In this series of articles, we will examine various federations around the world and try to understand which processes led to their creation and evolution. Clearly, the federal model of the United States of America has changed over time. The presence of a judicial branch that can both interpret law and “legislate from the bench” has produced a different dynamic in the United States compared to other nations. However, shifts are in relation to the political discourse of each era. This is one example of the many models of federalism that exist in the world.
Summary: With New Federalism and the neoliberal ethos of reduced government, states will become increasingly distinct and autonomous. Donald Trump may have promised to “make America great again”, however, given the Republican party’s and the Supreme Court’s intractable commitment to New Federalism, American identity will only become more diffuse and effective governance at the national level increasingly waylaid (e.g., consider the failure on the part of the federal government in responding to Hurricane Katrina)—even with the most competent leadership. For now, Trump will constantly undermine himself, with irreconcilable theories of state’s rights (e.g., nominating conservative judges) and a strong executive (e.g., likening himself to Roosevelt). Nevertheless, given the makeup of the Supreme Court and the composition of Congress, local and state governance is more consequential than ever. Therefore, Democrats need to start focusing on state and local governance if they want to gain traction and make real change.
States have increasingly exercised supremacy over the past 30 years, expanding their domain to matters once exclusively the preserve of the national government. As such, the position of state and local governance has never had more significance—for they now have the authority and an historical baseline to enforce a higher minimum wage, sanctuary cities, marijuana legalization, and to expand healthcare. Indeed, the three gubernatorial frontrunners Antonio Villaraigosa, Gavin Newson, and John Chiang have made these key campaign issues in the race for Governor of California. This article provides a brief history of American authority, answering: When did matters of labor, social welfare, and economics move away from America’s once powerful nation-state?
The Lochner era
The Lochner era (1896-1937) marked a period in U.S. legal history where the Supreme Court interpreted the 5th and 14th Amendments as protecting individual liberty from all forms of federal, state, and untrammeled majority control. Unions, most regulation, or any sort of protective legislation were a direct violation of the aforementioned amendments. It was under this ethos that Plessy v. Ferguson (1896), Allgeyer v. Louisiana (1897), Lochner v. New York (1905) and the Slaughter-House Cases (1873) were decided. The United States, as a nation, was dispersed as ever, limited in its ability to create any sort of uniform social, labor, and economic legislation for its constituents at even the most local levels. This would change however, with the election of Franklin D. Roosevelt.
Legislation under the Roosevelt (1933-1945) and Truman (1945-1953) administrations established the ‘post-war consensus’, or the economic and psychological shift of the West toward a national outlook. In other words, these administrations organized institutions, economies, social welfare, and industry under a powerful nation state, creating such policies and legislation as: the Social Security Act (1935), Fair Labor Standards Act of 1938 (instituting the right to minimum wage and time-and-a-half overtime pay), the National Labor Relations Act of 1935 (curtailing harmful private sector labor and management practices), and the Fair Deal (1949). These acts significantly increased the power of the federal government over states in areas such as labor, capital, social relations, and government. This nationalist outlook certainly was not shared in the ‘Lochner era’ Court of 1896, which valued individual liberty over all else (including equality). Under Roosevelt and Truman, the national government had the authority to enact legislation that was protective, guaranteed social minima, encouraged social emancipation, instituted public planning and federal price controls, and protected the right to organize unions. The federal government was unquestionably dominant. States (feeble from the Depression), Congress, and the Supreme Court (coerced by Roosevelt’s ‘stacking’ threat) acquiesced.
The Federal Government supreme
Brown v. Board (1954) however, brought the rapidly expanding role of the federal government and the reach of the 10th Amendment back into question. Even when considering the fact that by the 1950s, justices were becoming accustomed to a nation-state with significant responsibilities, a country that elected representatives (Roosevelt, Truman, Eisenhower, Kennedy, Johnson) that expanded those responsibilities, and understood the changing attitudes toward race, the Warren Court was, indeed, utterly radical.
