cqr states and federalism - constitution project...848 cq researcher federal powers have grown over...

States and FederalismIs the federal government usurping states’ powers?

Arizona enacted Medicaid cuts early this year only

to have the action countermanded by the Obama

administration’s recently passed health care law.

Arizona is now one of 20 states challenging the

new law as unconstitutional. Meanwhile, the state is also tangling

with the federal government over national immigration policy. The

cases highlight the recurrence of high-profile clashes over federal

power and state prerogatives playing out against the backdrop of

sharp political attacks on the administration and declining confi-

dence in government at all levels. One federal judge has upheld

the new health care law, but the states’ suits challenging the law

are advancing. Meanwhile, the Supreme Court is set to hear a

challenge by business and civil rights groups to Arizona’s tough

law on hiring illegal aliens even as the state is appealing a lower

court ruling that blocks its new measure requiring local law

enforcement officers to check the immigration status of anyone

arrested, detained or stopped for possible law violations.

I

N

S

I

D

E

THE ISSUES ....................847

BACKGROUND ................854

CHRONOLOGY ................855

CURRENT SITUATION ........860

AT ISSUE........................861

OUTLOOK ......................863

BIBLIOGRAPHY ................866

THE NEXT STEP ..............867

THISREPORT

Tea Party members and other supporters of Arizona’stough, new immigration law rally against illegalimmigration in Phoenix on July 31. The JusticeDepartment has sued to invalidate the law,

arguing it conflicts with the federal government’spower over immigration matters.

CQResearcherPublished by CQ Press, a Division of SAGE

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CQ Researcher • Oct. 15, 2010 • www.cqresearcher.comVolume 20, Number 36 • Pages 845-868

RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR

EXCELLENCE � AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD

846 CQ Researcher

THE ISSUES

847 • Is the federal govern-ment taking on too muchpower from the states?• Does the federal healthcare law infringe on thepowers of the states?• Do state and local im-migration laws infringe onfederal powers?

BACKGROUND

854 Dual SovereignsThe Constitution reservedpower for both the nation-al and state governments.

856 ‘New’ FederalismsRepublican Presidents Nixonand Reagan sought to “re-turn” power to the states.

859 Federal PowersBoth Presidents George W.Bush and Barack Obamaoverrode state interests.

CURRENT SITUATION

860 Health Suits AdvancingSeveral states are challengingthe new health care law.

862 Immigration Cases SetChallenges to two toughArizona statutes are beingclosely watched.

OUTLOOK

863 Federalism’s MeaningsToday’s “collaborative” fed-eralism involves overlappingstate and federal powers.

SIDEBARS AND GRAPHICS

848 Confidence in State, Federal Governments LagsFifty-nine percent of Ameri-cans have limited confidence.

852 Arizona Law Blocked byFederal JudgeU.S. law preempts parts oftough anti-immigration law,judge says.

855 ChronologyKey events since 1972.

856 Will Staggering New Medicaid Costs Hit theStates?Dueling studies examine theimpact of new health carereform law.

858 Hearing Set on Inmate-Release Order in CaliforniaCan a federal court order thestate to reduce its prisonpopulation?

861 At IssueIs the Obama administrationtaking too much power fromthe states?

FOR FURTHER RESEARCH

865 For More InformationOrganizations to contact.

866 BibliographySelected sources used.

867 The Next StepAdditional articles.

867 Citing CQ ResearcherSample bibliography formats.

STATES AND FEDERALISM

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States and Federalism

THE ISSUESA rizona Gov. Jan

Brewer worked hardwith the state’s leg-

islature to come up with$1.1 billion in spending cutsearly this year to avoid a bigbudget deficit in 2011. A bigchunk of savings came fromeliminating health care cover-age for 47,000 low-incomechildren and 310,000 childlessadults.

“This is the most signifi-cant streamlining of state gov-ernment ever undertaken,” theRepublican chief executivesaid as she signed a series ofbudget bills on March 19.

Only a few days later, how-ever, Arizona’s budget-cuttingeffort ran headlong into Presi-dent Obama’s plan to covermost of the estimated 50 mil-lion Americans without healthinsurance. Under the healthcare overhaul that Congresspassed and Obama signed intolaw on March 23, states areprohibited from reducing theircurrent health care funding.

“The short version is that states arelocked into their existing programs atthe moment the president signs the bill,”Monica Coury, spokeswoman for theArizona Health Care Cost ContainmentSystem, told the Arizona Republic onthe eve of Obama’s signing. The agencyoperates the state’s Medicaid system, thefederal-state health care program forlow-income persons. 1

Barely a month later, Brewer foundherself in another power struggle withWashington as she signed a contro-versial immigration law on April 23making it a state crime to be in thecountry illegally and requiring localpolice to enforce federal immigrationlaw. Brewer said the law — passed

by the GOP-controlled legislature —was necessary “to solve a crisis wedid not create and the federal gov-ernment has refused to fix — the cri-sis caused by illegal immigration andArizona’s porous border.”

The very same day, Obama in Wash-ington called the law “misguided” andpledged an administration review ofits implications. The Justice Depart-ment followed through on July 6 byfiling a federal court suit in Phoenixto invalidate the law as conflictingwith the federal government’s plenarypower over immigration matters. “TheConstitution and the federal immi-gration laws do not permit the de-velopment of a patchwork of state

and local immigration poli-cies throughout the country,”the suit says. 2

The two issues are as cur-rent as the upcoming 2010midterm congressional elec-tions. Republican candidatesand activists in the diffuseTea Party movement are de-picting the health care over-haul as a massive power grabby the federal government atthe expense of state preroga-tives and individual rights. Alongwith immigration-control ad-vocacy groups, they are alsoblaming Washington for thefailure to seal U.S. bordersfrom illegal immigrants andurging the feds to get out ofthe way of state and localgovernments wanting to adopttougher policies. 3

The conflicts over feder-al and state powers, how-ever, are also as old as theRepublic itself. The Consti-tution, drafted in the sum-mer of 1787, called for re-placing the weak nationalgovernment created by theArticles of Confederation witha federal system of divided

powers between the national and stategovernments, known as federalism.The new national government was tobe stronger, but how much strongerwas unclear. The issue was fiercelydebated in the state-by-state battlesthat led up to ratification of the Con-stitution nine months later.

“From the beginning there was am-biguity in the Constitution,” says Tim-othy Conlan, a professor of politicalscience at George Mason University inFairfax, Va., and author of two booksand numerous articles on federalism,“And the scope of ambiguity has grownover time as we’ve been forced toadapt an 18th-century document to therealities of 20th-century government.” 4

BY KENNETH JOST

AFP

/Getty Images/Saul Loeb

President Obama signs new health care reformlegislation on March 23, 2010, providing insurance forsome 30 million uninsured Americans. Twenty stateshave sued to invalidate the controversial legislation,claiming the added costs it requires amounts to anunconstitutional intrusion on the states’ sovereignty.

848 CQ Researcher

Federal powers have grown overtime, particularly since the 1930s,when President Franklin D. Rooseveltput Washington into the economic-recovery and regulation business. TheSupreme Court initially struck down

some of FDR’s legislative initiatives,but reversed course in 1937.

“The federal government clearlyhas grown in power since 1938,” saysRobert A. Schapiro, a professor of con-stitutional law at Emory University

School of Law in Atlanta. “The scopeof federal regulation has increased,”Schapiro adds, “but the scope of stateregulation has also increased.”

Roosevelt set the pattern for Demo-cratic presidents, including John F.Kennedy and Lyndon B. Johnson inthe 1960s, of being associated with ex-panding the scope and size of the fed-eral government. Two Republican suc-cessors, Richard M. Nixon and RonaldReagan, countered with federalism re-forms that purported to transfer powerback to the states. Conlan notes, how-ever, that both of the GOP chief ex-ecutives also adopted some policiesthat centralized powers in Washington.

Today, Obama and his fellowDemocrats in Congress are under fiercecriticism for supposedly expanding fed-eral powers and spending to un-precedented levels. “No government-controlled health care,” read onecommonly seen placard at a Tea Partyrally in Washington on Sept. 12. An-other: “The more the government takes,the le$$ we make. Cut taxes + spend-ing now!”

Experts with differing politicalviews say the attacks are overdrawn.“Like most administrations, [Obama’s]is somewhat conflicted,” says JonathanAdler, a conservative law professor atCase Western Reserve University inCleveland. “In some areas, the ad-ministration has sought to be respon-sive to the desire of the states to dotheir own thing. But in other areas,the administration has certainly beenaggressive in maintaining federal su-premacy to preempt state actions.”

Doug Kendall, president of the con-sumer-oriented Constitutional Account-ability Center in Washington, agrees.“The administration’s record could beviewed as pointing in a couple of di-rections,” Kendall says. He notes thatthe administration issued a policy state-ment early in 2009 generally pledgingto minimize the use of the doctrine offederal preemption to supersede statelaws. But he acknowledges that the


Confidence in Government Lags

Fifty-nine percent of Americans have limited or no confidence in either the federal or their state government (top graph). In five economically stressed states — Arizona, California, Florida, Illinois and New York — a majority of voters say they can trust their state governments only some of the time (chart).

* Figures may not total 100 due to rounding.

Sources: “Voter Confidence in Big Banks, Corporations & Wall Street Even Lower Than That of Government,” Zogby, February 2010, www.zogby.com/news/ReadNews.cfm?ID=1817; “Facing Facts: Public Attitudes and Fiscal Realities in Five Stressed States,” Pew Center on the States, October 2010, www.pewcenteronthestates.org/uploadedFiles/PCS_PPIC.pdf?n=4566

How much confidence do you have in federal/state government?

How much of the time do you think you cantrust your state government to do what is right?

A lot or some Little or none Not sure

41%

59%

1%41%

59%

1%

Federal State

Just Most Only State about of the some of Never Don’t always time the time knowArizona 4% 29% 60% 6% 1%California 3 15 70 10 2Florida 4 27 59 8 2Illinois 2 17 71 9 1New York 3 16 67 12 2


administration has vigorously claimedpreemption to override some of theflurry of state and local immigrationlaws passed in the past few years. (See“At Issue,” p. 861.)

Adler, Kendall and others also notethat Obama’s Republican predecessor,George W. Bush, pursued severalpower-centralizing policies despite theGOP’s general asso-ciation with favoringstates’ interests overWashington’s. “Therewas a dramat icgrowth of federalmandates underBush,” Conlan says.

Whether over-drawn or not, dis-content with Obamaadministration poli-cies is fueling inter-est in ambitious butlong-shot campaignsto rewrite the U.S.Constitution to limitfederal power. Someconservatives arepressing a campaignto get the requirednumber of states —34 — to call on Con-gress to convene aconstitutional con-vention, a procedurenever before used toamend the nation’sfoundational document. Meanwhile, alibertarian-minded Georgetown Univer-sity law professor is drawing attentionfor a proposed constitutional amend-ment to allow two-thirds of the statesto repeal a federal law unless Congressreenacts it in the face of the states’ op-position. (See story, p. 850.)

Federalism issues routinely end upin the courts, often at the SupremeCourt. In the 1990s under Chief Jus-tice William H. Rehnquist, the courtbreathed new life into federalismprinciples with several decisions thattrimmed federal powers. The so-

called federalism revolution began topeter out, however, at the turn of thecentury. After five years in office asRehnquist’s successor, Chief JusticeJohn G. Roberts Jr. has shown littleinterest in the area.

The court does have several federal-ism-related cases on its calendar forthe current term, however, including

a closely watched challenge to Ari-zona’s controversial law tightening pro-hibitions against employers’ hiring il-legal aliens. The federal appeals courtin San Francisco upheld the law. TheU.S. Chamber of Commerce, along withimmigrant-rights groups and the U.S.government, is asking the justices tostrike the law down. The case will beargued on Dec. 8.

Meanwhile, federal judges in twostates are considering suits by stateschallenging the new health care law.The states say the Patient Protectionand Affordable Care Act — sometimes

referred to by the acronym PPACA or,pejoratively, as “Obamacare” — willcost states so much money that it in-fringes on their power to control theirown affairs. The administration, alongwith health reform advocates, con-tends that any additional costs forstates will be minimal and will be off-set by other savings.

