The Main Characteristics of US federalism
Learning objectives on this page
The nature of the federal system of government
How the Constitution creates Federalism
How has Federalism been able to change?
The evolution of federalism
The consequences of federalism
How federal is the USA today?
Federalism under GW Bush
Federalism under Barack Obama
Federalism under Trump
Moore v Harper 2022
The nature of the federal system of government
These two essential characteristics of federalism show you why the UK's devolved system is not federal.
· Federalism is entrenched- which means the power of regional governments or states is protected by the Constitution. This means that the federal government is unable to reduce the power of the states without their consent. Unlike in the UK. There is shared sovereignty between the federal government and the states. In the UK Parliament remains sovereign. The amendment process prevents any change to state power without the consent of two-thirds of states.
· Regional powers are equal. All states are given the same level of power. This means that, for example, either all states can set their own tax rates or none of them can, or all states will determine electoral rules or none of them will. States are free to make their own decisions about how they apply their powers , but states have equal powers. In the UK there is asymmetric devolution meaning the devolved governments have different powers.
How the Constitution creates Federalism
The Constitution provides limitations on Congress, allowing freedom for state power. The interstate commerce clause implies that states are free to regulate their own internal business policy. In addition, constitutional amendments such as the 2nd amendment (the right to bear arms) can prevent the federal government from imposing gun regulations on the states.
In US v Lopez 1995, the federally imposed Gun Free School Zones Act of 1990 was successfully halted by states that objected to its imposition. The court ruled that the commerce clause did not allow Congress to ban possession of a gun near a school because gun possession by itself is not an economic activity that affects interstate commerce. This was the first time since Roosevelt's presidency that the Supreme Court found in favour of state rights under the commerce clause.
The 10th amendment
The 10th amendment states that any powers not reserved for the federal government should be Considered a state power. This implies that Congress only has those powers that the Constitution awards it; all other powers belong to the states. States have successfully taken a number of cases to the Supreme Court allowing them to overturn federally imposed policy. In Printz v United States 1997 the Supreme Court overturned the Brady Act requirement that state officials must perform background checks on those wishing to purchase a gun. The 10th amendment meant that this was a state, not federal, policy.
Case study:
The conflict over transgender bathroom laws shows a division between liberal (typically Democrat) and conservative (typically Republican) views on federalism. North Carolina restricted transgender individuals from using bathrooms of their adopted gender, and New York State took the opposite approach, providing legal protections. At the start of 2017, 14 states had restrictive laws while many others were in the process of passing such laws. This can be seen as federalism in action with a diversity of state laws. When in office, President Obama had attempted to place restrictions on states by threatening to withhold federal education funding if discriminatory practice was present. On the other hand, President Trump lifted all attempts at federal regulations on this issue. He argued that he was not opposed to transgender rights, but that this was a states' rights issue.
Liberals criticise the states' rights argument as an excuse to restrict civil rights. Typically they have been supportive of greater centralisation of state power. Many central government controls have had liberal goals, which have typically promoted the interests of poorer sections of society, racial minorities or individual liberty. They claim that this does not destroy the concept of federalism as states are still free to pursue a huge range of policies for themselves.
Conservatives have tended to resist such programmes, claiming that they restrict federalism. On moral issues such as abortion, gun control or gay rights, conservatives will typically oppose federal standards, arguing that it should be a state's responsibility to choose. Conservatives often criticise such interventions as a limit to states' rights. The conservative case argues that the intent of the Founding Fathers and the fundamental meaning of the Constitution are being ignored.
The amendment process protects state power because it is impossible to reduce the power of states without their consent. States can also block amendments they are ideologically opposed to. Any proposed amendment to the Constitution requires three-quarters of states to agree. The failure to remove the electoral college through constitutional amendment shows how smaller states can protect their political influence. This is the main reason why amendments relating to the electoral college system are unlikely to be passed. The current voting system over-represents smaller states such as Wyoming and Alaska, which will not vote to amend the Constitution on reform of the Electoral College
The Constitution is supposed to provide the US with a dividing line, explaining what is federal power and what is state power, but in reality the division is unclear. The relationship remains very fluid. This has been a major factor in allowing the power of the states to change hugely since the Constitution began.
How has Federalism been able to change?
