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Gov. Jerry Brown, D-Calif., has accused the federal government of “going to war” with his state over California's so-called sanctuary laws, which seek to protect undocumented immigrants. The dispute has raised questions about the division of power between federal and local authority and whether states have the right to reject policies created in Washington they believe are harmful or unconstitutional. (Cover: AFP/Getty Images/Patrik Stollarz)

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April 27, 2018 – Volume 28, Issue 16

Is partisanship putting governance at risk?

By Alan Greenblatt

Introduction

States are suing the federal government at a record pace, with Democratic attorneys general trying to block President Trump's policies on the environment, immigration, health care, marijuana and other issues. In addition, some states are defying federal authority by passing laws that counteract policies laid down in Washington. Tensions between the states and federal government are not new — states sued the administration of Democratic President Barack Obama dozens of times — but many governance experts say partisan hostility is at historically high levels. The friction has led to centuries- old questions about the division of power between federal and local authority and whether states have the right to reject policies created in Washington they believe are harmful or unconstitutional. Some states are so upset with what they see as federal budgetary excesses that they are calling for a constitutional convention to curb congressional spending authority. Meanwhile, partisan conflict between state legislatures and municipalities is also growing, with lawmakers sometimes blocking cities from enforcing local ordinances.

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Overview

Nearly 3,000 miles from Washington, D.C., a large and powerful state is in a stare-down with the national government.

Challenging the Trump administration's hard line against undocumented immigrants, California passed a series of “sanctuary” laws last year limiting how cooperative local law enforcement agencies would be in helping federal agents round up those immigrants for deportation.

The Justice Department announced on March 6 that it was suing to block the California laws. “Federal law is ‘the supreme law of the land,’” said U.S. Attorney General Jeff Sessions in a speech in California the next day.

“Just imagine if a state passed a law forbidding employers from cooperating with OSHA in ensuring workplace safety. Or the EPA, looking for a polluter,” Sessions said, referring to the Occupational Safety and Health Administration and the Environmental Protection Agency. “That would obviously

be absurd. But it would be no different in principle from [the laws] enacted by California.”

Not far from where Sessions spoke, California Democratic Gov. Jerry Brown denounced the attorney general's remarks, accusing him of making “wild accusations” and “basically going to war

against the state of California.”

Federal/State Government Relations

Apr. 27, 2018 Federal-State Relations

Oct. 15, 2010 States and Federalism

Sep. 13, 1996 The States and Federalism

Feb. 21, 1986 State Financing

May 24, 1985 Federalism under Reagan

Apr. 03, 1981 Reagan's ‘New Federalism’

Feb. 25, 1977 Resurgence of Regionalism

Apr. 07, 1971 State Capitalism

Dec. 23, 1964 Federal-State Revenue Sharing

Jul. 30, 1940 Federal-State Relations Under Grants-in-Aid

Jul. 03, 1937 Regional Planning and Development

Apr. 24, 1936 Reform of Municipal Accounting

Jul. 10, 1933 Regional Planning by the Federal Government

Dec. 13, 1924 Federal Subsidies to the States

Congress Actions

Deficit, Federal Debt, and Balanced Budget

Federal Courts

Federal Taxes

Immigration and Naturalization

Party Politics

Party Politics

Powers and History of the Presidency

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Demonstrators in Los Angeles on Feb. 18, 2017, protest President Trump's policy calling for deportation of undocumented immigrants. California is seeking to limit local cooperation with federal immigration agents. The state has sued the Trump administration more than 30 times over a range of issues, including immigration policy. (AFP/Getty Images/Mark Ralston)

The dispute provided yet more evidence of deteriorating federal-state relations. Since Republican Donald Trump became president in January 2017, states have filed a record number of lawsuits against the federal government, according to Paul Nolette, a Marquette University political scientist who studies state attorneys general. California alone already has sued the administration more than 30 times since the inauguration of Trump, who has become a lightning rod for his unorthodox governing style and conservative, America First agenda. The administration, in turn, has sued

California several times.

Groups of states have clashed with the administration over health care, marijuana legalization, climate change, vehicle fuel standards, internet regulation and a host of other issues. They complain the federal government is often heavy-handed, forcing harmful programs or policies on them without adequate consultation.

Because of the lack of consultation, “we really do not have a good functioning intergovernmental system right now,” says former Democratic Maryland Gov. Parris Glendening, who has written about federalism and works with Smart Growth America, a group that promotes transportation and economic and community development programs.

But the hostile relationship should not be exaggerated, says Nolette. Disputes between states and the federal government are “a continuing motif in American politics,” he says.

During Democrat Barack Obama's presidency, state-level Republicans were the ones challenging federal authority as they clashed with the administration over its regulatory policies on the environment, Wall Street and other issues.

Nevertheless, with Trump in office, federal-state tensions are rising, Nolette says. For one thing, states now present, in some ways, a “more coherent voice against the federal government,” he says, because of the growth of partisan state organizations such as the Democratic and Republican state attorneys general associations. Growing polarization in American politics, meanwhile, leads to more disputes between the federal government and the states, as the party out of power in Washington seeks to use what leverage it has through other governmental levels, according to political analysts.

Partisanship is splitting states into separate Democratic and Republican camps, says Michael Greve, a law professor at George Mason University and an expert on constitutional law. “We've gone back to sectionalism in American politics, with blocks of states that differ on non-negotiable, fundamental principles,” he says, such as abortion, LGBT rights and environmental regulation.

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Long Description

Democratic attorneys general of “blue” states — places that vote predominantly Democratic, such as California, New York and Massachusetts — have sued the Trump administration repeatedly. They even have challenged some federal policies that have little obvious direct impact on states, such as the president's ban on travel from selected Muslim-majority countries.

Often, states will sue within days or even hours of an administration move, such as when the Commerce Department announced in March that it was adding a question about citizenship to the 2020 census form. (Democrats fear the citizenship question will discourage undocumented immigrants from participating in the count, while Republicans say it is important to learn how many

noncitizens are in the country.)

“The older model of how state governments react to what comes from the federal government is just completely demolished,” said Doug Chin, Hawaii's former Democratic attorney general. “Now

we have hours to react, to make a statement [or] to file a temporary restraining order.”

Republican state officials have been generally supportive of Trump. For example, more than a dozen states headed by Republican governors filed a brief in support of the Justice Department's lawsuit against California's sanctuary laws. However, some GOP governors balked at

congressional efforts last year to slash Medicaid funding.

Republican state attorneys general also defended the new census citizenship question. “[Commerce Secretary Wilbur Ross] was within his authority to find that the need for accurate citizenship information outweighed the fears of a lower response rate,” the Republican attorneys

general of Colorado, Louisiana and Oklahoma said in a joint news release.

The situation is a turnabout from the Obama administration, when Republicans were the ones repeatedly suing the federal government. While he was attorney general of Texas, Gov. Greg Abbott sued the federal government more than 30 times, most often over environmental regulations. “I go into the office in the morning. I sue Barack Obama, and then I go home,” Abbott

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frequently said.

Members of Congress also have taken positions that sometimes seem designed to clash with jurisdictions run by the other party, political analysts say. When Congress was debating last year's tax law, which cut rates for corporations and some individuals, political analysts noted that new limitations on deductions of state and local taxes appeared aimed at blue states such as New York and New Jersey that have higher taxes than Republican red states such as Florida and Mississippi.

“We're in this time when there's enormous pressure, especially at the national level, to be seen by your hard-core primary voters as fighting for your partisan position,” says Scott Pattison, executive director of the nonpartisan National Governors Association.

Members of Congress, says Rep. Gerry Connolly, D-Va., a former county official, often pay lip service to the ideals of federalism — the division of authority among the national government, states and localities that allows different jurisdictions to set policies that best suit their needs. But senators and representatives tend to let their concern with the substantive policy issue at hand eclipse the principle of local control. “You say you're for federalism and want states to make decisions — except when we're talking about immigration, or guns or LGBT rights,” Connolly says.

Congress needs to stop micromanaging so many issues, says Rep. Rob Bishop, R-Utah. Federalism means national officials should show some restraint, he says. Bishop chairs the Speaker's Task Force on Intergovernmental Affairs, established in 2017 by congressional leaders from both parties to reset relations among the various levels of government and promote collaboration among them.

Bishop says it can be difficult to persuade his congressional colleagues to let the states have more say. “If a state wants to be stupid, they have a right to be stupid,” Bishop says. “That's what federalism guarantees. It's not for the federal government to decide what is stupid and what is not.”

Federal proponents disagree, saying states do not always know best and that a strong national government is needed to protect individual rights and to provide uniformity of laws. “Our system of laws would break down if each of the 50 states could offer its own interpretation of congressional authority,” said Stuart Plunkett, an attorney for the advocacy group Brady Center to Prevent Gun

Violence.

Clashes between states and the federal government, fueled in most cases by entrenched differences between the political parties, can lead to an unhealthy whipsawing effect, said California Gov. Brown. When Democrats return to power in Washington, they often move quickly to undo Republican policies, as did Republicans to Democratic ideas when they regained control of the federal government.

“A cycle will be created, in which one side pushes as far as it can until it's thrown out, then the next one does it, and then it will happen again,” Brown said. “So, the Democrats get more extreme, the

Republicans get more extreme, and you have an ungovernable America.”

As politicians, legal analysts and others examine the dynamics between Washington and the states, here are some of the questions they are debating:

Are federal-state relations worse under President Trump?

On April 2, the Trump administration attacked California's environmental policies on two fronts.

The Environmental Protection Agency (EPA) announced it would revoke penalties for automakers that do not meet strict Obama-era emission standards, which were based in part on a California law. The agency also said it would challenge California's ability under the Clean Air Act to set fuel standards that are more stringent than required nationally. “Cooperative federalism doesn't mean that one state can dictate standards for the rest of the country,” said EPA Administrator Scott Pruitt.

“It is in America's best interest to have a national standard.”

On the same day, the Justice Department announced it was suing to overturn a California law that said the state will not recognize any sale or transfer of federal land within its borders unless the

California State Lands Commission gets the right of first refusal.

States, in turn, are banding together to sue the federal government much more often than they did during Obama's presidency, rising from three lawsuits in 2009 to 13 in 2015 and 37 in 2017, according to Marquette's Nolette. “It's continued to escalate pretty dramatically,” he says. “This has been building up for some time, but under the Trump administration, it's escalated further.”

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Long Description

States not only are suing the feds more often, Nolette says, but they are filing more administrative comments and amicus briefs with the Supreme Court, as well as sending more official letters to members of Congress.

Democratic leaders are going after Trump and the GOP with gusto. “We have Republican governors who are kowtowing to Donald Trump and will continue to do so, who have been lackeys to his abysmal record and his moral depravity and his inhumane policies,” said Democratic Washington Gov. Jay Inslee, who has challenged the president on numerous issues including

immigration and arming teachers.

