Introduction

Abstract

American federalism is a highly institutionalized compound of dual, cooperative, and coercive federalism that are coexisting states as well as historical phases. Contemporary coercive federalism has several systemic consequences including a shift in federal policy-making from places to persons, long-term fiscal stress, deceased intergovernmental institutions, rising polarization, a relegitimizing of states’ rights, and a paradoxical decline of public trust in the federal government coupled with public dedication to federal policy-making. Trump’s presidency, therefore, will likely be more of an interlude than a transformative moment in American federalism. Long-term trends highlighted in this issue will likely outlast Trump, although the trends point toward more centralization and polarization even while states and localities remain independently innovative on many fronts.

Keywords

intergovernmental relations polarization dual federalism cooperative federalism coercive federalism state government local government fiscal federalism social welfare Donald Trump

Introduction: Trump Federalism

This issue of the State and Local Government Review examines key long-term patterns in American federalism and intergovernmental relations at the outset of the Trump administration that will likely outlast his tenure in office.

Donald Trump is the most rhetorically transgressive president in the U.S. history, but he is unlikely to be the most transformative because he is the product of a dysfunctional political order and his rhetorical transgressions weaken the presidency’s key asset—persuasiveness (Neustadt 1980). Trump faces a fractious Republican Party and resistant Democratic Party in Congress, as well as some congressional Republicans who reject him as their party’s legitimate leader. Trump’s first budget proposal—a transformative one with deep cuts—was ignored by Congress; Republicans in Congress failed to repeal the Affordable Care Act (ACA), and Democratic state attorneys general filed an unprecedented number of lawsuits to block Trump’s immigration orders and other policies.

For domestic policy, the Trump presidency will likely be an interlude from politics as usual but not a radical departure. Trump’s most potent impact on federalism will stem from his federal-court appointments, especially U.S. Supreme Court appointments if he can replace Justice Anthony Kennedy or a liberal justice. If Republicans retain their Senate majority in the 2018 elections, they will continue confirming Trump’s nominees, most of whom are vetted by the Federalist Society and Heritage Foundation (Savage 2017). However, a five to four conservative court will not substantially alter the court’s federalism jurisprudence that has prevailed since the 2005 death of Chief Justice William Rehnquist because, as Trump promised during his campaign, his nominees mirror Antonin Scalia more than Clarence Thomas (Wolfe 2017). Scalia, with other conservative justices, voted to incorporate the Second Amendment ( McDonald v. Chicago 2010), thereby imposing federal limits on states’ rights to regulate guns. Unlike Thomas, Scalia frequently supported federal preemption of state laws deemed to violate the commerce clause (Dickinson 2010).

Like all the 2016 presidential candidates, Trump said little about federalism, but he did pledge to block-grant Medicaid, limit the state and local tax (SALT) deduction for upper income taxpayers, support states’ rights to legalize marijuana, defund sanctuary cities, and expose voter fraud. Block-granting Medicaid would be transformative, but congressional Republicans have been unable to do it. Trump’s support for state marijuana legalization follows what was already congressional policy (Lanktree 2017), litigation has hampered defunding of sanctuary cities, and most states have resisted requests for voting records from Trump’s Presidential Advisory Commission on Election Integrity.

Eliminating the SALT deduction would be transformative because the deduction originated with the Revenue Act of 1862 and was reinstated in the Revenue Act of 1913 that created today’s federal income tax. A chief rationale for the SALT was fear that the federal income tax might cripple the states by monopolizing the country’s tax base—a fear first addressed by Alexander Hamilton in The Federalist (Liebschutz and Lurie 1986; Kincaid 2014). Killing the SALT would, on average, adversely affect taxpayers in high-tax Democratic states such as Connecticut and New Jersey much more than taxpayers in lower tax Republican states (Burns 2017). Elimination would also produce substantial downward political pressure on state and local taxes. In November 2017, House Republicans pledged to retain the property-tax deduction for middle-income filers, but tax benefits for private-activity bonds and the deduction for state income and/or sales taxes might not survive, especially for high-income taxpayers.

Like Barack Obama, Trump will use his executive powers as fully as possible to accomplish what he cannot achieve through Congress (Baker 2017) including perhaps a de facto repeal of the ACA via deregulation and defunding and retraction of Obama’s Clean Power Plan. He has launched an ambitious deregulation initiative (Belton, Krutilla, and Graham 2017), which, while not aimed specifically at state and local governments, will relieve those governments of many regulations. However, his personnel downsizing may adversely affect state and local governments. For example, during the 2017 hurricane season, about a third of the top positions in the Federal Emergency Management Agency (FEMA) were vacant, and the Senate had confirmed appointments to only 29 percent of the federal government’s top 610 posts ( Washington Post 2017).

Trump will also use waivers of federal laws to achieve certain policy objectives. As of 2015, for example, 33 percent of federal Medicaid spending (compared to 17 percent in 2010) already went to waivers in forty states (U.S. Government 2017). Trump promised to expedite Medicaid waiver requests from states that copy another state’s waiver program, permit states to impose work and community-engagement requirements on Medicaid recipients, and approve ten-year rather than five-year waivers (Pear 2017), although recent decisions suggest his administration might not be so flexible (Mathews 2017). Trump will join congressional Republicans to channel federal funds disproportionately to politically friendly red states while also cutting spending including federal aid. However, he has signaled a willingness to cooperate with state and local officials on certain matters, such as civilian drone regulation (Pasztor 2017).

