Government history and institutional development

¶ … status of federalism within the U.S. It is the thesis of the paper that the President, the Courts and Congress have assumed influential and significant roles in the shaping of federalism in recent decades. Initially, a conceptualization of federalism will be offered as established by the founding fathers. Current literature will then be used to identify factors associated with and the role assumed by the presidency, the Courts and Congress in federalism as it exists today within the U.S.

Conceptual Framework unique federal system of government to replace the original Articles of Confederation was established b the U.S. Constitution. On the basis of federalism, the Framer's of the Constitution delineated that national concerns were to be handled by a national legislative branch and executive branch of government while concerns at the local and state level would be handled by state legislatures and governors. It was the intent of the Framer's that only within specifically delineated areas would federal power displace state authority.

Conceptually, the Framer's believed that federalism offered the most promising design for insuring the effectiveness of government within the U.S. It was strongly believed that government is likely to work better when it is as close as possible to the governed. On the basis of this assumption, the primary premise of federalism is that the federal government's proper role is limited to carefully defined and constitutionally legitimate problems beyond the reach of the individual states. While some have confused federalism with "states rights," essentially, a second underlying principle associated with a federal form of government is that states have powers, rather than rights. This principle was clearly conveyed by the Framers in the Ninth and Tenth amendments as evidenced within the following:

Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

As the U.S. And the issues confronting the country and her citizens have grown increasingly complex, efforts to apply the principle of federalism have been challenged. In spite of these challenges, on the basis of the Constitution, adherence to federalism is clearly expected with ongoing efforts to respect and maintain the delineation between state and federal powers an ever present demand.

In a keynote address at the James Madison Day Convocation in 2001, the central event of a weeklong James Madison University 250th anniversary celebration of James Madison's birth on March 16, 1751, Supreme Court Justice Clarence Thomas called attention to the importance of the universal principles established within the Constitution, of which federalism was one. Justice Thomas explained that the Framer's recognized "that men by nature become tyrannical, so government must be limited" and that via federalism, the Framer's had insured that the United States "to enjoy unprecedented political stability and economic and social prosperity for more than two centuries."

As further explained by Justice Thomas, Madison and the other framers made a significant advance in politics and political theory - "an advance that allowed them to create a government strong enough to defend itself and the liberties of its people, but limited enough that it would itself not become the destroyer of those self-same liberties."

Federalism, according to Thomas, represents a major safeguard of liberty, acting as a check on national government while protecting the powers given to the states.

Justice Thomas clarified that federalism "didn't just de-centralize decision making or diffuse power....it created independent sovereigns that can't be commandeered or taxed by another and creates organizations of resistance against unjust use of [national] power."

Factors Influencing Federalism

In reviewing the literature of relevance to federalism and its recent resurgence, a number of factors have been documented as influencing current thought and efforts to re-affirm the importance of a federal form of government. Each of these factors will be reviewed.

The Presidency of Bill Clinton

President Bill Clinton's presence in American politics during the 1990s played a major role in influencing current federalism history. Bill Clinton, who was elected president in 1992, had been a leader in the National Governors' Association and a believer in state innovation and experimentation at the time he was governor in Arkansas. Similar to other state elected officials during the 1980s and 1990s, Clinton was very much against any suggestion that federal-one-size-fits-all solutions could be applied to the problems faced by the states. He was strongly against unfunded federal mandates and cost shifts from federal to state governments.

During the first months of his presidency, Clinton made an effort to meet frequently with and listen to the pleas of state officials about restoring balance in the federal system. In response to the issues raised by state legislators and governors, Clinton issued an executive order that told federal agencies to stop imposing unfunded mandates on state and local governments in October 1993. This effort by Clinton represented one of several steps implemented during the 1990s that helped to free states to design their own solutions to challenges presented by federal policy.

Unfunded Mandates Reform Act of 1995

Consideration to the effect of the Unfunded Mandates Reform Act of 1995 ("the UMRA" or "the Act") on the enactment and implementation of modern administrative statutes as related to current influences on federalism today appears to be important. In order to effectively examine the influence of the Reform Act on federalism, one must first consider the lawmaking power given to Congress, the principle of enumerated powers, and the principles associated with state sovereignty. At the time the Framers developed the Constitution, one principle utilized was that the lawmaking power would be assigned to Congress exclusively. While this principle has been largely ignored, it represents an important foundational principle that may partly explain the different levels of effectiveness that have been achieved by Title I of the Act, which is applicable to Congress, and Title II, which is applicable to executive agencies.

