Opportunistic Federalism and a Liberal Resurgence

AP Photo/Mary Altaffer

New York Governor Andrew Cuomo, left, touts his proposal for free tuition at state colleges to hundreds of thousands of low- and middle income residents. Cuomo is joined by Vermont Senator Bernie Sanders, center, and Chairperson of the Board of Trustees of The City University of New York William C. Thompson. 

Civil, political, and economic rights need to be protected nationally. It is absurd to live in a nation where fundamental safeguards are contingent on state residency. When progressives hear federalism and “states’ rights,” they cringe and rightfully so. Historically, arguments for states’ rights were used to thwart civil rights and maintain racial oppression. Conversely, since the progressive era, through the New Deal and the Great Society, federal governmental power was used to expand these rights and broaden social opportunity. But today, American federalism has changed. Today conservatives use government power opportunistically. When it’s convenient to invoke states rights, they do so. And when it’s expedient to have the federal government preempt progressive legislation, that’s fine, too. Republican-led states are also systematically narrowing the authority of cities led by Democrats on issues ranging from the minimum wage to LGBT rights.

This is not entirely new. We live in what the political scientist Martha Derthick called a “compound republic” where real power resides at both the federal government and in the states and localities. States preceded the creation of the national government and ratified the Constitution agreeing to cede and retain certain powers. Strict constructionist scholars read clear demarcations on what is national and what is left to the states. But the question was political from the start including how to interpret the General Welfare and Commerce clauses of the Constitution. In “Federalism No. 10,” Madison sought to set things straight. He writes that what is “great and aggregate” should be left to the federal government and what is “local and particular” to the states. But is an issue like parental and medical leave “great and aggregate” or “local and particular?” What about civil rights, gender equality, marriage, parental rights, education, environmental protection, and immigration policy?

These traditional fights and arguments over federalism are a smokescreen, a false dichotomy, and need to be rethought. Madison had it right. A clean environment, fair trade, covering the uninsured, educational and economic opportunity, access to family planning, and the range of social policy issues are both “great and aggregate” and “local and particular.” We need national policies, but with local variations. Policy success rests on political success at both levels of government. Success at one level can also sow the seeds of success at the other levels, as well as can mitigate or cause harm. Because power is divided, intertwined and shared, battles often have to be fought on multiple fronts. For example access to abortion services protected nationally by Roe v. Wade have little value to the women in Kansas when state law makes finding a provider impossible.     

Reflecting the design of the constitutional founders, durable change requires super majorities in Congress, control of the White House, supportive courts, and increasing control at the state level. Even if progressive programs are passed nationally, states can use their implementation responsibilities to obstruct policy goals. Today these same checks and balances need to be used to stop harmful national policy and to usher forward a new progressive agenda. Understanding the battlefield or how to leverage points of power is essential to policy success.

When conservatives were locked out of national power, they focused on the state level and organized opposition where they could. The American Legislative Exchange Council (ALEC) became a playbook for how to use state power to block progressive policies. Now Democrats with limited national power look to the states and localities to, for example, protect immigrant rights, safeguard the environment, and move towards a more just minimum wage. But Republicans use both national and state power not just to roll back regulations, but prohibit states from enacting policies such as stronger consumer protections.

The best form of federalism is national policy floors, with opportunities for states or localities to go beyond federal minimums. But the brand of federalism we have today is far more opportunistic.

For example when conservatives advocate for states’ rights to define marriage, the real goal is a national prohibition of same-sex marriage. When liberals argue for state flexibility to enact stronger environmental protections standards, it is generally because they could not win nationally. Another myth of federalism is that industries like “small government” and devolution. They are against a “one-size-fits-all solution from Washington.” In fact, that is not true. Industries would rather have weak national regulations than different state-by-state standards. Now that they have power in Washington, they can use this influence to achieve their goals, which may well include federal pre-emption of state laws and protections.

In my book: American Federalism in Practice: The Formulation and Implementation of Contemporary Health Policy, I similarly find that federalism is aligned with interests more than any ideological preference about the distribution of power.

