Filling a Vacuum: Subnational Governance amid National Government Inaction

National Government Activity and Subnational Reactions

Subnational officials react both to national government policy initiatives and to national government inaction, and the nature of their responses can reshape politics over the short, medium, and long term (Karch and Rose 2019). The term “vacuum” appears in the title of this introduction. Even though its appearance might be interpreted to imply that the dominant contemporary pattern is one in which subnational officials respond to the national government’s failure to act, the reality is more complicated. To be sure, states and localities have taken the lead on issues like immigration and climate change where the conventional legislative process has not produced a comprehensive national policy. Moreover, the delayed reauthorization of the Elementary and Secondary Education Act (ESEA) and the repeated congressional failure to address the issue of Internet sales taxation provide additional illustrations of intergovernmental policy issues where the national government was slow to act. The articles in this special issue, however, show that subnational officials respond to many different types of national government activity.

Of the policy domains featured here, the minimum wage offers the best example of national stasis. The most recent change occurred in 2007, and the United States is currently amid the longest stretch of national government inaction since passage of the Fair Labor Standards Act of 1938. As Shanna Rose compellingly demonstrates in her article on the intergovernmental politics of the minimum wage, legislative proposals and ballot initiatives to increase the wage floor and index it to inflation have emerged in states across the country and experienced varying degrees of success. Her analysis also suggests that national developments—such as congressional proposals and presidential speeches—can influence the content of state political agendas even if they do not lead to policy change. Unresolved national controversies increase the political salience of specific policies among state officials (Karch 2012); in the context of the minimum wage, the provisions of many state-level proposals have mirrored the contours of the national debate.

Jami Taylor, and Daniel Lewis, and Donald Haider-Markel highlight a similar dynamic in their article on LGBTQ policy. Proposals to end employment discrimination against gay, lesbian, and bisexual individuals have appeared on the congressional agenda since 1974, yet none of them has gained enactment. In contrast, several state governments have established these protections. Looking broadly at this policy arena, however, reveals that the national government has sent mixed signals about its commitment to diversity, equity, and inclusion. On the one hand, the Americans with Disabilities Act of 1990 excluded coverage based on transvestitism, transsexualism, and gender-identity-related disorders, and the Defense of Marriage Act of 1996 barred the national government from recognizing same-sex marriages. On the other hand, national officials endorsed the Matthew Shepard and James H. Byrd Jr. Hate Crimes Prevention Act of 2009 and renewed the Violence against Women Act in 2013, including protections for sexual orientation and gender identity in the latter. Similarly, changes in presidential administrations tend to produce conflicting executive branch actions.

In many of the other policy domains featured in this special issue, national policy emerges only episodically and therefore fails to meet ongoing challenges or resolve ongoing controversies. The intergovernmental response to the COVID-19 pandemic, examined in the article by John Kincaid and J. Wesley Leckrone, is illustrative. Initiatives like the Coronavirus Aid, Relief, and Economic Security (CARES) Act reveal that national officials have not been wholly unresponsive to calls for action. However, they took months to follow up on this robust initial response, leaving states and localities to implement a patchwork of conflicting policies. Governors, mayors, and county executives exercised their authority under the police power to implement stay at home orders (SAHOs) and other restrictions in what Kincaid and Leckrone describe as an extraordinary manifestation of dual federalism.

Congressional stalemate does not necessarily imply national government inaction. Indeed, a defining feature of the Trump presidency was its aggressive use of executive power—such as executive orders and regulatory changes—to advance positions that lacked widespread support in Congress (Thompson, Wong, and Rabe 2020). In their contribution to this special issue, Anne Daguerre and Tim Conlan highlight the intergovernmental implications of these attempts to achieve policy goals through administrative rather than statutory means. The Trump administration used guidance letters and Section 1115 waivers to modify the Medicaid program, and it sought to impose work requirements by changing the rules governing the Supplemental Nutrition Assistance Program (SNAP). Its efforts were part of a broader effort to grant additional discretion to state and local governments, which is consistent with a variegated model of federalism that results in diverse patterns of state implementation of national policies.