But many Republican governors remain steadfast in their support of the president. “I love [Trump] with all my heart and I'll support him to death,” West Virginia Republican Gov. Jim Justice said

during a presidential visit to his state on April 5.

Yet, a number of legal and political analysts say federal-state relations have not worsened when compared with prior administrations. Democratic lawsuits are a reverse of the Republican lawsuits filed against the Obama administration. As Oklahoma's attorney general, Pruitt sued the Obama

administration repeatedly over environmental rules.

“I feel like a lot of this went on before,” says the National Governors Association's Pattison. “I remember how emotional people in coal states would get about the Obama presidency and the environmental regulations from that standpoint.”

Federal-state conflict under Trump represents the continuation of a trend, echoes Neal Osten, co- director of the Washington office of the National Conference of State Legislatures. “Basically, the issues between states and the federal government, I don't think they've gotten worse since the Trump administration.”

Partisan polarization can explain a lot of the tension between the federal government and states, says George Mason's Greve. Republican state officials, after all, have supported Trump administration positions on immigration and other issues.

“So much depends on partisan contingencies,” Greve says. “Had [2016 Democratic presidential nominee] Hillary Clinton won, there would have been sectional warfare, but a very different form.”

But Timothy Conlan, a government professor at George Mason University, says partisan differences are only part of the story and that other factors have contributed to what he sees as a deterioration in federal-state relations since Trump took office.

For much of the 20th century, federal-state cooperation was rooted in particular policies, with states and the federal government helping to shape, administer and fund programs in such areas as education, public health, welfare and highway construction. Federal and state administrators tended to share similar goals, Conlan says.

“You'd have highly professionalized services at every level of government, and those professionals had a similar worldview and a major influence over how those programs were implemented,” he says. “That was a real force for intergovernmental cooperation.”

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Protesters at the White House on April 29, 2017, attack Trump

Today, however, elected officials are attempting to exert greater control over various programs. “There's very little willingness to allow experts at any level of government to have traditional amounts of discretion in their programs,” Conlan says. “That's helped disrupt those long-term relations.”

Federal and state officials clearly disagree over a variety of issues, whether based on partisanship or philosophical differences. Not everyone sees that as bad. Bishop says he “welcomes” state challenges to federal authority.

Although state-federal clashes have grown, Bishop says, “I look at that as something positive. States are trying to take more responsibility for their citizens.”

Can states defy federal authority?

Republican Roy Moore drew national notoriety as a U.S. Senate candidate last year amid accusations of sexual misconduct involving young women and girls. But the Alabamian was controversial even before he won the GOP nomination.

He was removed twice as chief justice of the state Supreme Court for defying federal judicial orders. In 2003, he refused to remove a Ten Commandments monument from the state judicial building. Three years after voters returned him to the bench in 2012, Moore ordered state judges to

ignore the U.S. Supreme Court ruling ensuring marital rights for same-sex couples. Despite

Moore's defiance, legal experts say, his removal from the bench shows that even the top state judge has to obey federal edicts, or pay a price.

Federal sovereignty rests on the Constitution's Supremacy Clause, which states: “This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

But, according to constitutional scholars, the clause does not mean the federal government sits atop a legal pyramid, with states having to obey its every command. Although the Supremacy Clause makes clear that the U.S. Constitution is paramount, the phrase “made in pursuance thereof” limits “the supreme law of the land” to those measures that are in accordance with the Constitution.

“There's not some blanket, absolute federal supremacy, although I think some people take it that way,” says Mike Maharrey, communications director for the Tenth Amendment Center, a think tank based in Los Angeles that opposes excessive federal power.

Advocates of states’ rights point not only to the “made in pursuance thereof” phrase but to the 10th Amendment, which was adopted as part of the Bill of Rights and says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Nevertheless, the lines separating federal and state powers under the Supremacy Clause and the 10th Amendment can get blurry, legal experts say. That is one reason the federal government and states are often challenging each other's authority in court.

“The important part, and the question being litigated, is: ‘When is the federal government overstepping its bounds?’” says Arnold Loewy, a professor of law at Texas Tech University. “There's no rule that says if the federal government does overstep its bounds, that that doesn't matter, that the states have to do what they're told, like good little states.”

Throughout U.S. history, states have tried to nullify federal laws they did not like, but most of those efforts failed. Although Arizona, Idaho, South Dakota, Wyoming and several other states passed bills in recent years to nullify federal gun laws, legal experts say those states would not be able to

prevent federal agents from enforcing national laws within their borders.

Conversely, the federal government cannot order state or local governments to enforce federal laws they oppose, under what is known as the anti-commandeering doctrine, laid out in a

series of Supreme Court rulings. “States aren't free to

interfere with federal law, but they're not required to do the federal government's bidding for them,” Loewy says.

When Washington wants states or localities to carry out a policy, typically it has made receipt of federal dollars contingent on their cooperation. In 1984, Congress passed a law requiring states to raise the drinking age to 21, or risk losing 10 percent of their federal highway funds. Three years later, in South Dakota v. Dole, the Supreme Court found that

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administration environmental policies. Tensions between the states and federal government are not new — states sued the Democratic Obama administration dozens of times — but many governance experts say levels of partisan hostility are at historic highs. (Getty Images/Astrid Riecken)

Congress had acted within its authority.

But Congress’ use of a “stick” to prod states has limits. In 2012, in National Federation of Independent Business v. Sebelius, the Supreme Court found that Congress had been unconstitutionally coercive in requiring states to implement an expansion of Medicaid, the joint federal-state program that provides aid for the poor and people with disabilities, under the Affordable Care Act, or risk losing all their other Medicaid

funds.

Even when the federal government is operating well within its legal rights, states can challenge its edicts in other ways, scholars of federalism say. Federal agencies cannot always monitor whether states and localities are complying with federal regulations and carrying out their programs.

“It's possible that even when the feds hold the legal trump cards, they can't be everywhere at the same time, trying to watch over and intervene,” says George Mason's Conlan. “When you turn a task over to somebody else to carry out, you're ceding a lot of informal power. That's always given states a lot of genuine political and administrative power, even when it's not apparent in the law.”

The federal government relies on states, localities and nonprofits to implement much of its domestic agenda. Washington may write big checks and set many of the rules, but states and local governments do much of the actual work when it comes to building highways, running schools and enforcing environmental regulations.

“The federal government, as it's taken on more and more roles since the New Deal era of the 1930s, has relied more and more on state and local governments to carry out federal policy goals,” says Nolette of Marquette. “That also gives states and localities more ability to push back on federal policy goals as they're expected to implement them.”

Congress has the power to preempt state laws, assuming a federal mandate is not overstepping any constitutional bounds, legal experts say. Last December, for example, the House passed a bill

that would override state laws that regulate concealed weapons. The measure has not passed

the Senate.

But states that choose to resist federal power have many ways to do so. “States are not branches of the federal government,” Loewy says. “They are independent, or sovereign, to a degree.”

Are states better at governance than Washington?

Andrea Dew Steele is the founder and president of Emerge America, a group that recruits and trains Democratic women to run for office. When talking to potential candidates, she says, she does not steer them away from running for Congress, but she sometimes suggests they might accomplish more as state legislators.

It is not just because Democrats are for now in the minority in Congress, which means party members have a good deal less influence than Republicans It is because states have “absolutely” been more productive than Congress in recent years, she says. “I certainly encourage a lot of our women to run for state legislative seats,” Steele says. “So much is happening at the state legislative level, when so little is happening at the national level.”

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Long Description

In recent years, Congress has often appeared gridlocked. Republicans controlled at least one chamber during six of President Obama's eight years in office and seldom cooperated with Democrats on policy matters. Since President Trump took office, the only major legislation a Republican-dominated Congress has passed was last year's tax overhaul. Despite one-party control in Washington, Congress has struggled repeatedly to even pass an annual budget and spending bills to keep the government running. Attempts to reshape the Affordable Care Act and Medicaid — both Republican priorities — failed last year, while Trump's trillion-dollar infrastructure package has yet to gain momentum.

By comparison, with only four legislatures facing divided party control, states have been active on many fronts. The 33 Republican-controlled legislatures, including nominally nonpartisan Nebraska, have enacted hundreds of laws in recent years, restricting abortion, requiring voter identification,

curbing labor unions and cutting taxes, among other policies. Meanwhile, the 13 Democratic-

controlled legislatures have created automatic voter registration systems, increased the minimum wage, expanded health coverage and offered greater protection and benefits to immigrants.

“National groups, if they want to get legislation through, they pick a state on the left or the right,” says Matthew Pagano, executive director of the Minnesota Republican Party. “That's a much easier venue in which to try to build legislative interest in a policy idea, compared to Washington.”

Most legislatures do not have a rule resembling the U.S. Senate's filibuster, which requires that 60 of the 100 senators agree to allow final votes on bills, a hurdle the chamber often cannot overcome. What is more, whereas the GOP has only a two-seat edge in the Senate, state Democrats or Republicans enjoy substantial majorities in most state legislative chambers — often supermajorities of two-thirds or more.

And unlike in Washington, nearly every state requires a balanced budget. Voters may grouse when Congress is late passing a budget, says Pattison, the National Governors Association director, but at the national level, voters seem to want their representatives to stick to their guns and fight for

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particular positions. But at the state level, Pattison says, voters want a budget agreement, so that schools remain open and roads get built. “Over and over, legislators and budget and finance people would tell me, the public would say just get it done,” Pattison says.

Not all states are equally productive, of course. Last year, several missed their own deadlines for passing budgets. And even when an idea spreads rapidly from one state to another — such as restricting opioid prescriptions or passing right-to-work laws that make it harder for unions to gain members — states are limited in how much they can get done, political analysts say. Their financial resources are necessarily more limited than Washington's, with the federal government able to borrow essentially unlimited funds.

States sometimes pursue model or “uniform” legislation to ensure that goals in different places align. But only Congress can make policy that applies throughout the nation. “Outlawing assault weapons doesn't work if you can go into neighboring states to make purchases,” says Glendening, the former Maryland governor. “On this issue, there must be a strong federal presence.”

Glendening says leadership has improved and innovation has increased in the states. Legislative redistricting dating from the 1960s produced fairer and arguably more effective representation. Two major foundations, the Ford Foundation and the Carnegie Corp., helped lay the groundwork for newly formed organizations that became the National Conference of State Legislatures and the State Legislative Leaders Foundation to improve legislatures, increase their staff and make them more professional. As a result, wrote Rutgers University political scientist Alan Rosenthal, “in recent decades state legislatures have probably come further developmentally than any other American

political institution.”

