State Resistance

What are the forces behind the contentious current fight to redefine federalism?
February 16, 2011 AT 11:00 AM
Paul Posner
By Paul L. Posner  |  Contributor
The late director of the public administration program at George Mason University

Woodrow Wilson told us more than 100 years ago that the relationship between the federal government and the states was the "cardinal" question perennially facing our system, one that would be answered differently by each generation. Wilson was prescient indeed, for the political polarization and fiscal challenges facing the nation are at work to transform the nature of federal-state relations.

The New Deal and Great Society ushered in an era of growth in the role of the federal government across nearly every area of public policy. Reflecting the profound national ambivalence many feel about federal power, most of these new programs were run through the states. By and large, states welcomed these roles, thanks partly to the unprecedented federal grants they received for their roles as partners in national policy implementation.

As the federal government turned to mandates, even these were successful in gaining state involvement in participating in and enforcing national goals. Whether it was special education or environmental protection, state officials often shared the national goals behind these mandates. Most of these mandates were built on initiatives piloted by the states in the first place.

This is not to say that states accepted these new federal policies lying down. Indeed, once these new federal programs began, states forced federal officials to bargain with them to grant waivers, extensions, additional funding and other strategies to accommodate the different priorities in each state. However, these negotiations proceeded under the rubric of broad consensus and legitimacy for the underlying goals of the program. The record shows that, over time, these arrangements secured agreement among like-minded administrators across levels of government.

Lately, we have seen a different pattern emerge. New federal initiatives have often prompted spirited and fundamental disagreements between the federal government and the states over basic purposes and goals. These conflicts were not bridged through quiet negotiations between public managers. Instead, they inspired state legislators and governors alike to formally renounce their participation in national programs.

No Child Left Behind was among the first federal initiatives to inspire broad state pushback. Legislatures in many states voted to renounce the new national testing standards during the early years of the Bush administration. However, in nearly every state, these votes were largely symbolic, and did not formally position the states to opt out of the program or the substantial federal money.

States' resistance to the Real ID Act of 2005 went further, as a majority of states refused to implement new national standards for residents to secure their driver licenses. While federal officials could have penalized those states by denying residents the right to use unsecured licenses to board airplanes, the federal government blinked. The mandate has since been extended to give DHS and states more time to negotiate on an acceptable program.

States even pushed back on some of the federal stimulus programs. Conservative states such as South Carolina, Louisiana and Alaska opted out of enhanced unemployment insurance programs, offered under the Recovery Act, that would have extended coverage to a greater share of unemployed workers. These states acted on concerns about the long-term implications for unemployment insurance taxes on state businesses once the federal recovery funds expired. And newly elected state leaders, such as Ohio Gov. John Kasich, have proclaimed their intent to turn down federal high-speed rail funds.

The most recent cases involve the reaction of many states to health-care reform. State governments are linchpins to implementing both universal coverage through current Medicaid programs and new health exchanges to fill in other gaps in coverage. These mandates alone make states responsible for providing health coverage to more Americans than are currently served under Medicare.

Governors and state legislatures alike have issued statements asking for relief from the higher costs imposed by these new mandates, but the most notable resistance has come from state attorneys general &mdsah; 22 have joined in lawsuits to overturn the entire program, with a special focus on the unconstitutionality of the individual mandate.

What has changed to prompt this greater and higher-profile state resistance to federal policies? I would argue that there are at least four forces at work:

  • Growing polarization of parties at the national level. Since World War II, presidents of both parties have largely accepted the growing federal role, with the possible exception of Ronald Reagan early in his presidency. Democratic and Republican presidents alike embraced opportunistic federalism using centralizing grants and mandates to download their policy prescriptions to the rest of the country. Newer ideological parties, most notably the Tea Party, have already joined in a more vigorous and principled debate centering on the legitimacy of federal role-expansions.
  • Growing polarization of parties at the state level. More ideological governors and state legislators are now using opposition to new federal initiatives as markers to prove their bona fides to their own allies, whether it be conservative (in the case of health reform) or liberal (in the case of Real ID).
  • Federal top-down policymaking. National policymakers of both parties have developed national policies and programs without sufficient consultation and negotiation with the states during the development of legislation. The Real ID Act, for instance, was a rider attached to broader "must-pass" legislation, trumping a more collaborative proposal of negotiation between the Bush administration and the states.
  • Fiscal challenges. Recent state fiscal crises have made states more eager for federal aid, but also more sensitive to the accompanying conditions and mandates. As federal officials take their own deficits seriously, look out below!

The bottom line is this: We are entering a period of contentious federalism. Ambitious national officials and ornery state officials will increasingly find themselves on opposite sides of ideological and fiscal barricades. Some have even joined in efforts to promote constitutional amendments to enable states to resist federal statutes they don't like or petition collectively for federal repeal.

These amendments raise serious concerns about the capacity of the nation to achieve uniform policy across all of the states. However, these developments should prompt federal officials to establish new mechanisms to promote collaboration between federal and state officials up front when legislative proposals are developed. They should also lead to the resurrection of the Advisory Commission on Intergovernmental Relations and real intergovernmental relations subcommittees in the Congress that used to promote a more reflective and collaborative approach with the states than exists now.

Paul Posner
Paul L. Posner | Contributor