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Could Gay Marriage, Guns and Marijuana Lead to a Fragmented United States of America?

Without strong federal policies, states have become more active and divergent.

Less than five months after the massacre at Sandy Hook Elementary School, Connecticut enacted comprehensive gun control legislation. At the same time, 1,300 miles south and an ideological world away, Mississippi lawmakers considered a bill that would explicitly prohibit state officials from enforcing any new federal gun regulations. That last measure proved unnecessary. After months of controversy and extensive debate, Congress did not muster the votes to pass any federal law at all.

The same kind of split prevails on gay marriage. Last year, North Carolina joined more than 30 other states that have explicitly outlawed same-sex marriage. In just the past three months, Rhode Island, Delaware and Minnesota have legalized it, joining nine other states and the District of Columbia. The Supreme Court is currently deciding how far to wade into the gay marriage dispute -- or whether it should wade in at all.

A third case: Voters in Colorado and Washington state chose to fully legalize marijuana in last November’s election. On the same day, voters in Arkansas handily defeated a proposal to allow the drug even for medicinal purposes. The use of marijuana remains illegal under federal law; the Obama administration hasn’t taken a position on last fall’s actions but has made it clear that federal regulations will not be enforced.

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This is more than just party polarization. It is part of a tectonic shift away from federal authority and toward power in the states. While the divided Congresses that have followed the 2010 Tea Party insurgency have been among the least productive in U.S. history, rife with partisan bickering and a chronic inability to compromise, robust action is common at the state level. Connecticut’s quick and seamless movement from tragedy to statute is one of countless examples. In turn, ideologues and interest groups increasingly view states as the most promising venues for policymaking. Why waste your time in Washington -- where you might pass a watered-down, largely impotent bill if you’re lucky -- when you can head to Austin or Sacramento and advance your agenda intact and with relative ease?

And while states pass legislation with an almost industrial efficiency, America, as is often noted these days, is becoming a more and more splintered nation. Red states are redder; blue states are bluer.

Take a look at a U.S. map colored by state party control. In the upper right-hand corner down to the Mid-Atlantic, it’s all blue. In the South and across the Great Plains, you see a blanket of red. That crimson sea begins to break at the Rocky Mountains until you reach a stretch of blue along the West Coast. In a way, we are returning to our roots as a loose confederation of culturally and geographically distinct governments.

States led by Democrats are moving toward broader Medicaid coverage, stricter gun laws and a liberalized drug policy. They’ve legalized gay marriage, abolished the death penalty and extended new rights to undocumented immigrants. Republican strongholds are working quickly to remove government from the business sphere -- reducing taxes, pushing anti-union right-to-work laws and rebelling against the Affordable Care Act (ACA). They’re also pressing forward on some of their most valued social issues, promoting pro-life abortion policies and protecting the rights of gun owners.

The divisions generate fundamental questions about the nature of federalism. The sweeping national interventions of the New Deal and the comprehensive federal social legislation of the 1960s have been replaced by a more decentralized approach to governance. States are openly defying federal law and resurrecting the concept of nullification.

These are not merely legal or rhetorical exercises. They are fostering real change and real consequences for average Americans. If one bill that’s currently pending in the Mississippi legislature is upheld by higher courts, the state will have effectively outlawed abortion altogether. In New York, meanwhile, Gov. Andrew Cuomo has introduced legislation that would make abortions easier for women in his state to obtain. Income taxes may go up this year in California and Massachusetts; several Republican governors say they want to abolish income taxes completely. Illinois will insure nearly 1 million additional people next year by expanding its Medicaid program under the federal health law, while Texas is expected to leave up to 2 million people without coverage because Gov. Rick Perry has steadfastly refused to do the same.

“Polarization has resulted in this changing relationship between the states and the federal government. There’s a clear connection,” says Alan Abramowitz, a political scientist at Emory University. “It’s leading to gridlock at the federal level, which in turn is leading to many issues being decided at the state level because the federal government seems to be incapable of deciding anything.”

“That’s the hydraulics of political power. Power always seeks an outlet,” agrees Heather Gerken, a law professor at Yale University. “When Congress is no longer doing anything, people are going to go to the states and localities.”

This rebalancing of the federalist system has permeated almost every corner of public policy, taking center stage in the most controversial debates of the last few years. Last summer, Chief Justice John Roberts made the unexpected decision to join with his liberal colleagues and uphold the bulk of Obamacare and its individual mandate to purchase health insurance. But on the less publicized question of the law’s Medicaid expansion, which was supposed to require states to extend eligibility for the program to those earning up to 138 percent of the federal poverty level, Roberts took a startling turn. He ruled, for the first time in the court’s history, that the federal government had gone beyond its constitutional powers when it threatened to withhold all of a state’s federal Medicaid funding if it refused to comply with the expansion.