The administration’schallenge to Arizona’snewest immigration lawis also advancing in thecourts. U.S. DistrictJudge Susan Bolton is-sued an injunction onJuly 28 blocking the lawfrom going into effect asscheduled at 12:01 a.m.the next day. The feder-al appeals court in SanFrancisco is scheduledto hear the state’s appealNov. 1. (See box, p. 852.)

As the court casesproceed and the con-gressional elections ap-proach, here are someof the major questionsbeing debated:

Is the federal gov-ernment taking ontoo much powerfrom the states?

Four weeks after anupset win in Alaska’s

Republican primary, U.S. Senate candi-date Joe Miller used a nationwide tele-vision appearance on Sept. 19 to callfor cutting back the size of the federalgovernment. “The first thing that needsto be done,” the Tea Party-backed can-didate told host Chris Wallace on “FoxNews Sunday,” “is, again, restricting thegrowth and actually reversing the growthof government and, in the process, trans-ferring power back to the states.”

Anxiety about the size of the feder-al government had been growing sinceObama’s early months in office when

Demonstrators block a street in downtown Phoenix on July 30 to protestArizona’s tough new immigration law requiring local police to enforcefederal immigration law. Gov. Jan Brewer said the law was necessary

“to solve a crisis we did not create and the federal government has refused to fix — the crisis caused by illegal immigration and

Arizona’s porous border.”

AFP

/Getty Images/M

ark Ralston

Continued on p. 851

850 CQ Researcher


C onservative scholars and activists, frustrated with mount-ing federal debt and expansion of federal powers, arelooking to an unused provision in the Constitution for

a remedy. They want to convene a convention under ArticleV, which permits applications from two-thirds of the states (now34) to force Congress to call a convention where state dele-gates would debate constitutional amendments. To ratify theproposed amendments, three-fourths of the state legislatures(38) would then have to approve them.

“This current debt is unconscionable,” says Bill Fruth,an economist and founder of 10 Amendments for Freedom,a Florida-based advocacy group working to create a con-vention to propose a balanced budget amendment. “Anamendment is necessary to force Congress to stop bor-rowing. They won’t do it themselves, so we have to forcethem,” Fruth says.

Randy Barnett, a law professor at Georgetown Law Center,agrees. “People are looking for levers to pressure Congress,”says Barnett. “We can’t rely on Congress to police themselvesor for the courts to police Congress, so Article V provides analternate way of reining in federal power.”

Barnett, a prominent advocate of limiting federal power,is also pushing his own proposed constitutional amendmentto allow two-thirds of the states to “repeal” a law passedby Congress. The repeal would take effect unless Congressdecided to reenact the measure, with only a simple major-ity required. As Barnett explained in an op-ed in The WallStreet Journal, the amendment would effectively force Con-gress to take a second look at a new law if a solid major-ity of states opposed it. The op-ed was co-authored byWilliam J. Howell, speaker of the Virginia House of Dele-gates, who said he would introduce the measure in a com-ing session. 1

Paradoxically, efforts to block the proposed convention arebeing led by conservative groups that also want to limit fed-eral power but worry about the risk of potentially damagingchanges to the Constitution. Lobbying by the Eagle Forum andthe far-right John Birch Society have prompted at least 13states to withdraw their applications for conventions in thelast decade.

“There is no provision in the Constitution for how a con-vention would run,” says Republican New Hampshire state Rep.Tim Comerford, who sponsored a successful effort in the 2010legislative session to rescind a pending convention application.Comerford began his efforts after learning about the dangersof a constitutional convention from a John Birch Society video,“Beware of Article V.”

“The only constitutional convention we ever had was theoriginal one, and that was a runaway convention because

they set out to amend the Articles of Confederation and woundup creating a whole new document,” says Comerford. “A newconvention could put the First and Second Amendments —any of the Constitution — under fire.”

Virginia Sloan, director of The Constitution Project, a non-partisan group that fosters discussion of constitutional issues,is also critical of the convention process. “In the constructionof the Constitution, the framers were trying to avoid peopleusing the Constitution as a political tool,” says Sloan. “Most peo-ple are reluctant to support an amendments convention be-cause we could destroy what we have.”

Calling for an amendments convention is nothing new. Inthe 1960s and again in the ’80s, 32 of the 34 states neededsought to establish a convention, proposing, respectively,amendments on legislative reapportionment and balanced bud-gets. In both cases, the fear of a runaway, free-for-all conven-tion motivated Congress to address the issues.

This time, experts are not convinced that the threat of aconvention will compel Congress to act. “My prediction is no,”says Robert G. Natelson, a senior fellow in constitutionaljurisprudence at the Denver-based Independence Institute,which describes itself as a “free-market, pro-freedom” think tank.“I hear some people say, ‘Maybe Congress will just cave,’ butI think people who want to apply for a convention should beprepared for a convention.”

Organizing a convention comes with many obstacles. “Whenyou call a convention, you have to do a lot of organizationbeforehand, and you need a way of sharpening the issues,”says Jack Balkin, a law professor at Yale University. “It’s a verytall order.”

Also, Balkin says, if a convention is held and actually sendsproposed amendments to the states, they are very difficult topass, as proven by the struggle and eventual failure to add theEqual Rights Amendment to the Constitution.

As of Sept. 1, 20 state legislatures have voted to force Con-gress to hold an amendments convention. Fruth’s 10 Amend-ments for Freedom plans to have sponsors in all 50 state leg-islatures in January 2011 introduce the group’s petition for aconvention.

The ramifications of calling a convention could be huge.“The mere fact of having a convention would set all eyes onconstitutional issues,” says Balkin. “Even if the convention failed,those issues would be setting the political agenda. It wouldsuck all the air out of the political room.”

— Maggie Clark

1 Randy Barnett and William J. Howell, “The Case for a ‘Repeal Amendment,’ ”The Wall Street Journal, Sept. 16, 2010, p. A23.

States Look to Article V to Limit Federal PowerConservative advocates push for a state-led convention to amend Constitution.


he proposed a $900 billion stimulus planto try to lift the country out of the re-cession that began while Bush was pres-ident. Obama agreed to trim the requestto gain Republican votes needed to passthe bill in the Senate. As enacted, theAmerican Recovery and ReinvestmentAct of 2009 provided $787 billion instimulus — divided between tax breaksfor individuals and businesses; funds foreducation, health care and entitlementprograms, including unemploymentbenefits; and funds for federal contracts,grants and loans.

Meanwhile, the administration wasalso continuing the financial industrybailout — the Troubled Asset ReliefProgram or TARP — that had beenenacted in the final months of theBush administration. And with GeneralMotors, the nation’s largest automak-er, on the verge of financial collapse,Obama decided in June 2009 effec-tively to force the company into a fed-eral bankruptcy court for reorganiza-tion, with the government acquiring a60 percent ownership stake.

The government had no shortage ofinterest from states for funds from theeconomic stimulus. Officials in the statesmost directly affected also generallybacked the government’s financial res-cue plans for Wall Street (New York)and GM (Michigan). Emory law profes-sor Schapiro finds the states’ support forthe expanded federal roles unsurprising.“Often what the federal government istrying to do is the same thing the stategovernments are trying to do,” he says.“It’s just that the federal government cando it more effectively.”

On regulatory issues, Obama re-versed the Bush administration’s stanceof invoking federal preemption to su-persede state laws or state court rul-ings. “The Bush administration wascompletely hostile to regulation at thestate level,” says Kendall of the Con-stitutional Accountability Center. Theadministration signaled the shift to-ward what is sometimes called “pro-

gressive federalism” with a decisionin January 2009 to allow Californiaand other states to set their own stan-dards on greenhouse gases from carsand trucks. Later, Obama cautionedagency and department heads againstissuing regulations that preempted statelaws without clear federal statutoryauthority. Obama’s memo, issued inMay 2009, favorably quoted SupremeCourt Justice Louis Brandeis’ obser-vation that states can serve as a “lab-oratory” for “novel social and eco-nomic experiments.” 5

Obama also revised another Bushpolicy initiative that intruded on stateprerogatives: the No Child Left BehindAct, with its combination of curricu-lum and testing mandates and finan-cial penalties for non-performingschools. The act was challenged incourt on states’ rights grounds but up-held. Federalism expert Conlan callsthe law “unquestionably the most in-trusive federal policy on elementaryand secondary education since theGreat Society, and perhaps ever.”

Instead of using mandates and penal-ties, the Obama administration is pro-moting education reform in the statesthrough a $4.35 billion competitivegrant program known as “Race to theTop.” Eleven states and the District ofColumbia have been selected to re-ceive grants — two in March, the oth-ers in late August — based on de-tailed proposals that generally hewedto the administration’s support for char-ter schools and performance-based payfor teachers. In all, 40 states and theDistrict of Columbia submitted appli-cations for the funds. 6

Despite some states-minded shifts, theadministration’s reputation on federalismamong Republicans and conservativestoday appears to be uniformly negative,largely because of the state mandatesin the health care law and the immi-gration policy stance. Writing in TheAmerican Spectator in July, Andrew Cline,editorial page editor of the conservativeNew Hampshire Union Leader, de-

nounced what he calls the administra-tion’s “crazy quilt federalism.” 7

In similar vein, Gene Healy, a vicepresident at the libertarian Cato Insti-tute and columnist for the Washing-ton Examiner, accuses the adminis-tration of “fair-weather federalism.”The administration “allows states li-cense when they’re pursuing policiesthat the Obama administration and itssupporters favor and brings the ham-mer down when they’re doing poli-cies that [the administration opposes].”

Healy says the Obama administra-tion is not unique in adopting an in-consistent attitude toward state-federalrelations. “It’s quite common for politi-cians to wave the 10th Amendmentflag,” he says. The Bush administra-tion, Healy says, was “quite abysmal”on federalism. As examples, he notesthe Bush policies of challenging stateinitiatives in California on medicalmarijuana and in Oregon on assistedsuicide.

Emory law professor Schapiro saysthe policy shifts from one administra-tion to another indicate that federal-ism provides no fixed answer on therespective powers of the federal andstate governments. “Federalism de-bates have often been policy debatesin constitutional language,” he says.“To the extent that some states don’tlike what the federal government isdoing, that’s the issue.”

Does the federal health care lawinfringe on the powers of thestates?

On the day before President Obamawas to sign the federal health care law,Florida Attorney General Bill McCollumpromised to file a suit challenging theact as an infringement of states’ rightsimmediately afterward. The legislationwould cost the states “billions of dollars”and go “far beyond any unfunded man-date we’ve ever seen,” McCollum saidon March 22. “Anything that really ma-nipulates the states like this,” he contin-ued, “is unconstitutional under the 10th

Continued from p. 849

852 CQ Researcher

Amendment, under the sovereignty ofthe states.”

The Obama administration is vig-orously defending against Florida’sfederal court suit, now joined by 19other states, and a similar suit filedseparately by Virginia. Supporters ofthe health care law and many legalexperts voice doubts about the states’-rights challenge, though some expertssee a stronger basis for attacking thelaw’s individual-insurance mandate. Inany event, the two federal judges hear-ing the cases — one in Pensacola, theother in Alexandria — have both sig-naled they are unlikely to dismiss thesuits at an early stage. 8

Supporters of the law sharply dis-pute the opponents’ claims, includingthe claimed fiscal impact on the states.The law expands health insurancecoverage by requiring participatingstates — and all do participate — toextend Medicaid eligibility beginning

in 2014 to a new, nationwide stan-dard: all adults with incomes up to133 percent of the federal poverty level.

The new requirement is projectedto add 16 million to 22 million peo-ple to Medicaid rolls nationwide. Thefederal government will pay 100 per-cent of the cost of new enrollees forthe first three years, with the percentagedeclining gradually to 90 percent in2020 and future years.

The change amounts to “a mas-sive expansion of the states’ Medic-aid programs,” according to RobertAlt, a senior legal fellow and deputydirector of the Center for Legal Stud-ies at the conservative Heritage Foun-dation. “Representatives of states aregenuinely concerned about how muchmore this is going to cost,” Alt says,“and whether or not it’s simply goingto bankrupt them.”

John Holahan, director of theHealth Policy Research Center at the

liberal-oriented Urban Institute, callsthe argument by the objecting states“grotesquely flawed.” The new law, hesays, would mean “a small increase”in state Medicaid spending but wouldalso allow states to reduce currentspending in several areas — notably,unreimbursed medical care for the unin-sured. The savings, Holahan says, “willbe more than enough to offset” thenew spending under the law.

