Tuesday, January 3, 2012

US Federalism 101

So it begins. No one knows how Iowa will go and almost anything is possible.

Yasha and I are rooting for Perry.  During our trip to London, and at home frankly, we've gotten many questions about why we are for Perry. My answer: he's the federalist. Trouble is, few know what that means.

Federalism has been mostly dead since the New Deal. Outside of government, only lawyers commonly deal with federalism issues and even then only incidentally, witness Bachmann's misunderstanding about Masscare from one of the early debates. I've found myself explaining federalism often of late.

Early in the campaign, Perry said he would work to make the federal government as inconsequential to our daily lives as possible.  Then he stopped talking about it.  I have a hunch that the Perry campaign isn't directly talking about federalism because they'd have to explain it first (and the party has some some fair-weather federalists, which I will discuss in another post).  A US federalism explainer does not lend itself to a stump speech, much less a 2 minute beauty pageant debate response.

I might be able to pull off a summary in a post, however. 

This post is a general explanation of the federalist structure for laymen. I’m sure it will draw ‘actually’ comments from my dear Yasha because in order to reduce the complicated 200+ years of Constitutional jurisprudence to a coherent, short(ish) post, I cannot include all details. He doesn’t like not including the details. A few months back the Godfather, a Canadian expat lawyer currently living in the UK, was in Texas and casually asked Yasha about US Federalism while they drove from Houston to Austin. Yasha explained the concept the whole way there. Houston to Austin is about a 3 hour drive depending on how leaden is your foot. Therefore, the Godfather doesn't need to make the jump, but anyone else interested in US politics should. The best way to start is a quick read of the US Constitution. It isn’t a long document and shouldn’t take more than 15 minutes. While reading, pay attention to whom the document addresses, the shalls and the shall nots. Then, jump...

A pattern emerges. The federal government has a list of things it is told to do and another list of things it is told not to do.  The State governments are addressed sparingly to grant them powers not granted or prohibited to the federal government.  That is, the federal government has specific limits.  The State governments have everything else.

Breaking it all down, the Constitution starts with the Inherent powers (which most of Gen X can sing as a 70’s folk song). They are:
  • establish justice, 
  • insure domestic tranquility, 
  • provide for the common defense, 
  • promote the general welfare, and 
  • secure the blessings of liberty to ourselves and our posterity. 
These are the purposes for Union stated in the Preamble. They are “inherent” because they are the powers that underlie all national unions; they are the reasons societies organize governments.

Then the document moves to the Enumerated powers, the specifically mentioned items of Congress’s powers. (The Executive Branch has its own powers, political appointments, vetos, etc., but they are not considered part of the Enumerated powers and don’t affect the tension between the federal legislature and the state governments.) The Enumerated powers are:
  • Borrow money 
  • Regulate commerce among the states 
  • Regulate naturalization 
  • Regulate bankruptcies 
  • Coin money 
  • Fix weights and standards 
  • Punish counterfeiters 
  • Establish post offices 
  • Establish post roads 
  • Record patents 
  • Protect copyrights 
  • Create federal courts 
  • Punish pirates 
  • Declare war 
  • Raise an army 
  • Provide a navy 
  • Call up the militia 
  • Organize the militia 
  • Makes laws for Washington, DC 
  • Make rules for the Army and Navy 
Next come the Implied powers. The Constitution states that Congress can make laws “necessary and proper” to carrying out its powers. For instance, if Congress has the power to coin money, obviously it has the power to build a mint.

After the list of what Congress may do, comes the list of what Congress shall not do: the Bill of Rights. Congress shall not:
  • establish a religion or prohibit the free exercise of religion
  • abridge the freedom of speech or press
  • abridge the right of the people peaceably to assemble and to petition the Government 
  • infringe on the right of the people to keep and bear arms
  • quarter soldiers without the consent
  • conduct unreasonable searches and seizures
  • hold a person for crime without a Grand Jury
  • subject any person to double jeopardy 
  • compel a person to testify against himself
  • deprive any person of life, liberty, or property without due process of law 
  • take private property without just compensation.
  • deny trial by jury
  • impose excessive fines or cruel and unusual punishment
At this point Congress has a pretty short list of things it can do, and a list of things it can't do.  The document only limits Congress, and in fact plainly states in the 10th Amendment that the powers not delegated or prohibited to the United States, are reserved by the States or the people. The States could exercise any power not granted to Congress.  

Subsequent amendments add to the Congress's list: abolish slavery, establish citizenship standards, provide the vote to women and 18 year olds, and allow a federal income tax. But the subsequent amendments make a more subtle change. By the wording of the 14th Amendment, most of the prohibitions of the Bill of Rights were Incorporated against the States. Prior to the Civil War, Massachusetts, for instance, had state churches.  After the Civil War the prohibition against established religion applied to Massachusetts as well as DC.

