The New Federalism

In a crisis defined by erratic leadership in Washington, D.C., the states, as much out of desperation as by design, find themselves asserting long-dormant powers.

An illustration of a map of the United States with the Capitol behind it.
The Atlantic

Suddenly, the relationship between the federal government and the states seems to be at the center of U.S. politics. Defying Donald Trump’s claims of “total authority,” states throughout the country have been banding together to plot their own return to normalcy in the COVID-19 era. This follows weeks of growing rancor between some governors and the president over the alleged failure of the federal government to funnel crucial medical supplies and testing to the places where they are needed. And last month, another institution of the federal government, the U.S. Supreme Court, blocked an attempt by the governor of Wisconsin to extend the state’s mail-in-ballot deadline in order to prevent further spread of the contagion at the polls.

In fact, this relationship has been at the center of things all along. But in a crisis defined by erratic leadership in Washington, D.C., the states, as much out of desperation as by design, find themselves asserting long-dormant powers. A new era of federalism is unfolding before our eyes.

Prior to the Civil War, the fiercest defenders of the states were white southerners who feared that the federal government, at the behest of northern states, would impinge on and even destroy the South’s slave system, much of it underpinned by the laws of various southern states. The Union’s triumph in the Civil War was supposed to end this era of states’ rights. It did, up to a point. America would never again confront a serious threat of secession by constituent states. But by the 1890s, southern state legislatures, with the sanction of the Supreme Court, had imposed segregation and subordination on their states’ black citizens. States’ rights now took the form of Jim Crow, America’s apartheid.

This governing philosophy rebounded in part because it suited the interests of southern white supremacists. But a belief in states’ rights was also an expression of a long-standing conviction, common among northerners and southerners alike, that the Constitution endowed the states with an authority broader than that of the federal government. The courts called this authority the “police power,” by which they meant something far beyond the law-enforcement oversight that each state had. The police power conferred on states the right and the duty to look after the economic, social, and moral welfare of their citizens. Protecting citizens from epidemics ranked high on states’ to-do list; so did improving the moral fiber of the population, regulating corporate behavior in the public interest, and keeping suspect groups—single women living outside patriarchal arrangements, minorities, and “vagrants”—in line.

One can readily see the coercive dimension of the police power, and why southern states used it to buttress the legality of Jim Crow. But Supreme Court Justice Louis Brandeis was one of many who saw progressive potential in such authority. Brandeis hailed the states as America’s “laboratories of democracy.” A state may, Brandeis wrote in 1932, “try novel social and economic experiments without risk to the rest of the country." A leading figure in the Progressive movement before he joined the Supreme Court in 1916, Brandeis had been involved in several of these state experiments himself, reforming the life-insurance industry in Massachusetts, defending laws regulating female labor in Oregon, and improving employer-employee relations in New York. He discerned in these state-level experiments the building blocks of a more just and egalitarian America.

Brandeis’s progressive vision of state rule was never fully realized. Patchworks of state laws failed to provide effective regulation over a tightly integrated capitalist economy spanning the entire continent, especially once the Great Depression struck. Meanwhile, the regressive version of states’ rights persisted in laws denying freedom of religion, reproductive rights, and racial equality. As the nation reckoned in the 1940s and ’50s with the horrors of totalitarianism and the Holocaust, these state violations of civil liberties came to seem intolerable to many Americans. Thus, in the 1960s, the Supreme Court, under the leadership of Chief Justice Earl Warren, took on the states, throwing out virtually every state law seen as contradicting the Bill of Rights or the Fourteenth Amendment. The Warren Court’s actions, aimed at the states’ police power, also undercut the Brandeisian vision of states leading the way in social reform. Brandeis’s heirs now looked to Washington, D.C., for leadership.

Many white southerners never forgave the Warren Court for empowering the central government at the expense of the states. They joined Republicans in the North and West who were convinced that the expansion of federal-government power across the New Deal, World War II, and Great Society eras had violated the Constitution and was destroying American liberty. This was the Republican Party that Ronald Reagan forged. Over time, Reagan’s successors Newt Gingrich and Mitch McConnell stripped the central state of its dynamism, frustrating the efforts of Democratic Presidents Bill Clinton and Barack Obama to build on the legacies of Franklin D. Roosevelt and Lyndon B. Johnson. The federal government’s dysfunction, so evident in Trump’s handling of the pandemic, is not solely of his own creation; rather, his administration is a symptom of the paralysis that Republicans have sowed at the federal level for decades.

It is hardly surprising, in these circumstances, that the fabled Centers for Disease Control and Prevention laboratories have failed the American public; that the states are rising again; and that governors, not the president or senators, have emerged as heroes in the coronavirus pandemic. Day by day now, states are creating a new federalism: pushing back against ill-conceived directives from Washington, D.C. (as in Maryland Governor Larry Hogan’s case with National Guard troops); developing new competencies; launching schemes of interstate and private-public cooperation; browbeating the federal government into supplying vital resources and establishing necessary partnerships. At no other time in the past 100 years has Brandeis’s call to individual states to launch “novel social and economic experiments without risk to the rest of the country" seemed as relevant as it does now.

Given how the federal government has been hollowed out, the work of the states has been nation-saving. They are a kind of strategic reserve, the gift of Founding Fathers who believed that concentrating too much power in one branch of government or one man might someday destroy the republic. Though diminished across the middle third of the 20th century by a Warren Court rightly intent on making them subservient to the federal Bill of Rights, the states, even before the pandemic hit, had begun to discover that their police power was still robust. On one issue after another, ranging from gay marriage and increases in the minimum wage to climate-respecting laws and immigrant-rights decrees, states have started to show America how it might find its way to a progressive future.

And now states are leading America out of the pandemic abyss. In New York, Governor Andrew Cuomo demonstrates a level of commitment, focus, and grit absent from a rudderless national government. In Massachusetts, Governor Charlie Baker is putting in place a mass testing and tracking system that will, if it succeeds, show every other state (and Washington, D.C.) how it can be done. In California, Governor Gavin Newsom has called on healthy residents to form a volunteer corps to help the needy, a move inspired by a spirit of common purpose and shared sacrifice that President Trump has shown himself incapable of summoning. As even one advisor to the Trump administration recently admitted to The Washington Post, “The states are just doing everything on their own.”

Ultimately, the states cannot do it alone. There are too many of them, and some will always go rogue. States are also resource-poor relative to the federal government, barred by the Constitution from minting their own money and prohibited by their own state constitutions (in many cases) from ending their fiscal years in the red. Without federal assistance, some are likely to be bankrupted by pandemic expenditures and forced to lay off so many public workers that they will no longer be able to perform the most elementary tasks of government. It is also unlikely that a state, or a consortium of states, can become the prime mover in developing drug therapies and a vaccine. Here, too, the federal government must take the lead.

Thus, the states cannot succeed without the federal government recovering something of the esprit that animated it from the Great Depression through the first decades of the Cold War. And yet something about the new federalism will endure. States have once again become the innovators in American political life and the institutions that are taking their democratic remit seriously. If Americans emerge from the current darkness with their faith in their fellow citizens and their government intact, the states will have lit the way. Somewhere, Louis Brandeis must be smiling.