Congress’ reputation, meanwhile, has suffered. But that image is not entirely accurate, says Conlan, the George Mason political scientist. Congress has periods of high productivity and bursts of policy innovation — often at the start of new presidential administrations or during economic or national security crises. “If you looked at Washington in 2009 and 2010 [with a new president taking office during a severe recession], it looked pretty productive,” he says. “Washington has the general reputation of being dysfunctional and not working, but you have these spasms of great activity under a certain set of circumstances that come around every few years.”

During the first two years of Obama's presidency, Congress passed an $800 billion stimulus

package, the Affordable Care Act and a new set of financial regulations known as Dodd-Frank.

At the beginning of George W. Bush's presidency in 2001 and 2002, Congress passed a $1.35 trillion tax cut and a standardized school-testing law known as No Child Left Behind. It also created the Department of Homeland Security and passed the Patriot Act in response to the terrorist

attacks of Sept. 11, 2001.

“One exception might be the Trump administration,” Conlan says. “Passing a big tax cut is no small feat, but in terms of legislation, they've been less effective than other administrations that have recently controlled both houses of Congress.”

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Background

Independent Nation

By the time the American colonies won their independence from England, most of the states were already a century old, with powerful legislatures in place. Hostile to monarchy, the states at first had no interest in creating a strong central government. Under the Articles of Confederation that the states ratified between 1777 and 1781, the national government consisted of a Continental Congress, but it had no president or executive branch or judiciary. Congress possessed no taxing powers, ability to regulate commerce or enforce treaties. The Articles, instead, said each state

retained “its sovereignty, freedom, and independence.”

But the lack of a strong central government soon proved crippling, as the United States struggled in the 1780s to pay off its Revolutionary War debts, end a recession and defend its borders. In 1787, the states sent delegates to a convention in Philadelphia that drew up a new constitution. The resulting document created both a strong national government with the ability to tax and regulate commerce and a federal system in which power would be shared with the states. (It also preserved slavery at the insistence of Southern states.)

Aware that many Americans feared the federal government would grow too powerful under the Constitution, James Madison wrote in The Federalist Papers, “The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in

the state governments are numerous and indefinite.”

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But Anti-Federalists — those Founders who opposed the creation of a strong national government — remained skeptical of Madison's assurances. They succeeded in ratifying the 10th Amendment, which granted undefined powers to the states. Sharing power with the states was meant as a check against federal tyranny. “The true barriers of our liberty in this country are our state governments,”

wrote Thomas Jefferson.

As George Washington settled into the presidency in 1789, disputes between the new federal government and the states quickly arose over the assumption of state debts from the American Revolution. Then, under President John Adams, Congress in 1798 passed the Alien and Sedition Acts, which among other things made it illegal to criticize government officials. Alarmed over what they saw as federal overreach, Madison and Jefferson argued in the Virginia and Kentucky Resolutions that because the Constitution was a compact of sovereign states, each state had the

right to judge for itself whether a federal law was constitutional.

But Supreme Court Chief Justice John Marshall, in a landmark 1819 case known as McCulloch v. Maryland, made clear that states could not impede the national government from carrying out the powers enumerated under the Constitution. He also said the national government had implied

powers that were not specifically spelled out in the Constitution.

The ruling did not settle the debate over federal powers. Southerners objected to tariffs imposed in 1828 and 1832, believing they helped Northern manufacturers at the expense of Southern cotton growers and other exporters of raw materials. Vice President John Calhoun of South Carolina argued that the states had the power to nullify federal laws within their borders. President Andrew Jackson disagreed and asked Congress for authority to use military force to keep South Carolina in line. Congress passed a compromise tariff bill in 1832, averting armed conflict, but the dispute

foreshadowed the Civil War.

Roger B. Taney, Marshall's successor as chief justice, said in an 1859 ruling that state courts could not issue rulings on federal law that contradicted the decisions of federal courts. “The powers of the general government, and of the state, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of

each other,” Taney wrote in Ableman v. Booth.

The Civil War settled the question of whether states could secede from the Union. After the war, ratification of the 14th Amendment broadened federal powers, with its Equal Protection Clause forming the basis for the federal government's ability to assert its authority over states in areas ranging from school desegregation to reapportionment of state legislatures to administration of anti-

poverty programs.

New Federalism

The federal government vastly expanded its reach into American life with the New Deal programs enacted under Democratic President Franklin D. Roosevelt in the 1930s. Yet many of those programs, such as welfare and job creation, relied on states for implementation. In 1902, federal grants had amounted to less than 1 percent of state and local revenues. By 1934, they made up 14

percent.

During the New Deal years and for decades after, the Supreme Court interpreted the Constitution in ways that expanded Congress’ ability to regulate interstate commerce, including civil rights. Court decisions in this period were so expansive that Greve, the George Mason law professor, wrote that

the court had essentially “turned the notion of enumerated powers on its head.” Rather than

limiting Congress to what the Constitution said it could do, the rulings seemed to empower Congress to do anything it was not explicitly blocked from doing.

The Due Process Clause of the 14th Amendment made it clear that the Bill of Rights applied to the states. Some of the major state-federal conflicts in the mid-20th century centered on civil rights, with Southern politicians invoking states’ rights and pledging “massive resistance” to what they saw as federal intrusion. In one of many dramatic clashes during that era, Republican President Dwight D. Eisenhower federalized the Arkansas National Guard in 1957 to ensure that black children could

enroll in a Little Rock school.

The 24th Amendment, ratified in 1964, banned poll taxes, one of the methods Southern states used

to prevent blacks from voting. The Voting Rights Act of 1965 allowed federal supervision of

voter registration and elections in a number of states, primarily in the South.

During the 1960s, Democratic President Lyndon B. Johnson's “Great Society” program, undertaken

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to eliminate poverty and racial injustice, started programs ranging from education to housing, many of which sent money for these programs through the states and cities. In 1965, Johnson created Medicare, a federal program that provides health insurance to the elderly, and Medicaid.

Johnson's successor, Republican Richard M. Nixon, sought to pare the number of grant programs to states and localities. Nixon urged providing state and local governments with direct funding known as general revenue sharing in place of grants, which are for specific purposes and come

with strings attached. That initiative failed.

Republican President Ronald Reagan, who promoted a “New Federalism,” was more successful. Reagan sought to cut federal grants-in-aid to states and cities but in return promised them greater flexibility. In 1981, his first year in office, Reagan succeeded in consolidating 77 programs into nine

block grants while ending 62 other programs.

“It is my intention to curb the size and influence of the federal establishment and to demand recognition of the distinction between the powers granted to the federal government and those reserved to the states or the people,” Reagan said during his first inaugural address. “All of us need to be reminded that the federal government did not create the states; the states created the federal

government.”

In 1982, Reagan proposed that the federal government assume full responsibility for Medicaid

while states administer welfare, food stamps and more than 40 other programs. Governors

were among those who lobbied against the idea, to the regret of many of their successors, as Medicaid costs have risen sharply since the 1980s.

Continuing Contention

Democratic President Bill Clinton, a former Arkansas governor, pursued a policy of “devolution,” transferring power from Washington to the states in some policy areas. The most notable change during his two terms in office (1993–2001) was passage of a welfare law in 1996 that gave the states less money but more authority to set policy. Much of the law, which created work requirements and time limits for recipients, was based on experiments in Wisconsin and other

states.

“I was chairman of the governors association when the welfare reform was worked though under the Clinton administration,” says Glendening, who was Maryland governor from 1995 to 2003. “The welfare reform that was passed was not ideal, but the major part was that every state government had some impact and had some say about what was going on there.”

Congressional Republicans, who gained control of Congress in the 1994 elections, tried to consolidate 349 programs into 10 block grants. That effort mostly failed in the face of opposition from congressional Democrats, state and local officials and advocacy groups who worked in the program areas that faced funding cuts. In 1995, Congress passed a law designed to limit unfunded mandates, or programs the federal government imposed on states and localities without paying for them. The results were mixed. The National Conference of State Legislatures estimated that between 2004 and 2008 the federal government shifted $131 billion in program costs onto states in

the form of unfunded mandates.

By the mid-1990s, the Supreme Court, led by conservative Chief Justice William Rehnquist, had a number of justices interested in returning power to the states. The court issued a series of decisions limiting congressional authority. In United States v. Lopez in 1995, the court rejected Congress’ requirement that local law enforcement agencies enforce firearms restrictions near schools because schools in turn are near commerce. “For the first time in six decades, the court found that Congress had exceeded its constitutional authority to regulate interstate commerce,”

Greve wrote.

Republican George W. Bush, who became president in 2001 after serving as Texas governor, promised states a cooperative relationship, announcing a “new federalism initiative” that would

transfer power to the states. But during Bush's two terms (2001–09), the federal government

imposed new burdens on states. His signature domestic achievement, the No Child Left Behind Act of 2002, increased standardized testing required in schools. The REAL ID Act of 2005 mandated new security requirements for state-issued forms of identification, such as driver's licenses,

triggering considerable pushback from states. Congress made states pick up part of the tab for

a new prescription drug benefit under Medicare that Congress created in 2003.

Obama Years

State and local officials greeted the presidency of Democrat Barack Obama with optimism. Before

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House Speaker Paul Ryan, D-Wis., holds a copy of the Constitution during a speech in Washington on March 23, 2016. Federal sovereignty rests on the Constitution's Supremacy Clause, which states that the Constitution “shall be the supreme law of the land.” But constitutional scholars say the clause does not mean the states must obey every federal command. (Getty Images/Bloomberg/Drew Angerer)

taking office in 2009, he met with governors and pledged, “I will not simply ask our nation's governors to help implement our economic recovery plan. I will ask you to help design that plan.”

Soon after taking office, he signed an economic stimulus package, originally estimated at $787

billion, that sent more than one-third of the dollars to the states.

Obama later signed an executive order discouraging federal agencies from issuing regulations that

would preempt states.

But several Republican governors initially turned down funds for increased unemployment benefits under the stimulus law, concerned they would be stuck with the tab once federal funding ran out. And the Republican governors of Ohio and Florida rejected high-speed rail funding for similar

reasons. After the Department of Education encouraged states to adopt a set of education

standards known as Common Core, the standards became anathema to conservatives who considered Common Core an example of federal intrusion, even though it had been developed by

states and foundations. Legislators in a number of states proposed bills to repeal the standards.

Republican attorneys general sued the Obama administration to block federal policy in numerous areas, including environmental regulations. One challenge involved the Clean Power Plan, a 2015

EPA rule requiring states to reduce carbon emissions from power plants.

