Defining Ideas

Federalism Rediscovered

Thursday, November 9, 2017
Image credit: 
Barbara Kelley

As with any charter of government more than two centuries old, the U.S. Constitution has weathered serious storms. Many of its provisions are as vibrant as the day they were born, while others have badly faded. But one feature of our great freedom charter is perhaps more vibrant than ever before: federalism. Long given up for dead, it turns out that federalism is experiencing quite a revival—not only thanks to conservatives, but also to liberals who have rediscovered the importance of federalism in the era of Trump.

Our country’s bitter political divisions have paralyzed national government, rendering it incapable of addressing our nation’s most urgent problems.  Fortunately, our framers envisioned that most of the decisions that affect us most intimately as individuals and communities would be made not at the national but at the state and local levels; and despite a steady accretion of power in the national government, that still remains the case today.

Indeed, federalism today is playing an especially vital role—as a tool to allow people of sharply divergent views to effectuate different policy goals. If we can’t reconcile competing viewpoints at the national level, we can each pursue policies that reflect our respective goals and values in the several states—and in the process, to borrow a bumper-sticker phrase, to coexist. And that was exactly what the framers intended.

Federalism is central to our constitutional system of government. When most people think of separation of powers, they think of the executive, legislative, and judicial branches, each balancing and limiting each other. But even more fundamental is the vertical separation of powers, in which the states and national government also balance and limit one another.

In the original constitutional framework, states were intended to have the upper hand. The Constitution created a national government of limited and defined powers. The states retained all remaining legitimate governmental powers. To underscore the point, the framers punctuated the Bill of Rights with the Tenth Amendment, which provides that “[t]he 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.” The framers believed that the states and their constitutions would be reliable guardians of individual liberty. After all, the Bill of Rights derived from preexisting protections in state constitutions.

But of course that premise proved incorrect: states did not turn out to be reliable guardians of individual liberty. The institution of human slavery and other deprivations of freedom necessary to sustain it were effectuated under color of state law. So following the Civil War, Congress enacted the Fourteenth Amendment to nationalize the protection of civil rights where states violated them. The result was a double security for freedom, with states and their constitutions continuing to provide essential protection for freedom, but with federal remedies available when states transgressed constitutional boundaries.

That framework has not always been faithfully applied, in large part because federalism has rarely had consistent supporters. Liberals loved federalism in the 1920s and 1930s. During that period, the U.S. Supreme Court routinely invalidated economic regulations at the state and local (as well as national) levels. Justice Louis Brandeis, dissenting from one such opinion in 1932, famously declared that “[t]here must be power in the States . . . to remould, through experimentation, our economic practices to meet changing social and economic needs. . . . It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory.”

But the tune changed when FDR became president and some states attempted to buck the New Deal tide. By 1940, after liberals took control of the Court, a case called U.S. v. Darby dismissed the Tenth Amendment as a “truism.” Hence did the Supreme Court, not for the first time or certainly the last, reduce one of the most vital components of the Constitution to a mere platitude. And there its status remained until liberals rediscovered the relevancy of federalism after the Warren Court ended in 1980s, and conservatives rediscovered it during the Clinton years, and on and on the story goes.

But along the way, a mysterious and wonderful thing started to happen: the Supreme Court began to embrace a more coherent and consistent jurisprudence of federalism, one that recognizes its core value: freedom. We recognize the dual sovereignty of states and the national government not to glorify one at the expense of another, but because that balance and competition of powers, properly enforced, advances freedom.

Several cases illustrate this evolution, but two of my favorites are relatively obscure, Gonzales v. Oregon (2006) and Bond v. United States (2011). Gonzales involved a voter initiative adopted by Oregon voters creating the so-called “right to die,” protecting assisted suicide in certain instances. The Bush administration, which was pro-federalism except when it wasn’t, invoked the federal Controlled Substances Act to invalidate the measure. The Supreme Court upheld the Oregon law by a 6-3 vote. The majority decided the case on federalism grounds. Recognizing that regulation of medicine is traditionally a matter of state concern, the Court read the federal law narrowly so as not to effect what it referred to as “a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality.” The decision was not only a victory for federalism but for the right to medical self-determination that the state had resolved to protect.

Five years later, the Court decided the case of Carol Anne Bond, a jilted spouse who discovered that a close friend had become pregnant by her husband. Devising a scheme of revenge, Mrs. Bond strategically placed poison on her former friend’s mailbox, car door handle, and front doorknob, causing the woman to suffer a minor burn on her hand. It was the stuff of tabloids, but not a typical candidate for Supreme Court review—until federal prosecutors got involved and charged Mrs. Bond, of all things, with violating an international Chemical Weapons Treaty. Mrs. Bond wanted to challenge the federal government’s prosecution as a violation of the Tenth Amendment on the basis that this should be a matter of state criminal law rather than an international chemical weapons treaty. But that presented the question that brought the case to the Supreme Court: Does an individual have standing to assert the Tenth Amendment against an unconstitutional federal action?