In exercising executive powers, Trump will often be supported by many state officials because, as of late 2017, Republicans controlled the governorship and legislature in twenty-six states, while Democrats controlled six (increasing to seven in 2018). The other eighteen states had divided governments. A few of the thirty-three Republican governors, especially in states that expanded Medicaid under the ACA, will sometimes buck the president, but party solidarity will mostly prevail so long as Trump’s presidency is politically viable.

Democratic states—along with most Democratic governors, attorneys general, and other state executives plus Democratic legislative chambers—will join the “resistance” against Trump, as will most big-city mayors. Democratic mayors govern 66 of the nation’s 100 largest cities. In this respect, federalism will experience more state–federal conflict and polarization, but if the resistance drives up Democratic voter turnout enough to change the party composition of Congress and many states, there will be efforts to restore the intergovernmental status quo ante.

In This SLGR Issue

The intergovernmental system is highly institutionalized and marked by considerable path dependency. Change ordinarily occurs slowly and incrementally, although there have been some critical junctures, especially the New Deal of the 1930s and Great Society of the 1960s. This issue’s topical articles illustrate both change and continuity in the federal system and examine exogenous and endogenous forces driving continuity and discontinuity.

Conlan argues that changes in the federal system over recent decades have been driven by three exogenous political developments: party nationalization; partisan polarization within the federal government, between states and the federal government, and among states; and delegitimation of the federal government. He also identifies some impacts of these trends on intergovernmental relations, such as party nationalization fostering centralization, and polarization limiting centralization when states counter federal policies.

Wang and Pagano examine the post-1970s decline of federal aid to cities and identify ways in which local governments adapt differently within the rules of their states to the exogenous shocks of changing federal policies and state laws. Federal aid to local governments has been essentially flat since 1989, although there has been a slight but still plateaued increase since 2001. The authors focus partly on the Community Development Block Grant, which has experienced continually reduced funding since 2002 even while Congress has increased the number of recipient cities. They also highlight the potentially adverse revenue effects on cities of eliminating the federal deductibility of property taxes and state income and sales taxes and the tax exemption for municipal bonds. The authors examine Orlando, FL; Birmingham, AL; Boston, MA; Milwaukee, WI; and McAllen, TX, in the contexts of home rule, taxing authority, state aid, and tax-and-expenditure limits.

Weissert examines the federal system’s fiscal elephant—health policy—finding from her empirical measure that while there was centralization and decentralization from 1977 to 2016, the overall trend across Democratic and Republican administrations was centralization, not devolution. She analyzes the states’ positive leverage over intergovernmental policy, such as their expertise and innovations in many policy fields, and their negative leverage, such as the power of resistance. She also appraises the federal government’s positive leverage, such as grants-in-aid, and its negative leverage, such as preemption. She concludes by examining Trump’s approaches to health policy and federal–state health-care relations.

Dinan argues that under Chief Justice John Roberts, the U.S. Supreme Court continues to impose occasional limits on federal power over the states that were instituted by the Rehnquist court (1986–2005). These have included restraining federal power through interpretations of the commerce clause, spending power, Tenth and Eleventh Amendments, and Section 5 of the Fourteenth Amendment. He concludes, though, that the Roberts court has been slightly less eager than the Rehnquist court to sustain state authority in challenges to state statutes.

The articles’ underlying themes are that forces fostering centralization continue to outweigh centripetal forces but that state and local governments have often been innovative in adapting to centralization and sometimes even carved out havens of policy autonomy. Federal authorities occasionally support states’ policy preferences through waivers, judicial comity, and other devices.

The Coexisting States of American Federalism

These developments have occurred within a complex system of coexisting states of American federalism: dual, cooperative, and coercive. The tendency since Corwin (1950) has been to treat these states as sequential historical phases with dual federalism being the first phase displaced by another. This is a mistake because the institutionalization of a phase creates a path dependency that prevents another phase from displacing it completely. One can identify historical phases in terms of their predominant characteristics, but a new phase arrives incrementally, although with an eventual critical juncture augmenting it, while the old phase still functions alongside and in the interstices of the new phase. Each phase, moreover, has particular impacts on federalism and intergovernmental policy-making and administration.

Dual Federalism

Scholars often note that despite the growth of federal power, states still exercise policy-making autonomy in many ways. Bowman (1986) dubbed this “the resurgence of the states.” Whether the states were once dormant is debatable, but numerous observers (Boehmke and Skinner 2012; Koontz 2002; Mintrom and Vergari 1997) highlight autonomous state policies, such as legalization of medical and recreational marijuana and physician-assisted suicide, climate-change and other environmental policies, charter schools, Romneycare in Massachusetts, abortion laws, and the pioneering of same-sex marriage. President Bill Clinton (1999) believed the states were so independently innovative that he delighted in jump-starting “the federalist experience by looking for ideas that are working and then embodying them in federal legislation” (p. 26).

Autonomous state policy-making remains viable because of dual federalism, which has four principal foundations. The first is the U.S. Constitution, which is dualist. Limited powers were delegated to the federal government; all other powers were reserved to the states. The Constitution is silent, therefore, about such matters as consumer protection, education, environmental protection, health care, corporate charters, and local government. This is why Tocqueville (1969) termed the federal government “an incomplete national government” (p. 157).