In their lawsuits, the states contendthat the new law fundamentally changesthe Medicaid program from “a volun-tary federal-state partnership into acompulsory top-down federal program.”In its reply, the government says thenew law imposes valid conditions onthe states’ acceptance of federal aidcomparable to changes in Medicaidrules enacted periodically since theprogram was created in 1965.

Health policy experts on both sidesagree with the states’ argument that


M ajor provisions of Arizona’s Support Our Law En-forcement and Safe Neighborhoods Act have beenblocked from going into effect by a federal judge’s

ruling on July 28. U.S. District Judge Susan Bolton in Phoenixruled that federal law preempts provisions in four sections ofthe controversial act that:

• Require law enforcement officers to make a reasonable at-tempt to determine the immigration status of a personstopped, detained or arrested if there is a reasonable sus-picion that the person is unlawfully present in the UnitedStates; and require verification of the immigration status ofany arrested person before release. The provision, Boltonsaid, is “likely to burden legally present aliens” and “to im-permissibly burden federal resources and redirect federalagencies away from the priorities they have established.”

• Create a crime for the failure to apply for or carry alienregistration papers. The provision, Bolton ruled, “alters thepenalties established by Congress under the federal reg-istration scheme.”

• Create a crime for an unauthorized alien to solicit, applyfor or perform work. The provision, the judge said, “con-flicts with a comprehensive federal scheme. . . .”

• Authorize the warrantless arrest of a person if there is prob-

able cause to believe the person has committed a public of-fense that makes the person removable from the UnitedStates. Bolton found “a substantial likelihood that officers willwrongfully arrest legal resident aliens” under the provision.

The judge found two challenged provisions were not pre-empted and could be enforced. Those provisions:

• Create a separate crime to transport or harbor an unlaw-fully present alien or encourage or induce an unlawfullypresent alien to come to or live in Arizona.

• Permit impoundment of vehicles used in the transportingor harboring of unlawfully present aliens.

Many other provisions of the law remain enforceable becausethe government did not seek to enjoin them. They include aprovision creating a new crime of stopping a motor vehicle topick up day laborers if the action impedes normal traffic.

The state’s appeal of the issuance of the preliminary in-junction is to be heard by a panel of the Ninth U.S. CircuitCourt of Appeals in San Francisco on Nov. 1.

— Kenneth Jost

Source: United States v. Arizona, CV10-1413-PHX-SRB, July 28, 2010, http://docs.justia.com/cases/federal/district-courts/arizona/azdce/2:2010cv01413/535000/87/.

Arizona Law Blocked by Federal JudgeU.S. law preempts parts of tough anti-immigration law, judge says.


participation in Medicaid is, in practi-cal terms, obligatory. “That’s been truefor a long time,” says Holahan. “Nostate has ever seriously consideredwalking away from [the program].”

Two legal experts on federalism,however, say they doubt that thestates’ coercion argument will carry theday. “The legislation is a dramatic as-sertion and exercise of federal au-thority,” says Adler, the conservativelaw professor at Case Western Reserve.Even so, Adler says, the states’ spend-ing arguments “are difficult to make.”

Conlan, a more centrist-minded fed-eralism expert, is also dubious. “There’sno question that the law does entailnew opportunities and responsibilitiesfor the states,” he says. But he calls thestates’ arguments “overdrawn.” In itsbrief, the government says that theSupreme Court has never struck downa federal state-aid program on thegrounds that a condition for receivingthe assistance was coercive.

The states are also challenging pro-visions of the new law for the statesto establish health-insurance exchangesto offer moderately priced insurancecoverage for small businesses and in-dividuals. The states depict the pro-visions as mandatory and, on thatbasis, as an impermissible commandto operate a federal regulatory pro-gram. The government counters thatthe states in fact are free to decidewhether or not to create the insur-ance exchanges.

The states are also attacking themost politically contentious aspect ofthe new law: the individual health in-surance mandate. In their suit, the statescall the provision “an unprecedentedencroachment on the sovereignty ofthe Plaintiff States and the rights oftheir citizens.” The government callsthe claim premature and denies thestates’ legal standing to bring theclaim. But on the law’s merits the gov-ernment says the mandate is a validexercise of Congress’ authority to regu-late the market in health care.

The Heritage Foundation’s Alt saysthe argument contradicts federalism prin-ciples. “If the Commerce Clause wereread this broadly, then the federal gov-ernment could do anything,” he says.Emory law professor Schapiro calls it“surprising” for the states to raise a sov-ereignty-based argument against a reg-ulation affecting individuals, not thestates themselves. But he adds, “It’s alittle late in the day for states to saythat health is a local matter.”

Do state and local immigrationlaws infringe on federal powers?

When two illegal aliens were in-volved in a fatal shooting in the smalltown of Hazleton in northeastern Penn-sylvania in 2006, Mayor Lou Barlettaresponded by proposing a local ordi-nance aimed at making his city “thetoughest place in the United States”for illegal immigrants. As approved bythe town council, the Illegal Immi-gration Relief Act provided for liftingthe business license of any companythat employed or the rental license forany landlord that rented housing toan illegal alien.

The ordinance was promptlychallenged by Hispanic residents andimmigrant-rights groups, blocked fromgoing into effect and now has beenstruck down by a federal appeals courtas conflicting with federal law. In amassive, 188-page decision on Sept. 9,a three-judge panel of the Third U.S.Circuit Court of Appeals said that itwas “required to intervene when statesand localities directly undermine thefederal objectives embodied in statutesenacted by Congress.” 9

The appeals court ruling conformsto the general view, dating to the 19thcentury, that federal law is preeminenton immigration matters. But critics ofthe federal government’s inability inrecent years to stem the influx of un-documented aliens insist that states andlocalities are on sound ground in pass-ing laws that they say will strengthenthe enforcement of federal laws.

“The primary responsibility for im-migration policy and immigration en-forcement rests with the federal gov-ernment,” says Ira Mehlman, nationalmedia director for the Federation forAmerican Immigration Reform (FAIR).“But Congress has made it clear overthe years that they welcome state andlocal cooperation in enforcing immi-gration laws.”

As one example, Cory Andrews, asenior litigation counsel with the con-servative Washington Legal Founda-tion (WLF), points to an immigrationlaw — passed in 1995 and known assection 287(g) — that authorizes stateand local law enforcement officers toperform immigration law enforcementfunctions. WLF filed a friend-of-the-court brief supporting the Hazleton or-dinance as well as the Arizona employer-sanctions law pending before theSupreme Court.

Immigrant-rights advocates say thestates have far less power to deal withimmigration-related matters. The feder-al government has “supreme” power over“anything that touches on who can enterthe country and the conditions underwhich they may remain,” says KarenTumlin, managing attorney with the LosAngeles-based National Immigration LawCenter. “State attempts to legislate in thatarea are strictly prohibited.”

Tumlin acknowledges section 287(g)but notes that the provision permitsagreements between the federal gov-ernment and local law enforcementonly if local officers receive specializedtraining from federal agents.

As with the health care issue, ex-perts Conlan and Adler both doubtthe states’ arguments despite the dif-ferences in their political perspectives.Both scholars acknowledge the states’concerns about the impact of illegalimmigration but question the states’authority to take on enforcement re-sponsibilities themselves.

“The federal government is failingperhaps to adequately perform one ofits constitutional responsibilities;” says

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Conlan. “The corollary of that is not that[the states] get to address immigration.That does not follow constitutionally.”

States may have “legitimate policycomplaints” about federal enforcement,Adler says, but that does not meanthat the states can enact their ownpolicies. “If the federal government be-lieves that the immigration laws are tobe enforced in a particular way,” hesays, “the federal government has theability to make that a national rule.”

Despite the legal doubts, state andlocal governments have enacted wellover 1,000 immigration-related laws inthe past six years. Many but not allof the laws have been struck downor blocked from going into effect.

The Supreme Court will have itsfirst chance to rule on the recent spateof laws during the current 2010-2011term when the justices hear a chal-lenge to Arizona’s tough 2007 employer-sanctions law on Dec. 8. The case,Chamber of Commerce v. Whiting, pitsbusiness and civil rights groups chal-lenging the law against Arizona andgroups favoring a tougher stance againstillegal immigration. The federal appealscourt in San Francisco upheld the law.

Schapiro, the Emory law professor,acknowledges the federal government’sargument for preempting state and locallaws aimed at more stringent enforce-ment of federal laws may seem para-doxical. “It’s a hard argument to make,”he says. In briefs in the Hazleton caseand the two cases challenging Ari-zona laws, the government argues thatoverenforcement by state and localgovernments risks burdening alienslegally in the United States, deterringemployers or landlords from hiring orrenting to legal aliens and overwhelm-ing federal resources to enforce immi-gration laws.

The appeals court in the Hazletoncase credited those arguments. Thelaw’s employment provisions createdan “obstacle” to federal policy, the courtsaid, by emphasizing enforcement butnot the anti-discrimination protections

included in the federal employer sanc-tions law. As for the housing provi-sions, the court said that regulation ofthe residency of immigrants was“clearly within the exclusive domainof the federal government.”

In Hazleton, Mayor Barletta is vow-ing to appeal the decision. “I have saidrepeatedly over the years that the mainline of defense against illegal immi-gration is to eliminate the availabilityof jobs to illegal aliens,” Barletta saidon the day of the decision. “If illegalaliens have no place to work, theywill self-deport.”

BACKGROUNDDual Sovereigns

T he Constitution established a na-tional government with some pow-

ers defined specifically and others moregenerally, but it also preserved stategovernments with most but not all oftheir residual powers retained. Overthe course of two centuries, the fed-eral government has grown in sizeand scope, but so too state govern-ments. Congress and presidents havenaturally gravitated toward federalsolutions to perceived national prob-lems but with the ever-present con-straint of political and public supportfor states’ prerogatives. The SupremeCourt at times limited federal powerssomewhat, but since the 1930s hasgenerally upheld the growing federalrole exemplified in direct regulationand in conditions attached to federalaid to states. 10

The Constitution sets forth in Arti-cle I Congress’ so-called “enumeratedpowers,” including most significantlythe power to tax and spend and toregulate interstate and foreign com-merce. Article I also includes somelimitations on the states, including a

prohibition on any “tax or duty” onexports from other states. In urgingratification of the Constitution, JamesMadison and Alexander Hamiltonstressed in The Federalist Papers thecontinued importance of the states. InFederalist 45, Madison said the feder-al government’s powers were “few anddefined,” while the states’ were “nu-merous and indefinite.” In Federalist 51,Hamilton argued that the federal struc-ture would help preserve liberty. “Thedifferent governments will controleach other,” he wrote. 11

Under Chief Justice John Marshall(1801-1835), the Supreme Court gen-erally upheld federal powers, includ-ing an 1819 decision that gave a broadbut not unlimited reading to Congress’authority to enact “all laws . . . nec-essary and proper for . . . the execu-tion” of its enumerated powers andlimited the states’ ability to interferewith those powers. Under Chief JusticeRoger Taney (1835-1864), the court tilt-ed slightly toward the states. Taney’s“dual federalism” is illustrated in a pairof immigration-related cases, a decadeapart. One upheld as a proper exer-cise of a state’s police powers a lawrequiring ship masters to provide thenames and other information aboutdisembarking passengers. The otherstruck down a state law imposing a taxon those beginning a voyage. 12

The Civil War and the post-CivilWar amendments established a nationalpolicy on an issue that the Constitu-tion had left to the states: slavery. The14th Amendment also laid the basisfor expansion of federal powers byprohibiting the states from denying “toany person” equal protection or dueprocess. The late-19th century Indus-trial Revolution also encouraged Con-gress to exercise its Commerce Clausepowers, sometimes to protect nation-wide enterprises such as the railroadsand sometimes to safeguard workersor consumers from exploitative prac-tices by business. The Supreme Court,

Continued on p. 856


Chronology1970s-1980sFederalism “reform” is persis-tent theme in Washington, statecapitals.

1972Congress passes and PresidentRichard M. Nixon signs generalrevenue sharing for state, localgovernments.

1981Budget Reconciliation Act signedby President Ronald Reagan con-solidates federal grant programs,cuts overall state aid.

1987Supreme Court says Congress canrequire states to set minimumdrinking age at 21 as condition toreceive highway constructionfunds.

