversity.” This agreement between two of the world’s largest economies did not have the potency of a bilateral or multilateral treaty among nations, but it was one of many foreign-state agreements that furthered state-level interests in international affairs. Although there are strict constitutional limits on the nature of state engagement with other countries, states exert their influence on key economic, environmental or social issues that can shape or stand in contrast to Federal diplomacy. Should President Donald Trump withdraw from the global Paris Agreement on climate change, for example, interested cities and states may follow through on their own commitments to reduce greenhouse gas emissions, as several sub-national units of government did in response to the United States Senate’s rejection of the earlier Kyoto Protocol.
After the U.S. Environmental Protection Agency (EPA) promulgated regulations during the Obama Administration to mitigate climate change — Clean Power Plan (CPP) — it was state-level elected officials who led the legal opposition to the executive action. In fact, the EPA’s authority to regulate greenhouse gases as a pollutant under the Clean Air Act derives from a state initiated Supreme Court decision in 2007’s Massachusetts vs. EPA. One of the most notable litigants against the CPP, as well as the Affordable Care Act and other politically polarizing Federal policies, was Oklahoma attorney general Scott Pruitt. In the Trump Administration, Attorney General Pruitt is likely to find himself the defendant against state plaintiffs encouraging stringency in environmental policies and enforcement as the new president’s selection for EPA Administrator.
The era of partisan federalism will likely continue for the foreseeable future. In a Harvard Law Review article Professor Jessica Bulman-Pozen defines partisan federalism as “political actors’ use of state and Federal governments in ways that articulate, stage, and amplify competition between the political parties, and the effective individual processes of state and national identification that accompany this dynamic.” There are numerous issues bipartisan consensus holds are best resolved at the state and local levels, yet the Federal government has increased authority in the divisive debates of this century under both Republicans and Democrats. For example, President George W. Bush’s No Child Left Behind and President Obama’s Race to the Top both furthered national-level involvement in education policy. Cities and states are themselves wadding into the Federal domain, such as sanctuary city efforts which assert a role in the enforcement or non-enforcement of national immigration policy in the absence of reform. Partisanship and partisan federalism can increase as federalist authorities blur across the ideological divide.
States have not just aimed to expand their role into Federal areas, but also limit localities abilities to tackle partisan challenges. Whether it is legislating against local regulation of natural gas exploration or preventing localities from banning plastic grocery bags, state preemption is part of the partisan agenda. The headline actions about lesbian, gay, bisexual and transgender rights in North Carolina were an act of preemption in response to a City of Charlotte ordinance. Reconciling partisan values and federalist beliefs remains a challenge for policymakers.
It is no surprise that today’s debates require rethinking federalist roles and responsibilities in a growing, complex and ever-changing American society. Partisans of all stripes, however, may find partisan federalism can serve their interests. More importantly, today’s federalism offers alternatives and opportunities to build a prosperity and justice in a broader system that re-balances governance to best serve the interests and values of the American people.
Author: Benjamin H. Deitchman is a policy practitioner in Atlanta, Georgia. His recently published book, Climate and Clean Energy Policy: State Institutions and Economic Implications, includes in-depth analysis of federalism issues. Dr. Deitchman’s email is [email protected].