The New, New Federalism

In his first inaugural address, Thomas Jefferson argued that not every difference of opinion was a difference of principle. “We have called by different names brethren of the same principle,” he wrote. “We are all republicans. We are all federalists.”

By republicans, Jefferson meant, the “anti-federalists” or “democratic-republicans” who tended to be wary of concentrated power. The federalists were the supporters of the new constitution and a more expansive approach to national government than was possible under the Articles of Confederation.

Jefferson was trying to pull together a divided country after an inconclusive presidential election was settled in the House of Representatives. The nation was in the early years of an experiment in democracy, a “republican” form of self-rule with a balance of powers between governmental institutions and separate states.

The argument over state and federal authority would prove to be a defining issue through our history, though the dividing lines have been redrawn over time. During the years between Theodore Roosevelt’s Square Deal and Lyndon Johnson’s Great Society, it was more often liberals and reformers who sought to expand federal power to promote change.

In 1969, President Richard Nixon outlined his “revenue sharing” plan to give more leeway to the states in using federal dollars to address urban policy challenges, a departure from Johnson’s federally mandated entitlement programs. In the 1980s, President Ronald Reagan coined the phrase, “the New Federalism,” to describe his efforts to return more power and authority to the states.

Fast forward to the early 2000s when “blue” states such as California and Washington began to aggressively formulate their own policies on everything from campaign finance reform to environmental standards in response to conservative policy initiatives in Washington, D.C.

Cities and counties were also getting into the act. Mayors and other local officials were leading the way when it came to innovative and sustainable policies. At the same time, there has been growing willingness of some conservative majorities in state legislatures to “preempt” the ability of localities from going their separate ways on issues and policies.

“This legislative session,” noted a report in 2019, “state lawmakers made it illegal for locally-elected officials to enact a plastic bag ban in Tennessee, raise revenues in Oregon, regulate e-cigarettes in Arkansas, establish minimum wages in North Dakota, protect county residents from water and air pollution produced by animal feedlots in Missouri, or protect immigrants from unjust incarceration in Florida.”

This historical flip-flopping over federalism, states’ rights, and local control has often seemed more motivated by partisan identity and support for specific policy agendas than any commitment to fixed principles or philosophies.

Today the spread of Coronavirus is necessitating a new conversation about the meaning of federalism. What is the proper role of the federal government when it comes to navigating supply chains and obtaining lifesaving test kits and protective gear? Who gets to decide when and how long to impose social distancing rules—governors, mayors, presidents? Or, to paraphrase Harry Truman, the buck stops where? These have become life or death issues.

States and localities are renegotiating relationships—both with the federal government—and among themselves. Several Northeastern states are developing an interstate alliance to combat the pandemic. Other states are dealing directly with federal agencies or developing their own resources.

It may be that in a time of disrupted supply chains, having 50 states compete with one another for nose swabs and surgical masks is not the best approach. But there may be examples of decentralized decision-making and innovation that prove useful in developing new strategies for fighting the pandemic.

Writing in an optimistic vein, Harvard professor Archon Fung recently coined a new term, “civic federalism.

“When we look back, we will see that some communities handled the crisis much better than others,” he wrote. “We might well find that success came in states where government, civic and private-sector leaders joined their strengths together in a spirit of self-sacrifice for the common good.”

In the coming months and years, our very survival may depend on a more principled, observant, and respectful negotiation when it comes to questions of government authority and responsibility. As Samuel Johnson once noted, “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.”

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