The tools of the administrative presidency enable the national executive to pursue policy goals outside the conventional lawmaking process. However, embracing this approach comes at a cost. Administrative actions tend to be less durable and more reversible than statutory enactments. Not only do they often require legal sanction from the federal courts. They often generate intense resistance from the subnational actors charged with their implementation, including state attorneys general, governors, and legislatures. During the Obama administration, “conservative innovators” in the states pushed back against what they viewed as national government overreach (Merriman 2019). Progressive state officeholders played a similar role when the presidency changed hands, using their prerogatives to try to undercut various Trump administration initiatives and reduce their impact (Thompson, Wong, and Rabe 2020). Heightened tensions characterize the contemporary relationship between national leaders and state officials. The increasingly nationalized political activism of state attorneys general, who have used coordinated state litigation to complicate several national regulatory regimes, epitomizes this trend (Nolette 2015).

Sometimes similar tensions erupt between local officials and their counterparts at the state and national level. In their contribution to this special issue, Jocelyn Johnston and Brittany Blizzard highlight the important role of county governments in the making of immigration policy. Recent congressional efforts to establish a comprehensive national policy have fallen flat, leading the Obama and Trump administrations to rely on the tools of the administrative presidency. Their actions sparked strong support and equally strong opposition among subnational officials. County leaders have taken divergent stances on whether to cooperate with U.S. Immigration and Customs Enforcement (ICE), for example. Sometimes these stances put them at odds with state law, thereby sparking intergovernmental conflict.

A similar dynamic characterizes the longstanding debate over cannabis policy, where state governments have adopted policies that circumvent or reimagine national laws in an example of “defiant innovation” (Hannah and Mallinson 2018). National officials responded to this defiance by sending mixed signals about their preferences, as Daniel J. Mallinson, A. Lee Hannah, and Gideon Cunningham explain in their article on “fickle” national policy. Whereas the Ogden Memo issued by the Department of Justice (DOJ) under President Barack Obama signaled that DOJ would not use its limited resources to target individuals who were acting in compliance with state law, the Trump administration rejected that approach. The administrative implications of this policy fluctuation were profound, leaving state governments, businesses, and individuals in legal limbo. Thus, subnational reactions to national policies raise critical questions about administrative capacity and good governance.

Intergovernmental Relations and Administrative Capacity

The examples in the previous section highlight the dispersal of policymaking responsibility in the contemporary United States. Significant policy actions occur in many different institutional venues at the national and subnational levels, with more actors claiming the authority to respond to the societal challenges of the moment. Consider the domain of election administration, which incorporates a disparate array of “elected officials, appointed staff, back-office civil servants, and street-level bureaucrats” in addition to vendors, nonprofit groups, and interested citizens (Hale and Brown 2020, 3). Sometimes government officials embrace end runs and policy workarounds that directly challenge the prerogatives of their counterparts in other branches or at other levels of government. Karen Orren and Stephen Skowronek (2017, 6) associate this complexity with the emergence of a “policy state” that renders “achievements provisional, protections unreliable, and commitments dependent on who is next in charge.” Policy gyrations pose a dramatic challenge to those who are responsible for the implementation process.

Repeated policy shifts and intergovernmental tensions generate administrative uncertainty that runs counter to principles of good governance. Cannabis policy is instructive. As Mallinson, Hannah, and Cunningham describe in more detail, the early adopters of marijuana legalization did not develop robust administrative frameworks because they feared the potential legal implications for state government employees. While the Ogden Memo encouraged them to build the necessary capacity to implement cannabis policy, the current situation is inherently unstable. It combines national prohibition under the Controlled Substances Act of 1970—with tenuous forbearance—and state liberalization. Moreover, the competing approaches of recent presidential administrations have created a “whipsaw enforcement” dynamic in which state officials face uncertainty about how national policy will be implemented in the future. This uncertainty is one reason why states have struggled to respond to such administrative challenges as providing banking services, collecting tax revenues from an all-cash industry, addressing the social justice implications of inequalities in ownership of cannabis businesses, and providing access to bankruptcy protections. The COVID-19 pandemic exacerbated these challenges and generated economic effects that rippled through the industry. Without clear guidance from the national government, state officials have been forced to adjust to a rapidly shifting landscape while simultaneously worrying that certain innovations will run afoul of national law.

