Federalism, SCOTUS & Bond v. US

One of my primary objections to the National Constitution Center in Philadelphia is its emphasis on civil rights and liberties as they have evolved through the Bill of Rights and subsequent Constitutional Amendments. Obviously the federal government’s obligation to ensure citizens the right to participate equally in society and to not have their rights arbitrarily violated by the government is instrumental in preserving freedom. However, this focus is by its nature incomplete. The Founders believed that the structure of our governmental system would be the ultimate guarantor of individual liberty (see Alexander Hamilton’s discussion in Federalist 84). Representative democracy, separation of powers, checks and balances, federalism, and the extended republic were designed to preserve individual rights by “first enabl[ing] the government to control the governed; and in the next place oblige it to control itself” (Federalist 51).

This view of government structure as a tool to preserve individual liberties and rights tends to be a bit passé in contemporary discussions of American government.  Justice Kennedy’s opinion for a unanimous Supreme Court in Bond v. the United States (2011) helps breathe new life into this neglected topic.  The ruling concluded that individuals have standing to challenge federal statutes on the grounds that they interfere with powers reserved to the states (for the facts of the case please see SCOTUSblog and Oyez).

In his decision Justice Kennedy provided a primer on the relationship between governmental structure and the protection of individual rights. He stated that “If the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object.” He first turned to Supreme Court precedent that allowed individuals to invoke violations of separation of powers as an impingement of their rights.  He gives the following example:

In INS v. Chadha, 462 U. S. 919 (1983), it was an individual who successfully chal­lenged the so-called legislative veto—a procedure that Congress used in an attempt to invalidate an executive determination without presenting the measure to the President. The procedure diminished the role of the Ex­ecutive, but the challenger sought to protect not the prerogatives of the Presidency as such but rather his own right to avoid deportation under an invalid order. Chadha’s challenge was sustained. A cardinal principle of separation of powers was vindicated at the insistence of an individual….

Kennedy then applies this same logic to federalism because

The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.

Federalism protects individual liberty in three areas according to Kennedy:

1) The federal structure allows local policies “more sensitive to the diverse needs of a heterogeneous society,” permits “innovation and experimentation,” enables greater citizen “involvement in democratic processes,” and makes gov­ernment “more responsive by putting the States in com­petition for a mobile citizenry.”

2) Federalism secures the freedom of the individual. It allows States to respond, through theenactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.


3) Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of dele­gated governmental power cannot direct or control their actions. See ibid.  By denying any one government com­plete jurisdiction over all the concerns of public life, feder­alism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawfulpowers, that liberty is at stake.

The unanimous decision in Bond v. United States was more than an arcane examination of standing to sue. Rather, it provides a means to reinvigorate our discussion of the mechanisms that preserve our individual rights and liberties. The Supreme Court has contributed greatly to this narrative by highlighting the importance of government structure and in particular federalism.


Anti-Washington Resolutions from States are Nothing New

States are feeling emboldened in light of the 2010 elections. Increased amounts of Republicans, particularly Tea Party backed victors, believe they have a mandate to oppose the Obama administration. Part of this is a belief that the president and the Democratic 111th Congress were too activist in their policy making. The other part is an underlying trend of states pushing back against what they believe are federal encroachments of state autonomy.

States are engaging in debate on a broad range of issues that can affect federalism, such as a “repeal” amendment, repeal of the 17th Amendment, and repeal or non-implementation of the Patient Protection and Affordable Care Act.  Some states are addressing numerous federalism issues simultaneously. For example, Blogger Craig McDermott has started a catalogue of all the anti-Washington resolutions debated in Arizona. An industrious person in Virginia could probably do the same for that state. Virginia Delegates Mark Keam and Ken Plum tweeted and editorialized about the utility of such resolutions while they were being debated.

Once passed these resolutions or constitutional amendments are forwarded to Washington. Known as memorials to Congress, the practice has predated the founding of the Republic.  The memorials are not binding on a state’s delegation, but they do provide some sense of the attitudes of states toward federal policy action.

Federalism Issues in Memorials

The 112th Congress is not unique in attracting memorials from states on federalism issues. I recently collaborated on a research project with Justin Gollob of Mesa State College that analyzed the content of memorials to Congress from 1987-2006. Most of the memorials addressed an intergovernmental issue. However, we isolated memorials that addressed the general topic of state-federal relations in the American system.

Not surprisingly, most of the memorials dealt with issues of unfunded mandates, federal preemption of states and generalized appeals to state autonomy under the 10th Amendment. The following two excerpts from Memorials were representative of the resolutions:

“Resolved by the Senate of the State of Kansas, That the Senate urges the United States Congress not to enact any laws or authorize the adoption of rules and regulations which would impose mandates upon states and local units of government therein without providing full funding for such mandates….”

“Resolved by the House of Delegates, the Senate concurring, That the Congress of the United States be hereby requested to pay greater heed to the clear restrictions placed by the 10th Amendment to the Constitution on the powers of the federal government….”

Recurring Federalism Issues (1987-2006)

Memorials that appealed to the spirit of the 10th Amendment often called for a Federalism Summit that gained traction during the mid-1990s. During this period several states also attempted to change to Constitution to allow states to initiate Constitutional amendments, thereby bypassing Congress. The ostensible purpose of this change would be to create a new federalism amendment to protect states from what they believed were encroachments of their power. Interestingly, there were few calls for increased federal transfers to states. Consequently, block grants and a return to federal revenue sharing were not popular topics of Memorials.

As the table below indicates, these federalism memorials appear to come in waves. The mid 1990s were a period where state criticism of  the federal government reached a critical mass.

Federalism Memorials by Session of Congress (1987-2006)

State officials shared a bipartisan sense of displeasure with the federal government during the 1990s. It remains to be seen whether the current wave of anti-Washington resolutions also crosses party lines or only comes from states with insurgent Tea Party movements in their state legislatures.

For more on the research please see our article in State and Local Government Review. For more on the methodology please see the Policy Agendas Project and the Pennsylvania Policy Database Project at Temple University.