Key constitutional amendments have contributed to an erosion of state power. The 14th amendment applies the standards of the Bill of Rights to the states — previously it only restricted the federal government. The 16th amendment allowed the expansion of federal power through its right to impose federal income tax. There have also been several areas where the power of the states has been eroded.
The erosion of state power
Federal mandates
Federal mandates are federal laws, in the forms of Acts of Congress, which impose national standards on the states. These laws limit state power because all states are required to comply. There has been an increasing number of federal mandates since President Roosevelt's New Deal in the 19305. Not only do federal mandates create policy restrictions on the states, they can also limit states financially. In some cases states are required to pay for the policy imposed upon them, taking up valuable resources that could have been spent elsewhere.
The Affordable Care Act 2010, President Obama's flagship policy requiring everyone to have health insurance, limits state choice in health care. All states are required to set up health exchanges (or allow citizens to use the federal health exchange) in which they can purchase health insurance.
Fiscal power of the federal government
With the creation of the 16th amendment allowing federal income tax and the expansion of the role of the federal government, states become increasingly reliant on the federal government for funding.
Central government provides states with approximately a quarter of their total expenditure in the form of federal grants, sometimes referred to as federal aid. In itself, this is not necessarily a restriction on state power, as states may simply be receiving more financial benefits. The restrictions mainly come from the conditions imposed upon such federal funding of the states.
If states are to maintain access to this huge financial resource they often have to adhere to policy requirements imposed by the federal government.
Interstate commerce clause
Article I, section 8 gives power to the federal government to regulate commerce with foreign governments and between the states. So what is covered by interstate commerce (in other words, the buying and selling of goods across state borders)? Would this allow Congress to regulate home' grown marijuana (which, for example, is allowed in California for medical purposes) or the sale this practice. of marijuana for medical purposes? Can it be used to allow the federal government to force motels to accept guests from all racial groups? The answers to these questions is yes, yes and yes.
This clause has been used to justify a huge range of federal laws that go beyond the intentions of the Founding Fathers. This includes many areas that arguably exceed the basic idea of commerce
The Evolution of Federalism
Federalism is not a fixed concept. It is ever changing. As America has changed, so has the concept of federalism. During the latter part of the nineteenth century and the first two-thirds of the twentieth century, a number of factors led to an increased role for the federal government.
The Supreme Court has played a crucial role in sanctioning the expansion of the federal government's power, albeit at times reluctantly. A significant decision came as early as 1819 in McCulloch v Maryland, when the court ruled that the 'necessary and proper' clause (although it was not referred to as such) implied the granting to Congress of such powers as were necessary to implement the powers that were explicitly granted. In the particular case, the constitution did not give Congress the power to establish a bank, but the court decided that a bank is an appropriate means of facilitating Congress's power of taxation and spending and, further, that the 'supremacy clause' of Article 6 means that no state has the right to interfere with its operation.
In the twentieth century, the court initially resisted the expansion of congressional power through the New Deal and, in a series of cases, struck down programmes such as the Agriculture Adjustment Act in United States v Butler (1936). However, it eventually gave way in a further series of cases, beginning with West Coast Hotel v Parrish, decided in 1937. Having conceded the right of Congress to manage the national economy and to impose such measures as it saw fit on the states, the court then took the lead itself after the Second World War in limiting the right of the states to regulate the civil liberties of their own citizens, most famously in Brown v Board of Education of Topeka (1954).
In the mid 20th century confidence in the ability of government to tackle economics and social problems grew. FDRs New Deal programmes of the 1930s, and the 'war on poverty' and the Great Society programme of the mid-1960s, saw a further expansion of the reach of the federal government. State governments, particularly in the South had become associated with backwardness and racism, and the federal government now represented a positive force, ensuring all citizens had acceptable standards of basic rights and services.
However, this perception quickly changed. From the late 1960s onwards many, especially on the right, came to believe that the expansion of the federal role had gone too far. It had shown itself unable to deal with, or was even part responsible for, the social problems of the late 1960s. Increasing drug use and crime, changing sexual morals, and often violent student and racial unrest, meant for many Americans that society seemed on the point of collapse. 'States' rights' became a conservative cause; the federal government had become too powerful and intrusive, presided over by an out-of-touch and profligate Congress, its programmes implemented by an unwieldy and inefficient bureaucracy, imposing its liberal agenda on the rest of the nation. Suspicion of the malign intent of the federal government became ubiquitous in popular culture, and was still evident in later decades in television programmes such as the X Files. It manifested itself much more seriously in the bombing of the Alfred P. Murrah Federal Building in Oklahoma City in 1995 by Timothy McVeigh and his associates, which left 168 people dead. McVeigh was motivated by hatred of the federal government, particularly its role in the ending of the Waco siege in 1993
Phases of federalism
These changes in the federal-state relationship are distinguished by different phases through which this relationship has passed: dual federalism, cooperative federalism and new federalism.