In other policy domains, the national government can exacerbate preexisting administrative challenges through its actions or its inaction. Sustainability policy, examined by Robert Lee and Richard Feiock in their contribution to this special issue, provides a striking illustration of this dynamic and its impact on local governments. Polarized national debates politicized an issue that had previously been viewed in nonpartisan terms, heightening the challenge faced by local officials who wished to pursue policy change. “Sustainability” is an umbrella term that is associated with “wicked problems” and complex issues like climate change mitigation and adaptation. Public officials working in this domain must process complicated scientific and technical information, contemplate risks and uncertainties that frequently reach across long timeframes, and consider how potential policy shifts cut across different agencies and bureaucracies. Lee and Feiock interview local government managers in Florida, many of whom cite capacity as a barrier to sustainability initiatives. Limited fiscal capacity and tight budget constraints can undercut the implementation of projects that offer long-term benefits but impose short-term costs. The local managers’ conceptualization of capacity also invokes administrative concerns; limits on staff, time, and attention impose constraints on what it is possible to accomplish. Regional governance approaches, such as the Southwest Florida Regional Resiliency Compact, enable local governments to retain a measure of autonomy while also capturing economies of scale and addressing spillover effects. Collaboration is central to efforts that require high administrative capacity and a lengthy time horizon.

Administrative capacity can also facilitate lesson-drawing as subnational officials assess policy innovations that exist in other jurisdictions. Compared to their predecessors, contemporary state officials have a world of information at their fingertips. It is easier than ever for them to consult recent program evaluations and learn about external developments. Sifting through this potentially overwhelming amount of information while simultaneously fulfilling their other responsibilities, however, would seem to be an immense challenge. It is tempting to describe policymaking as a rational process of trial and error, and the famous metaphor of the states as “laboratories of democracy” implicitly invokes this reassuring notion. However, scholars and observers must acknowledge that political imperatives and electoral considerations are often responsible for interstate policy variation. For example, experimental research suggests that ideological cues affect officials’ willingness to consult specific sources (Butler et al. 2017).

The trajectory of criminal justice reform, examined by Garrick Percival in his contribution to this special issue, illustrates how the incentives for policy learning depend on the informational environment in which officials operate. As Republicans in Texas began to push for major changes to the status quo, they were hamstrung by earlier cuts to the Criminal Justice Policy Council. The cuts stripped the state of valuable policy expertise. The reform effort managed to succeed anyway, in part because savvy conservative policy entrepreneurs framed it in ways that matched Republican lawmakers’ core beliefs and political identity. In theory, developments in Texas gave California Republicans an opportunity to learn from the experiences of their fellow partisans. In practice, however, electoral incentives short-circuited the partisan learning process. California Republicans proved unwilling to embrace new issue frames on crime or to draw lessons from their counterparts in the Lone Star State. The result was a chaotic and contentious reform process that, ironically, left several administrative challenges unresolved.

Kincaid and Leckrone identify a similar dynamic in their investigation of the COVID-19 pandemic. State and local officials operated under immense uncertainty, especially during the first half of 2020 as public health experts issued shifting advice about what constituted an effective response to the deadly virus. Dual federalism facilitated subnational action amid the stasis of the national government. Some of this activity was collective, as regional coalitions of state governments collaborated on economic policy and local governments worked together on issues like the closing and reopening of parks, beaches, and schools (Benton 2020). Yet Kincaid and Leckrone find that state officials failed to learn from one another during the crisis. Instead, they tailored their responses to local conditions and constituent preferences, pursuing divergent policy paths and sending the public mixed signals about best practices. States with lax mitigation practices also imposed negative externalities on other jurisdictions. Characterized by immense geographic variation, the intergovernmental response to COVID-19 typifies an era of variegated federalism. It also raises the perennial question of whether these subnational differences generate undesirable inequalities among residents of the United States.