Another involved the Affordable Care Act, with 13 states filing suit minutes after Obama signed the

law. The law set a basic threshold for Medicaid eligibility, requiring states to insure people with

incomes up to 138 percent of the federal poverty line or risk losing their federal Medicaid funding. The Supreme Court in 2012 found that requirement coercive and rejected it. Nineteen states have refused to expand Medicaid, despite the federal government's obligation to pay 100 percent of the expansion costs for three years and 90 percent thereafter — much higher than the federal share of

traditional Medicaid costs.

The number of lawsuits brought against the federal government by two or more states reached new highs during Obama's final two years in office (although the record would be broken during Trump's first year). By the end of Obama's presidency, congressional Republican leaders were openly cheerleading for states to defy the president.

In 2015, Senate Republican Leader Mitch McConnell of Kentucky sent a letter to governors advising them to ignore the EPA's Clean Power Plan, saying it is “already on shaky legal

grounds.” The Supreme Court later put the plan on hold

and the Trump administration is working to end it.

Around the same time, Republican Rep. Paul Ryan of Wisconsin — then the Ways and Means Committee chairman and now the House speaker — advised against states setting up health insurance exchanges, part of the Affordable Care Act that was facing court challenges. (The Supreme Court upheld the exchanges.)

“Oh, God, no,” Ryan said on a conference call organized by the Foundation for Government Accountability, a conservative think tank. “The last thing anybody in my opinion would want to do, even if you are not a conservative, is consign your state to

this law.”

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Current Situation

Blue State Resistance

Some state officials in the West are balking at an April 6 plan to authorize up to 4,000 National Guard troops to patrol the U.S.-Mexican border.

“If @realDonaldTrump asks me to deploy Oregon Guard troops to the Mexico border, I'll say no,” tweeted Democratic Gov. Kate Brown. “As commander of Oregon's Guard, I'm deeply troubled by

Trump's plan to militarize our border.”

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The National Guard in each state is a state agency, but the president has the power to federalize it in cases of war, disasters or other emergencies. The Trump administration's plan, however, calls for

the Guard to remain under governors’ command. The Republican governors of Texas, Arizona

and New Mexico embraced it, but Democratic California Gov. Jerry Brown reserved judgment on the idea, eventually agreeing to deploy as many as 400 Guardsmen to the border to work on drugs,

guns and human trafficking, but not immigration.

When the plan was announced, White House press secretary Sarah Huckabee Sanders said the administration would “absolutely” go ahead with the border-patrol plan even if California or other states balk. “We're working with states’ governors right now to go through this process, and we hope to have National Guard on the ground as soon as possible,” she said on April 6. “And we're going to continue to work with California, and we're hopeful that they'll do the right thing and help

protect our borders.”

The mostly partisan response to the border plan — Brian Sandoval of Nevada was the lone Republican governor publicly to express disapproval — was in keeping with most of the spats

between the Trump White House and the states. Democratic state officials have not only

routinely criticized the president but also have filed suit to block many of his policies.

All told, at least two attorneys general joined forces to sue the federal government no fewer than 37 times in 2017 — easily shattering the previous record of 13 multistate lawsuits in 2015 and 2016, according to Nolette, the Marquette professor. Even those years represented a spike in multistate

lawsuits, which seldom reached double digits previously.

And individual attorneys general are filing even more lawsuits on their own.

Democratic attorneys general have sued the administration over health subsidies, environmental protections, the ban on travel from certain Muslim-majority countries and the Deferred Action for Childhood Arrivals (DACA) program, which offers protections to so-called Dreamers who were

brought to the country illegally as children.

Maryland and the District of Columbia are suing Trump personally, alleging that the president has violated the Constitution's Emoluments Clause by receiving payments, through his hotel business,

from foreign governments.

Democratic attorneys general say their actions are a necessary check on a president they describe as out of control. “It is perhaps poetic justice that it's the son of immigrants who is wielding the legal slingshot against Donald Trump in protecting our constitutional and civil rights,” said California Attorney General Xavier Becerra, whose parents are from Mexico. Becerra has sued the

administration more than two dozen times.

As happened when Republicans sued the Obama administration, state attorneys general often file duplicate lawsuits in multiple jurisdictions, hoping to find a favorable judge, says Greve, the George Mason law professor. “You sue in handpicked jurisdictions,” he says. “You force the government to run the table in hellhole jurisdictions, but plaintiffs only have to win once.”

Republican attorneys general have come to the Trump administration's defense — as their Democratic counterparts did under Obama — filing briefs to defend the president's policies on matters such as DACA. After Trump issued an executive order last year seeking to cut off federal funds to jurisdictions with sanctuary policies, 10 Republican attorneys general filed a brief in his defense when three California cities sued to block the president's move.

“Cities and their leaders who engage in sanctuary city policies undermine the safety of our citizens,” said Louisiana Attorney General Jeff Landry. “Sanctuary policies obstructing cooperation

with federal agencies defy the rule of law.”

In a speech in February, U.S. Attorney General Sessions criticized “court overreach” for granting some 20 nationwide injunctions in cases brought by states against administration policies, including Trump's attempt to restrict entry for nationals of several Muslim-majority nations. “I do recognize that our different chief executives and attorneys general have different priorities,” he said, while

vowing he would defend the president's powers and policies.

Legal Conflict

While defending itself against state lawsuits, the administration also is suing states. In March, the Justice Department sued to block a set of California laws aimed at protecting undocumented immigrants, arguing the statutes “reflect a deliberate effort by California to obstruct the United

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States’ enforcement of federal immigration law.”

That same week, the White House received a visit from four Colorado Republican legislators offering advice on cracking down on sanctuary cities. “These sanctuary communities and politicians are willfully endangering the public,” state Rep. Dave Williams said. “Cities like Denver and states like California are allowing criminal aliens to run loose, to kill, murder, maim or hurt our fellow

Americans.”

Supporters of sanctuary policies point to data indicating the policies actually promote public safety, because immigrant communities are more likely to cooperate with law enforcement if undocumented individuals do not fear deportation. In February, Mayor Libby Schaaf of Oakland, Calif., earned the administration's ire by publicly warning of an upcoming raid by the U.S.

Immigration and Customs Enforcement agency.

The administration also has shifted policies in many areas that affect states. Marijuana is one that has drawn considerable attention this year. The drug is legal in 29 states for medical purposes, while nine states and the District of Columbia have legalized it for recreational use. Marijuana remains illegal under federal law, but the Obama administration instructed the Justice Department

to not make prosecution a priority in states that had legalized it.

But in January, Sessions rescinded the Obama-era guidance to U.S. attorneys that discouraged prosecution. “The president believes in enforcing federal law,” Huckabee Sanders said. “Whether it's marijuana or whether it's immigration, the president strongly believes that we should enforce

federal law.” In April, in response to pressure from Sen. Cory Gardner, R-Colo., Trump

backtracked when he agreed to support legislation granting states the authority to regulate

marijuana.

Other areas of contention remain. Trump's 2019 budget seeks to change the Supplemental Nutrition Assistance Program (SNAP), a joint federal-state program that offers food assistance to the needy. Under current rules, states can waive work requirements for SNAP recipients during

recessions, flexibility the administration is seeking to end.

In March, the Education Department issued a “notice of interpretation” finding that states do not have the authority to regulate student-loan companies. Last October, 25 attorneys general, including several Republicans, sent a letter to Education Secretary Betsy DeVos arguing the department “cannot sweep away state laws that apply to student loan servicers and debt

collectors.”

State Resistance

States have pushed back hardest against congressional and administration moves that threaten their finances. Many governors, including some Republicans, opposed the congressional effort last year to roll back parts of the Affordable Care Act, which would have dropped coverage for millions of individuals and cost states billions of dollars in Medicaid funding. “We've expanded Medicaid, and even a small tweak could have a devastating effect on us as a state,” Republican Gov. Phil

Scott of Vermont said last year.

The health care overhaul failed in Congress. But the House and Senate passed a major tax package in December 2017 with serious consequences for state tax receipts. Among other things, the law caps the amount of state and local taxes that individuals can deduct from their federal income tax bill at $10,000 — a revenue-raising move that many analysts saw as a swipe at high-tax states that typically vote Democratic for president. “It seemed to me that the Republican majority was going out of its way to screw blue states,” says Conlan, the George Mason government professor.

Blue-state lawmakers are exploring various proposals to address the change, including switching from personal income to payroll taxes, or allowing people to make tax-deductible charitable

contributions to funds benefiting the state in place of traditional personal income taxes.

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Outlook

Money Troubles

Given the great pressures on the federal budget — entitlement spending is increasing as the Baby Boom generation retires, the defense budget is rising and the Congressional Budget Office is

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projecting a $1 trillion deficit in 2020 — the money that the U.S. government sends to states through grant programs in health, education and other areas may be set for significant cuts in coming years.

“As the federal debt continues to grow, the easiest things to cut will be nondefense discretionary spending,” Conlan of George Mason says, referring to domestic spending programs approved by Congress each year.

The spending package Congress passed in March for fiscal 2018 was actually quite generous to state and local governments, increasing funding for programs such as community development,

housing and education. But the rising federal deficit means the largesse may not continue.

“There are rumors around that the administration may try not to spend all this money,” says Marcia Howard, executive director of Federal Funds Information for States, which tracks federal spending for governors and legislators. “That will be the first hurdle, to see if this money actually flows to states this year. There's clearly a mindset in this administration that states should bear a greater responsibility for funding these programs, whether it's education or housing or environmental programs, you name it.”

Howard notes that President Trump's budget for fiscal 2019 seeks substantial cuts in aid to state and local governments. Those cuts may not materialize, but some state officials see cuts as inevitable in later years.

“Most lawmakers at the state level understand that more money from the federal government is not going to be there,” says Max Behlke, director of budget and tax in the state-federal relations department at the National Conference of State Legislatures. “If they reduce funding at the federal level, there's going to be immense pressure on the states” to make up the difference to keep spending levels high, such as for food stamps or highway construction.

Since the last recession's end in 2009, state revenues have not grown as robustly as they had in

prior decades, according to the Pew Charitable Trusts, a Washington research group. States’

willingness to raise taxes — not always great to begin with — may be crimped by the federal change limiting the deductibility of state and local taxes. If states feel the pinch from both federal cuts and stagnant revenues, fights over fiscal federalism — which level of government should pay for what — could grow fiercer.

“I think it's going to get considerably worse when the full impact of the tax cuts starts to be felt in state budgets,” says former Maryland Gov. Glendening.

Aside from money, states and the federal government have found plenty of other areas to fight over, including internet regulation, offshore oil drilling and immigration. Policy battles appear certain to continue. Republican state officials fought hard with the Obama administration, and Democratic state officials present themselves — and their myriad lawsuits — as necessary guardrails around the Trump administration.

Partisanship now affects federal-state relations more profoundly than during recent eras of American history, Conlan says, and that is unlikely to abate. It would take some major shock to the system, he says, “to alter the existing incentives just to play to your base.”