The immediate implication was a dramatic reassertion of individual states’ sovereignty. In the year since the court’s decision, a Southern wall of conservative states, which fought against the ACA in the first place and have been encouraged by national Republican leaders, have decided to take this new option that Roberts legitimized and have refused to expand Medicaid.

On other issues, states have rebuffed federal policy or preempted it. The Real ID Act of 2005, mandating state adoption of what is effectively a national identification card, has been foiled in the last decade by states refusing to comply with its federal requirements. More than 40 states have agreed to adopt the Common Core State Standards for K-12 education, which involve new curricula and assessments developed by state policymakers, in part because they didn’t want another federal education regime after the failure of No Child Left Behind. The distribution of medical marijuana in 17 states, paired with outright legalization in Colorado and Washington, is a clear flouting of the federal Controlled Substances Act.

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Such assertiveness or outright defiance by the states is a dramatic shift from the assumptions of federal preeminence that have prevailed during most of the years since the enactment of comprehensive social legislation during the 1960s, which included the passage of the Civil Rights Act, the Voting Rights Act and Medicare. Some would place the beginning of the erosion of the federal model in the Reagan administration, which introduced the waiver concept to state-federal programs such as Medicaid.

But it is also a reflection of changing public opinion: The Pew Research Center found this April that people’s trust in state and local government had settled comfortably above 50 percent. Trust in the federal government, meanwhile, sat at a dismal 28 percent in 2012. That’s a far cry from the early 1960s, when public confidence in Washington approached 80 percent.

“People had lost confidence that states were really up to the task of dealing with problems of modern society, so the federal government filled that vacuum,” says Ernest Young, a constitutional law scholar at Duke University. “We’re living in a new era now where the opposite is true. People have more trust in their state and local governments than the federal government.”

Coinciding with this movement toward more state-centric governance has been the ideological polarization of the two political parties. Conservative Southern Democrats and moderate Northeast Republicans have slowly disappeared both from Congress and from state legislatures in the last generation. The Democratic Party is more uniformly liberal, and the Republican Party more uniformly conservative, than either has ever been. They therefore command certain regions of the country more consistently; the turnover of conservative Southerners to the Republican Party has turned the Deep South impenetrably red. Republicans have become a weak minority in much of the Northeast and West Coast.

This natural political sorting has led to two very different outcomes. With the GOP controlling the U.S. House and the Democrats controlling the Senate and the White House, productivity in Washington is at a historic low. Multiple analyses ranked the 112th Congress, which met in 2011 and 2012, at or near the bottom in terms of legislation passed and signed by the president. There was some optimism that the 113th Congress would see an uptick in action, due to the supposed mandates of the 2012 presidential election, but there is little to support that thesis so far.

While Capitol Hill trudges through political molasses, the states are as prolific as they have ever been -- and the primary reason is the prevalence of single-party rule in the nation’s statehouses. One party or the other is in full charge of both chambers of the legislative branch in 43 states. This is the highest concentration of partisan power since the 1940s. Half the legislatures have veto-proof supermajorities.

So when anti-abortion advocates want to roll back Roe v. Wade, they turn to conservative-controlled states. Arkansas and North Dakota are two of the most recent single-party legislatures to pass abortion restrictions, outlawing abortions after 12 and six weeks of pregnancy, respectively. Arkansas’ Republican senate and house passed this legislation over the veto of Democratic Gov. Mike Beebe, one of only two Democratic governors left in the South.

On the other end of the spectrum, California, tired of waiting for federal action on climate change, established its own cap-and-trade system last year; the nation’s largest and arguably most liberal state had little trouble charting its own course on legislation that’s essentially been a pipe dream in Washington since the 2010 midterms.

Individual states or coalitions of states can increasingly be viewed as proxies for what their ruling party’s elites would like to accomplish at the national level, but currently cannot. Take Washington state as the liberal example. The Democratic legislature and governor have legalized gay marriage, taken an active role in implementing Obamacare and begun work this year to meet the goal of reducing the state’s greenhouse gas emissions to 1990 levels by 2020.

Conservative counterparts are plentiful: Texas has become the flagship opponent of the federal health law, leading a coalition that includes nearly every state below the Mason-Dixon Line. Its legislature voted to defund Planned Parenthood because of its ties to abortion providers. Kansas, Nebraska and Louisiana have weighed the elimination of their state income taxes this year. Republicans in Indiana and Michigan last year joined the anti-union right-to-work movement that conservatives have been promoting since the 1940s. At least 10 GOP-controlled states have passed laws this year loosening their gun regulations.

“As the parties become more distinct from each other, they’re generating a lot of ideas. They’ve become very programmatic parties, and they’ve been doing a lot of policy implementation in the states,” says Seth Masket, a political scientist at the University of Denver. “If you want to change the ways things are, you’re almost invariably going to be frustrated at the federal level. If you’re going to get anything done, a unified state government is the place to do it.”