'Dual federalism' is the term associated with approximately the first 150 years of the nation's history — from the 1780s to the 1920s. During this era, the state governments exercised most political power. The states deal with most aspects of domestic policy, including education and economic policy (the original Constitution did not grant the federal government the right to levy income tax). Other than a few domestic essentials such as coining money, the federal government was limited to a foreign policy and ,security role The role of the federal government was limited mainly to matters concerning money, war and peace. In President Washington's day, there were only three federal executive departments — the Department of the Treasury, the Department of War and the Department of State. The relatively minor role played by the federal government can best be seen by listing some of the little-known presidents of this era: James Polk, Millard Fillmore, Ulysses Grant and Chester Arthur. The federal and state governments each guarded their own powers jealously. Morton Grodzins (1966) called this 'layer-cake' -federalism, in which the federal and state governments had distinct areas of responsibility.
The term 'cooperative federalism' is used to refer to an era, from the 1930s to the 1960s, in which the federal and state governments cooperated to solve the problems facing US society — such as those relating to poverty, health, education, transport and national security. This era coincides with the administrations of four Democrat presidents — Franklin Roosevelt, Harry Truman, John Kennedy and Lyndon Johnson. It was during this era that the role of the federal government increased significantly. New federal executive departments were created to cope with new policy areas: Defence (1949); Health, Education and Welfare (1953); Housing and Urban Development (1965); and Transportation (1966). The federal government administered categorical grants — schemes by which it was able to stipulate how federal tax dollars were used by the states. By the Clinton era, the federal government was giving over $200 billion to the states, over 90% of which went in the form of categorical grants. So by now the federal government was involved in a number of policy areas where previously only the state governments had operated — such as education, transport and welfare. The two levels of Grodzins' cake had become mixed in what he would now describe as 'marble-cake' federalism.
During the final three decades of the twentieth century, however, there was a discernible movement towards decentralisation — what President Nixon called 'new federalism'. This era saw the rise of block grants — money given to states by the federal government to be used at their discretion within broad policy areas. This change in the federal-state relationship coincides with the administrations of four Republican presidents: Richard Nixon, Gerald Ford, Ronald Reagan and George Bush. Ronald Reagan, speaking in his first Inaugural Address in January 1981, had this to say:
It is my intention to curb the size and influence of the Federal establishment and to demand recognition of the distinction between the powers granted to the Federal Government and those reserved to the States or to the people. All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government.
Even Democrat President Bill Clinton recognised that Americans' view of the federal-state relationship had changed, when he stated in his 1996 State of the Union Address: 'The era of big government is over.'
There are a number of reasons for the shift back towards state government power.
- First, a perception had grown that the great federal government programmes of FDR's 'New Deal' or Johnson's 'Great Society' had not been as successful as first thought. Too much money had been wasted on bureaucracy
Second, there was a belief that the federal government had simply failed to tackle some pressing social problems, such as gun crime, drugs, abortion, welfare and poverty. As a result, scepticism about the federal government's effectiveness had developed.
- Third, there was a growing distrust of 'Washington politicians'. The Watergate affair and the debacle in Vietnam both lowered trust in the federal government. Between 1976 and 2000, America elected five presidents — four were former state governors, while only one, George Bush (1988), was a Washington politician. The unsuccessful movement to impose term limits on members of Congress, which became very vocal in the early 1990s, was a manifestation of this distrust of Washington politics.
- Fourth, decisions by the mainly Republican-appointed Supreme Court began to limit the scope of federal government power. New federalism' was strongly associated with the Republican Party.
Finally, the frequent election of Republican presidents during this era, the election of a Republican-controlled Congress in 1994 and the election of Republican state governors allowed the party to put its policies into effect.
Consequences of federalism
Federalism has consequences throughout US government and politics.
