Ep. 187 Is federalism dead? (Update)

Welcome to episode 187 and this update to episode 1-8 on US Federalism recorded back in August 2023. And also, it's an update to episode 11 recorded during Trump's first term. We are due an update, especially since Trump has been busy re-jigging the relationship between the federal government and the many states at the start of his second term. So new examples are hoi, plenty of them. This episode will be free for a limited time. If you would like to get access to every single A-level politics show, then please have a check out of the show notes and click on the link to subscribe to Plus Plus Plus for just £1.99 a month, you get access to the full back catalogue of 187 shows at the time of recording. Plus all the other ED for me snippets too. Listeners on Spotify will get access to all the transcripts. And by the way, you do not have to be a paid subscriber to Spotify to get these. You just need to be a paid subscriber to me, to me. Cancel anytime. Thanks for your support of this show. Let us begin. Deal. Listen up with this question. Is federalism dead? Okay, let's start at an even earlier point. What is federalism? Federalism is when political power is divided between the national A.K.A. federal government and state governments, each having their own area of substantial jurisdiction. That means that the states can do a lot and the federal government can do a lot too. This means that the states have about as much power as the federal government and that each area, the states and the federal government are in charge of their own specific policies. How can we judge then where the federalism is dead? Well, for our purposes, if the USA is to remain federal, if federal federalism is to stay alive, then power is still shared. The states remain powerful. If the US is no longer federal, if federalism is dead, then that power has been centralised to the federal government. The federal government would dominate the states. More centralisation therefore kills federalism. Now, that's not the same thing as saying that's a bad thing. This is not an essay about say where should, I don't know, abortion policy be decided and what should that policy be. It's a question instead that asks exactly where are these sorts of issues being decided at this moment? If it's at the state level, then federalism is alive and well. If it's at the federal level and if the trend line is towards more federal policy being decided at that level, then perhaps federalism is not alive and well. Bear in mind that nowhere is the word federal or federalism mentioned in the constitution. How then was it written into the document? Well, we have the enumerated powers of the three branches of federal government, the specific powers that the founders gave to Congress, the Supreme Court and the presidency. We have also the assumed or implied powers of the federal government. So at the expectation that the president could take executive action, for example, through executive orders, we have concurrent powers. Concurrent powers are those which are shared between the federal and state government. We have the 10th amendment which reserved all remaining powers not specifically laid down to the federal branches to be given to the states and to the people. And finally, we have the Supreme Court, which was to be the umpire of all disagreements between the federal government and the state governments. Your essays need to refer to these areas of the constitution for high A01 knowledge points. Also, I think you need to focus on the here and now, hence the update. Examples in the Biden term are probably still just fine, but you probably need a Trump 2.0 example in every paragraph so that you can comment on the current situation. This is a current A level, not a history one. So what should you discuss when it comes to federalism? Well, I think you need to compare the sections of the constitution that appear to favor the federal government, what we might call the elastic clauses, with those sections that favor the states, i.e. the 10th amendment, which I just mentioned. Secondly, I think you should focus on laws passed by Congress and the mandates that they impose on the states, alongside the limits of these mandates, more on mandates in a second. Third, I think you've got a focus on actions by presidents, specifically executive orders and the ways in which the states can push back against them. And finally, I think you need to focus on the US Supreme Court decisions that both hinder and favor state power. So what is my direction? While the federal government has indeed grown in power at the expense of the states since the US constitution was created, the journey has not been in a straight line. The federal state relationship fluctuates and thus the extent of federalism's demise has been fluctuating too. Maybe there has been some erosion, but I will be arguing that federalism is certainly by no means dead. Our first area of analysis shall be on what the constitution says. Arguably, the constitution's own elasticity has harmed federalism. What elasticity refers to is vagueness. The constitution has such vague sections that it is easy for a federal branch of government to interpret them as ones that allow it to do what they like at the expense of the states. So article one section eight of the constitution states that Congress shall have the power and a quote to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. This clause is known as an elastic clause because it allows Congress to stretch its powers necessary. What is that proper? What is that? What that might mean is that Congress feels able to pass a law on say healthcare or imposing a new tax right from the start of the union. The bill of rights appeared to establish what Ashby calls national rights and thus the likelihood that the federal government would grow in power over time in order to enforce them. The ability of the federal government to and I quote regulate interstate commerce and other elastic clause that would also allow it sweeping powers over the states. Indeed this is how Obama care was the affordable care act that is was justified since it regulated health insurance markets across states. The interstate transport bill proposes to make it easier yes easier to allow the transport of knives across states overriding states with restrictions which its authors justify by citing the commerce clause the interstate commerce clause. This is a bill that is before Congress at the moment. So that all seems to suggest that the elasticity of the constitution the vague clauses the interstate commerce clause and the like push the advantage towards the federal government at the expense of the states and thus helps the argument that federalism is dead or dying. However, bear in mind that in 2025 Congress has not passed all that