So where are we headed? Is this movement toward decentralization and polarization a momentary lapse in what once seemed an unavoidable march toward federal control? Or are we seeing a permanent revival of the 10th Amendment to the U.S. Constitution, under which most governmental power is reserved to the states and regional fracture is assumed to be the norm?

There is a good deal of evidence to suggest that political polarization across states and regions will solidify. One argument is that people seem to be choosing, consciously or unconsciously, to live in communities that share their ideological beliefs. This is known in sociological circles as “sorting.” It offers a powerful explanation for the growing homogeneity within states and regions, and some statistical analysis backs the theory.

In 1976, 26 percent of Americans lived in “landslide counties,’” defined as those that voted for one presidential candidate by at least a 20-percentage-point margin over the other, according to an analysis by social commentator Bill Bishop and University of Texas sociologist Robert Cushing. By 2012, that number doubled to 52 percent. In the 1976 election, 20 states were decided by five percentage points or less in the race between Jimmy Carter and Gerald Ford; only four were that close in 2012 with Barack Obama and Mitt Romney on the ballot.

Some doubt the sorting thesis, both as a reason for polarization and as a predictor of future trends. They instead attribute the widening political gap to simple ideological reshuffling -- conservatives coalescing in the Republican Party, and liberals on the Democratic side. Gerrymandering is sometimes blamed for appearing to sort like-minded people into the same jurisdictions.

Several variables could determine whether this movement persists in the coming years. In particular, the dispersion of Hispanics and other minority populations into new communities where they haven’t historically lived could upset the political balance in those places. The Democratic goal of turning Texas blue within the next two decades is the most noteworthy endorsement of this belief. Or perhaps the millennial generation won’t remain as thoroughly liberal as it seems to be right now.

But many prominent thinkers give credence to the sorting thesis, and if it does hold some truth, then ideological and geographic divisions should harden in the coming decades. New England would continue on its path toward liberalized social democracy; the South would move further toward laissez-faire or libertarian capitalism.

If the sorting rule bears out, and states and regions continue to drift further and further apart on public policy, people might increasingly decide where to live based on these differences. That would create a self-perpetuating cycle that would continue to decentralize political power and destabilize our concept of a national identity.

“The trouble is within these places, there’s less diversity where you live, but there’s more diversity from place to place. As a result, there’s less of a sense of a country as a whole,” says social commentator Bishop, who drew national attention to the idea in his 2008 book, “The Big Sort: Why the Clustering of Like-Minded America Is Tearing Us Apart.” “So you have this phenomenon where like-minded people get together and they become more extreme in the way they’re like-minded.”

In this future as a sectarian nation, which some say has already arrived, states emerge as the best forum for meaningful policymaking. The federal government will always have a dominant role on some subjects -- foreign relations and international trade being the most obvious -- but as long as Washington is politically divided, the number of issues on which it can effectively act is likely to shrink.

“When states become very homogeneous inside, and more heterogeneous across state lines,” says Michael Greve, a law professor at George Mason University and director of the Federalism Project at the American Enterprise Institute, “it becomes much, much harder to write federal legislation that wraps all of them under one federal cartel.”

The Affordable Care Act, which might stand as the last significant legislative achievement of a single-party Congress and White House for the foreseeable future, has become a testament to how difficult it is to institute national initiatives when some states actively resist federal prescriptions.

The refusal of conservative states to expand Medicaid has undercut the law’s ability to insure low-income Americans. More than 30 states have refused to set up health-care marketplaces, which has left the Obama administration scrambling to pick up the slack. Questions are mounting about what will happen in these conservative states in 2014, when the law’s major changes are supposed to take effect. On the other hand, the liberal states that have embraced the law’s policies will fundamentally overhaul their insurance markets next year, as was originally intended. But the law’s goal of universal health coverage will be stifled by the dissenting states.

Supporters of a revised immigration law remain hopeful for federal action during the 113th Congress. But the resulting legislation, if it passes, will likely be an undesirable compromise for both parties, a vanilla law that really pleases no one. If you want ideological purity, look a few miles away to Democratic Maryland, where Gov. Martin O’Malley and his legislature have in the past year legalized gay marriage, cracked down on guns, passed a DREAM Act that eases access to education for undocumented immigrants and eliminated the death penalty. Or go to Republican Mississippi, where the Second Amendment is sacrosanct, abortion is being made extremely difficult and residents have one of the lowest tax burdens in the nation. It’s still possible to achieve philosophical cohesion within a single-party state, and there are more of them than ever. If you want to change policy, look to the states. That’s where the action is these days.

Brian Peteritas is a GOVERNING contributor.
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