Second, in Sturges v. Crowninshield (1819), the U.S. Supreme Court held unanimously that states can exercise powers delegated exclusively to Congress by the U.S. Constitution so long as Congress does not preempt them or the court does not find them in violation of interstate commerce. Sturges v. Crowninshield allows states to legislate in areas of exclusive federal power when the federal government is unable or unwilling to act. Federal inaction was common during the nineteenth century, but became less so in the twentieth century, especially after 1968 when preemptions of state powers rocketed to unprecedented levels (U.S. Advisory Commission on Intergovernmental Relations [ACIR] 1992). Nevertheless, preemption is still absent in many domestic policy fields, and in some fields, such as consumer and environmental protection, Congress enacts partial preemptions that let states and localities enact laws that exceed federal standards.

Third, in Prigg v. Pennsylvania (1842), the court opined that state officials were not required to enforce the Fugitive Slave Act of 1793. In fact, states could pass “personal liberty” laws prohibiting state and local officials from apprehending runaway slaves. Prigg v. Pennsylvania established the foundation for the court’s anticommandeering doctrine articulated in New York v. United States (1992) and Printz v. United States (1997), for state legalizations of marijuana despite its federal illegality, and for sanctuary cities that refuse to cooperate with federal immigration authorities.

Fourth, in Michigan v. Long (1983), the court held that state high-court rulings that increase rights protections above standards set by the U.S. Supreme Court under the U.S. Bill of Rights cannot be reviewed by the Supreme Court when based solely on “adequate and independent” state constitutional grounds. Michigan v. Long is a key pillar of the “new judicial federalism” (Kincaid 1995; Collins, Galie, and Kincaid 1986).

The above rulings, which are rooted in the Constitution’s dualism, were acts of cooperative federalism by the court that preserved elements of dual federalism during the historical phases of dual, cooperative, and coercive federalism. Without the persistence of dual federalism’s dual sovereignty, the federal system would not be truly federal. Consequently, state and local governments still have realms of policy autonomy, albeit shrinking realms.

Cooperative Federalism

Cooperative federalism is often said to have originated in the 1930s (Walker 2000; Clark 1938), but intergovernmental cooperation has been present since 1789 (Callen 2016; Elazar 1962). For example, Congress deferred to state concerns in the Judiciary Act of 1789 by creating federal district courts wholly within state boundaries. During the nineteenth century, cooperation also included, among other things, land grants, pork-barrel expenditures, federal assistance, federal property transfers, cash grants, technical assistance, and research and information sharing. As Macdonald (1928, 1) noted: “The right of the federal government to give to the states land from the federal domain and money from the federal treasury has never seriously been questioned.”

Cooperative federalism entails the willingness of the federal government to negotiate and bargain with state and local officials over (1) the formulation of federal policy and (2) the implementation of federal policies by states and localities.

During the nineteenth century, Congress regularly deferred to the states, as in an 1866 act funding state quarantine enforcement but instructing the treasury secretary not to “add to, modify or supersede any state regulation” (Maxey 1908, 622). This approach changed in the twentieth century when, as epitomized by the Smith-Lever Act of 1914, the federal government “adopted the policy of purchasing with federal funds a considerable measure of supervision over numerous governmental activities not mentioned in the Constitution, and therefore presumably left in the hands of the states” (Macdonald 1928, 2).

The New Deal marked a critical juncture significantly augmenting cooperative federalism. From 1930 to 1940, the number of regular grants increased by 107 percent (Dilger 2017), while federal spending for regular and emergency grants increased by 2,006 percent (Maxwell 1952). Intergovernmental cooperation stemmed from several factors. State and local party bosses ensured that most federal legislation minimally restrained states’ powers; federal officials were cooperative and friendly to state and local administrators whom they needed to execute federal programs; and New Dealers preserved dual federal and state banking, dual regulation of such matters as securities and telecommunications, and sole state regulation of insurance. Also, New Deal legislation focused predominantly on economic, not social, matters. Some acts, moreover, had delayed impacts. Notably, the 1938 Fair Labor Standards Act (FLSA) was not applied to state and local government employees until 1966 at the outset of federalism’s coercive phase.

Importantly, however, cooperation was redefined one dimensionally as the willingness of state and local governments to cooperate with the federal government—not vice versa. This conception was driven partly by belief that the federal government possessed superior expertise, as symbolized by Franklin D. Roosevelt’s “brain trust” (Tugwell 1968). Anderson (1955) thus concluded that, “under firm and forward-looking national leadership, the state and local governments…do their work much better” (p. 243). This remains the prevailing view. Although this view is regularly conflated with federalism, it refers not to federalism but to intergovernmental relations involving state and local implementation of federal policies. Thus, contemporary “cooperative federalism” is said to situate “uniformity and finality for first-order norms at the national level, while allowing dialogue and plurality at the level of state implementation of those norms” (Bader 2014, 164). The nationalist school of federalism celebrates this development as “the power states enjoy as national government’s agents” (Gerken 2014, 1626). Hence, the most federalist dimension of cooperative federalism—namely, the willingness of elected federal officials to treat elected state and local officials as partners in federal policy formulation—has atrophied.

Coercive Federalism

Seeds of coercive federalism (Kincaid 1990) or regulatory federalism (U.S. ACIR 1984) were planted during the dual and cooperative phases, as in Reconstruction (1863–1877), ratification of the Fourteenth Amendment in 1868, conditions attached to federal aid, increased New Deal preemption, the Supreme Court’s commerce-clause reversal in West Coast Hotel Co. v. Parrish (1937), and acceleration during the 1930s and 1940s of the incorporation doctrine protecting individuals against state and local action.