Enumerated powers represents another important principle when considering the effect of the Reform Act. While the principle was largely disregarded for the better part of the 20th century, it has regained renewed interest since the Supreme Court's decision in United States v. Lopez, which was rendered shortly after Congress enacted the UMRA. Thus assessment of the UMRA's influence on federalism should be conducted with recognition given to the renewed interest in enumerated powers.

While much of the debate associated with the UMA has focused on the need to protect state and local governments from an overreaching federal government, little attention has been paid to one of the Founders' key purposes for keeping States as separate sovereign entities in the constitutional system. When the Framers envisioned the federal structure of the government, they were committed to the maintenance of state governments as separate sovereign entities and not just federal administrative units for the purposes of protecting private liberty and not simply to protect the States qua

States.

The federal structure accomplished this, in part, by insuring accountability in government, as Justice Scalia noted in his opinion for the Court in Printz v.

United States.

At the time Congress implemented the Contract with America, the above principles were those that guided their efforts.

The overall influence of the Unfunded Mandates Reform Act of 1995 on federalism is found in its effect in imposing some much-needed discipline on Congress, even though the exemptions included within the original Act prevented it from achieving the kind of massive reforms it was intended to have. Title II of the Act, which applies to the mandates of federal agencies, has not been as effective and failed to insure that regulatory agencies used assessment of pending regulations by a neutral agency in order to eliminate self-serving assessments. In spite of these shortcomings, the Reform Act represents a major effort to insure that the principles of federalism are adhered to.

Newt Gingrich and the Contract with America

The enactment of the UMFA was brought about and represented a component of the Republican's control of the Congress in 1994. Congressman Newt Gingrich and other Republican strategists initiated a national campaign around that which was known as the Contract with America, that promised to end federal unfunded mandates and to transfer power to state governments. The combination of a Republican congressional majority committed to returning powers back to the state as well as the efforts of President Clinton aided in dramatically shifting responsibilities to state governments. As well, the lobbying clout of the National Conference of State Legislatures and other state and local groups strengthened these efforts by advocating for a series of new laws that were passed and relevant to state sovereignty.

In addition to the Unfunded Mandate Reform Act, efforts to return power to the states included passage of other legislation, including the welfare reform act, a major revision of the safe drinking water act, surface transportation legislation, a new children's health law, changes to Medicaid and protection of tobacco settlement funds. Furthermore, state legislatures were granted greater responsibility in their ability to appropriate federal block money in several of the 1990s laws, assuring their growing prominence in devolution.

The States

During the last decade, there is growing evidence of increasing backlash by the States against federal overreaching and interference in local affairs. Eight states (Arizona, California, Colorado, Hawaii, Illinois, Missouri, Oklahoma and Pennsylvania) passed resolutions in 1994 that asserted state sovereignty under the Tenth Amendment and called on the federal government to "cease and desist" from actions that exceed the constitutional delegation of powers from the states. Seven states (Alabama, South Dakota, Arizona, California, Delaware, Michigan and Pennsylvania) have passed legislation requesting that the state's federal delegation appear before the state legislature to discuss unfunded mandates and other federally imposed requirements.

Four states (Arizona, California, Florida and Texas) have filed suit against the federal government to recoup costs incurred due to the presence of illegal immigrants. As the federal government has a constitutional responsibility to control the border, it was reasoned that the federal government's failure should not burden the state's taxpayers.

The Supreme Court

As has been suggested by some, federalism of state sovereignty and enumerated, limited national powers depends on judicially enforced limitations on the national government's power. In a review of the Supreme Court's term during 1999-2000, it would appear that those justices of a moderate-conservative political frame had provided votes for federalism and appeared to some as having understood their major role in helping to restore federalism. The Supreme Court has been described as following a trend in which the term of the Court focused primarily on the structural principles of the Constitution that began in 1995 in which there was an ongoing effort by the justices to restore the allocation of power among the branches of the government. Through the rulings of the Court, greater clarity was given to questions surrounding federalism as the Court worked to establish a foundation upon which federalist principles prohibiting national constituencies.

A number of landmark cases have been identified that offer evidence of the Courts efforts to restore federalism. United States v. Morrison has been identified as one of the most significant rulings favoring federalism during the 1999 term. Chief Justice Rehnquist and Justices Kennedy, O'Connor, Scalia, and Thomas, in their ruling on this case, annulled the civil remedies provision of the 1994 Violence against Women Act, which authorized victims of gender-motivated violence to sue their aggressors for damages in federal court. As ruled by the Justices, in a 5-4 opinion delivered by Chief Justice Rehnquist, the Court held that Congress lacked the authority to enact a statute under the Commerce Clause or the Fourteenth Amendment since the statute did not regulate an activity that substantially affected interstate commerce nor did it redress harm caused by the state. Chief Justice Rehnquist wrote for the Court that if the allegations made by Brzonkala were true, justice and remedy were surely deserved; however, as clarified by the Court, under the federal system, that remedy must be provided by the state of Virginia rather than a U.S. federal court. The ruling of the Court firmly established that the Fourteenth Amendment requires only state action while limiting the powers of Congress to reach into the lives of private citizens.

