Publius: The Journal of Federalism - recent issues

The State of American Federalism 2007-2008: Resurgent State Influence in the National Policy Process and Continued State Policy Innovation

Dinan, J. — 2008-06-04

States played a prominent role in policy-making in 2007–2008 in several respects. States were more successful in securing relief from federal directives regarding the National Guard, homeland security, education, and welfare than in any prior year in the Bush presidency; they were unable to fend off several new mandates, however, particularly concerning the State Children's Health Insurance Program. States also continued to be the primary innovators in areas such as immigration, environmental protection, and health care, although they encountered new constraints in the form of federal court challenges and agency rulings. The Supreme Court made no notable contributions to the post-1992 decisions that initially curbed and recently deferred to federal power; however, several rulings interpreting federal statutes and reviewing state acts had important federalism implications.

Dispersed Federalism as a New Regional Governance for Homeland Security

Roberts, P. S. — 2008-06-04

State and local officials complain about their lack of involvement in disaster plans issued by the Department of Homeland Security (DHS). Their complaints point to a common theme: the reorganization that produced the DHS complicated shared governance. States and localities carry out most of the work of homeland security, but the federal government's guidelines and grants shape much of what subnational governments do. This article offers an interpretation of the complaints of emergency management officials and a proposal for dispersing federal homeland security personnel and resources out of Washington, DC, to FEMA regions. Dispersing federal agencies to the regions they oversee offers an alternative to pure centralization and decentralization that combines the task and location specificity of major approaches to federalism.

Rebels and Their Causes: State Resistance to No Child Left Behind

Shelly, B. — 2008-06-04

The formal state resistance to No Child Left Behind (NCLB) may surprise scholars of federalism, who have generally found that states rarely resort to legislative and legal challenges to federal regulation. This article considers that factors influence states’ level of resistance to NCLB. Using an original data set, I estimate a series of ordered logit models with a dependent variable measuring state legislation and legal action against NCLB and find that states with lower poverty rates and a larger Hispanic population offer greater resistance. The discussion uses these results to suggest five factors towards which scholars may look to predict future formal challenges.

Public Opinion on Issues of Federalism in 2007: A Bush Plus?

Kincaid, J., Cole, R. L. — 2008-06-04

A 2007 trend survey revealed more Americans saying that the federal government gives them the least for their money and has too much power. The proportions citing high trust in the federal government and saying the federal government needs more power were low. The proportions holding positive attitudes toward state and local government were high, though local government scored best on most questions. More than half of Americans reported that their state is treated with the respect it deserves in the US federal system, compared with less than half of Canadians stating the same about their province. Slightly more than half of the US public judged three major federalism actions of President George W. Bush to have been helpful to state and local governments.

State Policy Innovation and the Federalism Implications of Direct Democracy

Ferraiolo, K. — 2008-06-04

As state policy activism has flourished in recent years, increasingly that activism has taken place through the direct democracy process. While winning ballot measures often have implications for federal–state relations, federalism issues have largely been ignored in the direct democracy literature. I address this oversight by investigating how the outcomes of direct democracy politics affect the relationships among citizens, states, and the federal government. My analysis focuses on measures proposed over the last decade that represent either a response to perceived federal inaction or a challenge to federal policy. The findings suggest that initiatives have different effects on federal–state relations depending on the form they take. When ballot measures seeking to fill a policy void lead to federal action, they promote intergovernmental policy consensus and narrow the distance between public opinion and federal policy; if the federal government fails to address the issue at stake, additional state innovation will result and voter preferences and federal policy outcomes will move farther apart. Meanwhile, initiatives that challenge federal law create conflict and polarization between states and the federal government and widen the distance between public opinion and federal policy. The passage of initiatives in both categories heightens opinion-policy congruence at the state level as officials are often eager to publicly support and implement the results of successful ballot measures.

Election Reform after HAVA: Voter Verification in Congress and the States

Palazzolo, D., Moscardelli, V. G., Patrick, M., Rubin, D. — 2008-06-04

Requiring voting machines to produce a voter-verifiable paper record (VVPR) has been the most prominent election reform issue in Congress and across the states since the Help America Vote Act (HAVA) of 2002. Whereas HAVA emerged from a bipartisan process that included cooperation and input from state and local government officials, VVPR legislation represents a more coercive brand of federalism that has divided the parties and evoked opposition by state and local government organizations. Meanwhile, twenty-nine states adopted the VVPR from 2003 to 2007. Using a logistic regression model, informed by a theory of state policy activism, we find that adoption of VVPR legislation was most likely in states with moralistic political cultures, election reform activists, and professionalized legislatures controlled by Democratic majorities.