Coercive federalism

describes an era in which (a) the federal government is the dominant policy maker, (b) the federal government is able to assert its policy will unilaterally over the state and local governments, (c) elected state and local officials are more often lobbyists than partners in intergovernmental policymaking, (d) interactions between federal officials and elected state and local officials are more often consultations than negotiations, (e) there are few constitutional limits on the exercise of federal power, (f) cooperative policymaking, when it occurs, is most often due to the influence of interest groups operating outside the intergovernmental system than to state and local officials operating inside the intergovernmental system, and (g) all important arenas of state and local decision-making are infused with federal rules (Kincaid 2011a, 13).

Coercive federalism emerged as the dominant phase in the late 1960s, mainly as a national political response to social movements demanding deep federal interventions, including armed interventions, into state and local polities in order to protect individual rights, the environment, and other social goods and also mitigate negative externalities (e.g., air pollution) while fiscally enticing states into redistributive programs despite redistribution being more properly a federal function (Peterson 1995; Musgrave 1959). The Great Society embodied those responses, and the number of grants increased by 193 percent from 1960 to 1968 while federal grant spending jumped 243 percent from 1960 to 1970.

Changes in the party system enhanced coercive federalism and cemented its bipartisan endurance by muting the political voices of elected state and local leaders. The Supreme Court’s “one person, one vote” rulings ( Reynolds v. Sims 1964; Wesberry v. Sanders 1964) eviscerated the parties’ county and municipal power bases, which were crucial electoral links between local and federal elected officials. The Democrats’ 1968 national convention marked a critical juncture as insurgents revolted against the party’s bosses, such as Mayor Richard J. Daley of Chicago. The subsequent McGovern–Fraser Commission imposed more national party rules on state parties and shifted the weight of convention delegate representation from county and municipal jurisdictions to identity groups (e.g., minorities and women). The post-1968 proliferation of primaries further weakened state and local party leaders; encouraged candidate-centered campaigns financed by individuals, big donors, and national interests; and fostered polarization as party and issue activists often determined primary outcomes.

These changes did not entail party nationalization per se because nationalization had been well underway since the New Deal and was more a response to, than cause of, centralization (Chhibber and Kollman 2004). What occurred instead was a decoupling of the electoral fortunes of members of Congress and presidents from the influence of elected state and local officials who had controlled much of the party machinery. Governmental centralization and party nationalization from the 1930s to 1960s largely preserved the influence of elected state and local officials. Post-1968 party changes diminished that influence considerably. The 2017 debate over eliminating the 155-year SALT, therefore, was not framed in terms of federal-state comity with state and local officials having a strong voice but in terms of individual tax equity with interest groups, such as homebuilders and mortgage bankers, having influential voices.

Two other factors further fostered coercive federalism. Public employee unions played a major role by agitating for substantial federal interventions to benefit their interests (Kincaid 1993a), as reflected in the FLSA’s extension to state and local government employees in 1966 and in one of the Supreme Court’s most momentous twentieth-century federalism rulings, Garcia v. San Antonio Metropolitan Transit Authority (1985). To the extent personnel control is an essential attribute of sovereignty, the FLSA extension destroyed that sovereignty. Garcia v. San Antonio Metropolitan Transit Authority overturned National League of Cities v. Usery (1976) and instructed states to rely on the national political process rather than the Tenth Amendment to protect their powers.

Coercive federalism was also facilitated by the marked decline during the 1960s of the Democratic South as a powerful force in Congress. The Solid South had been advantageously “embedded in a federal state and a confederal party system” (Mickey 2015, 44). Through Congress, it played a key role in protecting state and local government prerogatives against federal coercion (Gibson 2012). Ironically, however, it was the racism associated with the South’s defense of dual and cooperative federalism that gave rise to civil rights movements demanding coercive federal interventions into state and local arenas in order to liberate persons from the tyranny of those places (Kincaid 1993b).

Consequences of Coercive Federalism

Important consequences of coercive federalism include a shift in federal policy-making from places to persons, long-term fiscal stress, the demise of intergovernmental institutions, rising polarization, a relegitimizing of states’ rights, and a paradoxical decline of public trust in the federal government coupled with continued public support for federal policy-making.

Shifting Policy from Places to Persons

Coercive federalism shifted federal policy-making from places to persons as the federal government incorporated most of the U.S. Bill of Rights into the Fourteenth Amendment so as to protect individual rights against state and local action. The Second Amendment was the most recent incorporation ( McDonald v. Chicago 2010), thus elevating an individual right of gun possession over states’ rights to regulate guns. Much earlier, in Monroe v. Pape (1961), the Supreme Court revived section 1983 of the Force Act of 1871, turning it into a powerful, widely used tool for suing state and local officials for individual-rights violations.

Intergovernmental spending has migrated massively from place-based functions—such as transportation, infrastructure, education, economic development, and housing—to social welfare as shown in Figure 1 (cf. Kincaid 2001a). Payments for individuals equaled 32 percent of federal aid in 1978 and 75 percent in 2017. Medicaid alone accounts for more than half of all federal aid to states and localities.

Figure 1.

Federal grants-in-aid to state and local governments for social welfare, capital investment, and other public purposes in billions of current dollars, 1940–2022.

This trend is unlikely to change because interests defending social welfare are more potent than state and local officials defending place-based programs. Social welfare involves concentrated benefits for specific constituencies; most place-based functions involve public goods with diffuse constituencies (Olson 1971). If federal deficit reduction becomes urgent, place-based programs will be cut more deeply than social welfare. Further, the states’ growing cost share for intergovernmental social welfare programs will continue siphoning money from place-based functions that traditionally defined the states’ raison d'etre.

