- - Tuesday, January 26, 2021

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America. Click HERE to read the series.


The word “federalism” does not appear in the Constitution, yet it is the guiding principle that preserves the United States from the defects of unitary governments, like Great Britain, in which all power flows from one central government, and the defects of confederation, in which power is dispersed and consequently attenuated beyond usefulness.

As difficult as it is to believe now, the Framers of the Constitution were worried that states would poach on federal prerogatives and authorities.

In Federalist 17, Alexander Hamilton argued that it is unlikely that the federal government would ever become more powerful than state governments or that federal officials would ever want to be. He wrote:

“The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things in short which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.

“It is therefore improbable that there should exist a disposition in the Federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government.

“But let it be admitted for argument sake, that mere wantonness and lust of domination would be sufficient to beget that disposition, still it may be safely affirmed, that the sense of the constituent body of the national representatives, or in other words of the people of the several States would control the indulgence of so extravagant an appetite.”

Hamilton concluded that state governments likely would be the aggressor in encroaching on those federal/state boundaries. But that hasn’t been borne out by history or experience.

Indeed, the history of the Constitution and its interpretation by the courts and Congress has been the contrary — a steady migration of authority from the states and localities to the federal government.

This migration can be seen in numerous areas, including education, health and welfare, law and administration of justice, energy and the environment, and transportation. This idea was foreign to Hamilton, who argued correctly that:

“A man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter.”

For his part, James Madison believed that the Constitution sufficiently protected the sovereignty of the states by enumerating only a few express powers to the federal government, while “those which remain in the State governments are numerous and indefinite.” Indeed, Article 1, Section 8 contains a list of the enumerated powers that are exclusively delegated to the federal government. They include the power to declare war, maintain armed forces, regulate commerce, coin money and establish a Post Office. 

Unfortunately, that very same section also includes the “Elastic Clause” that authorizes Congress to write and pass any laws that are “necessary and proper” to carry out its enumerated powers. These powers are known collectively as “implied powers” and have been used over time by Congress to create a national bank, to institute the draft, to pass gun-control laws, to set a federal minimum wage, and pretty much everything else Congress does.

In addition to the excessive expansion of the necessary and proper provision, spending has provided another venue for the federal government to expand its power. As late as 1940, the federal government accounted for only about 40% of all — federal, state, local — government spending. Today, that percentage is closer to 55%.

Once the federal government increased spending, it was just a matter of time before it began to purchase states’ acquiescence by routing federal money their way. This, of course, comes with a cost — the federal government typically takes in taxes, skims a good portion off the top, and then sends what remains to the states.

One can see this pathology in the highway bill, or defense appropriations, where taxpayers send taxes to the federal government, which takes a generous portion for program administration and then sends the remainder back to those states that are connected politically in the nation’s capital.

In some instances, the flow of funding allows the federal government to compel state actions. For example, making the states in the 1980s raise the drinking age in exchange for releasing their highway funding.

In addition to revenue imbalance, the direct election of senators also altered the state-federal relationship, and not for the better. When senators were elected by state legislatures, it was understood that they were sent to Washington to ensure that the needs and desires of the state as an organized political entity and an independent sovereign — rather than its various citizens — were met.

The 14th Amendment also played a role by ensuring that federal constitutional protections and limitations bound the states. Over time, these protections and limitations grew, especially in the arenas of civil rights and law and the administration of justice — exactly the arenas that Hamilton was sure would always cause citizens to have a solid preference for their state governments over the federal government.

This pathology perhaps can best be seen in the energy arena, where the slow erosion of states’ authorities has reached a tipping point. For most of the republic, to the extent energy was regulated, it was done so at the state and local level. That concept changed with the Federal Water Power Act of 1920, and the creation of the Tennessee Valley Authority in 1933, and the Public Utilities Holding Company Act of 1935. It has continued right up until last month, when Congress passed the Energy Policy Act.

When the states possessed broad authority to regulate public utilities, the courts would simply look to whether there was a violation of the Commerce Clause, which prohibited states from imposing a regulation that would directly burden interstate commerce. In 1935, when Congress enacted the Federal Power Act, it began to usurp regulatory authority from the states.

The Federal Energy Regulatory Commission, for instance, has only the jurisdiction bestowed upon it by Congress, primarily through the Federal Power Act. Yet, it has complicated the ability of states to make decisions about what fuel and power can be provided to their citizens. This despite a clear direction from the courts that a “federal agency may pre-empt state law only when and if it is acting within the scope of its congressionally delegated authority … [for] an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign state, unless and until Congress confers power upon it.” 

Although FERC uses the market as its reason for invocation of the Commerce Clause, there has been little proof of harm to other states such that the federal government must intercede. There is, as the courts have noted, an “assumption that the historic police powers of the states were not to be superseded … unless that was the clear and manifest purpose of Congress.”

What Hamilton found to be inconceivable has become the norm. Congress has declared itself the protector of issues that concern individual states and localities, with no proof of deficiency on the part of the states or superiority of wisdom or judgment on the part of the federal government. 

Complicating all of this is the simple reality that the Constitution is a contract among states to form a federal government. Unfortunately, this contract is interpreted, adjudicated and enforced by only one party to the contract — the federal government. The Constitution has no provisions allowing for the participation of states in the interpretation of the document or laws emanating from it. This creates a situation in which only one party to the contract — the federal government, through its employees on the Supreme Court — routinely concludes that the federal government’s interpretation or preferences are correct and to be followed.

States that wish to do otherwise are left with few good choices. They can accept the rulings of the court or secede. We’ve seen how that turns out.

Rebalancing the federal and state relationship will require more than speeches or good intentions from elected officials at the federal or state levels. The states need to have a meaningful say in interpretation of the Constitution, and, more immediately, there needs to be a national conversation about clarifying the necessary and proper clause. The past year has yielded evidence sufficient to establish the fact that the federal regime cannot protect or provide for citizens any better than the states. If federal encroachment is to cease, the states must stand up for what is theirs.

⦁ Michael McKenna is the former deputy director of the Office of Legislative Affairs in the Executive Office of the President. Shannon Banaga assisted him for this column.

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