Both parties use federalisms to forward their goals, though conservatives seem more skilled as well as more cynical with this strategy. For example, the current replacement of the Affordable Care Act attempts to use state flexibility in the House leadership bill to reach a compromise between the competing Republican factions. A full frontal assault to eliminate essential health benefits and eliminate the prohibition on preexisting conditions did not even cut mustard with the so-called “moderate” Republicans. The attempted compromise is to allow states the flexibility to eliminate essential benefits and to discriminate on price and benefits for people with preexisting conditions. Similarly, Medicaid per capita block grants are an attempt to mitigate state opposition to the accompanying massive program cuts. Further, state 1115 waivers used under the Clinton and Obama administrations to expand coverage will be used to increase cost sharing, add work requirements, and drug testing. These efforts weaken Medicaid nationally, and where that is not possible, hemorrhage the program one state at a time.

This is not new. In the 1990s welfare reform law, one of the big tradeoffs was getting rid of the entitlement program or guaranteed benefits in exchange for state flexibility. But the details show national mandates and limits to what was actually being “devolved.” Work requirements and lifetime benefit limits were mandated and subjected to penalties if targets were not met. Further there were funding bonuses for things like reductions in out-of-wedlock births. States had flexibility to provide job training, day care and other important benefits, which were not a national priority. Devolution was a strategic myth in this case to mandate punitive measures, and reduce funding with a sprinkle of state flexibility to provide supportive services or not. 

Today with stronger control in all branches of government and in state legislatures and governorship, Conservatives are not even pretending. They are pushing priorities nationally, while continuing to use federalism to further their agenda. An example is their ongoing effort to systematically eviscerate reproductive rights one state at a time. The ultimate goal is to repeal of Roe v. Wade, but the strategy is to go through the states. According to the Center for Reproductive Rights, 19 states passed 60 laws in 2016 restricting access to abortion. Roadblocks are systematic with cookie cutter draft bills circulated from state to state. Strategies include: waiting periods to have an abortion, time limits on how far along a woman can be, mandatory counseling, parental notification requirements, mandatory provisions to view ultrasounds, hospital admitting privileges, and structural modifications equivalent to surgical centers. An Indiana law signed last March by then Governor Mike Pence prohibits abortion due to fetal abnormality and requires the burial or cremation of fetal tissue. When national efforts failed, pro-life advocates took to the states biding time and formulating policy to move nationally.

Federalism itself is not to blame. It is a tool to be used for good or ill. Like a hammer is very good for a nail, but very bad for a head. In this time of through the looking glass politics, what was good is bad and what was bad is good. The Senate filibuster, used as a roadblock to thwart civil rights, is now a line of defense to protect rights and support programs that protect the most vulnerable. The use of presidential executive orders used to protect dreamers is now used to discriminate against religious and ethnic groups. The courts are hardly an unbiased arbitrator of institutional power. Conservatives who once railed against “activist courts” now have a litmus test requiring social activism. The point here is that power and authority between the institutions of government remains a shifting battlefield. In the fight over federalism, conservatives will use federal power to forward their goals and preempt states whenever possible from forwarding progressive goals. The shifting ground may now require progressives not only to fight executive orders and activist courts, but to support the filibuster and states’ rights.  

Federalism can be used to promote policy that expands opportunity, narrows income disparities, and protects diversity. The constructive use of federalism has a number of advantages. First, policy ideas are increasingly germinated at the states and municipal levels. Second, political activists can cut their teeth in the states and learn to be national change agents. Third, national policy needs state support to be faithfully administered. Even if the Democrats win more control at the national level, progressive policy could be sabotaged without a strong base (many states didn’t expand Medicaid under the ACA despite huge economic incentives). Fourth, conservatives are using state power to weaken political, social, and economic rights. Think about voter ID laws, restrictions on choice, and “right to work” laws, to name a few.

Control of state legislatures and governorships are essential to rebuild the nation’s hollowing core and to get back power in Washington. Statehouses are important to Democratic chances of regaining the House of Representatives, which became uncompetitive because of gerrymandering. The Washington Post reports that eight out of the ten most gerrymandered districts were drawn by Republicans.

The good news is that the progressive grassroots work underway is laying a base on which to build and pushing policy onto the national agenda. These include environmental protections, parental and medical leave, public health initiatives, educational opportunity, college debt, and immigrant rights, to name a few. State initiatives are essential to success when demographic change will advantage the Democratic Party in the future. Even small changes at the state level, like with CHIP, can be leveraged for significant national gains. Massachusetts health-care reform led to the ACA, and a single-payer health-care system tested in the states will similarly significantly increase the odds of a national system. The challenge will be that this type of “state flexibility” is not what conservatives have in mind. They know the power and potential this would have, and will fight to limit states like Vermont and California’s ability to move in this direction.