Federalism and Front-loading

Busch, A. E. — 2008-06-04

"Front-loading" primaries and caucuses—the movement of state delegate selection contests to the beginning of the nomination calendar—is problematic for the integrity of the presidential nominating system. Because it results from decentralized decision making by self-interested states, front-loading also poses a problem for federalism. Indeed, most proposed remedies for front-loading would impinge on federalism in some manner. In analyzing those remedies, one must assess their interaction with federalism both procedurally and substantively. For example, a federally imposed national primary would be harmful to federalism on both dimensions; regional primaries negotiated among states would be best for federalism procedurally but are of dubious efficacy; the national parties have an ambiguous relationship to federalism; and a change in federal campaign finance rules would seek to combine a centralized process with a decentralized result. The best solution might be to use available central levers to try to change campaign dynamics and thus the incentives for states to schedule their primaries early.

At the Invitation of the Court: Eminent Domain Reform in State Legislatures in the Wake of the Kelo Decision

Sharp, E. B., Haider-Markel, D. — 2008-06-04

The Supreme Court's 2005 Kelo decision upholding a condemnation of private property for economic development purposes sparked a wave of reform legislation in state legislatures. However, there is considerable variation in the extent to which state legislatures restricted the power of eminent domain. This article seeks to account for this variation. It tests hypotheses drawn from the literature on state responses to Supreme Court decisions and research on factors shaping state policy change in the wake of federal actions more generally. The results show support for an organized interests explanation, a need/scope of the problem explanation, and some elements of an explanation featuring institutional characteristics of the state legislature; there are mixed findings with respect to the role of public ideology.

Chief Justice Roberts, Justice Alito, and New Federalism Jurisprudence

Banks, C., Blakeman, J. — 2008-06-04

The Rehnquist Court returned power back to the states in rulings that scholars have dubbed "New Federalism." The appointments of Chief Justice Roberts and Justice Alito invite speculation about the future direction of federalism cases in the Supreme Court. A survey of the Roberts Court's federalism rulings discovers that the ideological pathways of new federalism depend upon Justice Kennedy's swing vote and the effects the new appointments have on shaping voting coalitions in light of the vacancies they have filled. Although there is a reconfigured "States’ Rights Five" voting coalition, neither Roberts nor Alito endorses rigid viewpoints about federalism and it remains uncertain if the Court will return to the type of aggressive new federalism which arguably defined the legacy of the Rehnquist Court.

Hamilton's Paradox: The Promise and Peril of Fiscal Federalism, by Jonathan A. Rodden.

Rockman, B. A. — 2008-06-04

Governing the American State: Congress and the New Federalism, 1877-1929, by Kimberley S. Johnson.

Smith, T. — 2008-06-04

Democratic Laboratories: Policy Diffusion among the American States, by Andrew Karch.

Hird, J. A. — 2008-06-04

Federalism and Interpretation

Rubin, E. L., Feeley, M. M. — 2008-03-03

We offer a theoretical approach to federalism by defining a theoretical approach as a general account of the subject. It is general in that it applies in any political situation, at any time in history when political entities that are recognizable as nations existed. It is an account in being a systematic examination of the subject that is connected to the overall structure of analysis in one or more academic disciplines, in this case law and political science. Following this approach, we reach the conclusion that federalism must be understood as a matter of political identity. People's individual commitments in the political realm, their sense of who they are and where they belong, will determine the descriptive reality and the prescriptive necessity of federal arrangements.

Responses to Rubin and Feeley

Beer, S. H., Bednar, J., Smith, T., Strachan, J. C. — 2008-03-03

Political Power, Fiscal Crises, and Decentralization in Latin America: Federal Countries in Comparative Perspective (and some Contrasts with Unitary Cases)

Gonzalez, L. I. — 2008-03-03

What factors shape decentralization processes in Latin American federations? This work reviews and statistically analyzes current approaches on the topic, questions some claims of generality in their theoretical frameworks, and presents an argument to explain variation in decentralization processes across these federations. The main hypothesis is that the degree of decentralization (in fiscal and administrative terms) in Latin American federations has been shaped by the political power of the national executive and sub-national actors and the fiscal context in which they interact. The article presents statistical evidence (for federal and unitary countries between 1979 and 1998) to sustain some of the expectations in the argument and discusses some of its limitations.

A Critical Survey of Subnational Autonomy in African States

Fessha, Y., Kirkby, C. — 2008-03-03

This article examines the quiet yet pervasive transfer of power from central governments to subnational units in Africa since the early 1990s. Central governments have justified this trend by arguing it promotes one or more of three goods: democracy, development, and accommodating diversity. The authors survey six selected countries representing federal-unitary and regional differences to evaluate their degree of formal and substantive political, administrative, and financial autonomy. Transfer of powers to subnational units, the authors conclude, is a real and nearly universal trend. However, many central governments have clawed back this grant of power in numerous ways, which led to an informal recentralization of power. Moreover, central governments of federations have deliberately strengthened local government at the expense of regional autonomy.