•

1990s “Federalismrevolution” at Supreme Courtlimits federal power.

1995Congress passes and President BillClinton signs Unfunded MandatesAct, limiting new federal mandateson states without federal funding(March 22).

1995-2000Chief Justice William H. Rehnquistleads Supreme Court in limitingCongress’ ability to force stategovernments to administer regula-tory programs, protecting stategovernments from damage suitsfor violating federal law and limit-ing Congress’ use of CommerceClause power to regulate non-economic matters.

2000-PresentPresidents George W. Bush andBarack Obama push centraliz-ing policies in Washington de-spite nods to state prerogatives;federalism revolution stalls atSupreme Court.

2001President Bush wins congressionalapproval of No Child Left BehindAct; measure establishes nationalstandards on curriculum, testing,school performance; Bush signs intolaw Jan. 8, 2002; act is challengedin court but upheld.

2002Help America Vote Act establishesnationwide minimum election stan-dards, provides funds to replacepunch-card, lever-based votingsystems (Oct. 22).

2005Real ID Act, requiring states toadopt uniform procedures for dri-ver’s licenses as individual identifi-cation (May 11). . . . SupremeCourt rules federal drug laws pre-empt state measures to legalizemedical marijuana; ruling seen asretreat from Rehnquist’s federalismrevolution (June 6).

2006Hazelton, Pa., enacts ordinance topunish employers for hiring orlandlords for renting to illegalaliens; measure is one of hun-dreds enacted by state or localgovernments over several years tocounter illegal immigration.

2007Arizona’s Legal Arizona Worker Actmakes it a crime for illegal aliento seek employment in state andputs employer out of business forsecond offense of hiring illegal

alien; act is challenged by busi-ness, civil rights groups but up-held by federal appeals court inSeptember 2008.

2008Democrat Barack Obama electedafter presidential campaign withminimal attention to state-federalismissues.

2009Obama makes health care overhaula major domestic policy goal; workswith Congress to craft bill to expandMedicaid eligibility with federal fi-nancing, use states to create healthinsurance exchanges to provide af-fordable coverage for individuals,small businesses.

2010Obama signs Patient Protectionand Affordable Care Act into law(March 23); Virginia files suit sameday challenging law as violatingstate law barring individual healthinsurance mandate; Florida filessuit next day, challenging act asunconstitutional because of fiscalimpact on state. . . . Arizona’sSupport Our Law Enforcement andSafe Neighborhoods Act (SB 1070)requires police to determine immi-gration status of any person arrest-ed or stopped (April 23); federaljudge, ruling in suit by U.S. gov-ernment, enjoins major provisionsas preempted by federal immigra-tion law (July 28). . . . Hazeltonordinance struck down on pre-emption grounds by federal ap-peals court (Sept. 9). . . . Federaljudge in Detroit upholds healthcare law (Oct. 7); suits by statesstill pending. . . . Federal appealscourt to hear appeal in SB 1070case (Nov. 1). . . . Supreme Courtto hear challenge to Arizona’s em-ployer sanctions law (Dec. 8).

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however, often set itself against eco-nomic regulation by either the feder-al or state governments in a laissez-faire period that extended into the1930s. The court struck down or lim-ited some federal laws by narrowlydefining “commerce” as trade, not man-ufacturing. But it also struck downsome state laws — notably, limits onworking hours — as infringing on con-stitutionally protected property rights.

Federal powers were lastingly ex-panded in the 1930s as PresidentFranklin D. Roosevelt pushed throughCongress and later won Supreme Courtapproval of the now-familiar laws reg-ulating the economy and creating someelements of a social safety net. In threecritical decisions in 1937 that overturnedprior rulings, the court upheld the Na-tional Labor Relations Act, a federal un-employment compensation law and theSocial Security Act for old-age benefits.

The court also upheld state wage-and-hour laws and, in 1941, similarly upheldthe federal Fair Labor Standards Act. 13

A year later, the court gave its mostexpansive construction to Congress’commerce power by enforcing a pro-duction quota on a farmer’s cultiva-tion of wheat solely for his own usewith no intention of selling it. Con-gress’ power, the court wrote inWickard v. Filburn, extended to anyactivity that “exerts a substantial effecton interstate commerce.” 14

The New Deal and post-New Deallaws and programs did not, however,reduce the states to nonentities. In-deed, the unemployment compensa-tion system upheld in 1937 was to beadministered by the states. Instead, thefederal government worked throughthe states in what has been called “co-operative federalism.”

The federal government’s revenue-raising powers allowed it to expand

its role from providing technical as-sistance to state governments to be-stowing financial grants aimed at fur-thering federal goals, typically withsignificant conditions attached. Theseprograms grew in FDR’s so-called “Sec-ond New Deal” (mid-1935 to 1939);under his Democratic successor, HarryS. Truman (1945-1953); and, despitehis supposed conservatism, under theRepublican president, Dwight D.Eisenhower (1953-1961). By 1960, his-torian David B. Walker counts some132 grant-in-aid programs with totaloutlays to the states of $6.8 billion —nearly triple the amount at the startof Eisenhower’s presidency. 15

‘New’ Federalisms

F ederalism reform became a per-sistent theme in Washington and

state capitals in the second half of the



Nebraska spends about $742 million a year in its Medicaidprogram to provide health care to low-income persons.In August, Gov. Dave Heineman released an actuarial

study claiming that the state’s costs could increase by some-where between $526 million and $766 million over the next10 years under the new federal health care reform law enactedin March.

Heineman, a Republican, called the price tag from thestate-commissioned study “staggering and shocking” and urgedCongress to repeal or substantially modify the law. Heinemanalso supports Nebraska’s participation with other states in afederal court suit in Florida challenging the constitutionalityof the law.

A study by researchers at the liberal-oriented Urban Insti-tute, however, estimates Nebraska’s added costs much lower:$106 million to $155 million. And the report notes that Ne-braska will receive more than $2 billion in new federal match-ing funds during the period under the law. 1

The dueling cost studies are highly dependent on differ-ing assumptions about new Medicaid enrollment and healthcare cost trends. The price tags figure not only in political de-bate but also in the federal court case. Florida, the lead plain-

tiff in the case, is claiming that it faces $4 billion in additionalMedicaid costs from 2014 when the law is to take effectthrough 2019.

Florida’s suit says the added cost —“a price the state simplycannot afford to pay” — represents an unconstitutional intrusionon the state’s sovereignty. The Urban Institute researchers, however,estimate a substantially lower price tag: $1.2 billion to $2.5 billion.Overall, they estimate the states will pay about $21 billion forMedicaid expansion through 2019 — with the federal governmentpicking up the lion’s share: $444 billion.

With different but somewhat comparable projections, thenonpartisan Congressional Budget Office says the federal pricetag for expanding Medicaid and the Children’s Health Insur-ance Program (CHIP) — put at $434 billion — represents justunder half of the estimated $938 billion increase in total health-care spending under the law. The other costs include $464 bil-lion in subsidies for individuals and small businesses and$40 billion in small-employer tax credits. 2

The Medicaid expansion costs represent the price for set-ting a national household income standard of Medicaid eligi-bility at 133 percent of the poverty level: $29,300 for a familyof four or $14,400 for a single person. Currently, eligibility varies

Will Staggering New Medicaid Costs Hit the States?Dueling studies examine impact of new health care reform law.


20th century. Officials at both levels en-deavored to find the right balance be-tween federal and state responsibilitiesand to manage federal-state programsmore efficiently and more effectively.Two Republican presidents in particu-lar, Nixon (1969-1974) and Reagan (1981-1989), adopted policies aimed at “re-turning” powers to the states. Stategovernments became more influentialwith increased revenue and adminis-trative modernization, but they remainedsubject to mandates from Washingtonestablished by Congress or the execu-tive branch and generally upheld bythe Supreme Court. 16

The number and dollar amounts offederal aid programs grew, and theirmanagement became more complex,under the two Democratic presidentsof the 1960s, Kennedy and. Johnson.The increased complexity of federal aidprompted proposals for intergovern-mental reform under Johnson and that

Nixon developed and adopted as a sig-nature domestic policy goal. Initially,Nixon pushed to consolidate federalaid in block grants. He broadened theeffort with a proposal for general rev-enue sharing with state and local gov-ernments that Congress cleared for hissignature in October 1972. The five-year, $30 billion program gave broaddiscretion to state and local officials.

As George Mason professor Conlannotes, however, the Nixon presidencyalso saw “a dramatic increase in feder-al regulations aimed at state and localgovernments” — notably, in the areasof environmental protection, health plan-ning and highway construction. 17

Reagan opened his presidency byproposing a major federalism reform:a consolidation of scores of federalgrant-in-aid programs into nine blockgrants. States were to get more dis-cretion but also to suffer a significantcut in overall federal aid. After a con-

tentious congressional debate, Reagangot most of what he asked for in theOmnibus Budget Reconciliation Act of1981. But he failed in subsequent ef-forts to consolidate more categoricalprograms into block grants.

Reagan also failed with a bold planannounced in December 1981 for thefederal government to take over Med-icaid funding while giving the states re-sponsibility for 43 other programs, in-cluding welfare and many other socialservices. The proposal fell under criti-cism from social service advocates andfrom many state officials who viewed itas requiring state tax increases. The ad-ministration also promised to ease reg-ulatory restrictions on state governments.

Nevertheless, the administration sup-ported spending mandates that effec-tively required states to raise limits ontrucking weights and to adopt a uni-form minimum drinking age of 21. Bythe end of the 1980s, Conlan says, the

greatly between states. Many Southern states provide Medicaidonly for persons well below the poverty level, while a fewNortheastern states extend Medicaid to families with incomesas high as 150 percent of the poverty level.

The federal government currently pays about half the costsof Medicaid in the wealthiest states and a larger fraction inless-wealthy states. Under the new law, the federal governmentwill pick up 100 percent of the cost of newly eligible Medicaidparticipants for the first three years — 2014 to 2016 — withthe percentage declining gradually to 90 percent in 2020 andsubsequent years.

In a critical report, two health care experts at the conserv-ative Heritage Foundation say the reimbursement provisionamounts to an attempt “to appease state lawmakers.” They putthe total cost of Medicaid expansion for the states at $33 billion,including $12 billion in administrative costs. And while theyacknowledge that state lawmakers may view the provision as“a relatively good fiscal deal,” they also warn that state tax-payers “will face higher tax bills . . . not just for the state costsbut for the federal costs as well.” 3

John Holahan, director of the Urban Institute’s Health PolicyResearch Center, says, however, that states will save money by

spending less on uncompensated care for uninsured individuals.State spending on health care for low-income children will alsobe reduced, he says, because many will gain coverage underthe insurance exchanges to be established under the law. “Idon’t agree that states will be worse off financially,” Holahanconcludes.

— Kenneth Jost

1 The eight-page report by Milliman, Inc., dated Aug. 16, 2010, is availableat www.governor.nebraska.gov/news/2010/08/pdf/Nebraska%20Medicaid%20PPACA%20Fiscal%20Impact.pdf. The report by Urban Institute researchersJohn Holahan and Irene Headen, “Medicaid Coverage and Spending inHealth Reform,” Henry J. Kaiser Family Foundation, May 2010, www.kff.org/healthreform/upload/Medicaid-Coverage-and-Spending-in-Health-Reform-National-and-State-By-State-Results-for-Adults-at-or-Below-133-FPL.pdf. For cov-erage, see these stories by Nancy Hicks in the Lincoln (Neb.) Journal Star:“Medicaid expert says state’s report flawed,” Sept. 16, 2010, p. B1; “NebraskaMedicaid costs likely to soar,” Aug. 19, 2010, p. A1.2 Congressional Budget Office figures cited in Landmark: The Inside Storyof America’s New Health-Care Law and What It Means for Us All, by TheStaff of The Washington Post (2010), p. 173. Other background drawn fromthe chapter, “Medicaid’s Expansion: The Impact on the States,” pp. 163-168.3 Edmond F. Haismaier and Brian C. Blaise, “Obamacare: Impact on the States,”Heritage Foundation, July 1, 2010, p. 3, http://thf_media.s3.amazonaws.com/2010/pdf/bg2433.pdf.

