90 Chapter 3Chapter 3 || Federa lismFedera lismStates appear to be reversing their traditional role of resisting change and protecting
the status quo. In recent years, states have taken the lead on environmental policy,
refusing to accept national pollution standards that are too lenient or the lack of national
action on issues such as global warming. Many policies to address climate change—
including the development of renewable energy sources, carbon emissions limits,
and carbon cap and trade programs—have been advocated at the state level, and some
governors have announced that their states will comply with the Paris Agreement on
climate change regardless of what the federal government does. States have been out in
front on fighting electronic waste, mercury emissions, and air pollution more generally.^13
To take another example, Kansas and Montana passed laws holding that federal gun
laws do not apply to guns manufactured in their states (and making it a felony to try
to enforce those laws).^14 Many such state laws will not stand up in federal court; the
Montana gun law has already been struck down. But the laws are clearly a reflection of
state frustration with assertions of federal power and with the policy goals that underlie
these assertions. Simply put, local elected officials and their constituents often disagree
with federal directives. From this perspective, federalism provides a way for state and
local officials to shape public policy in ways that favor their own policy goals.
States have one important advantage over the national government when it comes
to experimenting with new policies: their numbers. There are 50 states potentially
trying a mix of different policies—another reason that advocates of state-centered
federalism see the states as the proper repository of government power. In this view,
such a mix of policies produces competitive federalism—competition among states
to provide the best policies to attract businesses, create jobs, and maintain a healthy
social fabric.^15 For example, one of the arguments in favor of repealing Obamacare
and giving the program’s funds to states as a block grant was that state governments
might develop better, more efficient ways to deliver health care without having to meet
federal requirements.Fighting for States’ Rights: The Role of the Modern Supreme Court
Just as the Supreme Court played a central role in defining dual federalism in the
nineteenth and early twentieth centuries and in opening the door to a more nation-
centered cooperative federalism in the late 1930s, today’s Court is once again
reshaping federalism. But this time the move is decidedly in the direction of state
power (see Table 3.2).The Tenth Amendment On paper, it seems that the Tenth Amendment would be
at the center of any resurgence of state power because it ensures that all powers not
delegated to the national government are reserved to the states or to the people. Until
recent years, this amendment had been overshadowed by federal supremacy—state
laws contradicting the Constitution or federal laws and regulations were generally
found to be unconstitutional. For example, state laws enforcing racial segregation
were deemed unconstitutional because they conflicted with the equal protection
clause of the Fourteenth Amendment. Similarly, a state law concerning public edu-
cation, traditionally a state power, is void if it conflicts with the Constitution or with
a national law that is based on an enumerated power. For example, a state could not
compel an 18-year-old to attend school if the student had been drafted to serve in
the army. Under the Tenth Amendment, the constitutionally enumerated national
power to “raise and support armies” would trump the reserved state power to
support public education.Crucial to understanding
federalism in modern day
America is the concept of
mobility, or “the ability to vote
with your feet.” If you don’t
support the death penalty and
citizens packing a pistol—don’t
come to Texas. If you don’t
like medicinal marijuana and
gay marriage, don’t move to
California.—Rick Perry, former Texas
governorcompetitive federalism
A form of federalism in which states
compete to attract businesses and
jobs through the policies they adopt.State governments, led prominently by
then–California governor Jerry Brown,
have taken up the mantle of meeting
the United States’ commitments to
the climate goals set by the Paris
Agreement. Brown addressed the
international community during the
UN Climate Change Conference in
Germany in 2017.Full_04_APT_64431_ch03_070-101.indd 90 16/11/18 1:30 PM