- Legal consequences. There is tremendous variety in state laws on such matters as the age at which people can marry, drive a car or have to attend school. Laws vary on drugs and whether the death penalty is used. Oregon allows doctor-assisted suicide. There are both federal and state courts.
Federalism and Marijuana
Political consequences. All elections in the United States are state-based and run under state law. Even the presidential election is really 50 separate state-based elections with the outcome decided by a state-based Electoral College. Each state decides such matters as: how candidates will be chosen for elections in their state; the procedures for getting a candidate's name on the ballot paper; what mechanisms are used in polling stations — punch cards or touch-screen computers. Arizona has experimented with on-line voting and Montana with an entirely postal ballot.
It is important to realise that political parties in America are essentially decentralised, state-based parties. Texas Democrats are more conservative than
Massachusetts Democrats; Vermont Republicans more liberal than South Carolina Republicans. One can see the effects of federalism in the United States Congress with its state-based representation.
- Economic consequences. These are seen not only in the huge federal grants going to the states, but also in the complexity of the tax system in America. Income tax is levied by both the federal government and some state governments, different property taxes are levied by the state governments, and sales taxes vary between cities.
- Regionalism. The regions of the South, the Midwest, the Northeast and the West have distinct cultures and accents, as well as racial, religious and ideological differences. There is a distinct difference between the conservatism of the Deep South and the liberalism of the Northeast. What plays well in 'the Bible Belt' may not be popular in 'New England'.
When all is said and done, federalism has proved to be an appropriate system of government for the United States. It has adapted itself to the ever-changing nation. Despite its frustrations, there are few who question its future. Some Americans may think the federal-state relationship has at times got out of kilter, but most believe that its strengths far outweigh its weaknesses.
Federalism: pros and cons
Pros
permits diversity
creates more access points in government ,
better protection of individual rights
states become 'policy laboratories', experimenting with new solutions to old problems well suited to a geographically large nation
Cons
can mask economic and racial inequalities
frustrates the 'national making solving problems more complex
the federal-state government relationship is a continual source of conflict and controversy overly bureaucratic — therefore costly to run and resistant to change
- How federal is the USA today?
Can the states protect their powers from an increasingly powerful federal government. For federalism to still exist, it must be clear that states are making a significant amount of laws/polices for themselves and that their powers are protected by the Constitution and the Supreme Court.
States have a great deal of control over health, education, law and order and even economic policy. For example, states set their own sales tax, with some states like Montana having no sales tax and California having the highest rate at 7.5 per cent. Further differences can be seen in the case
For some commentators the power of states has been eroded so much that the US cannot be considered to be a true federal system. This argument is based on the idea that constitutional protections of state power are largely meaningless, with the federal government able to take control in virtually any policy area, with limited likelihood that they will be blocked. The federal government has taken more control by imposing national policies on all states, with laws such as the Clean Air Act 1970 and the Affordable Care Act 2010 which requires all states to set up health exchanges to ensure thateveryone has insurance.
For others, federalism is alive and kicking, with states that have huge policy control, which is well protected by the Constitution. For example, states have different laws on marijuana. In 2016 California, Nevada and Massachusetts joined a growing list of states that have legalised personal use of marijuana. Other states, including Florida and Georgia, only permit its use if prescribed by a doctor, whereas in Idaho, marijuana is not legally permitted for any use at all, with fines of up to $1,000 or one year in prison.
The development of 'rainbow federalism' in recent years has seen a huge range of state initiatives, leading to the development of a diversity of state-based policies.
Federalism under George W. Bush (2001–09)
The 'Big Government Conservative'
It would have been reasonable to presume that as a Republican president he would continue with New Federalism and be in favour of shrinking the size of the federal government and of decentralisation. But one of the most unexpected aspects of f George W. Bush was that he presided over the largest overall increase in inflation-adjusted federal government spending since Lyndon Johnson’s Great Society programme of the mid-1960s. Total federal government spending grew by 33% during Bush’s first term (2001–05). The federal budget as a share of the economy grew from 18.4% of gross domestic product (GDP) in 2000, Clinton’s last full year in office, to 20.5% in 2008 — Bush’s last full year in office.
George W Bush
The No Child Left Behind Act,2002, was the most sweeping change in federal education policy since the 1960s. In what was a major expansion of the federal government’s role in education.
Four policy areas accounted for this expansion of the federal government under George W. Bush — education, Medicare, homeland security , and the consequences of the Wall Street and banking collapse of 2008.