This shift also ties state budgets to intergovernmental programs susceptible to escalating federal regulation, cost-shifting, and matching state and sometimes local costs. Social welfare programs necessarily entail substantial federal regulation, even if they permit administrative discretion. The shift has therefore heightened states’ roles as administrative agents for the federal government.

Transferring aid from places to persons is the major reason for the drop in federal aid to local governments since 1978, even though total federal aid to state and local governments increased by 118 percent in constant dollars. States are the primary recipients of social welfare grants. Social welfare aid has increased by 547 percent since 1978; aid for place-based functions has declined 29 percent. Localities will experience further aid reductions, with municipal governments being affected most acutely because they perform the fewest social welfare functions. In turn, states will have less revenue to assist local governments, partly because of Medicaid. In 2015, Medicaid consumed 16.7 cents of each dollar of states’ own source revenue—4.5 cents more than in 2000 (McKillop and Carges 2017). State aid for K–12 education will take precedence over aid for other local functions—though federal and state funding for K–12 education will likely be reduced, too, by competing social welfare spending.

Declining federal aid for place-based functions will increase competition for federal dollars among program advocates and public and private beneficiaries and also militate against consolidating the federal government’s 1,196 categorical grants into block grants because interest groups will defend categoricals that benefit them.

Finally, this shift partly explains why, despite huge increases in federal aid since 1987, federal aid has not significantly alleviated long-term state–local fiscal stress and why the infusion of US$87 billion for Medicaid through the American Recovery and Reinvestment Act of 2009 left most states with large budget shortfalls even after the recession’s 2009 end.

Long-term Fiscal Stress

Coercive federalism has been financed by deficit spending and by recruiting state revenues through matching grants. For fifty-seven years, the federal government has run deficits every year except five. How long such spending can continue is unknown. At the same time, due to matching grant requirements, state budgets have been increasingly consumed by fulfillments of federal policy objectives.

By all projections, state and local governments face long-term fiscal stress. Those governments will likely experience a gap between revenues and spending over the next forty-four years caused mainly by the costs of Medicaid and health care for retirees and employees unless they make significant and painful tax and policy changes (U.S. Government 2016). State and local governments lack the deficit escape hatch used by the federal government.

Deaths of Intergovernmental Institutions

Coercive federalism also induced the deaths of executive, congressional, and independent intergovernmental institutions established under cooperative federalism. Notably, the U.S. ACIR was defunded in 1996 after thirty-seven years of operation (Kincaid 2011b). There are periodic calls to revive the ACIR, but revival is unlikely (Kincaid 2001b). Many state ACIRs disappeared too (Cole 2011).

Important committees devoted to federalism and intergovernmental relations withered away in Congress, and federal departments either have no intergovernmental office or a highly political one. President Ronald Reagan dismantled the intergovernmental unit in the Office of Management and Budget in 1983, and the U.S. General Accounting Office’s intergovernmental unit was phased out in the early 1990s. The White House Office of Intergovernmental Affairs is a political and favor-dispensing office, not a vital node for intergovernmental policy-making. Trump appointed a director, but as of November 2017, the office’s White House website said only: “Check back soon for more information.”

In May 2017, House Speaker Paul Ryan and Minority Leader Nancy Pelosi created the Speaker’s Task Force on Intergovernmental Affairs (Speaker 2017). It is unlikely to do anything significant.

Rising Party Polarization

Polarization is an outstanding feature of contemporary politics. Its rise coincides with coercive federalism; both began in the late 1960s. The causes of polarization remain debatable (Schier and Eberly 2016; Barber and McCarty 2015), but an important overlooked factor is the rise of coercive federalism, which has nationalized many issues, especially culturally sensitive issues, previously decided by state and local governments, thereby concentrating conflict in the white heat of national politics rather than diffusing conflict more coolly across the states. Further exacerbating polarization has been policy-making by the unelected U.S. Supreme Court that overturns state and local policy preferences. The Roe v. Wade (1973) abortion ruling is one example. The court’s Brown (1954) decision initially triggered polarization by reigniting the nation’s historically deep racial divide that underlies contemporary polarization. The promulgation of coercive national policies in the face of heterogeneous interstate policy preferences generates resistance and polarization. The conservative shift among Republicans was initially more pronounced than the liberal shift among Democrats (Barber and McCarty 2015), suggesting that Republican state preferences more often clashed with national policies.

There appears to be a reciprocal relationship between coercive federalism and polarization. As policy nationalization increases polarization, polarization increases the stakes of capturing the federal government in order to impose polarized party preferences on the country. Polarization also increases the stakes of capturing state governments, which can be employed both to resist and to implement national policies. Polarization also has split many of the state and local government lobbying organizations, such as the National Governors Association, thereby weakening their ability to defend state and local governments against coercive federal policies.

Given that the federal government is unlikely to restore substantial state authority over most nationalized policies, polarization is unlikely to abate without an existential national crisis.

Relegitimizing States’ Rights

Coercive federalism has ironically relegitimized states’ rights as a consolation prize for whichever party is out of power in Washington, DC. As Democratic Governor Jerry Brown proclaimed in promising California’s support for America’s Pledge—a coalition of states, cities, and private entities committed to arresting climate change: “In the United States, we have a federal system, and states have real power, as do cities” (Jordans and Thiesing 2017, B8). Liberals have labeled such state and local actions as “progressive federalism” (Gerken 2012). Although both parties seek first and foremost to nationalize their policy preferences, they also have strong incentives to capture state governments, especially to use them for congressional redistricting, deploy them as weapons to resist the party holding federal power, especially the president, showcase public policies as laboratories of democracy in order to attract voter support for their nationalization, and enact policies reflecting their preferences. The party holding the White House and/or Congress also seeks to capture states, not only to prevent their takeover by the opposing party, but also to ensure faithful implementation of their national policies.