“The forces of polarization are pretty deeply embedded right now,” Conlan continues. “I don't see anything at this point in time that is going to alter the impact of partisan polarization on the federal system any time soon.”

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Pro/Con

Should Congress pass laws preempting state authority?

Pro Michael Greve Professor of Law, George Mason University. Written for CQ Researcher, April 2018

Congress may not “commandeer” state or local governments — that is, require them to implement a federal program. However, Congress may preempt — that is, displace — state law and prohibit its operation. No one

Con Mark Pertschuk , Jennifer

Pomeranz Director, Grassroots Change.

Professor of Public Health Policy and Management, New York University. Written for CQ Researcher, April 2018

On March 25, hundreds of thousands of mostly young people gathered in Washington to protest the abject failure of our elected officials

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doubts this power in principle.

Congress should preempt when the sheer variety of state laws, or perhaps idiosyncratic local preferences, threaten important national objectives, such as the conduct of foreign affairs, the operation of national network industries (from airlines to the internet) or immigration.

However, this broad consensus has proved hard to sustain. Federal preemption has become intensely controversial, both in the political and public debate and in the courts. To some extent this is simply a byproduct of increased ideological polarization. But several other factors also have played a role.

The intuitive distinction between “national” and “local” matters is in fact difficult to sustain even on a blackboard, let alone amid the push and pull of politics. Transactions spill over state borders. Local waters may be connected to national streams. Industries are often vertically integrated; thus, to provide effective regulation, Congress must be able to regulate transactions everywhere.

But federal statutes are often unclear about the precise scope of preemption. When Congress imposes a statutory ceiling on state and local regulation, the losers do not simply slink off. Instead, they migrate to state legislatures and courts, with the objective of blocking the federal imposition.

Political controversies have drawn broader, more partisan interests into the preemption orbit. Until recently, preemption conflicts generally arose between business interests (which usually want more preemption, rather than dealing with 50 separate state laws) and pro-regulatory constituencies at the state level, prominently trial lawyers. Lately, preemption has become a battlefield in ideological controversies over immigration, marijuana legalization and greenhouse gas regulation.

The rise of highly partisan, executive-led government has affected the preemption landscape. With rare exceptions (such as the Dodd-Frank financial services law), Congress has stopped writing significant regulatory statutes. Thus, crucial decisions over the scope of preemption statutes have fallen to federal agencies. Both the Obama and Trump administrations have wielded that power aggressively, interpreting statutes quite broadly and, on several occasions, by suing recalcitrant states. States have responded with equal resolve. Cohesive blocs of red and blue states have fought the opposing party's executive initiatives by suing.

The “preemption wars” will not abate any time soon.

to adopt meaningful gun violence protection laws. Yet, while the United States has shamefully weak gun laws, the way forward leads through Tallahassee, Omaha and thousands of other American cities and counties, not through Washington.

The Constitution created a federalist system, and the Supremacy Clause provides Congress with the power to preempt state and local law. Federal preemption makes sense in limited cases, such as airline safety regulations. But in most other cases, such as civil rights and public health, preemption — by which states and localities are prohibited from adopting stronger protections — is rarely justified. Perhaps the most compelling example is the federal Civil Rights Act, which sets a minimum “floor” for civil rights protections while allowing states and localities to expand protections, such as for LGBTQ individuals.

For most of our history, from child labor laws to the tobacco control movement, legislative progress began and thrived at the local level. That is why the strategic use of preemption to stop state and local progress has been the top priority for industry actors since the tobacco industry preempted local smoking ordinances in Florida in 1986. Minimum wages, paid leave and nutrition policies are just some of the most recent examples of this strategy.

And so it is with gun control. The seven states that still allow cities and counties to pass stricter firearms laws have far stronger gun laws, with lower firearm death rates on average, than the 43 states where local governments are preempted. That's why defeating federal preemption (and repealing state preemption) is the single most important thing advocates can do to support the grassroots movement against the gun lobby. But the National Rifle Association has a different vision: to preempt stronger state and local gun laws. The gun lobby's Concealed Carry Reciprocity Act, adopted by the House in December 2017, would preempt stronger state gun laws by allowing concealed handgun permit holders from states with weaker laws to carry firearms in states with stronger gun laws.

The recent protests against guns have brought much needed attention to the destructive impact of federal and state preemption. Hopefully, this marks the beginning of the end of industry-initiated preemption of local democracy.

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1790s-1950s Federal authority steadily grows.

1791 Tenth Amendment is ratified, reserving powers not delegated to the federal government under the Constitution to the states.

1819 Supreme Court says in landmark McCulloch v. Maryland that states cannot impede the national government from carrying out the powers listed in the Constitution.

1860-65 Civil War results after 11 Southern states secede from the Union in fierce battle over slavery and the power of the federal government.

1868 In aftermath of Union victory, 14th Amendment broadens federal powers over the states.

1930s President Franklin D. Roosevelt's New Deal program vastly expands the federal government's influence on Americans’ lives.

1957 With Arkansas defying court orders to desegregate its schools, Republican President Dwight D. Eisenhower federalizes the National Guard to enforce integration at Little Rock's high school. The federal- state clash was one of many in the 1950s and '60s as Southern states pursued “massive resistance” to federal authority and the civil rights movement.

1960s–1980s Republican presidents seek to limit federal control of domestic policy.

1965 Voting Rights Act permits federal supervision of elections in several Southern states…. Congress creates Medicaid, a joint federal-state health insurance program for the poor and people with disabilities.

1981 Republican President Ronald Reagan consolidates 77 aid programs to states and localities into nine block grants, while ending 62 other programs.

1984 Congress requires states to raise the legal drinking age to 21 or risk losing 10 percent of their federal highway funding.

1990s–2000s Supreme Court limits federal authority over policies involving states, localities.

1995 Supreme Court strikes down a federal law prohibiting possession of firearms near public schools, the first time since World War II that the court limited Congress’ power under the Commerce Clause…. Congress passes a law seeking to block the federal government from creating programs that mandate state or local action without providing funding.

1996 Democratic President Bill Clinton signs landmark welfare law imposing work requirements and other limits.

2005 Supreme Court rules that U.S. agents can enforce federal laws outlawing marijuana in states that have legalized medical marijuana. State law enforcement groups, however, do not have to participate in federal marijuana seizures.

2009 Obama administration directs one-third of $787 billion stimulus package to states and localities.

2010s–Present States aggressively challenge federal power.

2012 Supreme Court rules that states lack the authority to enact and enforce immigration laws…. The court rules that an Affordable Care Act (ACA) provision requiring states to expand Medicaid eligibility is unconstitutional.

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At a rally held by the conservative group FreedomWorks in Washington in March 2017, Sen. Mike Lee, R-Utah, denounced the costs of health care reform and the power

2017 Several states sue to block President Trump's ban on travel from Muslim-majority countries…. Governors’ opposition helps sink a bill to revamp the ACA and Medicaid…. Federal tax overhaul caps deductibility of state and local taxes.

2018 Justice Department sues to block three California laws limiting state cooperation with federal immigration policy (March)…. Environmental Protection Agency announces it will seek to overturn a state law that allows California to set its own fuel efficiency standards (April)…. Federal judge enjoins the Justice Department from seeking to block federal funds for cities that refuse to cooperate with federal immigration agents (April).

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Short Features

Balanced-Budget Advocates Seek Constitutional Convention

Opponents warn of a “Pandora's box.”

With the national debt topping $21 trillion, David Biddulph says it's time for drastic action.

Biddulph says states should call a constitutional convention if Congress fails to approve a balanced-budget amendment. “I've got 21 trillion reasons,” says Biddulph, a former pension fund manager who co-founded the Balanced Budget Amendment Task Force, which supports a constitutional convention. The national debt is “growing by about $2 million per minute.”

The House voted 233-184 on April 12 to approve a balanced-budget amendment, well short of the two-thirds majority needed for passage. The idea stands no chance of winning Senate approval because of Democratic opposition. Frustrated by congressional inaction, activists like Biddulph are ready to try the unprecedented: convening a convention of states that would bypass Congress and amend the Constitution under Article V to force the federal government to stop spending more than

it raises in taxes.

Two-thirds of state legislatures — 34 — would need to approve such a convention. And if convention delegates voted to back a balanced-budget amendment, three-fourths of states — 38

— would need to ratify the change.

The country has not held a constitutional convention since the 1787 gathering that created the Constitution. All 27 amendments added since then were approved by two-thirds majorities in the U.S. House and Senate and subsequently ratified by three-fourths of the states. (Since 1917,

Congress has typically imposed a deadline of seven years for state ratification.)

Biddulph's group has helped persuade 28 states to pass resolutions calling for a constitutional convention on a balanced-budget amendment — six short of the number needed. A separate group in Houston called Convention of States is promoting a resolution, adopted in a dozen states so far, for a convention that would address not only the budget but also congressional term limits and

restrictions on federal authority.

Article V of the Constitution says that if enough states approve the idea, “Congress … shall call a convention for proposing

amendments.” But what would happen at a constitutional

convention — such as whether it would deal only with a resolution spelled out by the states or whether it could rewrite the entire Constitution — is unclear, and that worries some observers.

“It's our view that a convention would be a Pandora's box, that anything could come up,” says Jay Riestenberg, campaigns and state media strategist for Common Cause, a watchdog group in Washington that promotes sound governance. Common Cause is leading more than 200 organizations, mostly on the left, that oppose a constitutional convention. “The Constitution doesn't say … if you can limit [a convention] to one issue, or how delegates would be selected,”

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the Affordable Care Act gives to the federal government. Some foes of the rising national debt want states to convene a constitutional convention to curb federal spending and authority. (Getty Images/Justin Sullivan)

Riestenberg says.

Since 2016, Common Cause and its coalition have helped persuade legislators in Delaware, Maryland, Nevada and New Mexico to rescind past calls by their state legislatures for a

convention on a balanced-budget amendment.

Other questions surrounding a hypothetical convention focus on which resolutions would qualify for consideration. Such

decisions would be up to Congress, Biddulph says.

A convention could even put the entire Constitution up for grabs, according to Jonathan Marshfield, a law professor at the University of Arkansas. “Article V is the black hole of constitutional law,” Marshfield says. “There's just so much we don't know.” A state opposed to a convention could challenge the process, and the Supreme Court would have to decide whether Congress had acted properly in calling it, he says.

Fears that the Constitution could be fundamentally altered have stymied previous calls for conventions. During the 1990s, governors and other state officials proposed constitutional changes,

including giving states more say over federal laws and regulations. That movement died due to

concern that the Second Amendment guaranteeing the right to bear arms might be weakened, says Neal Osten, co-director of the Washington office of the nonpartisan National Conference of State Legislatures.