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number of new intergovernmental reg-ulatory provisions enacted at the fed-eral level surpassed the number forany previous decade. 18

The regulatory spike underlay theClinton era’s most important federalismreform: the Unfunded Mandates Re-form Act of 1995. With some excep-tions — notably, civil rights statutes —the act requires Congress to specify thecost of any new mandate on state andlocal governments and permits a pointof order against any mandate unlessfully funded in the bill. The act beganwith bipartisan cosponsorship whenDemocrats controlled the House andSenate in 1993; it won enactment in1995 after Republicans had gained con-trol of both chambers, but only afterthe GOP majorities had beaten back astring of weakening, Democratic-backedamendments. In signing the bill, Pres-ident Bill Clinton called it historic, but

Conlan says that — as in the Reaganera — Congress and the White Housecontinued to establish new regulatorymandates despite the professed reform.

In the meantime, the SupremeCourt had dealt two major blows tostate prerogatives in federalism cases.In 1985, the court ruled that Congresscould require state governments to fol-low minimum-wage and overtime re-quirements of federal labor law. Thedecision overturned a ruling favoringstate governments on the issue a decadeearlier. Then in 1987, the court up-held the federal law to withhold high-way construction aid to any state thatdid not set the minimum drinking ageat 21. In a 7-2 decision written byChief Justice William H. Rehnquist, thecourt ruled the law a proper exerciseof Congress’ spending power eventhough Congress had no authority toregulate the drinking age directly. 19

In the 1990s, however, Rehnquist leda revival of federalism principles to ben-efit states. In one line of decisions, thecourt prohibited Congress from requir-ing state or local governments to ad-minister federal regulatory systems —notably, the background check for gunpurchasers. In another, the court heldstate governments immune frommoney-damage suits for violating fed-eral law, including the federal wage andhours act. And in a pair of decisionswritten by Rehnquist, the court limitedCongress’ power to use the CommerceClause to regulate non-economic activ-ity. One ruling struck down the feder-al Gun Free School Zones Act, whichmade it a crime to possess a gun with-in a minimum distance of a school. An-other struck down a provision of theViolence Against Women Act that al-lowed victims of “gender-motivated” vi-olence to sue their assailants in federal


C an a federal court order the state to reduce its prisonpopulation? California prisons have been filled to nearlydouble their capacity over the past decade. Now the state

is now facing a federal court order to reduce inmate populationby around 40,000 within a two-year period.

California officials, however, are urging the Supreme Courtto set aside the order as a misapplication of a law Congresspassed specifically to make it difficult for federal judges toissue inmate-release decisions. Seventeen other states are back-ing California’s appeal.

The order, issued by a special three-judge federal districtcourt in August 2009, would require California to reduce its in-mate population to 137.5 percent of the prisons’ combined de-signed capacity of 84,000. The court found that the populationcap — to be met through a combination of early releases anddiversions of low-risk offenders at sentencing — was neededto ensure constitutionally adequate medical and mental healthcare for state prisoners. 1

In appealing the decision, California contends that the three-judge court failed to follow the restrictions of the Prison Litiga-tion Reform Act, which Congress passed in 1996 establishing newprocedural and substantive restrictions on inmate-release ordersby federal courts. Specifically, the law requires any inmate-release

order to be issued by a three-judge court, not an individual judge,and only after any remedial order by a single judge has beengiven “reasonable time” to remedy any constitutional violations.The law also requires that overcrowding be found to be the“primary” cause of a constitutional violation and that “no otherrelief” will remedy the violation. 2

Congress passed the law in response to lobbying by stateattorneys general and district attorneys in the wake of a con-troversial federal court order requiring release of thousands ofinmates from Philadelphia jails over a period of years. “Whatwe were asking,” explains Sarah Vandenbraak Hart, a deputyPhiladelphia district attorney who helped draft the law, “wasthat they make a prison release order an absolute last resortremedy and only if absolutely necessary to remedy an ongoingconstitutional violation.”

Lawyers for the California inmates contend the three-judgecourt followed the law’s requirements. Congress “succeeded inmaking it harder . . . but not impossible” for courts to issue re-lease orders, says Donald Specter, director of the Prison LawOffice, a Berkeley-based inmate rights organization. “They setthe threshold, and our position is that we’ve met the threshold.”

Federal court orders in so-called institutional litigation havelong been a bane of the states. State governments can find

Supreme Court to Consider Order to Reduce Prison CrowdingHearing set on inmate-release order in California.


court. In both cases, Rehnquist said Con-gress had infringed on the states’ tradi-tional police powers. 20

Federal Powers

F ederalism concerns have been givena low priority in Washington in the

21st century under two presidents ofdifferent parties: Republican George W.Bush and Democrat Barack Obama.Bush pursued centralizing policies ona range of issues despite his back-ground as a former governor and theGOP’s professed support for state pre-rogatives. The Supreme Court also ap-peared to step back from its resistanceto expanding federal powers even aftertwo appointments by Bush. Obama tookoffice with some nods to the states, buthe stirred strong opposition from manystates to his health care reform and then

set the administration against state andlocal laws aimed at strengthening im-migration enforcement. 21

Bush trampled on federalism concernswith his signature domestic policy initia-tive: education reform. The No Child LeftBehind Act mandated student testing, im-posed curriculum and teacher standardsand threatened non-performing schoolswith penalties up to takeover by inde-pendent operators. Some states called thelaw unconstitutional, but court challengesfailed to invalidate it. States also com-plained about the strictures in two othermajor laws: the Help America Vote Act,which set federal standards for voting andvoter registration, and the Real ID Act,which established new requirements forstate driver’s licenses. All three laws pro-vided some funds for the mandatedchanges, but education authorities inparticular said federal aid fell short ofthe promised amounts.

The Bush administration overrodestate interests in several other areas. Sid-ing with business interests, the admin-istration repeatedly interpreted federallaws or regulations to preempt statelaws or court suits. On social issues,the administration won enactment of anationwide ban on so-called “partialbirth abortions” and pushed unsuccess-fully for a constitutional amendment toban same-sex marriages. The adminis-tration also attempted to use federaldrug law to nullify Oregon’s assisted-suicide initiative, but the Supreme Courtin 2006 rejected the attempt. 22

A year earlier, the high court hadstepped back from its federalism stanceof the 1990s with a decision upholdingfederal power to override a California ini-tiative permitting medical use of mari-juana. With Rehnquist and Justice SandraDay O’Connor among three dissenters,the court in June 2005 held that the

themselves on the losing end of decisions that not only re-quire wide-ranging and sometimes expensive changes in op-eration of programs and facilities but also expose them to six-or seven-figure attorney fee awards to lawyers on the otherside. In a significant decision in April, the Supreme Court or-dered a lower court to reconsider a $10.5 million fee awardto public-interest lawyers for a case that forced broad changesin the state’s foster care system. 3

The court order in the California case came after more thana decade of litigation over medical care for state inmates inseparate cases filed before single-judge courts in Sacramentoand San Francisco. The two district courts decided in 2007 toconvene a three-judge court as provided in the 1996 law afterfinding medical care still constitutionally deficient. The three-judge court presided over a trial from November 2008 to Feb-ruary 2009 before issuing its 185-page decision on Aug. 4, 2009.

The state says the order, which has been stayed pendingthe Supreme Court appeal, would require release of between38,000 and 46,000 inmates. In its appeal, the state contendsthe requirements for a three-judge court were not met and thecases should be sent back to the separate district courts.

In accepting the appeal on June 14, the Supreme Court saidit would consider the jurisdictional issue at the same time as

the merits of the case. Oral arguments, now set for Nov. 30,will feature two highly regarded Supreme Court advocates:Carter Phillips for the state and Paul Clement, U.S. solicitor gen-eral under President George W. Bush, for the inmates.

In his brief for the inmates, Specter discounts the potentialimpact of the case on other states, describing California’s prisoncrisis as unique. But he also discounts the states’ concerns aboutimproper federal court intrusion into prison systems.

“Federalism is not a one-way street,” Specter says. “It doesn’tmean only that states have rights. It also means that federal courtshave obligations to enforce constitutional rights against the states.”

— Kenneth Jost

1 The decision came in two consolidated cases: Coleman v. Schwarzenegger(medical care), Plata v. Schwarzenegger (mental health care), CIV S-90-0520LKK JFM P, U.S. Dist. Ct., N.D./E.D. Calif., Aug. 4, 2009, www.caed.uscourts.gov/caed/Documents/90cv520o10804.pdf. For coverage, see Carol J. Williams,“State gets two years to cut 43,000 from prisons,” Los Angeles Times, Sept. 5,2009, p. A1. The appeal at the Supreme Court is Schwarzenegger v. Plata, 09-1233; background and briefs on SCOTUSBlog: www.scotusblog.com/case-files/cases/schwarzenegger-v-plata/?wpmp_switcher=desktop.2 The act is codified at 18 U.S.C. §3626. Background at http://en.wikipedia.org/wiki/Prison_Litigation_Reform_Act.3 The decision is Perdue v. Kenny A., 559 U.S. — — (April 21, 2010), www.supremecourt.gov/opinions/09pdf/08-970.pdf.

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government can ban private, noncom-mercial use of marijuana because of itspotential impact on the admittedly illegalmarket in the drug. 23 O’Connor retiredand Rehnquist died later that year. Astheir successors, Bush chose John G.Roberts Jr. as chief justice and Samuel A.Alito Jr. as O’Connor’s replacement, twoEastern conservatives less identified withfederalism issues than the two Western-ers they followed.

Neither Obama nor his Republicanopponent, Sen. John McCain of Arizona,made federalism a major issue as suchin the 2008 presidential campaign. Butboth men professed support for states’interests in the area, according to an as-sessment by federalism experts JohnDinan and Shama Gamkhar. McCain self-identified as a federalist to explain, forexample, his opposition to a constitu-tional amendment to ban same-sex mar-riage. Obama identified himself with someof the states’ criticisms of No Child LeftBehind. And both men buttressed theirhealth care proposals by citing state ini-tiatives: Obama pointed to MassachusettsGov. Mitt Romney’s universal coverageplan, McCain to Indiana Gov. MitchDaniels’ market-oriented approach. 24

Early in his presidency, Obama madegestures and took some concrete actionsfavorable to states’ interests. In a meet-ing in February 2009, he promised thestates’ governors to try to make theirlives “easier, not harder.” As part of hiseconomic-stimulus plan, Obama pro-posed — and eventually won congres-sional approval of — substantial aid tofinancially beleaguered states with fewstrings attached. Obama also reversedsome Bush decisions to give states morediscretion — significantly, to pursue lib-eral policies in such areas as children’shealth and air pollution control. And At-torney General Eric H. Holder Jr. an-nounced in February 2009 that the Jus-tice Department would discontinue raidson medical marijuana dispensaries in the13 states that had legalized the practice.

The administration worked to ac-commodate the states’ interests during

the yearlong struggle that ended inMarch 2010 with enactment of the healthcare law. Broadening eligibility forMedicaid was always seen as the prin-cipal vehicle for expanding health in-surance coverage, but from the outsetthe federal government was to bearmost of the cost. Obama’s proposal in-cluded a variety of mandates for healthinsurers, but states continued to haveprincipal responsibility for insuranceregulation. Republicans and conserva-tives opposed to the bill cited the fis-cal impact on the states in their argu-ments, but the issue was overshadowedby the individual insurance mandate— and, at the end, by arguments overthe potential for government-subsidizedabortions under the law. 25

Meanwhile, the administration wasweighing a request made by the SupremeCourt in November 2009 to state the gov-ernment’s view on the challenge to Ari-zona’s employer-sanctions law. The gov-ernment’s brief, filed on May 28, markedthe first time the government had weighedin against any of the flurry of state andlocal immigration laws enacted in the lastfew years. The brief pointed to the num-ber of similar laws in urging the justicesto hear the case. It went on to argue thatArizona’s law “disrupt[s] a careful balance”that Congress struck between preventingemployment of illegal aliens and pre-venting discrimination against racial orethnic minorities. A month later, the courtagreed to hear the case, setting the stagefor arguments by year’s end. 26

CURRENTSITUATIONHealth Suits Advancing

T he Obama administration is ap-plauding a federal judge’s ruling

upholding the new individual health

insurance mandate even as it awaitspivotal developments in two similarsuits by states that federal judges re-fused to dismiss at the earliest stage.