many laws. The bill on knives has not yet passed since it is rare that anything viewed as part of that will be able to overcome hurdles such as the filibuster in the Senate. This also sounds like a really dark law. The stronger argument is that the constitution ensures federalism can continue to exist. The 10th amendment gives the state's power over all matters which were not given specifically to the federal government. Ashby says this amendment is and I quote pulling the constitution towards states rights end quote in April 2025 19 states filed a lawsuit against Trump's executive order that would give the executive branch of the federal government sweeping power over the administration of elections. The lawsuit cites the 10th amendment and the tradition of states setting their own election laws and procedures. The states also enjoy concurrent powers. Powers share between the federal and state government which includes power over taxation. So the federal government can raise income taxes, gas taxes, etc. But the states also raise their own taxes too. Sale taxes in Louisiana, for example, are about 10%. So if you go into a shop and you buy a good, you buy it, I don't know, Taylor Swift CD, then 10% is added. We call it VAT in the UK. They call it sales tax in the US. But New Hampshire sales tax is zero. So we see therefore that taxes vary from state to state. This lack of uniformity points to the broad autonomy of the states. And it's further evidence that federalism is alive and well. The 2024 execution by nitrogen gas and Alabama of a man on death row is demonstrative of states enjoying leeway in a raft of policy areas in this case crime and punishment. So to the 2025 execution of a South Carolinian by firing squad, I like to end my segments with upbeat punchy happy examples. So to summarize, the constitution established an inbuilt tension which would make it difficult to completely ignore the states. The civilians 2025 court case ruled the Supreme Court ruled that the individual mandate, also known as a requirement for citizens to buy health care, exceeded Congress's enumerated powers under the commas clause and that the Medicaid expansions were unconstitutionally cohesive. Yet the court also let the majority of the Affordable Care Act stand. It allowed Obama to be in the care to continue. In this sense, the court reflected that delicate balance of allowing states to go their own way, so not forcing their people to buy health insurance, while still allowing the federal government some sort of role. It's power sharing folks and it's still there. Now, let's turn to federal mandates. Now federal mandates are contained in federal laws passed by Congress that require states to implement a new policy. Arguably, these mandates harm state power and therefore limit federalism. They often direct the states to spend on programs that they would not otherwise have done, or four states to surrender their control over a policy area. Let's get back to that attempt to take away the administration of elections from the states. In 2025, Congress is discussing the SAVE Act, a law that if enacted would mandate the states to require proof of citizenship to vote. However, there are limits to mandates. The aforementioned bill has not yet passed. Here again, the highly partisan nature of Congress has limited congressional output. The type of government can affect what Congress is able to do against the states, while the Republican Party controls both chambers and the White House at the moment. It's wafer thin majority in the House of Representatives, makes passing any law requiring states to do things or give up things much, much harder. According to GovTrack.us, there are currently 5,063 bills and resolutions before the United States Congress as of April the 13th, 2025. But of those, only about 7% will likely become law. Furthermore, not all mandates and laws centralise power. The Wall Street Journal in 2015 held the Every Student Succeeds Act as the largest devolution of federal control to the states in a quarter of a century. SSA, as it became known, significantly reduces the federal role in turning around or closing struggling schools by allowing states substantial flexibility to determine a school success or failure. States often ignore mandates too. In 2025, cities in blue states such as Chicago have urged officials to prevent immigration officials from entering schools as directed to do so by the federal government. So in summary, some actions at federal level and some of these mandates contain in federal law harm federalism. But not all, it depends on the ideology of the president and the majorities they have or don't have in Congress. It depends upon the reaction of the states, which often react in a partisan way and act in the name of defending their state if it's the other team in Washington calling the shots. For example, Texas pushed ahead with SB4, a state law that allowed local law enforcement the power over deportation of illegal immigration despite the Biden administration protestations that border security was a federal issue. The reaction against Trump's deportation actions has been similarly hostile in blue states. With that in mind, let's now turn to the actions of the executive and whether these actions of the executive of the president can harm federalism. Now, the main tool a president has when it comes to dominating the states are executive orders, but there are other forms of direct authority too. Now, executive orders are actions approved by presidents that are supposed to explain to the states how laws are to be implemented, although their use has been cited by critics as back door power grabs, allowing presidents to make laws without Congress and having a knock on effect on the desertation, the desertation of power of state power. In 2025, Trump sought to override the instincts of those in many blue states, but by allowing immigration enforcement officers to inspect what they call sensitive areas such as schools to find and to pour illegal immigrants. In his first 100 days in office, Trump issued 111 executive orders vastly more than that of his three predecessors combined. In April 2025, one such EO, as we can abbreviate, instructed the Department of Justice to take legal action against states over their green policies in doing so. The administration is seeking more control over state regulation of energy development. Trump is not the only president to throw his way around vis-a-vis states. Biden agreed to block a Washington D.C. law that would have reduced maximum penalties for certain crimes, in part because he wanted to show that he was tough on crime. In doing so, he asserted federal influence over criminal justice policy. The Biden administration also took up the legal fight against state restrictions on abortion, with Biden issuing executive