The worry that big-money interests, whether from the right or left, could hijack a constitutional convention remains the largest hurdle for convention proponents. “We would not see the same thing we saw in the original convention [of 1787] that gave us our Constitution,” says Parris Glendening, a former Democratic governor of Maryland. “We would not see that at all. We'd see something dangerous, dominated by special interests and moneyed interests.”

Biddulph says such concerns are overblown. Even if major donors such as George Soros on the left or Charles and David Koch on the right could somehow persuade delegates to push their agendas at a convention, any proposed amendment would still require ratification by 38 states. He adds that some states have passed laws that would penalize delegates who propose anything not part of their original resolutions.

“The only thing that can be considered is what's applied for,” says Tom Coburn, a former Republican senator from Oklahoma, who advises Convention of States, “regardless of what the hysterics are about it.”

— Alan Greenblatt

[1] Jennifer Shutt, “Balanced-Budget Amendment Falls Short in House,” Roll Call, April 12, 2018, https://tinyurl.com/yalsbs3u.

[2] “The Constitution: What is an amendment?” LexisNexis, undated, https://tinyurl.com/abp6hug.

[3] “The Equal Rights Amendment,” Alice Paul Institute, undated, https://tinyurl.com/y9w8kqbp.

[4] “Progress Map,” Convention of States, accessed April 17, 2018, https://tinyurl.com/ychaoqmk.

[5] “Article V, U.S. Constitution,” National Archives, undated, https://tinyurl.com/n3srzvt.

[6] Michael Leachman, “Nevada Joins Maryland, New Mexico in Rescinding Calls for a Constitutional Convention,” Center on Budget and Policy Priorities, May 10, 2017, https://tinyurl.com/ydg22bnx.

[7] Lawrence J. Goodrich, “States Seek to Grab Even More Power From Washington,” The Christian Science Monitor, Oct. 25, 1995, tinyurl.com/yaz79jr9.

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Towns, Cities Fume When States Block Local Laws

Legal experts say states are within their rights.

Residents of Tempe, Ariz., do not like “dark money” — political spending by nonprofit groups that do not have to disclose their donors. On March 13, 91 percent of voters in the Phoenix suburb approved amending the city's charter to end the practice. Under the change, such groups would

have to disclose their donors if they spend more than $1,000 to influence an election.

Arizona legislators put a stop to the change. Within a month of the Tempe vote, the Republican- controlled Legislature preempted the law by passing a bill blocking local governments from

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enforcing such disclosure requirements.

“Pure legislative preemptive power has seldom been displayed so blatantly and as inappropriately as this,” says former Arizona Attorney General Terry Goddard, a Democrat, who is leading an effort to put a campaign finance measure on the statewide ballot.

But the Goldwater Institute, a conservative think tank in Phoenix that supports the state law, argues disclosure requirements could have a chilling effect on donors. “Studies have shown that people are less likely to donate to charities when they fear their name and information will become part of

a government list,” the institute said.

Arizona, which also has preempted local governments on gun control, ride-sharing services and other issues, is not unique. Dozens of states have blocked local governments from passing higher minimum-wage rates, requiring employers to offer paid sick leave or regulating home-sharing

companies such as Airbnb and ride-sharing companies such as Uber.

The powers accorded to local governments vary by state, but all states have considerable authority over their cities and counties.

“All cities, counties, school districts and other forms of local government wield power at the discretion of the federal government or, more often, their state,” wrote Adam Millsap of Florida State University, who researches federal and local urban policy. “So, from a legal standpoint, state

preemption is acceptable.”

City officials say the number of state preemption laws has spiked in recent years. Some came in reaction to the Obama White House, which worked directly with Democratic mayors to promote policies it could not get through Congress on issues such as the minimum wage and early- childhood education.

Local ordinances that may violate constitutional rights are typically settled by court rulings, not state preemption bills. And many preemption bills are not partisan or even political in nature, with states limiting or eliminating local authority to regulate matters such as parking and fire sprinklers.

Often, business groups prefer to deal with a single set of state regulations rather than laws enacted by hundreds of different local governments. “You can't have runaway regulations,” said Florida

House Speaker Richard Corcoran, a Republican.

State officials say their preemption actions aim to prevent local governments from infringing on citizens’ rights. They also say states are in the best position to determine policies for their residents, noting that state delegates wrote the Constitution in 1787 and states approved the document.

“The states created the federal government, not the other way around,” said Ohio Republican state

Sen. Keith Faber. “So when we talk about ‘local’ control, we mean state control.”

But defenders of local jurisdictions consider preemption to be state overreach and argue that such behavior is just as wrong as federal overreach.

“We spend most of our time fighting preemptions and unfunded mandates,” says C. Scott Dudley, legislative director of the Florida League of Cities, which represents the interests of municipalities throughout the state. “We remind state officials that they certainly don't like it when the federal government imposes its will upon them.”

In recent years, the Florida Legislature has passed bills to preempt cities and counties in ways large and small — everything from setting property tax rates to regulating the size of signs. On April 2, 10 Florida cities sued the state, challenging a 2011 law that blocks them from regulating guns.

Large cities have long struggled to get what they wanted from their state governments. A 2013 study in the American Political Science Review found that between 1880 and 2000, cities and towns with populations under 100,000 successfully pushed locally oriented bills more than 60

percent of the time, while cities over 500,000 failed two-thirds of the time.

Smaller localities have historically resented larger cities, and that animosity has increased as partisanship has split along geographic lines, with large urban areas voting Democratic and smaller, rural areas voting Republican. Democratic mayors run the vast majority of the largest cities, but Republicans control more state legislatures.

In an unusual example of a Democratic state legislature preempting local jurisdictions, Oregon state legislators approved a measure in 2017 that barred localities from passing anti-union “right to

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work” ordinances. Such ordinances specify that workers at unionized companies cannot be

compelled to join the union or pay union dues.

In general, city officials and federalism experts say, Republican legislatures are quicker than Democratic ones to block local laws they do not like. “You've got these islands of blue in the big cities and conservative state legislatures that are constantly preempting local activity,” says Timothy Conlan, a federalism expert at George Mason University.

— Alan Greenblatt

[8] Jerod MacDonald-Evoy, “Landslide vote to curb Tempe ‘dark money’ may send broader message to Arizona,” Arizona Republic, March 14, 2018, https://tinyurl.com/yaknofbs.

[9] “Arizona Enacts Law to Protect Free Speech for Nonprofits and Their Donors,” Goldwater Institute, April 6, 2018, https://tinyurl.com/yaxg48ja.

[10] “City Rights in an Era of Preemption: A State-by-State Analysis 2018 Update,” National League of Cities, April 2, 2018, https://tinyurl.com/y7f95v8o.

[11] Adam Millsap, “When States Should Preempt Local Governments,” Forbes, March 6, 2018, https://tinyurl.com/yd9pgt52.

[12] Steve Bousquet, “Florida showdown pits City Hall vs. State Capitol,” The Miami Herald, March 28, 2017, https://tinyurl.com/y9lh98y2.

[13] Reid Wilson, “GOP aims to rein in liberal cities,” The Hill, Jan. 5, 2017, https://tinyurl.com /z35pxum.

[14] Lisa J. Huriash, “These 10 cities want to regulate guns. They sued Florida over it,” Sun Sentinel, April 2, 2018, https://tinyurl.com/y7lk5uvh.

[15] Gerald Gamm and Thad Kousser, “No Strength in Numbers: The Failure of Big-City Bills in American State Legislatures, 1880-2000,” American Political Science Review, November 2013, https://tinyurl.com/yd5sdsnl.

[16] “2017 Regular Session: SB 1040 Enrolled,” Oregon State Legislature, undated, https://tinyurl.com/ydgkc3ap; Michael Lucci, “Illinois Now Surrounded by Right-to-Work States,” Illinois Policy, Feb. 6, 2017, https://tinyurl.com/yb7tjfzx.

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Bibliography

Books

Nolette, Paul , Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America , University Press of Kansas, 2015. State attorneys general are banding together to sue the federal government far more often on a partisan basis, while acting as de facto regulators by setting policy through settlements with companies and industries, according to a Marquette University political scientist.

Robertson, David Brian , Federalism and the Making of America , 2nd ed., Routledge, 2017. A University of Missouri-St. Louis political scientist traces the history of federalism in the United States, finding that it has been part of the dynamics surrounding almost every major political dispute.

Stenberg, Carl W., and David K. Hamilton , eds., Intergovernmental Relations in Transition: Reflections and Directions , Routledge, 2018. A collection of essays by a variety of experts examines the fault lines in relations among state, local and federal governments, and measures the effects of division in areas such as health care, the environment and food safety.

Articles

Bruck, Connie , “Inside California's War on Trump,” The New Yorker, March 26, 2018, https://tinyurl.com/ya59xhxq. As California Gov. Jerry Brown's long career nears its end, the Democrat leads a state at odds with the Trump administration on crime, immigration, the environment and other issues.

Hohmann, James , “Trump gets a seminar on federalism as governors push back on arming teachers,” The Washington Post, Feb. 27, 2018, https://tinyurl.com/y7f8wws9. At a White House meeting, governors challenged President Trump's proposal to arm teachers.

Johnson, Kevin, and Gregory Korte , “DOJ threatens ‘sanctuary cities’ with subpoenas, escalating Trump's immigration enforcement campaign,” USA Today, Jan. 24, 2018,

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https://tinyurl.com/ybpkvpng. The Justice Department threatened to issue subpoenas to 23 cities, including New York, Los Angeles and Chicago, unless they turn over documents showing whether they are cooperating with federal immigration authorities.

Kim, Seung Min , “Trump, Gardner strike deal on legalized marijuana, ending standoff over Justice nominees,” The Washington Post, April 13, 2018, https://tinyurl.com/y84ykzb5. The president tells a Republican senator from Colorado that he will support congressional legislation stipulating the federal government cannot interfere with states that have legalized marijuana.

Levy, Robert A. , “Volte-Face: Federalism in the Age of Trump,” Cato Policy Report, March- April 2017, https://tinyurl.com/ycvbww2b. The party out of power in Washington tends to invoke federalism as a virtue, writes the chair of the Cato Institute, a libertarian-leaning think tank. Currently, that means liberals are defending states’ rights in areas such as immigration and marijuana legalization.

Liptak, Adam , “Trump v. California: The Biggest Legal Clashes,” The New York Times, April 5, 2018, https://tinyurl.com/yagew5g6. Since the start of the Trump presidency, California has sued the federal government 29 times over immigration, the environment, voting rights and other issues.

Reports and Studies

“City Rights in an Era of Preemption: A State-by-State Analysis, 2018 Update,” National League of Cities, April 2, 2018, https://tinyurl.com/y7f95v8o. States under one-party control have seen steep increases in preemption laws in recent years, with dozens of states blocking local governments on issues such as taxes, the minimum wage and regulation of home- and ride-sharing companies.