In the end, Congress has a list of specific things it can do and another list of things it shall not do. The States, they can do anything not on either of Congress's lists. 

Therefore, when Congress passes a law, we should ask whether it is within the power of Congress. This is a two part test: Is it within one of the powers granted to Congress? If yes, then is the action prohibited by any of the restrictions on Congress? If no, then it passes Constitutional muster. When Texas passes a law, however, the analysis is simpler.  We only need ask if the action is within Congressional power or prohibited by the amendments.  If not, then it passes US Constitutional muster.   That is a subtle but significant distinction, though it is of little consequence these days because Constitutional jurisprudence has twisted up US federalism.

After reading the above short list of Congressional powers, one might wonder how Congress does all of the things it does--light bulb regulations, hearings on steroid use in the Major Leagues, etc. The tale is multifaceted and complicated but often involves the Implied Powers of the Necessary and Proper Clause. In Con Law, "necessary" doesn't mean necessary as English speakers understand the term. In fact, the Necessary and Proper Clause is nicknamed the Elastic Clause for it's ability to stretch to fit whatever the post-New Deal Congresses want to do. Lots of things are "necessary" to regulate interstate commerce, for instance. And by the way, "interstate commerce" doesn't have to be actual interstate commerce. Theoretical interstate commerce will suffice.  Worse, due to federal preemption reasoning, States are often prohibited from acting in the expanded realm of Congressional power even if Congress hasn't legislated on the issue. (Query Dormant Commerce Clause for the prime example.)

In sum, the weight of presumptions set up in the Constitution have shifted, turning federalism on its head.  Instead of limiting Congressional power, we presume Congressional power.  Instead of presuming State power, we limit it.

The federalist wants to right the ship by restoring the proper balance of presumptions. The Constitution grants the States, the more local, more easily controlled entity, the greater leeway in legislation, not the distant federal government. If California and Massachusetts want social welfare states, they can have them.  If New Hampshire wants a libertarian state, it can be done.  This is the essential federalist position: make government more local and you make it more responsive to the people it governs.

Today, most of the GOP candidates simply want to mold the federal government to their ideal government. Even Paul would simply turn the federal government into a libertarian one, a change which would only last until liberals gained control again. Only Perry would seek to restore the balance between Congress and the States. He, like Justice Thomas, is swinging for the fences.

Aim at heaven and you will get earth thrown in. Aim at earth and you get neither.--CS Lewis


Megs said...

I found this very interesting article, although it may be too much for your non-US audience discussing the "General Welfare" clause with a tip to the other two legs of the tripod of Constitutional clauses that seem to have exceeded their intent - "interstate commerce" and "Necessary and Proper"


As the article implies, it took us about 100 years to have federalism eroded from the consciousness of the citizenry and so it will likely take any years of thought and education to return it to something resembling a First Principles way of thinking.

AHLondon said...

Exactly, and that won't happen if we just sit around waiting for federalism to revive. This is why swinging for the fences is important. I personally, am not patient. Also, take heart that we are well over 60 years into the Progressive experiment. Time is nigh for the reckoning.
And always comment with wonky links. A few of my friends across the Pond are sufficiently wonky to be interested in Constitutional nuance--especially if they aren't stuck in a car or plane with my delightfully specific husband.

Expat mum said...

Fro what I've seen of many GOP supporters on TV, be they Paul or Perry supporters, they have very limited understanding of their pol's stances on anything. They can repeat sound bites like "get the country back on its feet" or "turn this country around" but if asked what specifically they want done, or what their candidate is going to do, they just start bashing his/her opponents.
For this reason, and because the US has changed greatly in the last 100 years (and will continue to change) I'm not sure that true federalism will come back. Centuries ago, people may have travelled great distances to set up home, but once there, they didn't move from city to city, or state to state for jobs or excitement. They stayed in one place, as did their entire community. It made more sense therefore, to have more local laws.
Now however, it's very common for people to live in a handful of states during their lifetime, and many want to see parity from one state to the other. The Federal government can offer that, and can also go some way to ensure that children (who have no say in anything) receive equal treatment and rights wherever they happen to be born in the US.

Megs said...

There are many states where I would not accept a job offer because I find their laws unacceptable (CA and IL - I'm looking at you.)

However, the argument that the Federal gov't can govern better than a local gov't flies in the face of convention. The closer gov't is to the people they serve, the better they can do so.

You can't sell me on the idea that Iowa is well served by having 55 cents spent in Iowa for every dollar that Iowans pay in Federal income tax and most other states have the same story.