In a ruling on Oct. 7, U.S. DistrictJudge George Caram Steeh in Detroitaccepted the administration’s basic legalargument that Congress could requireindividuals to purchase health insuranceas part of its power to regulate inter-state commerce. When “viewed in theaggregate,” Steeh said, individual deci-sions to buy health insurance or gowithout “have clear and direct impactson health care providers, taxpayers, andthe insured population who ultimatelypay for the care provided to those whogo without insurance.” 27

Steeh’s ruling came in a case filedby the conservative Thomas More LawCenter and several Michigan residents,one of 15-20 cases challenging thehealth care law, according to a com-pilation by the Justice Department.The ruling came as two higher-profilechallenges by state governments wereproceeding in federal courts in Vir-ginia and Florida.

U.S. District Judge Henry Hudson isscheduled to hear legal arguments inRichmond, Va., on Oct. 18 in compet-ing motions for summary judgment bythe state of Virginia and the federalgovernment. Hudson had rejected thegovernment’s motion to dismiss thecase in a 32-page opinion on Aug. 2that called the applicable legal prece-dents “informative but inconclusive.”

Meanwhile, U.S. District Judge RogerVinson in Pensacola, Fla., was due torule by his self-announced deadlineof Oct. 14 on the government’s similarmotion to dismiss the suit by Floridaand 19 other states challenging the healthcare law. In a hearing on Sept. 14, Vin-son appeared sympathetic to the states’claim about their costs once the lawtakes full effect in 2014. “Doesn’t thisreally put all 50 states on the short endof the stick?” Vinson asked the gov-ernment’s attorney at one point.

Continued on p. 862

no


At Issue:Is the Obama administration taking on too much power fromthe states?yes

yesROBERT ALTSENIOR LEGAL FELLOW AND DEPUTY DI-RECTOR, CENTER FOR LEGAL & JUDICIALSTUDIES, THE HERITAGE FOUNDATION

WRITTEN FOR CQ RESEARCHER, OCTOBER 2010

t he Obama administration has used federal authority in aschizophrenic fashion: making illegitimate claims of author-ity to achieve desired ends, while disavowing legitimate

authority where doing so proved beneficial to favored specialinterests. From a constitutional and policy perspective, this is theworst of both worlds.

The most audacious claim of federal authority comes in thehealth care mandate, which requires all individuals to purchasehealth insurance or pay a penalty enforced through the taxcode. Despite Speaker Nancy Pelosi’s incredulity to a press ques-tion asking where Congress found the constitutional authority forthe mandate — she responded, “Are you kidding?” — Congressis still subject to the requirements of the Constitution, whichgrants to Congress limited and enumerated legislative powers.

Where, then, does the Obama administration point to as itsconstitutional justification for this sweeping new authority? Itclaims that Congress has the authority to regulate individual“acts” of not purchasing a product (i.e., not entering into com-merce) pursuant to Congress’ authority to regulate — wait forit — interstate commerce.

The term “unprecedented” is thrown around lightly, buthere I use the literal meaning — this assertion of authorityhas no precedent. There is simply no example in federal lawwhich supports this usurpation. Indeed, the first federal courtto hear a challenge noted that “[n]o reported case from anyfederal appellate court has extended the Commerce Clause orTax Clause to include the regulation of a person’s decisionnot to purchase a product.”

While in health care the Obama administration suffers fromdelusions of grandeur, in the area of federal regulatory preemption— that is, the authority to set uniform regulations for products thatactually are in interstate commerce to avoid a patchwork of 50 dif-ferent regulations — the administration has an inferiority complex.

The administration has asserted a narrow view of preemp-tion in a memorandum to the heads of all executive agenciesand has disclaimed federal authority in court filings. This deci-sion might seem difficult to understand in light of the previ-ously bold assertions of federal authority — until one realizesthat this position is advantageous to the trial lawyers (majordonors to the Obama administration), who find it easier to wincases if courts and juries are not bound by blanket federalproduct-liability requirements.

As these examples suggest, the administration’s assertions offederal authority are not circumscribed by the Constitution, butby political expediency.no

DOUG KENDALLPRESIDENT, CONSTITUTIONALACCOUNTABILITY CENTER

WRITTEN FOR CQ RESEARCHER, OCTOBER 2010

t he charge that the Obama administration has concentratedtoo much power in the federal government is not onlyunsupportable, it is in important respects counter-factual.

Early in his presidency, President Obama issued a sweepingpolicy memorandum that reaffirmed the critical role that stateand local governments play in protecting the health and safetyof their citizens and directed executive branch officials to re-view every regulation adopted in the past 10 years to scrubthem of language that inappropriately displaced states.

Obama’s shift in policy has led to reversal of several Bushadministration policies and has empowered states to take alead in a whole host of areas where state-level innovation ismost needed, from environmental regulation to drug laws tofinancial reform. In one prominent example, the Obama ad-ministration granted California its long-sought waiver of federalpreemption, restoring this state to its historic role as a path-breaker in the regulation of auto emissions.

Even President Obama’s health care reform law is an exam-ple of balancing the need for a national solution with thebenefits that accompany state innovation. Learning from stateexperiences, such as the Massachusetts plan signed into lawby then-Gov. Mitt Romney, the new health care law preservesthe states’ regulatory flexibility by (1) allowing states to formtheir own insurance exchange or join with a regional ex-change; (2) giving states significant discretion over planspecifics like whether to cover abortion; and (3) permittingstates to set up their own programs — with or without an in-dividual mandate — so long as certain requirements are met.

Only when the Constitution explicitly places sole powerwith the national government — such as the provision thatgives the federal government the power to make “uniform”rules for immigration and naturalization — has the Obamaadministration jealously guarded federal power and challengedthe ability of states like Arizona to create their own system ofimmigration enforcement.

Reviewing these actions collectively, President Obama hasappropriately balanced state-level innovation with national in-terests, viewing federalism as a structure for allocating govern-ment power in ways that improve how the government servesits citizens rather than as a zero-sum struggle between the na-tional government and the states. Even when confronting issuesof clear national concern, such as health care reform, theObama administration has recognized the critical role statesplay in our federal system. The result is federalism at its bestand a government that works better for everyone.

862 CQ Researcher

In his opinion, Hudson, who wasappointed to the federal bench by Pres-ident George W. Bush in 2002, pre-liminarily upheld the state’s standing tobring the case in order to give effectto its law, the Virginia Health Care Free-dom Act, prohibiting any individualhealth insurance mandate. On the mer-its, Hudson said the government hadfailed at this stage to overcome thestate’s constitutional arguments againstthe law. “No reported case from anyfederal appellate court,” the judgewrote, “has extended the CommerceClause or the Tax Clause to include theregulation of a person’s decision not topurchase a product, notwithstanding itseffect on interstate commerce.” 28

The case, Virginia ex rel. Cuccinelliv. Sebelius, is being brought in the nameof Virginia’s conservative Republican at-torney general, Ken Cuccinelli. He de-picted Hudson’s ruling as a significantsetback for the Obama administration.In her comments, Health and HumanServices (HHS) Secretary Kathleen Se-belius emphasized the preliminary na-ture of the ruling. The two sides reca-pitulated their arguments in parallel,competing motions for summary judg-ment filed with the court on Sept. 3 inadvance of the Oct. 18 hearing.

The health care mandate issue alsofigured prominently in the Sept. 14 ar-guments in the Florida case beforeJudge Vinson, a Reagan appointee tothe federal bench in 1983. 29 For thestates, Washington attorney DavidRivkin argued that Congress has noauthority to regulate citizens’ decisionsnot to buy health insurance. “Congresscan regulate commerce,” he said. “ButCongress cannot create it.” For thegovernment, Ian Gershengorn, a deputyassistant United States attorney gener-al, countered that uninsured individu-als nevertheless use medical services.“This is not telling people you haveto buy a product,” he said. “It’s say-ing this is how you have to pay foryour health care.”

On the fiscal issue, Blaine Winship,representing Florida, said the new law“transformed” Medicaid beyond its orig-inal purpose. “It’s quite a budget busterfor us,” he said. Gershengorn counteredthat any state can opt out of Medicaid.The states’ position, he added, wouldprevent Congress from making anychanges in the program. Vinson, how-ever, appeared sympathetic to the states.“The states are in a catch-22 situation,”the judge said, “because the governmentdominates the ability to raise income.”

Expectations that Vinson would re-ject the government’s effort to dismissthe case were fed by his decision toschedule further arguments on Dec. 16.Vinson rejected an effort by four statesto join the suit on the federal govern-ment’s side but said he would recon-sider the issue later.

The Florida and Virginia suits hadbeen the most closely watched of thevarious challenges to the new healthcare law, including two previously dis-missed on procedural grounds. In hisruling in the Michigan case, Judge Steehrejected the administration’s proceduralarguments that the challengers lackedlegal standing to bring the suit and thatthe suit was premature. He went on ina 20-page ruling, however, to say thatCongress had “a rational basis to con-clude that, in the aggregate, decisionsto forego [sic] insurance coverage inpreference to pay for health care out ofpocket drive up the cost of insurance.”

A Justice Department spokeswomanvoiced satisfaction with the ruling. “Wewelcome the court’s decision uphold-ing the health care reform statute asconstitutional,” said spokeswoman TracySchmaler. Robert J. Muise, senior trialcounsel for the Thomas More Law Cen-ter, told The New York Times the casewas “set up nicely for appeal.” 30

Immigration Cases Set

C losely watched challenges to twoArizona statutes aimed at tougher

enforcement of federal immigration lawsare being readied for oral argumentssoon before federal appellate courts.

The Ninth U.S. Circuit Court of Ap-peals, with jurisdiction over nine Westernstates, is set to hear arguments during theweek of Nov. 1 in Arizona’s effort to re-instate its law enacted in April making ita state crime to be in the country in vi-olation of federal immigration laws.

Meanwhile, the Supreme Court isdue to hear arguments on Dec. 8 frombusiness and immigrants rights groupsseeking to invalidate the 2007 law stiff-ening the penalties for employers whohire illegal aliens.

Both laws are being challenged underthe doctrine known as preemption asintruding on the federal government’sprimacy over states on immigration-related matters. The justices are alsohearing three other preemption casesthis fall testing the relationship of stateand federal laws in arbitration, autosafety and vaccine safety.

The Ninth Circuit will be reviewingthe July 28 ruling by federal judgeBolton in Phoenix that blocked majorprovisions of the act from going intoeffect. In her ruling, Bolton, appointedto the bench by President Clinton in2000, acknowledged the state’s interestin “controlling illegal immigration andaddressing the concurrent problems withcrime.” But, she continued, “it is not inthe public interest for Arizona to en-force preempted laws.” 31

Bolton’s ruling blocked the mostcontroversial parts of the law, includ-ing a requirement that state and locallaw enforcement officers determine theimmigration status of anyone arrested,detained or stopped that they reason-ably suspect is “unlawfully present” inthe country. The ruling also blockedthe new state crime of failing to carryalien registration papers. And it en-joined the provision making it a crimefor illegal immigrants to apply for a job.

Immigration rights advocates hailedthe ruling. “It’s a victory for the com-munity,” Lydia Guzman, president of




Somos America (We Are America), said.Gov. Brewer voiced disappointmentbut called the ruling “a bump in theroad” and vowed a quick appeal. TheNinth Circuit set an expedited brief-ing schedule in the case with argu-ments to be heard by a three-judgepanel on Nov. 1.

Earlier, a three-judge Ninth Circuit panelupheld Arizona’s employer-sanctions lawin a unanimous, 23-page opinion inSeptember 2008. 32 The business andimmigrant rights groups challenging thelaw argued that it created the risk of“conflict preemption” because state courtscould rule differently on an alien’s sta-tus than federal immigration authoritieswould. They also said that an “expresspreemption” clause precluded the statefrom revoking an employer’s businesslicense because the federal law pro-hibited any penalties other than thoseprovided there.

Writing for the court, Judge MarySchroeder, a Clinton appointee, rejectedthe challengers’ arguments. She saidthe “speculative, hypothetical possibil-ity” of a conflict with federal law wasinsufficient to invalidate the law in itsentirety. As for the license-revocationprovision, she said it fell within an ex-ception in the federal law for “licens-ing” provisions. She also found noconflict with federal law in the stateact’s requirement that employers usethe voluntary federal E-verify systemto verify a job applicant’s status.

