Federalism

Did Dobbs Return Abortion to the States and the People? LOL

by Leah Litman

The conservative legal movement has no intention of subjecting abortion to democratic processes. 

The History of State Interposition Shows Federalism is a Deliberative Process, not a Set of Rules

by Christian G. Fritz

The efforts of state legislatures to oppose federal law have been varied. In sum, they show that the Supreme Court cannot dictate the distribution of power under federalism; Americans will have to keep figuring it out as we go, through political deliberation.

What the Antebellum Period Tells Us about the Coming Battles Over Abortion

by Kate Masur

"The history of the 19th century reminds us that arguments for states’ rights, or for federal power, have no intrinsic political or moral valence."

What Prohibition History Tells Us about Returning Abortion to the States

by Richard F. Hamm

Federal control of interstate commerce and the mail mean that medical abortifacents will be difficult for state-level antiabortion politicians to keep out of their borders. There's no doubt that they will seek to pass federal laws leading to a national abortion ban. 

Why Can't our Political System Address our Biggest Problems? Blame the Founders

by Max Boot

From COVID to guns to infant mortality to health care, the United States does worse than other industrial democracies at managing basic problems. It's time to recognize that design flaws of the system are a big part of the problem. 

The 1906 Decision in Hodges v. United States Shows the Error of Leaving Fundamental Rights to the States

by William H. Pruden III

The Court ruled that the 13th Amendment did not create a federal right to fairly contracted labor, and called for Black workers to "take their chances with other citizens in the states where they should make their homes," despite the plain determination of those citizens to oppress and expolit them.

Think Republicans in Washington are Bad? They’re Far Worse at the State Level

by Max Boot

The states have been called "laboratories of democracy." Max Boot warns that Dr. Frankenstein also ran a lab. 

Biden will Confront Systemic Conservatism Despite a Mandate for Change

by Steven F. Lawson

If Joe Biden wants to implement progressive change, he'll be stopped not by a lack of popular support, but by the conservatism built into American institutions. 

American Democracy Was Never Supposed to Work

by Richard Kreitner

"Merely ousting Trump is not enough without addressing more fundamental weaknesses in our political system, especially an outdated Constitution that continues to serve a minority of wealthy and white citizens and to curb any movements that might threaten their wealth and power."

Elections Don’t Have to Be So Chaotic and Excruciating

by Stephen I. Vladeck

A uniform procedure for publicizing the vote count can eliminate the chaos of haphazard vote counts and remove the opportunity for candidates to portray the normal process of counting votes as irregular or crooked. 

The Native American Government That Inspired the US Constitution

The government of the Iroquois Confederacy wasn't a template for the Constitution, but it was an example, visible to the framers, of concepts of federalism that were only abstractions in European political theory. 

There’s No Historical Justification for One of the Most Dangerous Ideas in American Law

by Julian Davis Mortenson and Nicholas Bagley

The delegation of regulatory power to federal agencies is the indispensable foundation of modern American governance. And it is under siege.

States Keep Failing Black People

by Charles M. Blow

A look at American history shows that state governments have been agents of black oppression in voting rights, criminal justice, and public health.

The New Federalism

by Gary Gerstle

States have once again become the innovators in American political life and the institutions that are taking their democratic remit seriously.

Federalism and Fighting Coronavirus

John Barry's book The Great Influenza demonstrates how federalism can work effectively in a crisis. By that standard, the current response leaves much to be desired.

Trump Completely Misunderstands His Authority: A Lawyer’s Perspective

by James D. Zirin

The exact distribution of power in American federalism is debatable. But any federal arrangement demands consistency so that states and the federal government can cooperate in an emergency. That seems beyond the Trump administration. 

If the Great Depression Is Any Indication, Things Won’t Just Go Back to ‘Normal’ After the Coronavirus Pandemic Ends

by James C. Cobb

New Deal programs had difficulty returning the United States to "normal" life because FDR had difficulty persuading many Americans that the federal government was supporting their economic security. This failure makes a comprehensive response to COVID-19 less politically feasible.

States Are in Crisis. Why Won’t Trump Help?

by Lizabeth Cohen

The abandonment of a federalist system where states are accountable to Washington and residents everywhere can expect equitable treatment is recasting the United States of America to favor States over United. 

Trump’s ‘Liberate Michigan!’ Tweets Incite Insurrection. That’s Illegal.

by Mary McCord

President Trump incited insurrection Friday against the duly elected governors of the states of Michigan, Minnesota and Virginia.

Trump's Claim of 'Total' Authority Fails to Fly with Nation's Governors

But the clarity of the law, as experts like Claire Finkelstein of the Center for Ethics and Rule of Law see it, does not necessarily stop the president from taking action as part of a political strategy.