A Federalism Moment
Federalism Is Having a Moment – Let’s Seize the Opportunity!
by KARLA JONES – APRIL 28, 2021
A renewed appreciation for federalism – the proper balance of power between the federal government and the 50 states – is sweeping the nation. Earlier this month, Utah Valley University’s (UVU) Center for Constitutional Studies hosted a Functional Federalism Academy, where I had the honor of participating on the Roles and Resources for Effective Intergovernmental Relations panel with former Utah Governor Gary Herbert and counterparts from the Council of State Governments (CSG) and the National Conference of State Legislatures (NCSL). The conference program can be accessed here.
In conjunction with the event, which was largely virtual, UVU released an updated and expanded edition of their Functional Federalism Index, an invaluable resource for federalism information. The online Index features two sections. The Federal Regulations Portal presents federal regulatory activity as it relates to maintaining the appropriate balance between federal and state authority. Federalism in the 21st century cannot be understood without looking at the constitutional and economic implications that the delegation of rulemaking authority from Congress to federal agencies has had on the states. The Federalism Organizations Portal highlights federalism’s global reach.
My presentation focused on ways to help the states and the nation to realize federalism’s potential to address many of the nation’s challenges. Federalism education for state officials and lawmakers is vital since states can only defend rights they know they have. With knowledge comes the confidence to hold the line on their constitutional authorities against an ever-expanding federal government. ALEC model policy on the topic can be accessed here.
State lawmakers need a forum where they can exchange ideas, forge coalitions and motivate each other because pushing back against federal overreach is often difficult and frustrating. To that end, ALEC members developed model policy to work together with other state-based organizations like CSG and NCSL to establish a National Federalism Task Force. A unifying policy rooted in federalism provides an opportunity for the states to work in concert to advance a single guiding principle. A coordinated effort of all 50 states would be a potent force that could send a reminder to Washington, DC that the states formed the federal government – not the other way around. This would also enable the states to guard more effectively against assaults on the Tenth Amendment, which is reaffirmed in ALEC model policy.
Decades of policymaking via presidential executive order instead of legislation is one issue that has near universal appeal among the states and could serve as a unifying policy. ALEC model policy for a Re-Empowerment of the States Amendment is one way for states to assert their authority over unconstitutional presidential executive orders, rules, regulatory actions or federal administrative rulings. Many state legislators are united in their opposition to redundant and expensive overregulation, as well as to unfunded mandates.
Due to mismanagement of the public estate, the federal government is partially responsible for a string of record-breaking wildfire seasons. This makes the transfer of select federal lands to state control another issue with the potential to bring the states together. Control over the land within a state’s borders is state sovereignty at its most basic and essential to economic sustainability.
Additionally, the ability to propose constitutional amendments through an Article V convention for proposing amendments is one of the most powerful, politically neutral tools that the Constitutional Framers gave to the states to effect lasting, national change. States may disagree on the types of amendments to advance but should be united on the importance of the authority. ALEC will use the May 2021 Functional Federalism Working Group meeting to identify federalism issues with resonance on both sides of the aisle.
Federalism is having a moment – a brief and rare window of opportunity to educate and move the needle on restoring the appropriate balance of power between the states and the federal government. The idea that the states should have co-equal authority with the federal government has entered the national consciousness with popular culture figures trumpeting its virtues, and the states are poised to seize this unique moment. ALEC looks forward to working with other state-focused organizations to strengthen federalism as a governing principle as America’s Founding Fathers intended.