Another facet of contemporary states’ rights is the growing number of multistate lawsuits filed against the federal government by state attorneys general (Nolette 2014, 2015). Given that coercive federalism has diminished the political voice of elected state and local officials in national politics and that the judicialization of politics has removed chunks of policies from the legislative and executive political processes (Shapiro 1994; Hirschl 2009), attorneys general, who are elected in forty-three states, have turned to litigation. However, this is still highly political because attorneys general of each party most often file lawsuits against the federal government when the opposition party controls the presidency and/or Congress. Consequently, they are half-hearted states’ advocates because they mainly want to thwart the other party’s national policies or ensure implementation of their own party’s national policies when blocked by a president.

Paradox of Declining Public Trust and Continuing Federal Action Preferences

Declining public trust in the federal government also coincides with coercive federalism. Perhaps increasing impositions of uniform national policies on a heterogeneous society by alternating party control of the federal government not only polarizes but also alienates citizens. Whereas citizens can exit states when they feel they have no voice, there is no exit option from the federal government. In a 2014 poll, 54 percent of Americans said the federal government was a threat to individual liberty rather than protector (Rasmussen 2014). Under cooperative federalism, the federal government still limited its policy reach and often accommodated heterogeneous state preferences, thus respecting the state exit option while not making citizens feel trapped in a no-exit federal zone.

Some observers argue there is a legitimacy crisis today produced substantially by a structural feature of the federal system whereby fifty senators representing the least populated states could, with a tie-breaking vote of the vice president, overrule senators representing 84 percent of the population (Dionne, Ornstein, and Mann 2017). Similarly delegitimizing is the small-state advantage in the electoral college. However, given that these institutions have existed since 1789, what makes them delegitimizing now? Senate action is rarely blocked by such small-state coalitions because party affiliation drives most Senate voting, and small states are rarely decisive in presidential elections (Adkins and Kirwan 2002).

Furthermore, despite low trust in the federal government compared to state and local governments, citizens prefer a federal role, along with state and local roles, in most policy fields (Thompson and Elling 1999), and they usually give the federal government priority (Konisky 2011; Schneider and Jacoby 2003). Many federal policies, especially social programs such as Social Security, Medicare, and Medicaid, have long enjoyed strong public support. As of October 2017, even the ACA was viewed favorably by 51 percent of Americans (Kaiser 2017). The paradox is similar to voters reelecting 90 percent or more of incumbents despite voters’ abysmal ratings of Congress. There is a disconnect between voters’ positive personal policy experiences with the federal government and their generalized perceptions of the institutional operation of the federal government (Mettler 2011). Consequently, distrust of the federal government has not generated a political constituency for devolution.

Conclusion

Although policy alterations from one presidential administration to another are common in this era of polarization, there continues to be more continuity than discontinuity in the federal system because the coexisting states of the federal system are highly institutionalized and path dependent. Nevertheless, the long-term future of the system appears to be a dysfunctional one because heightened centralization is eroding the system’s dualism and the coercive phase is eliminating the federalist dimension of cooperative federalism, thereby reducing cooperative federalism to the idea that the legitimate position of state and local governments in the system is to be willing administrators of intergovernmental programs established by the federal government.

Footnotes

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

References

Adkins

Randall E.

Kirwan

Kent A.

. 2002. What role does the “Federalism Bonus” play in presidential selection? Publius: The Journal of Federalism 32:71–90.

Anderson

William

. 1955. The Nation and the States, Rivals or Partners? Minneapolis: University of Minnesota Press.

Bader

Christopher K.

2014. A dynamic defense of cooperative federalism. Whittier Law Review 35:161–97.

Baker

Peter

. 2017. Trump takes Obama approach as he tries to erase a legacy. New York Times, October 14, pp. A1 and A11.

Barber

Michael

McCarty

Nolan

. 2015. Causes and consequences of polarization. In Solutions to Political Polarization in America, edited by Persily

Nathan

, 15–58. New York: Cambridge University Press.

Belton

Keith B.

Krutilla

Kerry

Graham

John D.

. 2017. Regulatory reform in the trump era. Public Administration Review 77:643–44.

Boehmke

Frederick J.

Skinner

Paul

. 2012. State policy innovativeness revisited. State Politics and Policy Quarterly 12:304–30.

Bowman

Ann O’M.

1986. The Resurgence of the States. Englewood Cliffs, NJ: Prentice Hall.

Burns

Alexander

. 2017. Tax plan carries political peril for republicans in blue states. New York Times, November 6, pp. A1–A15.

10.

Callen

Zachary

. 2016. Railroads and American political development infrastructure, federalism, and state building. Lawrence: University Press of Kansas.

11.

Chhibber

Pradeep

Kollman

Ken

. 2004. The Formation of National Party Systems: Federalism and Party Competition in Canada, Great Britain, India and the United States. Princeton, NJ: Princeton University Press.

12.

Clark

Jane Perry

. 1938. The Rise of a New Federalism: Federal-State Cooperation in the United States. New York: Columbia University Press.

13.

Clinton

William Jefferson

. 1999. Address by William Jefferson Clinton. Publius: The Journal of Federalism 29:23–32.