While the battle cannot be conceded nationally, pushback needs to come from the states. For example, while today the issue is very much up in the air, the auto industry opposition in the last round of fuel efficiency standards was mitigated because California already required the higher standard. The auto industry does not want to make different cars for California and other states who adopt these standards. Environmentalists need to support California and fight federal pre-emption in order to protect strong national standards. 

Further, paid parental leave in California, New Jersey, and Rhode Island can inspire action in other states ultimately leading to national reform. New York also passed a bipartisan plan that will go into effect in 2018. Paid leave will not pass the Congress in the near future, so these examples are critical and the only possible avenue for progress. Analysis of these programs can debunk the notion that these policies lead to “economic Armageddon.” The majority of employers in California perceive a positive impact on their business. Just as important these initiatives can demonstrate how a political coalition can come together and achieve success. The policy and political strategy can serve as models for national action down the road.

While the national minimum wage of $7.25 has not been increased since 2009, a significant number of states and localities have taken action. According to the Economic Policy Institute, 21 states and the District of Columbia have increased the minimum wage since 2014, and 31 localities from Albuquerque to Walpello County, Iowa, have done so. In addition, a number of these states have indexed rates to inflation. Each state and locality serves as a stake in the ground, making it harder for federal preemption and easier when the time is right for a federal increase.   

A smaller example is that fast food product menu labeling was largely accepted by industry as part of the ACA after it was required in New York City and other places around the country. McDonald’s does not want different standards for calculating the calories in a Big Mac, so they capitulated. A bigger example is marriage equality, which would not have happened on such a timescale without courageous state action through the courts and state legislatures.

New York City and state are also bookending progressive education policy. Mayor Bill de Blasio recently announced that New York City would offer free, full day preschool to every three-year-old by 2021 through his plan called “3-K for All.” This plan builds on the success of the city’s pre-kindergarten program for four-year-olds, “Pre-K for All.” While a few other cities, including Washington, D.C., have offered free preschool programs to every three-year-old, New York City’s efforts would enroll the largest amount of three-year-olds with expectations to serve about 62,000 children per year. Still full implementation will require state and federal resources, so it remains a battle. At the other end of education spectrum, Governor Andrew Cuomo of New York recently signed a bill providing free college tuition at State or City Universities for people in families with income under $100,000 (this number will increase to $125,000 in 2019).

States and often municipalities are tasked with implementing or assisting the implementation of federal laws. Even in areas where federal officials take the lead, like immigration, states still have the ability to oppose policy and take progressive measures. According to the Center for Immigration Studies there are over 150 sanctuary cities and counties including most of the large population centers providing some protection to people in the country without documentation. In addition, 12 states issue drivers licenses to undocumented immigrants and 18 states offer instate tuition to students without documentation. Of course these efforts pale in comparison to the power of the federal government, which has threatened mass deportation and sanctions on states and localities for not cooperating with deportation efforts. A national solution including a pathway to citizenship is essential in the long-term, but is more likely to happen because of state and local action. 

While small policy changes can lead to greater national equity, concentrated political activism can also have exponential impact. According to the United States Elections Project just 36.4 percent of voting age people voted in the 2014 off-year election. Even fewer vote in odd year and local elections. While these numbers vary by state, it is clear that a small group of dedicated activists can have a disproportionate impact on elections. Tea Party enthusiasts influence greatly outweighed their numbers. Renewed enthusiasm fueled by the threats to civil liberties of the current administration could translate into state legislative victories critical to the next round of redistricting and ultimately for control of the House of Representatives. Supporting grassroots citizen leaders will also deepen the bench of millennial activist politicians necessary to counter the current chaos.   

Checks and balances once used to impede civil rights are now essential to protect those rights. In the sifting dynamics between the institutions of government, battles need to be fought at every level with multiple strategies. Old thinking about federalism should not impede the fight or limit progressive action. Federal preemption needs to be supported against state laws, which impinge for example a woman’s right to choose. But this same type of pre-emption needs to be opposed when it inhibits states from going further than minimal consumer protections or enacting such things as paid parental and medical leave. With Washington in conservative hands, a “compound republic” offers an opportunity to be different. Concentrative activism and policy innovation at the state and local level can have an outsized impact. Stakes are being put in the ground on education, environment, public health, immigrant rights, and minimum wage. People are taking to the streets and this grassroots political change is necessary to support changes at all levels of government to mitigate harm and sow the seeds for more fair and equitable public policy.  

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