The Supreme Court agreed to hearthe case on June 28. The Chamberfiled its opening brief on Sept. 1, fol-lowed a week later by friend-of-the-court briefs from the U.S. government,business groups, immigrant rightsgroups and a major labor union: theService Employees International Union.The state’s brief and any supportingbriefs were to be filed in October.

In the other preemption cases, thehigh court will decide these issuesbeing closely watched by business andconsumer groups as well as state gov-ernments:

• Can the victim of a vaccine-relatedinjury sue the manufacturer in statecourt for a “design defect” despite theno-fault, administrative system estab-lished by the National Vaccine InjuryCompensation Act? (Bruesewitz v. Wyeth;argument: Oct. 12.)

• Does the Federal Arbitration Actprevent a state from requiring that anyconsumer arbitration agreement permitthe use of classwide arbitration allowingthe consolidation of claims by all simi-larly situated persons? (AT&T Mobility v.Concepcion; argument: Nov. 9.)

• Do federal auto safety laws blockan accident victim from suing a manu-facturer in state court for failing to installa lap/shoulder belt in the middle backseat when not required to do so by fed-eral regulations? (Williamson v. MazdaMotor of America; argument: Nov. 3.)

OUTLOOKFederalism’s Meanings

T he Framers of the Constitution cre-ated a government unlike any other

before. “Federalism was our Nation’sown discovery,” Supreme Court JusticeAnthony M. Kennedy has written. TheConstitution, Kennedy said, “split the atomof sovereignty” between the national andstate governments, with each “protectedagainst incursion by the other.” 33

In their deliberations, the Framersstrove to divide powers between astrong and stable federal governmentand states whose prerogatives were tobe protected from incursion by thenew national government. Writing inFederalist No. 37, James Madison de-scribed the process of partitioning therespective powers of the federal andstate governments as “arduous.”

Now more than two centuries later,federalism issues remain contentious,but the context is much changed. The

“dual federalism” concept of the 19thcentury has been displaced by usagessuch as “cooperative” or “collaborative”federalism that describe powers and re-sponsibilities intertwined among ratherthan partitioned between Washingtonand state capitals. In his book, Poly-phonic Federalism, Emory law profes-sor Schapiro sees this overlapping ofpower as promoting “the traditional fed-eralism values of responsiveness, self-governance and liberty.” 34

Legislative debates and court chal-lenges in today’s major federalism con-troversies, however, still tend to be wagedunder the old zero-sum game conceptof dividing rather than sharing power.State officials challenging the newhealth care law attack the fiscal impactof Medicaid expansion with little ac-knowledgment in their public commentsof the joint federal-state structure of theprogram since its inception. From theopposite perspective, the business groupsthat press for federal preemption to su-persede state law give no recognitionto the states’ role in the 20th centuryin promoting stronger protections forworkers, consumers and the generalpublic — ultimately to the benefit, notthe detriment, of business itself.

Meanwhile, Americans are evincingmiddling confidence at best in govern-ment at all levels. For several years, pollshave been detecting declining publicconfidence in the federal governmentgenerally. But a recent Zogby Internationalpoll found public trust in state govern-ments no higher — with only a mi-nority of respondents placing much trustin either Washington or their own stategovernment. (See graph, p. 848.)

Health care and immigration illustratereasons for the public’s angst. The inabil-ity to stem the rising cost of health careor the continuing flow of illegal immi-gration test the public’s belief in the powerof government to deal with contempo-rary problems. Ironically, the loudest voic-es in the debates are complaining thatthe federal government is taking on toomuch power to try to confront them.

864 CQ Researcher


“This is a classic example of whatseems to be a growing pace of volatil-ity in our system,” says George Masonprofessor Conlan. “This is like a caseof whiplash. It was not that long agowhen people were talking about thisera of devolution,” or returning powerto the states.

The court cases on the health carelaw are proceeding against the back-drop of strong political criticism byRepublican lawmakers, many of whomare campaigning for Congress by promis-ing to repeal and replace it. Neither theGOP lawmakers nor the states in theirlawsuits provide details on how theywould replace the law if successful intheir goal of knocking it out. If the lawstays on the books, a definitive SupremeCourt decision is likely to be at leasttwo years away.

Meanwhile, immigrant rights groupsthat challenge tough-minded state andlocal laws acknowledge the problemof illegal immigration but look for asolution to the unlikely prospect ofCongress and the president agreeingon some form of legalization as partof a broad overhaul of immigrationlaw. For their part, the groups that sup-port the states’ initiatives take no noteof the Obama administration’s sharpincrease in deportations — a record392,000 during the year that endedSept. 30, an increase of 81,000 overthe number in President Bush’s finalyear in office. 35

In Schapiro’s metaphor, however, theseconflicts should be seen not as discor-

dant, but euphonious — the argumentsand power struggles apt to lead to bet-ter policies with broader support in thelong run. The state of federalism today,Schapiro says, is good. “It’s good whenthe question of allocation of power inthe United States is debated.”

Notes

1 Quoted in Casey Newton, “End of KidsCare could cost state billions from feds,” The Ari-zona Republic (Phoenix), March 23, 2010, p. A1;see also Casey Newton, “Budget for 2011 signedby Brewer,” ibid., March 19, 2010, p. B1.2 The case is United States v. Arizona, U.S.Dist. Ct., Ariz., 2:2010cv01413, http://dockets.justia.com/docket/arizona/azdce/2:2010cv01413/535000/. See Jerry Markon and Michael D.Shear, “Justice Dept. sues Arizona over law,”The Washington Post, July 7, 2010, p. A1. Forcoverage of the law’s enactment, see CraigHarris, Alia Beard Rau and Glen Creno, “Cen-ter of the storm,” The Arizona Republic (Phoenix),April 24, 2010, p. A1.3 For background on the Tea Party, see PeterKatel, “Tea Party Movement,” CQ Researcher,March 19, 2010, pp. 241-264.4 Conlan’s books are listed in Bibliography.For previous coverage, see Kenneth Jost, “Statesand Federalism,” CQ Researcher, Sept. 13, 1996,pp. 793-816.5 ”Memorandum for the Heads of ExecutiveDepartments and Agencies, May 20, 2009,www.whitehouse.gov/the_press_office/Presidential-Memorandum-Regarding-Preemption/.For coverage, see Philip Rucker, “Obama cur-tails Bush’s policy of preemption,” The Wash-ington Post, May 22, 2009, p. A3. See also

John Schwartz, “Obama Seems to Be Opento a Broader Role for States,” The New YorkTimes, Jan. 30, 2009, p. A16.6 For background, see Kenneth Jost, “RevisingNo Child Left Behind,” CQ Researcher, April 16,2010, pp. 337-360.7 Andrew Cline, “Obama’s Crazy-Quilt Feder-alism,” The American Spectator, July 13, 2010,http://spectator.org/archives/2010/07/13/obamas-crazy-quilt-federalism/print.8 The cases are Florida v. U.S. Dep’t of Healthand Human Services, No. 3:10-cv-91-RV/EMT,Virginia ex rel. Cuccinelli v. Sebelius, U.S.Dist. Ct., E.D. Va., 3:2010cv00188. McCollumwas interviewed for White House Brief, allpoliticsradio.com, March 22, available on You Tube:www.youtube.com/watch?v=TzRqc8MrGtc.9 The case is Lozano v. City of Hazleton, 07-3531, 3d Circuit, Sept. 9, 2010, www.ca3.uscourts.gov/opinarch/073531p.pdf. Documentsand updates can be found on the AmericanCivil Liberties Union’s website: www.aclu.org/immigrants-rights/anti-immigrant-ordinances-hazleton-pa. For coverage, see Julia Preston,“Court Rejects a City’s Effort to Restrict Im-migrants,” The New York Times, Sept. 10, 2010,p. A12.10 Background drawn in part from David B.Walker, The Rebirth of Federalism: Slouchingtoward Washington (2d ed., 2000). See alsoMichael Greve, Real Federalism: Why It Matters,How It Could Happen (1999). For a succinctoverview, see “Federalism” in Kenneth Jost,Supreme Court from A to Z (4th ed., 2007),pp. 189-190.11 The Federalist Papers are online at the Libraryof Congress’ Thomas website: http://thomas.loc.gov/home/histdox/fedpapers.html.12 The cases are McCulloch v. Maryland, 17U.S. 316 (1819); New York v. Miln, 36 U.S. 102(1837); and Passenger Cases (Smith v. Turner,Norris v. Boston), 48 U.S. 283 (1849).13 The cases are National Labor RelationsBoard v. Jones & Laughlin Steel Corp, 301 U.S.1 (1937); Steward Machine Co. v. Davis, 301U.S. 548 (1937) (unemployment compensa-tion); Helvering v. Davis, 301 U.S. 619 (1937)(Social Security); West Coast Hotel Co. v. Parrish,300 U.S. 379 (1937) (state minimum wage);United States v. Darby Lumber Co., 312 U.S.100 (1941) (Fair Labor Standards Act). Seeindividual entries in Melvin I. Urofsky andPaul Finkelman, Landmark Decisions of theU.S. Supreme Court (2d ed.), 2007.14 The case is Wickard v. Filburn, 317 U.S. 111(1942).15 See Walker, op. cit., p. 99.

About the AuthorAssociate Editor Kenneth Jost graduated from HarvardCollege and Georgetown University Law Center. He is theauthor of the Supreme Court Yearbook and editor of TheSupreme Court from A to Z (both CQ Press). He was a mem-ber of the CQ Researcher team that won the American BarAssociation’s 2002 Silver Gavel Award. His previous reportsinclude “Abortion Debates” and “Revising No Child Left Be-hind.” He is also author of the blog Jost on Justice (http://jostonjustice.blogspot.com).


16 Background drawn from Walker, op. cit.;Timothy Conlan, From New Federalism to De-volution: Twenty-Five Years of Intergovern-mental Reform (1998).17 Ibid., pp. 85-91.18 Ibid., pp. 259-260.19 The cases are Garcia v. San Antonio Met-ropolitan Transit Authority, 469 U.S. 528 (1985),overruling National League of Cities v. Usery,426 U.S. 833 (1976); and South Dakota v.Dole, 483 U.S. 203 (1987).20 The decisions include Printz v. UnitedStates, 527 U.S. 598 (1999) (gun backgroundchecks); Alden v. Maine, 527 U.S. 706 (1999)(Fair Labor Standards Act); United States v.Lopez, 514 U.S. 549 (1995) (Gun-Free SchoolZones Act); United States v. Morrison, 529 U.S.598 (2000) (Violence Against Women Act).21 Background drawn in part from Tim Con-lan and John Dinan, “Federalism, the BushAdministration, and the Transformation of Amer-ican Conservatism,” Publius: The Journal ofFederalism, Vol. 37, No. 3 (winter 2007), pp.279-303, http://publiusoxfordjournals.org; andTim Conlan and Paul Posner, “Inflection Point?Federalism and the Obama Administration,”paper presented to American Political ScienceAssociation, September 2010, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1642264.22 The decision is Gonzales v. Oregon, 546U.S. 243 (2006).23 The decision is Gonzales v. Raich, 545 U.S.1 (2005).24 John Dinan and Shama Gamkhar, “TheState of American Federalism 2008-2009: thePresidential Election, the Economic Down-turn, and the Consequences for Federalism,”Publius: The Journal of Federalism, Vol. 39,No. 3 (winter 2009), pp. 369-407, http://publius.oxfordjournals.org. Dinan teaches at WakeForest University, Gamkhar at the Universityof Texas-Austin.25 For a full account, see Landmark: The In-side Story of America’s New Health Care Lawand What It Means for All of Us, by the staffof The Washington Post (2010).26 The government’s brief can be found onSCOTUSBlog: www.scotusblog.com/wp-content/uploads/2010/05/09-115_cvsg-grant-limited.pdf.27 The case is Thomas More Law Center v.Obama, 10-CV-11156, U.S. Dist. Ct. E.D.Mich., Oct. 7, 20910, www.mied.uscourts.gov/News/Docs/09714485866.pdf. For coverage, seeLyle Denniston, “Health insurance mandateupheld,” SCOTUSBlog, Oct. 7, 2010, www.scotusblog.com/2010/10/health-insurance-mandate-upheld/.