Education
The No Child Left Behind Act. The new law mandated that the states test children annually in grades 4 to 8 (equivalent to Years 3 to 7 in the UK) using, in part, a uniform national test. It required that children in failing schools be moved to successful ones and provided for a 20% increase in funding for the poorest, inner city schools. It tripled the amount of federal funding for scientifically based reading programmes.
Although there remained significant questions as to the effectiveness of No Child Left Behind, but it signalled a whole new approach to federal–state relations and it was not what might have been expected from a Republican president.
.Medicare
.Medicare is a national health insurance program in the United States, begun in 1966 It primarily provides health insurance for Americans aged 65 and older, but also for some younger people with disability status the Medicare Modernization Act or MMA, is a federal law of the United States, enacted in 2003. It produced the largest overhaul of Medicare in the public health program's 38-year history. It included a new prescription drug benefit. The measure was estimated to cost $400 billion in its first ten years and was written to benefit American seniors. Again this was highly unexpected from a Republican president.
Homeland security and defence
As a result of the events of 11 September 2001, and the subsequent military operations in both Afghanistan and Iraq, as well as the ‘war on terror’ and the push to increase homeland security significantly. Defence spending rose during the George W. Bush years from 15% of the federal budget to 21%. Between 2001 and 2009, spending by the Department of Defence increased from $290 million to $651 million, an increase of 125%. Between 2001 and 2006, spending on homeland security increased from just $13 million to $69 million — more than a five-fold increase in five years. .
Economy and jobs
In September 2008 President Bush authorised the takeover of two privately owned but government-sponsored mortgage companies — the Federal National Mortgage Association, known as Fannie Mae, and the Federal Home Loan Mortgage Corporation, known as Freddie Mac. These two companies owned or guaranteed about half of the $12 trillion US mortgage market and had suffered huge losses with the collapse of the housing market. This was followed by the Bush administration’s sponsorship of a $700 billion so-called ‘bail-out’ package for Wall Street to alleviate the effects of the credit crunch. Again, this looked more like the policies of a New Deal Democrat than of a conservative Republican. The package was passed through Congress by mostly Democrat votes.
Federalism under Barack Obama (2009–17)
Obama's ‘change’ agenda was primarily domestic and had at its heart health reform and economic recovery. Domestic policy is usually the domain of the states. The federal–state relationship changed. By 2012 the ratio of state and local government employees to federal employees was the highest since before President Roosevelt’s New Deal in the 1930s. Federal government assistance to the states increased from 3.7% of gross domestic product (GDP) in the last year of the Bush administration (2008) to 4.6% of GDP in the first year of the Obama administration (2009).
Similarly, money from the federal government, which accounted for 25% of state government spending in 2008, accounted for 30% of such spending in 2009. Whereas under Bush’s economic stimulus package (2003) just $20 billion went to the states, under Obama’s stimulus package (2009) $246 billion went to or through the state governments. This significant increase in federal money going to the states between 2005 and 2010, came partly as a result of such programmes as: the re-authorisation of the State Children’s Health Insurance (S-CHIP) programme in 2009; the expansion of Medicaid (a health insurance programme for the poor); and over $4 billion invested in the Race to the Top programme to boost education in the states, as well as programmes like the Pell Grants for university education.
Obamacare
The Affordable Healthcare Act (Obamacare) was seen by some Republicans and the Tea Party movement as more of a socialist than a federalist. A number of states sued, arguing that this was a violation of the principles of federalism and was therefore unconstitutional. Their contention was that this provision in the law amounted to coercion rather than persuasion. In National Federation of Independent Business v Sebelius (2012), struck down some parts of the Act. Although most of the Affordable Care Act was allowed to stand by the decision.
The Trump presidency has made major cuts to federal regulations, notably in environmental areas, meaning that states no longer have to comply to the same standards on carbon emissions, preventing coal mining waste being dumped in rivers or complying with fuel efficiency standards for cars. All of this can be seen as returning power to states. On the other hand, the major cuts in environmental funding under Trump have left many states unsure whether they still have to comply with federal environmental regulations (or wanting to maintain high environmental standards, but being unable to do so due to a lack of financial resources). Trump has proposed cutting the Environmental Protection Agency budget by a third. To make things even more complicated, many states are now more directly involved in trying to meet international climate change targets, albeit on a voluntary level. When Trump withdrew the USA from the Paris climate change agreement in June 2017, many US cities and states committed to continuing to honour the goals of the agreement. It thus appears that the level of state power can be positively or negatively affected when the federal government reduces its role.