The Supreme Court’s decision to desegregate schools lacked 1) a popular mandate in 21 states, 2) a Congressional mandate (as there was no Civil Rights legislation passed between 1875 and 1957), 3) legal precedent for intervening in state affairs for the purposes of desegregation, and 4) legal precedent which argued against Plessy v. Ferguson declaring that separateness necessarily entailed inequality. Brown v. Board (1954) was judicial sovereignty in its most extreme form, appealing to such limited legal precedent as Texas v. White (1869), Fletcher v. Peck (1810), Martin v. Hunter’s Lessee (1816), McCulloch v. Maryland (1819), the Slaughterhouse Cases (1873), National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937). These served to establish the power of the Supreme Court as an independent entity, the ability of the Supreme Court to trump state law and actions, the authority of the Supreme Court as legitimate entity that can extend the power of the federal government, the authority of the Supreme Court as an entity that can operate without an historical baseline (that is, an institution that can interpret laws that do not have established precedent; e.g., the Supreme Court’s interpretation of the Fourteenth Amendment in the Slaughterhouse Cases of 1873), and as a body that can change the original intent of Constitutional Amendments and reinterpret them if sufficient democratic opposition or advocacy is in place to change, implement, or overturn a decision. Even more controversially (with legal precedent establishing neither an history of re-evaluation of Plessy v. Ferguson nor the contention that separate was unequal a priori) the Warren Court used data from social scientists to validate the claim that segregation had adverse psychological effects, and therefore necessarily entailed inequality. The way to make significant change in the mid-20th century, therefore, was on the federal level. The state was to be bypassed, in the words of Warren, “by modern authority” [emphasis added].
Warren’s novelty wore off by the end of the 1960s and was replaced by New Federalism, a movement which “exalts the check-and-balance value at the expense of problem-solving (and all other) values, protecting the bright line posited between mutually exclusive spheres of state and federal regulatory authority”. Richard Nixon’s “Address to the Nation on Domestic Programs” in 1969 succinctly and powerfully elucidates the ideological reversal:
We face an urban crisis, a social crisis-and at the same time, a crisis of confidence in the capacity of government to do its job. A third of a century of centralizing power and responsibility in Washington has produced a bureaucratic monstrosity, cumbersome, unresponsive, ineffective. A third of a century of social experiment has left us a legacy of entrenched programs that have outlived their time or outgrown their purposes. A third of a century of unprecedented growth and change has strained our institutions, and raised serious questions about whether they are still adequate to the times [emphasis added]
Beyond policy reform, Nixon appointed William Rehnquist to the Supreme Court in 1971. Rehnquist would go on to lead the Court in such landmark decisions as Planned Parenthood v. Casey (1992), which gave states the power to place restrictions on abortion, and, most famously, United States v. Lopez (1995), which restricted Congress’ power under the Commerce Clause. The decision marked the first time the Supreme Court used its authority to diminish Congressional authority to regulate commerce between states since 1933.
The Reagan administration (1981-1989) followed Nixon’s lead, reducing federal aid to states and moving block grants into vague categories, allowing states to determine their meaning. In a 1981 interview with reporters on the topic of federalism, Reagan argued that “there is more chance of waste and of fraud in trying to run it [social programs] from the national level than there is in running it at the local level”. The idea that local decision-making is preferable to national decision-making continues to dominate the Republican agenda. In fact, the Republican Party platforms between 1984-2016 explicitly aim to “restore our nation’s federal foundation”.