The Court answered that question unanimously with an emphatic yes, eloquently conveying the essence of federalism in the course of its opinion. “Federalism,” wrote Justice Anthony Kennedy, “secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.” The Court emphasized that “[s]tate sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”

Imagine that: a Supreme Court justice referring to our nation’s capital as a “remote central power.” And yet, that reflects the sentiment of the times, and the Court recognized federalism’s vital role in preserving a degree of self-determination.

The Court also has embraced in a line of cases the anti-commandeering principle, which holds that although federal law is supreme in areas within its authorized scope, the national government cannot force states to fund or implement federal laws. In a 1992 decision involving waste disposal, the Court in a 6-3 decision by Justice Sandra Day O’Connor proclaimed, “States are not mere political subdivisions of the United States. . . . Whatever the outer limits of [their] sovereignty . . . one thing is clear: The Federal Government may not compel the States to enact or administer a federal regulatory program.” More recently, in NFIB v. Sebelius (2012), even as the majority voted to uphold Obamacare, seven members of the Court ruled that Congress could not financially coerce states to expand Medicaid.

Those decisions and many others illustrate both the breadth and depth of the pro-federalism consensus on our nation’s highest court. I don’t want to overstate this phenomenon; to the contrary, in terms of the breathtaking expansion of national power, we are still far removed from the vision of the framers. But the current climate is the most favorable for federalism than it has been in a long time.

States can control their own destinies and even influence or determine national policy in many ways. One is through a constitutional mechanism they have never used: amending the Constitution, not by ratifying amendments approved by Congress, but by proposing their own. Article V of the Constitution allows two-thirds of the states to call a convention to propose amendments. Some have raised concerns about a runaway convention; others have proposed mechanisms to prevent that. But the ultimate safeguard is that 38 states must ratify any proposed amendment. Such an effort may never come to fruition---but even the act of coming close could have a potent and salutary effect on federal actions and policies.

One possible way to break the gridlock in our nation’s capital might be to devolve seemingly intractable disputes to the states. Jeb Bush and I proposed exactly that in our 2013 book Immigration Wars. Under the Constitution, Congress has exclusive authority over immigration. Yet despite a desperate need to dramatically overhaul an outmoded and ineffective federal immigration policy, Congress is paralyzed. Why not delegate some portion of the visa authority to the states, so that those with a need for low- or high-skilled labor can meet the demand, while other states could elect not to do so? Earlier this year, Michigan Governor Rick Snyder requested 50,000 skill-based visas to help repopulate Detroit with enterprising immigrants. The idea of federalism-based immigration reform is now before Congress. It breaks the mold, breaks the logjam, and provides a template for state-based reform that can be replicated in many other areas.

One of the most potentially robust features of federalism, and unfortunately one of the most overlooked, is state constitutionalism. We often talk about the Constitution, in the singular, but in fact we have 51 constitutions. Every state constitution is chock full of protections of individual liberty and constraints on government power that are completely unknown in the federal constitution. And part of the beauty of federalism is that so long as they do not violate the federal Constitution, state courts are free to interpret their own constitutions differently than the U.S. Supreme Court interprets the national constitution, even where the words are identical. But only in one direction: thanks to Supreme Court precedent, state courts may only interpret their own constitutions to provide greater freedom than the U.S. Constitution, not less. I call this the freedom ratchet.

Again, this was an idea first championed by liberals, specifically Justice William Brennan, who starting in the 1970s worried that many rights of criminal defendants recognized by the Warren Court were being eroded by a more conservative Supreme Court. He called upon liberal activists to recourse to state courts and constitutions to preserve and expand those protections. They heeded the call with gusto. Within ten years, Brennan counted more than 250 state court decisions interpreting their constitutions to provide greater protections for criminal defendants than the national constitution.

For all of their professed devotion to federalism, conservatives and libertarians have been much slower to embrace state constitutionalism, despite abundant opportunities to expand freedom. One noteworthy example is the infamous Kelo v. City of New London (2005) case in which the U.S. Supreme Court upheld the City of New London’s decision to use its eminent domain power to bulldoze a working-class neighborhood to make way for a Pfizer plant expansion (which never materialized). The Court’s majority held that the Fifth Amendment’s limitation of eminent domain to “public use” had amended itself to the much more-permissive standard of “public benefit.” In so doing, it removed any meaningful constraint from the power to take property from one private owner and give it to another.