Geographic Variation and the Meaning of Community Membership

One of the purported benefits of a federal system is the ability of subnational officials to customize policy templates. Innovative public policies often take on multiple forms in the states in which they are enacted due to this customization process (Karch 2007). Sometimes a national mandate or a “one size fits all” solution will be inappropriate, and a program will be more effective if it is adapted to conditions in individual jurisdictions. Subnational officials can also adjust a policy template to local political conditions, responding to the desires of local constituencies in ways that national officials presumably cannot. Advocates of devolution argue that customization is desirable for reasons of both efficiency and responsiveness. Several articles in this special issue implicitly highlight this customization process by examining domains where state policies diverge widely. For the most part, they trace these differences to partisan control and ideology rather than to programmatic efficiency.

Interstate policy variation is commonplace during the current era of partisan polarization. States and localities under Republican control are taking actions that diverge considerably from those occurring in jurisdictions where Democrats control the levers of power. As a result, what it means to belong to the American community is increasingly defined in geographic terms. The rights that residents possess, such as the ability to exercise the right to vote or to bear arms, depend on where they live. The government services available to them, and their ability to gain access to those services, also vary geographically. Policy polarization increased “dramatically” from 2000 to 2014 in fourteen of the sixteen issue areas examined in a recent study (Grumbach 2018). Does this variation indicate that the federal system is working largely as intended, or are there specific policy domains in which geography should be irrelevant? The massive state-level policy variation that appears throughout this special issue raises this thorny normative question.

As attempts to pass comprehensive immigration policies repeatedly failed at the national level, state governments increased their lawmaking activity in this policy domain. The nature of the new state laws varied considerably. Some states prioritized integrative laws that facilitate the economic and cultural incorporation of immigrants, while others emphasized laws that seek to control their flow and settlement (Boushey and Luedtke 2011). These types of laws shape what it means to be a member of the American political community, such that the welcome immigrants receive and the prerogatives they possess vary geographically. In their article, Blizzard and Johnston examine an intergovernmental dynamic that is often overlooked. They focus on the role of county governments in immigration enforcement and, specifically, their willingness to cooperate with ICE even when a particular stance runs afoul of state law. A multimethod analysis of Georgia and Texas, two states with strong preemption laws in this policy domain, finds that counties are substantially more likely to deviate from anti-immigrant state policies when they rely on industries that are dependent on immigrant labor. Other attributes—higher levels of formal education, a greater proportion of “in-movers” who are foreign born, and county size—are associated with efforts to minimize cooperation with ICE enforcement and support immigrant populations.

Criminal justice reform is another policy domain in which profound geographic variation prevails. The act of incarceration represents a dramatic exercise of governmental authority, as it rescinds individual liberty for a defined period. The recent growth of the “carceral state” has had profound political consequences, especially for communities of color (Weaver and Lerman 2010). As Garrick Percival explains, changes in national policy—like the First Step Act that was signed into law in December 2018—will not do much to reverse this trend because most prisoners are housed in facilities run by subnational governments. There is tremendous variation across states in how crimes are defined, what penalties are imposed, and incarceration rates. Campaigns to reform the status quo have earned an equally varied reception at the state level.

Issues of rights and legal protections are critical in the context of LGBTQ policy. In their article, Taylor, Lewis, and Haider-Markel assess inclusive employment, public accommodations, and housing nondiscrimination laws, all of which are characterized by stark state-level policy differences. This domain is both fragmented and polarized. Few states have taken a “middle-ground” approach; most of them have gravitated toward one extreme or the other. The partisan foundation of this policy divergence is apparent in the timing of state government activity. States adopting an inclusive approach have been especially active during periods of national gridlock, frequently when Republicans exert unified control. In addition, the authors’ multivariate analysis identifies both governmental partisanship and citizen ideology as significant correlates of state policy. LGBTQ organizing capacity and Evangelical Christian religious adherence are also influential.