Between 1969 and the early 2000s, New Federalism had tended to benefit policies rooted in negative conceptions of freedom (i.e., absence of external interference—in our case, freedom of the states from the external interference of the federal government). The early 2000s however, saw states using their increased sovereignty to enact positive notions of freedom (i.e., presence of X, which allows you to actually exercise your autonomy). The state of Massachusetts implemented “An Act Providing Access to Affordable, Quality, and Accountable Health Care” in 2006, which sought to provide health care for all its residents. As of Jan. 1 2018, 29 states have implemented a minimum wage above the federal minimum wage of $7.25 per hour. 9 states have legalized recreational use of cannabis, with some proponents of decriminalization arguing that the Controlled Substances Act of 1970 leads to prison overcrowding for non-violent offenders, and has been exacted with racial bias. Sanctuary cities and states, a movement which arose in the 1980s under increased federal powers, live in open defiance of the federal government. As of 2017, according to CNN, there are over 300 sanctuary cities in the United States.
In the past 80 years, states have never enjoyed such power or ability to determine their cultural, economic, and social policies. This is perhaps illustrated most poignantly in the 2018 California gubernatorial race. Democratic frontrunners, Antonio Villaraigosa, Gavin Newsom, and John Chiang are campaigning as anti-Trump governors, seeking not only to defy Executive Orders, but ‘federal overreach’ in matters of health care, abortion law, education, electoral reform, cannabis, and immigration. These responses have been distinctly Californian, with Antonio Villaraigosa, at the gubernatorial candidates forum in March 2017, arguing for local educational reform, stating “When I became mayor of Los Angeles, we had a 44% (high school) graduation rate…I said the mayor needs to be involved with our schools…as I left…we grew our graduation rate from 44% to 72%” [emphasis added]. With Republican Congressman putting forth doomed “symbolic legislation”, such as, most notably, Rep. Thomas Massie’s bill which read, in full: “The Department of Education shall terminate on December 31, 2018”, states have little choice but to determine education policy on their own.
In addition, Villaraigosa and Chiang have proposed practical health care expansion in California, seeking to gradually implement the state sponsored single-payer healthcare which has an estimated cost of $400 billion. Newsom, more controversially, hopes to implement a single-plan outright, based on his health access program “Healthy San Francisco” in 2007. Though Newsom has given limited information as to how he would expand or fund the program, which was a locally minded creation (i.e., specific to San Francisco and molded to city institutions), on the state level, the fact that states are taking healthcare into their hands is nothing short of remarkable.
In sum, the balance of American authority has shifted from a narrow interpretation of individual rights during the Lochner era, to an all-powerful nation-state after World War II, to our present “New Federalism”, where state and local government determine their social, economic, and cultural policies. Given the composition of the Supreme Court, a feckless executive branch, and the legislature’s Republican majority, New Federalism is here to stay. Democrats would be wise to shift their focus to local and state elections, where the real battles are to be won, and the Supreme Court and Congress now lack the authority to intervene.
Crédit photo: Markos Loizou
 Ryan, Erin. Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area (Oxford: Oxford University Press, 2007).
 Meckstroth, Christopher. The Struggle for Democracy (Cambridge: Harvard University Press, 2015).
 All these presidents instituted domestic programs which necessitated broad powers for the federal government.
 Warren’s understanding of the Fourteenth Amendment was significantly different from past Supreme Court rulings in the Murray v. Maryland (1936), Missouri ex rel Gaines v. Canada (1938), Sweat v. Painter (1950), McLaurin v. Oklahoma Board of Regents of Higher Education (1950)—where the Supreme Court forced integration for individuals because equal facilities were not available to blacks. They do not argue that state institutions that are separate but equal is unequal per se.
 Meckstroth, The Struggle for Democracy.
 Brown v. Board of Education 1954: 495
 Ryan, Erin, Federalism and the Tug of War Within.
 Richard Nixon: “Address to the Nation on Domestic Programs”, August 8, 1969. The American Presidency Project.
 Ryan, Erin, Federalism and the Tug of War Within.
 Ronald Reagan: “Interview with Reporters on Federalism”, November 19, 1981. The American Presidency Project.
 “Republican Party Platform of 1984”, August 20, 1984. The American Presidency Project.
 Loo, M. et al. “Cannabis policy and social consequences. Cannabis policy, implementation and outcomes” Rand Europe (2003).