Another major Supreme Court decision in favor of federalism was made in 1995 in the Court's ruling on United States v. Lopez.

The Supreme Court's ruling invalidated the federal Gun Free School Zones Act, prohibiting the possession of guns in and around school grounds, as beyond the reach of Congress's authority to regulate interstate commerce. Lopez was the first case in almost six decades in which the Court struck down a federal law on those grounds. Chief Justice Rehnquist began the majority Lopez opinion by emphasizing that protection of our fundamental liberties demands a limited federal government with clearly enumerated powers. The Supreme Court's commitment to limited government has been, Rehnquist argued, a hallmark of its Commerce Clause jurisprudence. Rehnquist continued by rejecting the Government's arguments that the costs of violent crime in our nation's schools are paid nationally, not locally, and that violence in school undermines the educational system in such a way as to create less productive citizens and a crippled economy. According to Rehnquist, an extension of the Commerce Clause power to cover activities with such an attenuated connection to interstate commerce would allow for no rational limits to Congressional regulatory authority. As emphasized by Rehnquist, if Congress is left free to regulate gun possession near schools - something which is "in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce" - it could conceivably control almost any area of the law for which the States have traditionally taken responsibility, including education or even family law. To find the possession of guns near schools a commercial activity subject to Congressional regulation would, according to the majority, require the piling of "inference upon inference" and would open the door to a "general police power."

Justices O'Connor and Kennedy placed even greater emphasis on the Court's obligation to protect our federal system. Kennedy argued that federalism - the revolutionary idea that two governments can protect liberty better than one - was in many ways the Framers' most unique insight. Justice Kennedy also emphasized that the federal system could only work when two types of political accountability were required: between citizens and the federal government and between citizens and state government. Justice Kennedy continued that for both governments to be held appropriately accountable, it was critical that citizens could easily identify each government's sphere of responsibility, with a clarity of roles existing for each; however, such clarity is lost when the federal government substantially invades areas of the law traditionally left to the States. It was Kennedy's opinion that federal invasion was evident in Lopez, as the States had long governed the educational system and been held responsible for its effectiveness. For Justice Kennedy, the possession of a gun near school is not only beyond commerce "in the ordinary and usual sense of that term," it is, perhaps more importantly, an activity that has been and should be regulated by the States.

It has been suggested that the Supreme Court has historically pursued an agenda based on federalism with an awareness of the realities of political acceptability. On the basis of this recognition, it is understood that the Court cannot afford to enforce federalism against the political interests of the dominant group. Thus, in accordance with this recognition, reportedly the Court has operated in such a way as to only enforce federalism when resistance was least expected and unlikely to instigate efforts by Congress to develop law in such a way as to bypass impediments that might emerge from the Constitution. However, during the 1999 term of the Court, evidence would suggest that the Court acted with a judicial resolve to enforce and assert federalism regardless of powerful nationalist interests.

Justice Thomas recently explained that the Court's current federalism jurisprudence represents a reaffirmation of the federalist belief that local or state government is more responsive because it is closer to the people. On the basis of the opinion of Justice Thomas, the existence of numerous states, each making certain decisions concerning the allocation of resources and the balance between public power and private rights creates a beneficial marketplace of policies deserving judiciary support and protection.

As emphasized by Justice Thomas, the jurisprudence of federalism is reflected in court rulings because:

The Supreme Court answers cases. We don't respond on broad principles. All of these mechanisms protect liberties and a private ordering of life. Some see all these constitutional checks and balances as bothersome or cumbersome or inconvenient impediments to majority rule. Every age has its important policies that some people believe must be enacted at any cost to the constitutional structure. Far from being a vise, though, these checks and balances - the double security, as Madison called them, double security for our liberties - are the genius of our system of government. And, I might add, the genius of James Madison. For what is an impediment to the majority will is equally an impediment to governmental tyranny. For our liberties, designed by our James Madison and the other founders, should be in working order so that, in the words of Abraham Lincoln, 'government of the people, by the people and for the people shall not perish from the face of this Earth."