USA

May

2023

Monitoring American Federalism: The Overlooked Tool of Sounding the Alarm Interposition

Abstract

One key feature of the U.S. Constitution – the concept of federalism – was unclear when it was introduced, and that lack of clarity threatened the Constitution’s ratification by those who feared the new government would undermine state sovereignty. Proponents of the new governmental framework were questioned about the underlying theory of the Constitution as well as how it would operate in practice, and their explanations produced intense and extended debate over how to monitor federalism.

In their famous defense of the Constitution in The Federalist, Alexander Hamilton and James Madison described a monitoring role for state legislatures that anticipated the practice of interposition. Although never using the term “interposition” in their essays, Hamilton and Madison responded to opponents of the Constitution by arguing that state legislatures were uniquely situated to be the voice of the people who would sound the alarm if the general government exceeded its rightful authority. What originated as a debate-like response to opponents of ratification eventually took on a life of its own, producing a settled tradition of monitoring federalism by the states that has largely been overlooked and which laid the groundwork for future conversations about constitutional meaning and federalism’s balancing of powers. I explore these themes in Monitoring American Federalism: The History of State Legislative Resistance.

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Jun

2021

Voting, Elections and US Federalism: The State Government Perspective

Abstract

State governments in the U.S. exercise broad authority over elections and maintain a diverse set of rules regulating the process of registering to vote, casting ballots, and drawing congressional district lines, and even determining in some respects who is eligible to vote. In this contribution, I highlight the significant discretion that states exercise in making election rules and the range of rules in effect in the 50 states. I also take note of several ways that the scope of state authority is subject to modification by the Supreme Court and Congress, focusing on some recent and pending Supreme Court cases and congressional acts with the potential to broaden or constrain state authority.

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Jun

2021

Voting, Elections and US Federalism: The Federal Government Perspective

Abstract

This article examines the U.S. Constitution’s treatment of voting and elections and the use that the federal government has made of the powers granted to it by the Constitution. Because the thirteen states that formed the nation differed in the qualifications they imposed for voting, the Constitution originally avoided setting national qualifications, authorizing persons to vote in federal elections if they could vote for the lower house of their state legislature. Constitutional amendments have established a federal floor on voting qualifications, forbidding discrimination based on race, gender, age, and ability to pay a poll tax. States have largely regulated both their own and federal elections, but the Constitution grants the federal government concurrent authority in this area, and the constitutional amendments have granted it authority to enact “appropriate legislation” to enforce their prohibitions of discrimination. Congress relied on that authority to adopt the Voting Rights Act of 1965, giving the federal government unprecedented power to supervise state elections and voting regulations. This power has been circumscribed by Supreme Court rulings in recent years, leading Democrats in Congress to introduce bills to restore that power. Congress has also legislated to facilitate voting more generally, though Republicans have sought instead to restrict voting, claiming that this will combat election fraud. A major piece of legislation, the For the People Act, is currently before Congress, designed to nationalize election regulations and facilitate voting, but it faces strong Republican opposition, and its fate is uncertain.

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Nov

2020

Covid-19, the USA and the Generation of Constitutional Conflict

Abstract

The United States has responded ineffectively to the COVID-19 pandemic, raising questions about the capacity of contemporary American federalism to deal with crises. This article examines the scope of power granted to the federal government by the U.S. Constitution and the legislative power available to states under state constitutions, concluding that these powers are adequate to deal with the pandemic and other emergencies. It then considers whether having multiple governments confronting the crisis has precluded a coordinated response. Although scholars have highlighted cooperative federalism in the United States, cooperation is not automatic, and in recent years American political parties have become more ideologically cohesive and more polarized. Federalism has multiplied the opportunities for these parties to advance their objectives or to frustrate those of their adversaries in the overlapping domains in which both states and the federal government operate. The result has been uncooperative federalism.

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Oct

2020

From Shades to Fragments: US Federal Democracy under the Trump Administration

Abstract

The controversies linked to the current US president aside, the Trump administration has faced obstacles in implementing its political programmes. This is unsurprising as governing in the United States is, in general, quite difficult. Reasons for this stem from the separation of powers at national level, but also the complexity of US federalism. The manifold division of powers in federal and democratic government render the US by comparison a rather uncoupled federal democracy. Despite these constitutional default settings, the United States has witnessed many instances and phases of cross-branch and cross-level cooperation. However, in recent decades, both American federalism and democracy have become increasingly wrought with tensions, polarization and political conflicts. In this contribution, I aim to show that the overarching pattern of US federal democracy has developed into one of fragmentation. This pattern has surely been exacerbated under the Trump presidency, but it has long been in the making.

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Apr

2019

The Three Shades of American Federalism

Abstract

Donald Trump is a transgressive president elected by a minority of voters but elevated to the White House by a quintessential institution of American federalism, the Electoral College. However, the federal system otherwise poses significant barriers to transgressive behaviour because it is a complex mix of dualism, intergovernmental cooperation, and national coercion. The system’s constitutional dualism allows space for autonomous state policy-making. The system’s rule-bound and bureaucratic structures of intergovernmental policy implementation limit the ability of one president to substantially alter this cooperative dimension of the system. The long-run trend, though, is toward greater centralization and federal government coercion of state and local governments.

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