How did Texas fair when Hurricane Rita came through it? FEMA told Texas - you have money in your rainy day fund, spend it because we're spending all our money on Katrina damage. If Texans weren't spending all their money to Washington's pet projects, we would have more money to spend on TX wildfires that FEMA also told us they wouldn't help us with.

A government who knows their constituency with greater intimacy will always be better suited to serve its real needs.

Expat mum said...

I dont have a problem with what you say Megs, but your first sentence supports my thinking - it's not much of a United States when you can't move from State to State because the laws are so different.

AHLondon said...

Expat Mum, in your point sbout people wanting to see parity and equal treatment, you are right but fail to see the implications of your position, which is a very common position, by the way. First, the federalist system of Enumerated powers and positive rights is protection for equality and parity and that is before any anslysis of Fair Faith and Credit from Article IV. Mostly though, the problem is that people assume that the government would support the things they support. That is, you are correct that the federal government can provide parity, but positive parity is dependent upon what the government actually does. A government that can provide parity on abortion rights, gay marriage, healthcare--pick any modern topic--can also provide parity on say, abortion bans. If you want a strong federal government unbound by federalism, then you will have a problem when the other side wins. This point isn't theoretical after Sanatorum's showing tonight. Sanatorum is a big government conservative who would happily use the federal government to do conservative things. Obama is floundering, his historical indicators are horrible for his reelection prospects. As a liberal, who would you rather have in the Oval Office, the conservative who wants the federal government out of your business, or the conservative who wants to use the federal government to make you live a more conservative life? (Note that for the moment I am avoiding the significant distinction between social conservatives and Burkean conservatives. )
Oh, and regarding judging conservatives from TV interviews, it isn't reliable practice. The news goes looking for the kooks because kookiness is interesting and it fits the narrative that conservatives are kooks. Even if an event is full of Megs types, articulate and informed, none of them will make the nightly news.

Expat mum said...

I am fully aware of the implications, but I still think that Federal intervention when it comes to education standards, child protection laws, and often, criminal laws, trump many other considerations. Why should someone be able to cross a state line and commit a crime against another person just because...? Especially if the person against whom the crime is perpetrated isn't even a resident in that state?
As more and more people travel and relocate across state lines, they should be afforded the same rights and protections wherever they are in the USA. It's ludicrous that a US citizen can be subject (or victim) to so many different laws and protections just by traveling a few hundred miles in some cases. And don't even get me started on education standards etc. Why should a child's birthplace make such a difference in the education provided?
And yes, while I will absolutely leave this country if Santorum becomes President, it's still part of the democratic election process I don't really see it as any different from when you have a Governor elected with whom you profoundly disagree. If you don't like living under his/her new political philosophy, you either have to suck it up or move. ( I realise that most Americans can't just leave the country - which is all the more reason to get out and vote for their candidate.)
Yes, I'm a liberal, by American standards, but I still respect the right of a government to govern when democratically elected. If Santorum gets in, it will be because Obama doesn't do a good enough job of persuading his followers and the undecided; simple as that. Whatever you think of his performance and his potential, it's no secret that stellar political performance isn't always the barometer. Democrats will have to live with it until the next election.

Megs said...

Expat mum,
It seems to me that in the name "United States" you emphasize "United" while I emphasize "States."

Your example about a criminal crossing state lines doesn't have anything to do with Federalism because crossing a state line for the express purpose of committing a crime makes it a Federal crime, so it has nothing to do with state laws at that point.

And this is someplace else where we differ "they should be afforded the same rights and protections wherever they are in the USA." There is a significant divide in people's opinions about what qualifies as a right. IMO, a right is something that is conferred by the theory of Natural Law. Basically, if it's something that can be given to every person in the world at any time in history, it's a natural right. The rights insured by the Constitution are these and anything more is not a right.

I dislike Santorum because I am libertarian. The point of libertarianism is the one that AHL makes. If I think that it's alright for one party to wield, but not another then it's not a power that the government should have at all. For example, thinking that it's alright for Obama to hold a detainee without trial indefinitely (NDAA) but to think it wouldn't be alright for GWB to do it - that's a bad undertaking.

AHLondon said...

People are afforded the same right across the States, freedom of press, religion, assembly, right to bear arms... Some States might provide additional privileges, and there are procedures for making those federal, but the Founding Fathers made the procedures difficult precisely because it is bad for liberty to have wide swings in rights based upon who has the majority at any given time. It is the tyranny of the majority.
As for the difference between a Governor and the President, well as a citizen of Texas I'm one of 25 million. As a citizen of the US, I'm one of 300 million. If I in one of the largest states have so much more say in Texas politics, imagine how much an active citizen of Rhode Island can do. On top of that is the sheer size and diversity of the US. Is it crazy that Denmark has different abortion restrictions than the UK? Copenhagen and London are about 750 miles apart. That won't get you across either of Texas's long stretches.