orders that compelled hospitals to provide abortions when medically necessary. However, a president's success in centralization will vary from policy to policy and probably president to president. Biden stopped short of issuing a federal mask mandate to fight COVID-19, in part because it was likely to be ruled unconstitutional. In areas aside from immigration, Trump has upheld federalism. In his second term thus far, Trump sought to cut the size of the federal government by establishing doge, the Department of Government Efficiency, to cut federal spending and federal regulation. In an executive order in March 2025, Trump instructed his education secretary to take an "all necessary" steps to "shutter the department and return education authority to the states." So, in summary, not all executive actions harm federalism and extent to which they do so depends on the president. Biden's instinct was for Washington to do more, yet he was faced with a partly divided government in his third and fourth years after the Republicans took over the House following the 2022 midterms, which limited what the federal government was able to impose upon the states. That case study shows how the federal state relationship is constantly evolving, and thus the idea that federalism is eroding is misleading since it depends so much, not just on the ideas of the president, but their good fortune at the circumstances they find themselves in, the type of government and so on. Trump is philosophically opposed to government regulation, but attempts to be draconian and centralizing on some matters like immigration. So his relationship with the states varies from policy to policy. The COVID pandemic was largely addressed by the states, owing to Trump's disinterest and Congress's inability to sufficiently fund COVID relief efforts. All of this demonstrates that the states can't be counted out of any policy area. And thus, federalism is indeed intact. Indeed, for much of the time, presidents are prevented from doing what they want to, due to inaction by Congress as a result of partisan divides between the parties. Therefore, the third branch of government, the US Supreme Court has stepped in to fill the void and has become the major player in the federal state relationship. It is to this branch of government that we shall turn to next. I'm going to start with a weaker argument that the Supreme Court has harmed federalism. There are a number of recent cases that demonstrate that the US Supreme Court will use its power of judicial review to challenge the power of the states. Let's take a few of these. In 2022, the court struck down New York's restrictions on handguns. In Morvie Harper, the court rejected a legal theory that would have given state legislature's largely unchecked power to set the rules of federal elections. In Alan V. Milligan, 2023, the court upheld the Federal Voting Rights Act by striking down a gerrymandered congressional map in Alabama that it said diluted the voting power of black voters. These court cases really do appear to limit state power. So too, does the very sensible court decision, in my view, in 2024, that upheld a federal law making it a crime for people subject to domestic violence restraining orders to own guns? However, let's think about 2024. Many of the court cases handed down in that year point towards a conservative court that energetically defends states' rights. The court allowed ordinances in Oregon in City of Grant's Passview, Johnson, that prevented homeless people from sleeping outside. It also halted a Biden policy to cut cross-state pollution in Ohio VEPA, which required Midwestern states to cut emissions that drifted to Eastern states. It allowed states that allow it to continue to sell an abortion pill. Now, this case builds upon the Dobbsville Jackson case in 2022, which left it up to the states to regulate abortion policy. Subsequent inaction at the federal level, specifically by Congress, that is failed to pass pro-choice abortion laws, has allowed state abortion restrictions to come into force. Since the Dobbsville Jackson decision, we see different states take different stances on abortion. Cansons voted to protect abortion rights in their state constitution in a referendum, and the people of Ohio did the same in November 2023. Meanwhile, Alabama, effectively outlawed IVF treatment in a February 2024 ruling by a judge that afforded embryos personhood status before its state legislature reversed course and overrode that decision. So, in summary, it seems clear that the Supreme Court's decisions on federalism Law. largely reflect the ideology of the justices, the makeup of the court changes from appointment to appointment, and so too will their decisions affecting federalism. Recent appointments have shifted the balance of court decisions towards defending the rights of states to regulate social issues. Many of its 2024 court rulings favoured the states. In City of Grant's Passfield Johnson, as I mentioned, the court allowed Oregon to ban rough sleeping, and that was a 6-3 ruling. 6 conservatives voting to uphold what the state and what the city was doing, and the three liberals voting against it. Perhaps most symbolically, the court ruled that federal agencies cannot be given the leeway that they were used to in what we call the chevron doctrine by implementing federal regulations that were vague. So it's actually attacked the ability of the federal government and its agencies to do its job. That will surely spur on state measures instead when it comes to climate policy, when it comes to health policy, when it comes to regulating big business or not, as the case may be in some conservative states. Therefore, I think we can say that the Supreme Court is definitely favouring states over the federal government when it comes to recent court cases. Federalism is far from dead because the states remain incredibly powerful. Their autonomy is protected by the 10th Amendment. They're in action, the inaction of the federal government and the reaction of the states to federal mandates also point to an inbuilt tug of war that is at the heart of power sharing and federalism. Presidents may well compile states to do things they would not have otherwise have done, but presidents do not always centralise power. The 6-3 majority enjoyed by the conservatives on the Supreme Court has also provided a shot in the arm for the states and for federalism. I hope you found this episode useful. If you did, then don't forget to leave a nice review wherever you listen to your audio. By the way, thanks to Sam Nukum who requested this update on federalism. If you have any requests for a pod topic, then just leave a message like Sam did in the comments section and feel free to take part in the episode poll at the end of the show. Okay, that's it from me today. Take care. Bye.