At the same time that Suzette Kelo and her neighbors were losing their homes, Mesa, Arizona was serving eminent domain papers to the owners Bailey’s Brake Service and its neighbors at the corner of Country Club Road and Main St. to make way for a hardware store that wanted to expand. Randy Bailey had inherited the brake service business from his father and wanted to leave it to his son, and he had no desire to move. Had Bailey filed suit in federal court, he surely would have lost his business. But instead, my then-colleagues at the Institute for Justice and I defended his rights under the Arizona Constitution, which our court of appeals construed as providing greater protection for property rights than the federal constitution. Courts and legislatures in other states likewise acted to limit eminent domain to public use instead of public benefit. Cases like these illustrate that federalism is not merely some abstract constitutional proposition, but that federalism in action can have profoundly positive human consequences.

States are initiating widespread policy change in another way, too, through what I call civil disobedience federalism. These efforts involve states or local communities taking policy actions that may directly or indirectly clash with established federal authority.

One example is marijuana legalization. The U.S. Supreme Court in 2005 upheld the federal government’s prohibition of marijuana even when cultivated and consumed within a single state. Yet today, 29 states have made marijuana use permissible in some fashion; and for now, at least, the federal government has acquiesced. Whether you support or oppose such laws, they represent state efforts to adopt policies that better reflect their citizens’ policy preferences than the national government can.

But another exercise in federalism has eclipsed even the success of the marijuana legalization effort. Our nation produces the greatest medicines and medical technologies in the world, many of which offer tremendous potential for millions of seriously ill people. But standing between those people and the drugs that may save their lives is a vast bureaucracy, the FDA, whose approval process costs $1.4 billion per drug and can take a decade. That process includes clinical trials, but they’re strictly limited and provide placebos to many participants. The FDA also has a so-called “compassionate use” process for patients to access potentially lifesaving experimental drugs, but the paperwork typically requires 100 physician hours to complete, making it inaccessible to all but a handful of people. Wealthy people often can access the very same drugs in foreign countries but Americans of lesser means can not. For years, advocates on both sides of the ideological divide have attempted to reform this byzantine system without success.

Only a few short years ago, my then-colleagues at the Goldwater Institute, working with political strategists Chuck Warren and Tim Moody, pondered whether it might be possible to do something about this problem at the state level. We came up with the idea of state legislation that would give terminally ill patients a right to access experimental drugs that had passed the safety phase of FDA approval while immunizing those providing the access against liability. We called it “Right to Try.”

The idea was enormously audacious. Federal authority over drug regulation is firmly entrenched. Our litigators quickly concluded that defending Right to Try against the inevitable FDA challenge would be, to put it mildly, a decidedly uphill battle.

But we had not fully factored in the breadth and intensity of public support. Right to Try was not a red idea or a blue idea; it was bright purple. Arizona voters in 2014 made Right to Try part of their constitution with nearly 80 percent of the vote. Right to Try swept the country, and as of today, 37 states—from Connecticut and Ohio to Minnesota and California—have enacted it into law.

The effect was seismic. The federal behemoth reacted, but not at all as we expected: instead of filing a legal challenge, it reduced the amount of physician paperwork for compassionate use from 100 hours to 7.5, although other obstacles remain.

Because drug manufacturers are reluctant to cross the FDA and jeopardize their massive investments in the drug approval process, few drugs have been made available through Right to Try. But the results thus far are promising. In Texas, Dr. Ebrahim Delpassand, a nuclear medicine specialist, saw tremendous results among his patients from a clinical trial for a radioisotope therapy, widely available in Europe, to treat the neuroendocrine carcinoid cancers that took Steve Jobs’ life. But once the clinical trial ended, he could no longer make that therapy available to his patients. Using Right to Try, he has treated dozens more, many of whom have lived beyond their original prognosis. Other patients with fatal diseases ranging from Lou Gehrig’s Disease to pancreatic cancer eagerly await a reprieve as well. The idea has so reverberated that this summer the U.S. Senate voted unanimously to enact it into federal law, and the bill awaits action in the House.

Right to Try illustrates that one possible way to break the Washington logjam is to incubate ideas in the states, and then pass them on to Congress to ratify as federal law. It’s not the normal way of getting things done in Washington, but right now the normal way is to not get things done at all. Applied in this way, federalism may be more important than even the framers imagined.

None of us likely supports all of the experiments states are pursuing, nor do I mean at all to suggest that states have greater latitude in our federal structure than they do. Indeed, as a justice on the Arizona Supreme Court, I am oath-bound to honor the constitutional boundaries between federal and state law. But we all have a personal vested stake in federalism. We cannot have red-state federalism without blue-state federalism, nor blue without red.

Despite the challenges it currently faces, our Constitution is doing remarkably well at 230 years old. Federalism is especially alive and well. But federalism, like every part of our Constitution, is not self-executing. Federalism is only what we make of it. Opportunities to expand freedom abound in the states, and local change can have national consequences. Whatever happens or doesn’t in our nation’s capital, we can and should get things done at the state level. 

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Clint Bolick is a research fellow at the Hoover Institution and also serves as an Associate Justice of the Supreme Court of Arizona.  Previously he was the director of the Goldwater Institute Center for Constitutional Litigation in Phoenix.