You mention education and true there are different education outcomes amongst the States. But are national standards the answer? How can we find one size to fit all when we have huge states with significant immigrant and non-English speaking populations and small states with a more homogenous population? We're expats. We know that kids learning 2 or more languages seem to develop language later than kids learning only one language. So how could the US have uniform standards for language skills for Texas and North Dakota? Find more reading on a national education standard here: http://jaypgreene.com/2011/12/14/choice-is-not-chaos/

You note that if the opposition wins that the options are to suck it up or move and that moving to another country is difficult. True. But moving to another state is pretty easy. That's the beauty of pushing as much government as possible to the States. Moving is a viable possibility. I need specifics here "Why should someone be able to cross a state line and commit a crime against another person just because...? Especially if the person against whom the crime is perpetrated isn't even a resident in that state? " Because what? First, most crimes are similar across states. Murder is murder, though states might differ slightly in the details of first and second degree and in punishments. Second, the Full Faith and Credit clause takes care of much of this concern. If say, you got a judgment for debt in Georgia, Florida courts are bound to honor it. Details vary depending on what you are talking about, but one can't get away with something in Georgia just because they are from Florida.

As for the "right of a government to govern" you put your finger on the root of the difference between American and European political philosophy. Governments don't have rights. Governments preserve rights. Governments have duties. These notions are in American cultural DNA, almost instinctive to us. I could write more but it is late and I might get a post out of that. I've been noodling the concepts for a while and your phrasing just crystalized it for me.

Megs said...

AHL, I'd argue that government cannot grant a right. They may be able to grant an additional protection, but I'd actually argue that those protections aren't tyranny of the majority - it is tyranny of the minority. Example, atheists argue that they should be allowed to go about their day without seeing any sign of any religion. So the huge majority of people that have a religion are told to put it away for the minority who would like to pretend that other people don't have religious beliefs.

I think I can give an example of a crime that is very different in different states. I'm unfamiliar with the law today, but 20 years ago I knew of a young man who sold steroids to his college friends. If he'd been in TX, it would have been about 1 year in jail. He was in LA though, so he was sentenced to 7 years. However, let's just add that it is a crime in both states. He would have ignored the law no matter where he'd lived. Speaking of that, the first man who was sentenced to the "3 strikes" rule had stolen a bicycle for his 3rd felony. After he was sentenced to life, a reporter asked him what he would have done differently. He answered, "I wouldn't live in a state with this law." Notice that he didn't say, "I wouldn't have stolen the bike." People who commit crimes will do so wherever they go.

Here Here! Governments don't have rights! They have the honor of serving at the request of their people. The duties given to the government are those that they people have agreed to give to the government. It is a great evil when a government usurps their privilege to serve as a means to gain power and enrich an oligarchical class which is what I believe is happening today. I reject the idea that government should rule for the "greater good" because that is the tyranny of the majority that AHL mentions.

AHLondon said...

Megs, did you go to law school? Most laymen don't notice such distinctions.
There are many theories of Rights. Natural Rights, Inalienable Rights, you are correct, governments don't grant them. They exist. Good governments protect and preserve them. Just because, however, we didn't recognize a Natural Right as one in the past, doesn't mean it isn't one. The Right's nature never changes, but we might discover it's nature that was once hidden. It is so difficult to amend the Constitution because the Founders realized that much mischief could ensue in discovering various rights on whims. As you noted with the tyranny of the minority comment, rights can destroy other rights.
And yes, sentencing for crimes varies. But as you noted a crime is a crime. Murder in Texas gets you arrested just as murder in California. Might it be stupider for a criminal to commit murder in Texas than California? Yes. If nothing else, the difference in sentencing across 50 states gives us loads of data on deterrent effects of sentences, which helps all of us better tailor our laws based upon the needs of the individual state. This data gathering advantage works for education, health care, welfare, insurance, economy...

Megs said...

I've never been to law school (nor anyone else in my family) but my husband and I give advice liberally to those arrested on Law and Order episodes. (BTW, they rarely follow our advice and they usually contribute to their own arrest and subsequent finding of guilt.)

Hmm - I think that sentencing probably does little to deter crime. I think Castle Doctrine and Right to Carry probably affects those numbers a lot more.

Megs said...

BTW, interesting read about deterring crime. Apparently surveillance cameras all over London hasn't really helped. (It's just lined the pockets of a few companies.) http://www.guardian.co.uk/technology/2011/aug/17/why-cctv-does-not-deter-crime