Briffault, Richard , “The Challenge of the New Preemption,” Columbia Public Law Research Paper No. 14-580, Feb. 1, 2018, https://tinyurl.com/yb4a336u. Over the past decade, states have become more aggressive about blocking local regulations on a wide variety of issues, typically without replacing those regulations with significant state requirements, according to a Columbia University professor of law.

Conlan, Timothy J., and Paul L. Posner , “American Federalism in an Era of Partisan Polarization: The Intergovernmental Paradox of Obama's ‘New Nationalism,’” Publius: The Journal of Federalism, July 2016, https://tinyurl.com/y96v3l7m. Examining major domestic issues during the Obama presidency, two George Mason University political scientists found that partisan polarization has infected federalism, with conservative and liberal state officials offering strongly differing reactions to federal policies.

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The Next Step

Attorneys General

Delk, Josh , “NY attorney general has taken action against Trump, GOP 100 times in Trump's first year,” The Hill, Dec. 26, 2017, https://tinyurl.com/y86ycauw. During President Trump's first year in office, Democratic New York Attorney General Eric Schneiderman pursued legal action against either the administration or congressional Republicans an unprecedented 100 times.

McGreevy, Patrick , “California voters are getting to know the state's attorney general through his aggressive stance challenging Trump,” Los Angeles Times, April 15, 2018, https://tinyurl.com/ybjgq2l4. Democratic California Attorney General Xavier Becerra has sued the Trump administration 31 times since last year.

Miller, Blair , “Colorado Attorney General Cynthia Coffman supports citizenship question on 2020 Census,” The Denver Channel, April 9, 2018, https://tinyurl.com/ycbhmyjh. Republican Attorney General Cynthia Coffman of Colorado is backing the Trump administration in its fight with several states over whether the 2020 census should contain a citizenship question.

Partisan Polarization

Dovere, Edward-Isaac , “Democrats Vow to Go After Republican Governors ‘Kowtowing’ to Trump,” Politico, March 6, 2018, https://tinyurl.com/y9ubx4o9. Jay Inslee, chairman of the Democratic Governors Association, says he wants Republican governors’ races to become a battleground in states’ resistance to President Trump.

Newkirk II, Vann R. , “American Voters Are Turning to Direct Democracy,” The Atlantic, April 18, 2018, https://tinyurl.com/yc2zoh4m. Faced with partisan polarization and congressional gridlock, American voters are resorting to citizen-led ballot measures in state elections to pass legislation.

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Scott, Dylan , “Lamar Alexander is nothing like Trump. But he explains Trump's Washington,” Vox, April 16, 2018, https://tinyurl.com/y9lhyqeb. Amid extreme partisanship, U.S. Sen. Lamar Alexander, R-Tenn., is seeking to resurrect the art of compromise.

Sanctuary Cities

“Trump convenes a festival of fear-mongering on sanctuary cities,” editorial, The Washington Post, March 23, 2018, https://tinyurl.com/y8fql3xq. A recent law enforcement roundtable on sanctuary cities — places that limit their cooperation with federal immigration authorities — cherry-picked anecdotes to bolster the Trump administration's agenda, The Washington Post’s Editorial Board said.

Aguilar, Julian , “Critics of Texas’ ‘sanctuary cities’ law ask federal appeals court to reconsider case,” Texas Tribune, March 28, 2018, https://tinyurl.com/y78m7rj9. Opponents of a Texas law that allows law enforcement to question the immigration status of detained or arrested individuals are asking a federal appeals court to rehear their case.

Benner, Katie, and Jennifer Medina , “Trump Administration Sues California Over Immigration Laws,” The New York Times, March 6, 2018, https://tinyurl.com/y93lu2h5. In a suit against California, the Trump administration is calling the state's sanctuary laws “a deliberate effort … to obstruct the United States’ enforcement of federal immigration law.”

State Lawsuits

Bowden, John , “16 states and DC back Hawaii's case against Trump travel ban,” The Hill, March 30, 2018, https://tinyurl.com/y9zb8yjy. Hawaii has taken its fight against the Trump administration's latest travel ban to the Supreme Court.

Friedman, Lisa, and John Schwartz , “Borrowing G.O.P. Playbook, Democratic States Sue the Government and Rack Up Wins,” The New York Times, March 21, 2018, https://tinyurl.com/y9xsmcpn. Republican-dominated states used multistate lawsuits to challenge the Obama administration, a strategy now being embraced by Democratic state attorneys general.

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Contacts

Center on Federalism and Intersystemic Governance Emory University School of Law, 1301 Clifton Road, N.E., Atlanta, GA 30322 404-727-6816 http://law.emory.edu/faculty-and-scholarship/centers/center-on-federalism-and-intersystemic- governance.html Academic center that conducts research on federalism.

National Conference of State Legislatures 7700 E. First Place, Denver, CO 80230 303-364-7700 www.ncsl.org Nonpartisan organization that represents state legislatures in Washington.

National Governors Association 444 N. Capitol St., N.W., Suite 267, Washington, DC 20001 202-624-5300 www.nga.org Nonpartisan group that ensures governors’ views are represented in the shaping of federal policy.

National League of Cities 660 N. Capitol St., N.W., Washington, DC 20001 877-827-2385 www.nlc.org Advocacy group that seeks to influence federal policies.

Office of Intergovernmental Affairs The White House, 1600 Pennsylvania Ave., N.W., Washington, DC, 20500 202-456-1414 www.whitehouse.gov Serves as the primary liaison between the administration and states and local governments.

Robert B. & Helen S. Meyner Center Lafayette College, 002 Kirby Hall of Civil Rights, Easton, PA 18042 610-330-5598 https://meynercenter.lafayette.edu Offers education and training programs on federalism and houses the Center for the Study of Federalism.

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Footnotes

[1] “Attorney General Sessions Delivers Remarks at the 26th Annual Law Enforcement Legislative Day Hosted by the California Peace Officers’ Association,” U.S. Department of Justice, March 7, 2017, https://tinyurl.com/y9us35bd.

[2] Thomas Fuller and Vivian Yee, “Jeff Sessions Scolds California in Immigration Speech: ‘We Have a Problem,’” The New York Times, March 7, 2017, https://tinyurl.com/yca677jq.

[3] Adam Liptak, “Trump v. California: The Biggest Legal Clashes,” The New York Times, April 5, 2018, https://tinyurl.com/yagew5g6; Patrick McGreevy, “California voters are getting to know the state's attorney general through his aggressive stance challenging Trump,” Los Angeles Times, April 15, 2018, https://tinyurl.com/ybjgq2l4.

[4] “States, Cities Sue U.S. to Block 2020 Census Citizenship Question,” Reuters, April 3, 2018, https://tinyurl.com/ya9pvz24.

[5] Laura Dezenski, “In fight against Trump, Democratic AGs take a page from GOP,” Politico, Feb. 7, 2018, https://tinyurl.com/y84admcz.

[6] Sudhin Thanawala, “GOP-led states back Trump in California ‘sanctuary’ lawsuit,” The Associated Press, March 27, 2018, https://tinyurl.com/y9p3ty2u.

[7] Blair Miller, “Colorado Attorney General Cynthia Coffman supports citizenship question on 2020 Census,” The Denver Channel, April 9, 2018, https://tinyurl.com/ycbhmyjh.

[8] Catalina Camia, “Texas gov hopeful likes to sue President Obama,” USA Today, July 15, 2013, https://tinyurl.com/yafxsc7r.

[9] Justine McDaniel, Robby Korth and Jessica Boehm, “In states, a legislative rush to nullify federal gun laws,” The Washington Post, Aug. 29, 2014, https://tinyurl.com/y757kd69.

[10] Connie Bruck, “Inside California's War on Trump,” The New Yorker, March 26, 2018, https://tinyurl.com/ya59xhxq.

[11] “EPA Administrator Pruitt: GHG Emissions Standards for Cars and Light Trucks Should Be Revised,” Environmental Protection Agency, April 2, 2018, https://tinyurl.com/y8bybwem.

[12] Evan Halper and Joseph Tanfani, “Trump administration moves on two fronts to challenge California environmental protections,” Los Angeles Times, April 2, 2018, https://tinyurl.com /y7qxdafs.

[13] Edward-Isaac Dovere, “Democrats Vow to Go After Republican Governors ‘Kowtowing’ to Trump,” Politico, March 6, 2018, https://tinyurl.com/y9ubx4o9.

[14] Jennifer Epstein, Twitter post, April 5, 2018, https://tinyurl.com/y9w3tj8v.

[15] J.B. Wogan, “Scott Pruitt: America's Sue-Happy State AG,” Governing, September 2015, https://tinyurl.com/yatp5c2g.

[16] Jessica Taylor, “Roy Moore, Culture Warrior, Will Be Favored To Be The Next U.S. Senator From Alabama,” NPR, Sept. 27, 2017, https://tinyurl.com/ybut5pcj.

[17] Justine McDaniel, Robby Korth and Jessica Boehm, “In states, a legislative rush to nullify federal gun laws,” The Washington Post, Aug. 29, 2014, https://tinyurl.com/y757kd69.

[18] Matthew D. Adler, “State Sovereignty and the Anti-Commandeering Cases,” Annals of the American Academy of Political and Social Science, March 2001, https://tinyurl.com/y9oyvgb7.

[19] Brian Resnick and Emma Roller, “Four Times the Government Held Highway Funding Hostage,” The Atlantic, July 16, 2014, https://tinyurl.com/kh9yy96; South Dakota v. Dole, 483 U.S. 203, U.S. Supreme Court, 1987, https://tinyurl.com/ybr54psv.

[20] “Why did the Supreme Court rule Obamacare's Medicaid expansion unconstitutional?” Vox, May 12, 2015, https://tinyurl.com/y7uq4ce6; National Federation of Independent Business v. Sebelius, Oyez, 2012, https://tinyurl.com/y7637hjs.

[21] John Bresnahan, “House passes concealed carry gun bill in win for GOP and NRA,” Politico, Dec. 6, 2017, https://tinyurl.com/y867qwcc.

[22] “Partisan Composition Overview, 2018,” National Conference of State Legislatures, April 11, 2018, https://tinyurl.com/guos34u.

[23] Alan Rosenthal, “The State of State Legislatures: An Overview,” Hofstra Law Review, 1983,

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https://tinyurl.com/yd88m7kl.

[24] Mike DeBonis, “The political price of Obamacare,” The Washington Post, Aug. 16, 2016, https://tinyurl.com/ydfp83v4.

[25] “George W. Bush — Key Events,” Miller Center, University of Virginia, https://tinyurl.com /ydz7jgsu.