Social policy is another domain in which divergent state approaches produce a fragmented patchwork. There is often a sharp partisan divide between Democrats and Republicans, with the implementation of the Patient Protection and Affordable Care Act (ACA) providing a well-known example (Patashnik and Oberlander 2018). For instance, few Republican state officials established state-run health insurance exchanges when granted the ability to do so by the ACA (Karch and Rose 2019). Anne Daguerre and Tim Conlan identify a similar dynamic in their investigation of Medicaid and SNAP. The executive federalism approach of the Trump administration required the assent of the federal courts and a group of state actors who were willing to take political and legal risks to experiment with work requirements and block grants. Republicans in places like Arkansas, Michigan, and New Hampshire proved willing to take those risks; most Democratic officials were uninterested in this possibility. Divergent partisan reactions of this sort are increasingly common in contemporary intergovernmental initiatives.

Partisan polarization and deep ideological fissures also characterize the present-day debate surrounding the minimum wage. As Shanna Rose describes in more detail, the recent inaction of the national government has sparked disparate responses at state level. Many legislatures under Democratic control, such as those in Connecticut and Maryland, passed bills that increased the state minimum wage. Direct democracy allowed advocates to circumvent reluctant legislatures in some conservative states; voters have recently approved ballot initiatives in Arizona, Arkansas, Florida, and elsewhere. Even so, the federal minimum wage of $7.25 per hour still prevails in twenty states. Thus, the combination of national government inaction and partisan polarization is contributing to the emergence of a patchwork of wildly divergent state policies.

The substantive range of the preceding examples is noteworthy, as are their implications for the meaning of community membership. Immigration, criminal justice, and nondiscrimination laws invoke civil rights and the principle of equality before the law. In contrast, the social policy examples resonate with a more expansive vision of modern citizenship that is often associated with T.H. Marshall. Marshall developed the idea of social citizenship, which requires society to abate unmerited inequalities, provide a basic level of economic security and social well-being, and offer access to health care and basic education. One does not need to embrace this idea to appreciate the many ways in which an individual’s geographic location shapes their experiences of the American safety net. The central point is that—across several highly dissimilar policy areas—partisanship and ideology are linked to striking variation across the states. These political factors are associated with immigration enforcement priorities, how various criminal offenses are defined and punished, the governmental protection individuals receive at their workplaces, and their ability to gain access to the programs that comprise the American welfare state. Such patterns might not be surprising during an era of “partisan federalism” (Bulman-Pozen 2014), but the prominence of ideological patterns may suggest that the customization process fulfills its potential in terms of responsiveness but not in terms of programmatic efficiency. Endowing state officials with policy autonomy seems to require accepting the variation and accompanying inequalities that result.

Conclusion

The three themes emphasized in this introduction represent perennial issues in the study of American federalism. Scholars have long recognized that the national government possesses many tools through which it influences subnational developments. Even if one branch of government is slow to respond to the issues of the day, significant action may be occurring in other institutional venues. Similarly, questions about the administrative capacities of state and local governments are central to the long-standing debate about the appropriate distribution of policymaking authority in the federal system. Subnational officials may not always possess the financial and other resources they need to identify, enact, and implement best practices. Finally, profound policy variation at the subnational level invokes the tension between equal treatment under the law and decentralized policymaking.

The articles in this special issue demonstrate the intimate connection between these three themes in an era of partisan polarization. The political divide between Republicans and Democrats can lead to stalemate and gridlock at the national level and to policy gyrations, both of which create uncertainty. Ideological predispositions and electoral imperatives can affect officials’ willingness to consult and invoke specific informational resources, profoundly affecting public administration and the policy solutions toward which they gravitate. Issues of uncertainty, good governance, and inequality are not new by any means, but they seem to be even more important than ever.