Trump's responses to the pandemic showed an inconsistent attitude to federalism. At times he denied that public health was his responsibility and at other time he clamed responsibility to the vaccine programme. He criticised states for locking down and said he would favour Republican states.
'Trump made clear that he would dole out federal largesse according to political loyalty, even preventing Colorado’s Democratic-led government from purchasing ventilators on the open market and later sending a hundred units “at the request” of the state’s Republican senator, who is facing a tough re-election battle. The message is clear: Democratic governors need to help themselves, because Trump sure won’t. And Republican governors need to stick close to a president who sees himself as his party’s feudal patron rather than the leader of the entire nation'. The Guardian
Trump’s attitude to federalism is contradictory. He often refers to the need for powers to be returned to the states. However, he also challenges states and cities who will not follow his policies. For example, he has threatened to withdraw federal government funding from ‘sanctuary cities’ (cities that do not cooperate with the federal government in enforcing immigration laws).
As COVID-19 spread to the USA in January 2020, the federal government was accused of doing little and Trump in particular was seen as not taking the threat seriously. He appears to have expected the states to lead in dealing with the pandemic, not the federal government. It is at this point that the federal nature of the USA can clearly be seen. With the federal government doing little, state governors had to take responsibility for dealing with the crisis. For example, Andrew Cuomo, governor of the worst affected state, New York, had a lockdown in place by mid-March. One of the main features of US politics in late March was the ongoing media battle between Governor Cuomo and President Trump.
By the end of March, 32 out of 50 states had lockdowns in place. This was based on guidelines from the federal government, but the decision to go into lockdown lay with the states. Furthermore, the exact nature of each lockdown varied significantly from state to state. It is important to stress that there has been no national or federal lockdown.
However, many Republicans saw these lockdowns as economically damaging (and also damaging to Trump’s re-election chances). Trump implied he was ready to seize more power for the federal government in order to end the lockdowns. In April he tweeted ‘some … are saying that it is the Governors decision to open up the states, not that of the President of the United States & the Federal Government. Let it be fully understood that this is incorrect.’ This shows Trump attempting to take power for the federal government at the expense of the states.
Constitutionally, this assertion of Trump’s power is controversial. The powers delegated to the federal government in the Constitution are limited and all other powers are reserved to the states. Therefore, the decision to reopen businesses or schools within a state is a decision for that state. Also, the president lacks the policing powers needed to enforce a decision within the states — law enforcement is controlled by the states themselves.
This explains why Trump also said in relation to the lockdown that ‘the Administration and I are working closely with the Governors … this will continue’. He added ‘a decision by me, in conjunction with the Governors… will be made’. He also said: ‘If I disagreed, I would overrule a governor, and I have that right to do it. But I’d rather have them … make their decisions.’ This suggested a much more cooperative federal government–state relationship. However, it is questionable as to whether the president does actually have the power to overturn a decision made by a governor on a matter of state policy.
Despite this, there are some areas where the federal government does possess authority. It regulates those who comes into the country and so can impose travel restrictions. The ‘inter-state commerce clause’ in Article I of the Constitution also allows the federal government to regulate movement between states. In addition, the federal government has significant financial power. Trump used federal government funds to purchase ventilators that were actually intended for the state of Colorado (which has a Democrat governor).
Trump has displayed an aggressive tone towards states in his tweets. For example, he told governors to ‘get your states testing programs … perfected. No excuses!’ At the end of April, Trump seemed determined to create conflict between himself and some Democratic Party state governors. He even went as far as calling on supporters, via Twitter, to ‘liberate’ certain states where lockdowns were still in place.
The issue of face masks also demonstrates the nature of federalism. As of 24 June, 16 states plus Washington DC had made it compulsory to wear face masks in public. While not all of these are Democrat-run states, the majority of them are. The vast majority of Republican-run states have chosen not to make wearing masks mandatory. Trump's Backward Federalism
Trump and Black Lives Matter
President Donald Trump set a "a surge" of federal security forces to US cities in a crackdown on crime in response to riots after the murder of George Floyd. Earlier Chicago and two other Democratic-run cities were targeted, amid a spike in violence.