[26] “Articles of Confederation: March 1, 1781,” The Avalon Project, Yale Law School, https://tinyurl.com/np6l8y.

[27] James Madison, Federalist No. 45, Jan. 26, 1788, https://tinyurl.com/ya7cq9r8.

[28] “Thomas Jefferson to Destutt de Tracy,” Jan. 26, 1811, National Archives, https://tinyurl.com /y94e768j.

[29] John A. Garraty, A Short History of the American Nation (1971), p. 98.

[30] Clyde Ray, “John Marshall, McCulloch v. Maryland, and the Concept of Constitutional Sovereignty,” Perspectives on Political Science, July 15, 2016, https://tinyurl.com/ybnkg69e; McCulloch v. Maryland, Oyez, https://tinyurl.com/yc5wxk7r.

[31] Richard B. Latner, “The Nullification Crisis and Republican Subversion,” Journal of Southern History, February 1977, https://tinyurl.com/y86z6bd5.

[32] Daniel J. Elazar, “Federal-State Collaboration in the Nineteenth-Century United States,” Political Science Quarterly, June 1964, https://tinyurl.com/y7g7vbyq; Ableman v. Booth, Oyez, https://tinyurl.com/ybemtyuo.

[33] Karen M. Tani, “Administrative Equal Protection: Federalism, the Fourteenth Amendment, and the Rights of the Poor,” Cornell Law Review, May 2015, https://tinyurl.com/yc25bmno.

[34] John Joseph Wallis and Wallace E. Oates, “The Impact of the New Deal on American Federalism,” National Bureau of Economic Research, January 1998, https://tinyurl.com/ybnmue6p.

[35] Michael S. Greve, Real Federalism: Why It Matters, How It Could Happen (1999), p. 17.

[36] Anthony Lewis, “President Sends Troops to Little Rock, Federalizes Arkansas National Guard,” The New York Times, Sept. 25, 1957, https://tinyurl.com/yd9v2sks.

[37] “The 24th Amendment,” U.S. House of Representatives, https://tinyurl.com/y8avserd.

[38] “History of Federal Voting Rights Laws,” U.S. Department of Justice, https://tinyurl.com /yc83l8xf.

[39] Timothy Conlan, From New Federalism to Devolution: Twenty-five Years of Intergovernmental Reform (1998), p. 32.

[40] Ibid., p. 96.

[41] Ronald Reagan, “Inaugural Address,” The American Presidency Project, Jan. 20, 1981, https://tinyurl.com/z2qknjn.

[42] Conlan, op. cit., p. 142.

[43] “The Personal Responsibility and Work Opportunity Reconciliation Act of 1996,” U.S. Department of Health and Human Services, Sept. 1, 1996, https://tinyurl.com/h8vgtqm.

[44] “Mandate Monitor,” National Conference of State Legislatures, https://tinyurl.com/kn87fja.

[45] Greve, op. cit., p. 19; United States v. Lopez, Oyez, https://tinyurl.com/yaovdcw9.

[46] Mike Allen and Dan Balz, “Bush Unveils ‘New Federalism,’” The Washington Post, Feb. 27, 2001, https://tinyurl.com/yaw5eqrh.

[47] Shirley Lin, “States of Resistance: The Real ID Act and Constitutional Limits upon Federal Deputization of State Agencies in the Regulation of Non-Citizens,” City University of New York Law Review, Summer 2009, https://tinyurl.com/yac42hqs.

[48] Barack Obama, “Remarks at the National Governors Association Meeting in Philadelphia,” The American Presidency Project, Dec. 2, 2008, https://tinyurl.com/ya5exwt9.

[49] Daniel C. Vock, “How Obama Changed the Relationship Between Washington, the States and the Cities,” Governing, June 2016, https://tinyurl.com/ybt3wxbd.

[50] Michele E. Gilman, “Presidents, Preemption, and the States,” University of Baltimore Law,

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Summer 2010, https://tinyurl.com/y7oz8sfv.

[51] Timothy J. Conlan and Paul L. Posner, “American Federalism in an Era of Partisan Polarization: The Intergovernmental Paradox of Obama's ‘New Nationalism,’” Publius: The Journal of Federalism, July 2016, https://tinyurl.com/y96v3l7m.

[52] Cara Fitzpatrick, Amy Sherman and Jeffrey S. Solochek, “Fact-checking attacks on Common Core school standards,” PolitiFact, Oct. 21, 2013, https://tinyurl.com/pc8r4k4.

[53] Juliet Eilperin and Brady Dennis, “Court freezes Clean Power Plan lawsuit, signaling likely end to Obama's signature climate policy,” The Washington Post, April 28, 2017, https://tinyurl.com /ycm2px24.

[54] Brendan Farrington, “13 Attorneys General Sue over Health Care Overhaul,” The Associated Press, March 23, 2010, https://tinyurl.com/y97jb8kp.

[55] Conlan and Posner, op. cit.

[56] “Senate Majority Leader Mitch McConnell's Letter to Nation's Governors,” Office of Sen. Mitch McConnell, March 19, 2015, https://tinyurl.com/ycp4zabj.

[57] Louise Radnofsky, “Paul Ryan Urges State Lawmakers Not to Set Up Health-Insurance Exchanges,” The Wall Street Journal, March 20, 2015, https://tinyurl.com/y9lbqrqb.

[58] Gov. Kate Brown, Twitter post, April 4, 2018, https://tinyurl.com/yahzoler.

[59] Alexa Liautaud, “Trump's plan for National Guard at the border needs state governors,” Vice News, April 6, 2018, https://tinyurl.com/y967aqct.

[60] Nick Miroff, “California reaches deal with Trump administration on National Guard Role,” The Washington Post, April 18, 2018, https://tinyurl.com/yb252d9p.

[61] “California Governor Hedges on Sending Troops to Border,” The Associated Press, April 6, 2018, https://tinyurl.com/y7go8plu.

[62] “Gov. Sandoval Opposes President Trump's U.S.-Mexico Border Plan,” The Associated Press, April 12, 2018, https://tinyurl.com/ybxjg6gv.

[63] Paul Nolette, “State Litigation during the Obama Administration: Diverging Agendas in an Era of Polarized Politics,” Publius: The Journal of Federalism, July 2014, https://tinyurl.com/y8kvfoej.

[64] Alan Neuhauser, “State Attorneys General Lead the Charge Against President Donald Trump,” U.S. News & World Report, Oct. 27, 2017, https://tinyurl.com/y7e8y6s3.

[65] David A. Fahrenthold and Jonathan O'Connell, “D.C., Maryland can proceed with lawsuit alleging Trump violated emoluments clauses,” The Washington Post, March 28, 2017, https://tinyurl.com/y78xtsp2.

[66] Michael Krasny, “California Attorney General Xavier Becerra Talks DACA, Taking on Trump,” KQED, Jan. 15, 2018, https://tinyurl.com/y9rnhmyw.

[67] “Attorney General Jeff Landry Leads Ten-State Coalition in Fight Against Sanctuary Cities,” Louisiana Department of Justice, June 16, 2017, https://tinyurl.com/y947wjee.

[68] Dave Nyczepir, “Sessions Vows to Defend Presidential Powers Against State Legal Actions,” Route Fifty, Feb. 27, 2018, https://tinyurl.com/y9ulbmcq; Marcia Coyle, “Analysis: The constitutional showdown over President Donald Trump's travel ban,” PBS NewsHour, https://tinyurl.com /ycmwklqu.

[69] Katie Benner and Jennifer Medina, “Trump Administration Sues California Over Immigration Laws,” The New York Times, March 6, 2018, https://tinyurl.com/y93lu2h5.

[70] James Anderson, “State lawmakers, White House talk action on sanctuary cities,” The Associated Press, March 9, 2018, https://tinyurl.com/y9ky74xq.

[71] Christopher Ingraham, “Trump says sanctuary cities are hotbeds of crime. Data say the opposite,” The Washington Post, Jan. 27, 2017, https://tinyurl.com/y82r87fx; Sarah Ravani and Evan Sernoffsky, “Oakland mayor's warning puts immigrants, advocates on high alert,” San Francisco Chronicle, Feb. 25, 2018, https://tinyurl.com/ybl6qq7m.

[72] “State Marijuana Laws,” American Academy of Pediatrics, May 2017, https://tinyurl.com /yap76xjw.

[73] Matt Zapotosky, Sari Horwitz and Joel Achenbach, “Use of legalized marijuana threatened as Sessions rescinds Obama-era directive that eased federal enforcement,” The Washington Post, Jan. 4, 2018, https://tinyurl.com/ya5wl3vt; “Press Briefing by Press Secretary Sarah Sanders,” The

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White House, Jan. 4, 2018, https://tinyurl.com/ya7ckcnf.

[74] Seung Min Kim, “Trump, Gardner strike deal on legalized marijuana, ending standoff over Justice nominees,” The Washington Post, April 13, 2018, https://tinyurl.com/y84ykzb5.

[75] J.B. Wogan, “Trump Wants to End States’ Power to Make Food Stamps More Accessible During Recessions,” Governing, Feb. 14, 2018, https://tinyurl.com/y7n5awbb.

[76] Kaitlin Mulhere, “Betsy DeVos Is Telling States to Stop Cracking Down on Student Loan Companies,” Money, March 9, 2018, https://tinyurl.com/ya3j22q5.

[77] Jonathan Martin and Alexander Burns, “Governors From Both Parties Denounce Senate Obamacare Repeal Bill,” The New York Times, July 14, 2017, https://tinyurl.com/ycr8j4be.

[78] Liz Farmer, “The Week in Public Finance: Tax Reform Isn't Over — Here Come the States,” Governing, Feb. 16, 2018, https://tinyurl.com/y8l73fuf.

[79] “FY 2018 Omnibus: Trillions of Pennies from Heaven,” Federal Funds Information for States, March 30, 2018, https://tinyurl.com/ycfqx5lk.

[80] Barb Rosewicz and Daniel Newman, “Weak Growth in State Tax Revenue Persists in 2017,” Pew Charitable Trusts, Oct. 17, 2017, https://tinyurl.com/ycbepa4n.

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About the Author

Alan Greenblatt is a staff writer at Governing magazine. Previously he covered politics and government for NPR and CQ Weekly, where he won the National Press Club's Sandy Hume Award for political journalism. He graduated from San Francisco State University in 1986 and received a master's degree in English literature from the University of Virginia in 1988. His CQ Researcher reports include “Future of the GOP” and “Immigration Debate.”

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Document APA Citation Greenblatt, A. (2018, April 27). Federal-state relations. CQ researcher, 28, 365-388. Retrieved from http://library.cqpress.com/

Document ID: cqresrre2018042700 Document URL: http://library.cqpress.com/cqresearcher/cqresrre2018042700

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