28 The judge’s decision in Virginia ex rel. Se-belius is available at http://docs.justia.com/cases/federal/district-courts/virginia/vaedce/3:2010cv00188/252045/84/. All other case docu-ments are also on the site. For coverage, seestories by Rosalind S. Helderman, “U.S. judgesallows Va. health care lawsuit to moveahead,” The Washington Post, Aug. 3, 2010,p. A2; “Va. begins courtroom assault on healthcare law,” ibid., July 2, 2010, p. B1.29 Quotes from these stories: N.C. Aizenman,“A first step in health care suit,” The Wash-ington Post, Sept. 15, 2010, p. A4.; Kevin Sack,“Suit on Health Care Bill Appears Likely toAdvance,” The New York Times, Sept. 15, 2010,p. A20; Kris Wernowsky, “Health care suitlives to see another day,” Pensacola NewsJournal, Sept. 15, 2010.30 See Kevin Sack, “Judge rules health law isconstitutional,” The New York Times, Oct. 8, 2010.31 The decision in United States v. Arizonacan be found at http://docs.justia.com/cases/federal/district-courts/arizona/azdce/2:2010cv01413/535000/87/. Reaction drawn fromnews coverage: Nicholas Riccardi and Anna

Gorman, “Judge blocks key parts of Arizonaimmigration law,” Los Angeles Times, July 29,2010, p. A1.32 The decision in what was then known asChicanos por la Causa, Inc. v. Napolitano canbe found at www.ca9.uscourts.gov/datastore/opinions/2008/09/17/0717272.pdf. JanetNapolitano, then governor of Arizona, is nowU.S. secretary of Homeland Security. For ma-terials on the Supreme Court case, now knownas Chamber of Commerce v. Whiting, see www.scotusblog.com/case-files/cases/chamber-of-commerce-of-the-united-states-v-candelaria/?wpmp_switcher=desktop.33 U.S. Term Limits v. Thornton, 514 U.S. 779(1995) (Kennedy, J., concurring).34 Robert A. Schapiro, Polyphonic Federalism:Toward the Protection of Fundamental Rights(2009), p. 177.35 See Shankar Vedentam, “U.S. deportationsreach record high,” The Washington Post, Oct. 8,2010, p. A10; Julia Preston, “Deportations FromU.S. Reach a Record High,” The New YorkTimes, Oct. 8, 2010, p. A21.

FOR MORE INFORMATION10 Amendments for Freedom, 2740 S.W. Martin Downs Blvd., Suite 235, PalmCity, FL 34990; (772) 781-6112; 10amendments.org. Nonprofit working to amendthe Constitution by proposing initiatives that will restrain the power of Congress.

Constitution Project, 1200 18th St., N.W., Suite 1000, Washington, DC 20036;(202) 580-6920; www.constitutionproject.org. Seeks consensus solutions to difficultlegal and constitutional issues through dialogue across ideological and party lines.

Federation for American Immigration Reform, 25 Massachusetts Ave., N.W.,Suite 330, Washington, DC 20001; (202) 328-7004; www.fairus.org. Promotes immi-gration reform through increased border security and limits on the number of im-migrants allowed per year.

Heritage Foundation, 215 Massachusetts Ave., N.E., Washington, DC 20002;(202) 546-4400; www.heritage.org. Conservative think tank advocating for a smallerfederal government role.

National Conference of State Legislatures, 7700 E. First Place, Denver, CO80230; (303) 364-7700; www.ncsl.org. Provides research and technical assistancefor policy makers to exchange ideas on pressing state issues.

National Immigration Law Center, 3435 Wilshire Blvd., Los Angeles, CA 90010;(213) 639-3900; www.nilc.org. Defends the rights and opportunities of low-incomeimmigrants and their families.

Urban Institute, 2100 M St., N.W., Washington, DC 20037; (202) 833-7200;www.urban.org. Research and education think tank working for sound public policyand effective government.

We Are America Alliance, 1050 17th St., N.W., Washington, DC 20036; (202)463-9222; www.weareamericanalliance.org. Advocacy group for immigrant civicengagement, formed after 2006 pro-immigration rallies.

FOR MORE INFORMATION

866 CQ Researcher

Selected Sources

Bibliography

Books

Conlan, Timothy J., From New Federalism to Devolution:Twenty-Five Years of Intergovernmental Reform, Brook-ings Institution Press, 1998.A professor at George Mason University traces and analyzes

federalism reforms from the 1970s through the mid-1990s. In-cludes detailed notes. The book is a continuation of Conlan’searlier title, New Federalism: Intergovernmental Reform fromNixon to Reagan (Brookings Institution Press, 1988). In ac-knowledgments, Conlan foreswore writing a third edition, buthe has continued to write articles on the topic (see below).

Greve, Michael S., Real Federalism: Why It Matters, HowIt Could Happen, AEI Press, 1999.The conservative activist-scholar, now at the American En-

terprise Institute, argues that a revival of federalism — pos-sible but “not inexorable” — is needed to counter central-izing tendencies and protect citizens’ liberty and welfare.Includes detailed notes.

Holahan, John, Alan Weil, and Joshua M. Wiener (eds.),Federalism and Health Policy, Urban Institute Press, 2003.The book comprehensively details the respective roles of

federal and state governments in setting and implementinghealth policy in the United States. Holahan is director of theinstitute’s Health Policy Research Center; Weil was directorof its New Federalism Project; Wiener a principal researchassociate. Notes and references with each chapter.

Schapiro, Robert A., Polyphonic Federalism: Toward theProtection of Fundamental Rights, University of ChicagoPress, 2009.The Emory law professor’s theory of “polyphonic federal-

ism” views the organizational principle of multiple, overlap-ping decision-making authorities as the best means to pro-mote responsiveness, self-government and liberty.

Walker, David B., The Rebirth of Federalism: Slouchingtoward Washington (2d. ed.), Chatham House, 2000(originally published 1995).The book traces the history of American federalism and

analyzes its condition at the end of the Clinton presidency.Walker, now retired, was a professor at the University ofConnecticut and Bowdoin College after having worked formany years with the Advisory Commission on Intergovern-mental Relations. Includes detailed notes.

Articles

Conlan, Tim, and John Dinan, “Federalism, the Bush Ad-ministration, and the Transformation of American Con-

servatism,” Publius: The Journal of Federalism, Vol. 37,No. 3 (winter 2007), pp. 279-303, http://publiusoxfordjournals.org (subscription required).Conlan and coauthor Dinan, an associate professor of po-

litical science at Wake Forest University, write that PresidentGeorge W. Bush “is the latest in a string of presidents” tosacrifice federalism concerns for the pursuit of specific policygoals at the federal level. The issue included nine other ar-ticles assessing the Bush presidency’s impact on federalismin such specific areas as education, environmental policy,preemption and federal assistance to states.

Conlan, Tim, and Paul Posner, “Inflection Point? Feder-alism and the Obama Administration,” paper presentedto American Political Science Association, Washington,D.C., Sept. 2-5, 2010, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1642264.Conlan and George Mason University colleague Posner write

that President Obama is practicing “nuanced federalism,” withsome areas of “unprecedented federal reach” alongside “im-pressive examples of intergovernmental consultation and def-erence to state regulatory prerogatives.”

Greenblatt, Alan, “Federalism in the Age of Obama,”State Legislatures, July/August 2010, pp. 26-28, www.ncsl.org/?tabid=20714.The article, published in the magazine of the National Con-

ference of State Legislatures, examines the Obama administra-tion’s exploitation of states’ fiscal woes to press them to imple-ment initiatives in education, health care and other areas. Greenblatt,a former staff writer for Governing, is a CQ Researcher con-tributing writer. The online edition includes a Q&A with PaulPosner, a federalism expert at George Mason University.

Reports and Studies

“2010 Immigration-Related Laws and Resolutions: January-June 2010,” National Conference of State Legislatures, July20, 2010, www.ncsl.org/default.aspx?TabId=20881.The report traces the growth in the number of immigration-

related laws passed by the states since 2005 and categorizesthe nearly 200 laws passed by state legislatures during the2010 legislative season.

Thomas, Kenneth R., “Federalism, State Sovereignty, andthe Constitution: Basis and Limits of CongressionalPower,” Congressional Research Service, Feb. 1, 2008,http://assets.opencrs.com/rpts/RL30315_20080201.pdf.The 24-page report by a CRS legislative attorney summa-

rizes Supreme Court decisions governing the extent and thelimits of federal power vis-à-vis the states from the earlydays of the Constitution to the present.


Health Care Reform

Buchanan, Wyatt, “Overhaul May Cost California Billions,”The San Francisco Chronicle, March 28, 2010, p. A1.The significant and expensive burden of implementing key pro-

visions of the new health care law falls to the individual states.

Eagan, Colleen M., “Virginia Could Be Key In Health CareBill’s Downfall,”Daily News Leader (Virginia), July 2, 2010.The right to make laws pertaining to the freedom to not

purchase health care falls under the purview of state gov-ernments, according to the Constitution.

Rau, Nate, “States’ Rights Debate Concerns Some African-Americans,” The Tennessean, May 2, 2010.The Tennessee state legislature is looking for ways to cast

aside the new federal health care law, raising the concernsof African-Americans.

Zapler, Mike, “Despite Some Relief to Cover the Uninsured,Health Care Bill Offers Few Concessions to California,”San Jose (California) Mercury News, March 18, 2010.The federal health care law could cost California $3 billion

annually in higher costs for the poor.

Immigration Laws

Hutchinson, Asa, “Court Dismisses State Role,” TheWashington Times, Aug. 18, 2010, p. B1.The federal government has not exclusively preempted the

state’s role in the enforcement of immigration standards, ac-cording to the former Arkansas congressman.

Preston, Julia, “A Ruling In One State, A Warning forOthers,” The New York Times, July 29, 2010, p. A14.The federal government’s challenge to Arizona’s immigra-

tion laws serves as a warning to other jurisdictions that wantto enact similar measures.

Savage, David G., “Arizona’s Immigration Law Not Likelyto Survive,” Los Angeles Times, July 9, 2010, p. A10.The federal government has exclusive control over the issue

of immigration rights, according to many legal experts.

Prison Crowding

“Runner Asks Court to Reverse Federal Order,” DailyPress (California), Aug. 31, 2010.California Republican state Sen. George Runner and other

conservative lawmakers have asked the U.S. Supreme Courtto reverse a federal order requiring the state to reduce itsprison population because of inadequate inmate health care.

Rothfeld, Michael, “Judges OK Gov.’s Plan on Prison

Crowding,” Los Angeles Times, Jan. 13, 2010, p. A3.A panel of three federal judges has approved a court-ordered

plan by California Gov. Arnold Schwarzenegger to reduceovercrowding in the state’s prisons by 40,000 inmates.

Walsh, Denny, “Supreme Court Denies Prison Appeal,”Sacramento Bee, Jan. 20, 2010, p. A4.The U.S. Supreme Court has rejected California’s appeal of

a lower court’s order that the state draft and submit plansto reduce its prison population.

Public Confidence

Fram, Alan, and Jennifer Agiesta, “Poll Finds Little TrustIn Institutions,” Lewiston (Idaho) Morning Tribune,Sept. 17, 2010.Banks and Congress are among the most distrusted insti-

tutions in the United States, while the military and smallbusinesses are the most trusted.

Mannings, Ashley, and Brad Bumsted, “Public IntegrityPanel Proposed to Restore Confidence in Pennsylvania,”Pittsburgh Tribune Review, July 27, 2010.A group of bipartisan legislators in Pennsylvania has pro-

posed a Public Integrity Commission in order to restore con-fidence in the state’s government after corruption chargeswere filed against two dozen lawmakers and staffers.

Robertson, William S., “High-Performance GovernmentEssential to Restore Trust,” Federal Times, May 10, 2010,p. 23.Only 22 percent of citizens believe that the federal gov-

ernment can be trusted most of the time, according to asurvey by the Pew Research Center.

The Next Step:Additional Articles from Current Periodicals

CITING CQ RESEARCHERSample formats for citing these reports in a bibliography

include the ones listed below. Preferred styles and formats

vary, so please check with your instructor or professor.

MLA STYLEJost, Kenneth. “Rethinking the Death Penalty.” CQ Researcher

16 Nov. 2001: 945-68.

APA STYLEJost, K. (2001, November 16). Rethinking the death penalty.

CQ Researcher, 11, 945-968.

CHICAGO STYLEJost, Kenneth. “Rethinking the Death Penalty.” CQ Researcher,

November 16, 2001, 945-968.

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