But federal deployments in Portland, Oregon, amid ongoing unrest have been controversial. The city's mayor was among those tear-gassed at a protest. Law and order has become a key plank of Mr Trump's re-election bid in November.
Since the death on 25 May of an unarmed black man, George Floyd, in police custody in Minneapolis, Minnesota, there have been protests - sometimes descending into civil disorder - in scores of US cities. In Portland, which has seen more than 50 days of demonstrations, Mayor Ted Wheeler was tear-gassed by federal agents while attending the city's protest.
Donald Trump, federalism and the coronavirus crisis
Trump’s attitude to federalism is contradictory. He often refers to the need for powers to be returned to the states. However, he also challenges states and cities who will not follow his policies. For example, he has threatened to withdraw federal government funding from ‘sanctuary cities’ (cities that do not cooperate with the federal government in enforcing immigration laws).
However, managing a global pandemic is very different. In most countries around the world, the national government makes the decisions over lockdowns, quarantines, testing etc. However, in the USA there is a huge disparity in how each state has managed the pandemic. Even within states, counties have managed the crisis differently. There has been little consistency, making this is a good example of federalism in action.
As COVID-19 spread to the USA in January 2020, the federal government was accused of doing little and Trump in particular was seen as not taking the threat seriously. He appears to have expected the states to lead in dealing with the pandemic, not the federal government. It is at this point that the federal nature of the USA can clearly be seen. With the federal government doing little, state governors had to take responsibility for dealing with the crisis. For example, Andrew Cuomo, governor of the worst affected state, New York, had a lockdown in place by mid-March. One of the main features of US politics in late March was the ongoing media battle between Governor Cuomo and President Trump.
By the end of March, 32 out of 50 states had lockdowns in place. This was based on guidelines from the federal government, but the decision to go into lockdown lay with the states. Furthermore, the exact nature of each lockdown varied significantly from state to state. It is important to stress that there has been no national or federal lockdown.
However, many Republicans saw these lockdowns as economically damaging (and also damaging to Trump’s re-election chances). Trump implied he was ready to seize more power for the federal government in order to end the lockdowns. In April he tweeted ‘some … are saying that it is the Governors decision to open up the states, not that of the President of the United States & the Federal Government. Let it be fully understood that this is incorrect.’ This shows Trump attempting to take power for the federal government at the expense of the states.
Constitutionally, this assertion of Trump’s power is controversial. The powers delegated to the federal government in the Constitution are limited and all other powers are reserved to the states. Therefore, the decision to reopen businesses or schools within a state is a decision for that state. Also, the president lacks the policing powers needed to enforce a decision within the states — law enforcement is controlled by the states themselves.
This explains why Trump also said in relation to the lockdown that ‘the Administration and I are working closely with the Governors … this will continue’. He added ‘a decision by me, in conjunction with the Governors… will be made’. He also said: ‘If I disagreed, I would overrule a governor, and I have that right to do it. But I’d rather have them … make their decisions.’ This suggested a much more cooperative federal government–state relationship. However, it is questionable as to whether the president does actually have the power to overturn a decision made by a governor on a matter of state policy.
Despite this, there are some areas where the federal government does possess authority. It regulates those who comes into the country and so can impose travel restrictions. The ‘inter-state commerce clause’ in Article I of the Constitution also allows the federal government to regulate movement between states. In addition, the federal government has significant financial power. Trump used federal government funds to purchase ventilators that were actually intended for the state of Colorado (which has a Democrat governor).
Trump has displayed an aggressive tone towards states in his tweets. For example, he told governors to ‘get your states testing programs … perfected. No excuses!’ At the end of April, Trump seemed determined to create conflict between himself and some Democratic Party state governors. He even went as far as calling on supporters, via Twitter, to ‘liberate’ certain states where lockdowns were still in place.
The issue of face masks also demonstrates the nature of federalism. As of 24 June, 16 states plus Washington DC had made it compulsory to wear face masks in public. While not all of these are Democrat-run states, the majority of them are. The vast majority of Republican-run states have chosen not to make wearing masks mandatory.
The American response to the coronavirus crisis has been uncoordinated, with a huge disparity in the policy approaches across the nation. Some of the blame for this can be laid at the door of Donald Trump and his lack of leadership. However, part of the blame must be linked to the principle of federalism in the US Constitution and the role this plays within the political system.