14.

Cole

Richard L.

2011. The current status and roles of state advisory commissions on intergovernmental relations in the U.S. Federal System. Public Administration Review 71:190–95.

15.

Collins

Ronald K. L.

Galie

Peter J.

John

Kincaid

. 1986. State high courts, state constitutions, and individual rights litigation since 1980: A judicial survey. Publius: The Journal of Federalism 16:141–61.

16.

Corwin

Edward S.

1950. The passing of dual federalism. Virginia Law Review 36:1–23.

17.

Dickinson

Gregory M.

2010. An empirical study of obstacle preemption in the Supreme Court. Nebraska Law Review 89:682–708.

18.

Dilger

Robert Jay

. 2017. Federal Grants to State and Local Governments: A Historical Perspective on Contemporary Issues. Washington, DC: Congressional Research Service.

19.

Dionne

E. J.

Ornstein

Norman

Mann

Thomas E.

2017. One Nation After Trump: A Guide for the Perplexed, the Disillusioned, the Desperate, and the Not-Yet Deported. New York: St. Martin’s Press.

20.

Elazar

Daniel J.

1962. The American Partnership: Intergovernmental Co-operation in the Nineteenth Century United States. Chicago, IL: University of Chicago Press.

21.

Garcia v. San Antonio Metropolitan Transit Authority. 1985. 469 U.S. 528.

22.

Gerken

Heather K.

2012. A new progressive federalism. Democracy: A Journal of Ideas 24:17–21.

23.

Gerken

Heather K.

2014. Federalism as the new nationalism: An overview. Yale Law Journal 123:1626–2133.

24.

Gibson

Edward L.

2012. Boundary Control: Subnational Authoritarianism in Federal Democracies. New York: Cambridge University Press.

25.

Hirschl

Ran

. 2009. The judicialization of politics. In Oxford Handbook of Political Science, edited by Goodin

Robert E.

New York: Oxford University Press. pp. 253–74.

26.

Jordans

Frank

Thiesing

Dorothee

. 2017. U.S. cities defy Trump, support climate deal. The Express-Times, November 12, p. B8.

27.

Kaiser Health Tracking Poll: The Public’s Views on the ACA. 2017. Accessed November 12, 2017. https://www.kff.org/interactive/kaiser-health-tracking-poll-the-publics-views-on-the-aca/#?response=Favorable–Unfavorable&aRange=twoYear.

28.

Kincaid

John

. 1990. From cooperative to coercive federalism. Annals of the American Academy of Political and Social Science 509:139–52.

29.

Kincaid

John

. 1993a. Constitutional federalism: Labor’s role in displacing places to benefit persons. PS: Political Science & Politics 26:172–77.

30.

Kincaid

John

. 1993b. From cooperation to coercion in American Federalism: Housing, fragmentation, and preemption, 1780–1992. Journal of Law and Politics 9:333–433.

31.

Kincaid

John

. 1995. Foreword: The new federalism context of the new judicial federalism. Rutgers Law Journal 26:913–48.

32.

Kincaid

John

. 2001a. The state of U.S. Federalism, 2000–2001: Continuity in crisis. Publius: The Journal of Federalism 31:1–69.

33.

Kincaid

John

. 2001b. Reviving the ACIR would be wonderful—But it’s unlikely. State Tax Notes 20:369.

34.

Kincaid

John

. 2011a. The rise of social welfare and onward march of coercive federalism. In Networked Governance: The Future of Intergovernmental Management, edited by Meek

Jack W.

Thurmaier

Kurt

, 8–38. Los Angeles, CA: Sage/CQ Press.

35.

Kincaid

John

. 2011b. The U.S. advisory commission on intergovernmental relations: Unique artifact of a bygone era. Public Administration Review 71:181–89.

36.

Kincaid

John

. 2014. The Federalist and V. Ostrom on concurrent taxation and federalism. Publius: The Journal of Federalism 44:275–97.

37.

Konisky

David

. 2011. Public preferences for environmental policy responsibility. Publius: The Journal of Federalism 41:76–100.

38.

Koontz

Tomas

. 2002. State Innovation in Natural Resources Policy: Ecosystem Management on Public Forests. State and Local Government Review 34:160–72.

39.

Lanktree

Graham

. 2017. Congress won’t give Jeff sessions money to fight state Marijuana Laws. Newsweek, May 2. Accessed November 5, 2017. http://www.newsweek.com/congress-wont-give-jeff-sessions-money-fight-state-marijuana-laws-593188.

40.

Liebschutz

Sarah F.

Lurie

Irene

. 1986. The deductibility of state and local taxes. Publius: The Journal of Federalism 16:51–70.

41.

Macdonald

Austin F.

1928. Federal Aid: A Study of the American Subsidy System. New York: Crowell.

42.

Mathews

Anna Wilde

. 2017. Iowa won’t redo health law after federal demands. Wall Street Journal, October 24, p. A5.

43.

Maxey

Edwin

. 1908. Federal quarantine laws. Political Science Quarterly 23:617–36.

44.

Maxwell

James A.

1952. Federal Grants and the Business Cycle. Cambridge, MA: National Bureau of Economic Research.

45.

McDonald v. Chicago . 2010. 561 U.S. 742.

46.

McKillop

Matt

Carges

Jessica

. 2017. Nearly 17 Cents of Each State Revenue Dollar Goes to Medicaid. Pew Charitable Trusts. Accessed November 9, 2017. http://www.pewtrusts.org/en/research-and-analysis/analysis/2017/07/14/nearly-17-cents-of-each-state-revenue-dollar-goes-to-medicaid.

47.

Mettler

Suzanne

. 2011. The Submerged State: How Invisible Government Policies Undermine American Democracy. Chicago, IL: University of Chicago Press.

48.

Mickey

Robert

. 2015. Paths Out of Dixie: The Democratization of Authoritarian Enclaves in America’s Deep South, 1944–1972. Princeton, NJ: Princeton University Press.

49.

Mintrom

Michael

Vergari

Sandra

. 1997. Charter schools as a state policy innovation: Assessing recent developments. State and Local Government Review 29:43–49.

50.

Monroe v. Pape . 1961. 365 U.S. 167.

51.

Musgrave

Richard

. 1959. The Theory of Public Finance. New York: McGraw-Hill.

52.

National League of Cities v. Usery. 1976. 426 U.S. 833.

53.

Neustadt

Richard E.

1980. Presidential Power: The Politics of Leadership from FDR to Carter. New York: John Wiley & Sons.

54.

New York v. United States . 1992. 505 U.S. 144.

55.

Nolette

Paul

. 2014. State litigation during the Obama administration: Diverging agendas in an era of polarized politics. Publius: The Journal of Federalism 44:451–74.

56.

Nolette

Paul

. 2015. Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America. Lawrence: University Press of Kansas.

57.

Olson

Mancur

. 1971. The Logic of Collective Action: Public Goods and the Theory of Groups. Rev. ed. Cambridge, MA: Harvard University Press.

58.

Pasztor

Andy

. 2017. U.S. Drone-test plan sets shared oversight. Wall Street Journal, October 26, p. B7.

59.

Pear, Robert. 2017. White house tells states it backs Medicaid work requirements. New York Times, November 8, p. A19.

60.

Peterson

Paul E

. 1995. The Price of Federalism. Washington, DC: Brookings.

61.

Prigg v. Pennsylvania . 1842. 41 U.S. 539.

62.

Printz v. United States . 1997. 521 U.S. 898.

63.

Rasmussen Reports. 2014. 37% of Voters Fear the Federal Government. Accessed November 11, 2017. http://www.rasmussenreports.com/public_content/politics/general_politics/april_2014/37_of_voters_fear_the_federal_government.

64.

Reynolds v. Sims . 1964. 377 U.S. 533.

65.

Roe v. Wade . 1973. 410 U.S. 113.

66.

Savage

Charles

. 2017. Courts reshaped at fastest pace in five decades. New York Times, November 12, pp. 1 and 19.

67.

Schier

Steven E.

Eberly

Todd E.

. 2016. Polarized: The Rise of Ideology in American Politics. Lanham, MD: Rowman & Littlefield.

68.

Schneider

Saundra K.

Jacoby

William G.

. 2003. Public attitudes toward policy responsibilities of the national and state governments: Evidence from South Carolina. State Politics and Policy Quarterly 3:246–69.

69.

Shapiro

Martin

. 1994. Judicialization of politics in the United States. International Political Science Review 15:101–12.

70.

Speaker Ryan Press Office. 2017. Speaker and Democratic Leader Announce Task Force on Intergovernmental Affairs. Accessed November 11, 2017. https://www.speaker.gov/press-release/speaker-and-democratic-leader-announce-task-force-intergovernmental-affairs.

71.

Sturges v. Crowninshield . 1819. 17 U.S. (4 Wheat.) 122.

72.

Thompson

Lyke

Elling

Richard

. 1999. Let them eat marblecake: The preferences of Michigan citizens for devolution and intergovernmental service-provision. Publius: The Journal of Federalism 29:139–53.

73.

Tocqueville

Alexis

. 1969. Democracy in America. Garden City, NY: Doubleday.

74.

Tugwell

Rexford G.

1968. The Brains Trust. New York: Viking.

75.

U.S. ACIR (U.S. Advisory Commission on Intergovernmental Relations). 1984. Regulatory Federalism: Policy, Process, Impact and Reform. Washington, DC: U.S. ACIR.

76.

U.S. ACIR (U.S. Advisory Commission on Intergovernmental Relations). 1992. Federal Statutory Preemption of State and Local Authority: History, Inventory, and Issues. Washington, DC: U.S. ACIR.

77.

U.S. Government Accountability Office. 2016. State and Local Governments’ Fiscal Outlook: 2016 Update. GAO-17-213SP. Washington, DC: U.S. Government Accountability Office.

78.

U.S. Government Accountability Office. 2017, 4. Medicaid Demonstrations: Federal Action Needed to Improve Oversight of Spending, GAO-17-3132. Washington, DC: U.S. Government Accountability Office.

79.

Walker

David B.

2000. The Rebirth of Federalism: Slouching toward Washington, 2nd ed. New York: Chatham House.

80.

Washington Post . 2017. Tracking How Many Key Positions Trump Has Filled So Far. Accessed November 6, 2017. https://www.washingtonpost.com/graphics/politics/trump-administration-appointee-tracker/database/?tid=a_inl.

81.

Wesberry v. Sanders . 1964. 376 U.S. 1.

82.

West Coast Hotel Co. v. Parrish. 1937. 300 U.S. 379.

83.

Wolfe

Richard

. 2017. “Scalia Index” shines light on possible Trump Supreme Court pick. USA Today, January 30. Accessed November 4, 2017. https://www.usatoday.com/story/news/politics/2017/01/30/supreme-court-trump-scalia-pryor-gorsuch/97057474/.