Decentralization and Fiscal Discipline in Sub-national Governments: Evidence from the Swiss Federal System

Freitag, M., Vatter, A. — 2008-03-03

This article analyses the relationship between decentralization and the extent of fiscal discipline in the Swiss cantons between 1984 and 2000. From a theoretical point of view, decentralization and federalism can be associated with both an expansive and a dampening effect on government debt. On the one hand, decentralized structures have been argued to lead to a reduction of debt due to inherent competition between the member states and the multitude of veto positions which restrict public intervention. On the other hand, decentralization has been claimed to contribute to an increase of public debt as it involves expensive functional and organizational duplications as well as cost-intensive, often debt-financed, compromise solutions between a large number of actors that operate in an uncoordinated and contradictory way. Our empirical results show that in periods of prosperous economic development, the architecture of state structure has no impact on debt. However, the degree of decentralization influences debt in economically poor times: In phases of economic recession, administratively decentralized cantons implement a more economical budgetary policy than centralized Swiss member states.

National Election Cycles and the Intermittent Political Safeguards of Federalism

Nicholson-Crotty, S. — 2008-03-03

Scholars have challenged the notion of "political safeguards of federalism" in a large and well-developed body of work on the use of coercive policy tools by the federal government. This study suggests, however, that there may be some utility in re-examining the political factors that help to constrain the growth of national power. Specifically, it argues that the need to win votes from subnational constituencies makes national lawmakers less supportive of mandates, preemptions, and tax sanctions during election cycles and, thus, provides an intermittent safeguard of state authority. It tests and finds evidence for hypotheses related to that general argument in analyses of the passage of coercive federalist policies over the last thirty years.

Federal Administrative and Judicial Oversight of Medicaid: Policy Legacies and Tandem Institutions under the Boren Amendment

Miller, E. A. — 2008-03-03

Because of the active role assumed by the courts in Medicaid nursing facility reimbursement, and because that role changed over time, federal intervention in this area provides a useful window through which to examine the role of the federal judiciary in oversight of state health policy making. Findings support the proposition that because judicial influence extends beyond program outcomes to include the organizational structure and beliefs of key stakeholder groups, the effects of case decisions, and the statutes under which they are litigation, may be deeper and longer lasting than their usefulness as a litigation tool. Findings also support the proposition that neither the executive nor the judiciary acts in isolation but instead they serve as tandem institutions guiding federal oversight of state policy making. Data for this analysis derive from archival documents, secondary sources, and 101 in-depth interviews.

To Treaty or Not to Treaty? Aboriginal Peoples and Comprehensive Land Claims Negotiations in Canada

Alcantara, C. — 2008-03-03

Although the federal comprehensive land claims (CLC) process has become an almost hegemonic paradigm of government–Aboriginal relations in Canada, this article argues that Aboriginal groups should consider abandoning the CLC process if they have not been able to make significant progress towards completing treaties. Previously, many Aboriginal groups had no better option but to negotiate CLC treaties to achieve their goals. Now, however, a number of institutional developments have given Aboriginal groups a range of other options that are worth pursuing instead of CLC treaties. These developments are: Two judicial decisions handed down in 2004 and the emergence of three policy instruments outside of the treaty process: Self-government agreements, bilateral agreements, and the First Nations Land Management Act.

Nationalism and Self-Government: The Politics of Autonomy in Scotland and Catalonia, by Scott L. Greer.

Zimmerman, J. F. — 2008-03-03

Courts and Federalism: Judicial Doctrine in the United States, Australia, and Canada, by Gerald Baier

Feeley, M. M. — 2008-03-03

Work over Welfare: The Inside Story of the 1996 Welfare Reform Law, by Ron Haskins.

Allard, S. W. — 2008-03-03

Political Economy of Grant Allocations: The Case of Federal Highway Demonstration Grants

Gamkhar, S., Ali, H. — 2007-12-03

This article examines the political economy of U.S. federal highway demonstration grant allocations. Demonstration grants are a rapidly growing segment of federal highway grants directly earmarked for a congressional district by Congress, unlike the majority of highway grants where Congress determines a formula and allocates funds accordingly to states. Our empirical analysis, considering the period 1983–2003, suggests that a state's ability to attract demonstration project grants is positively influenced by its contributions to the highway trust fund and political variables, and it is not affected by the formula highway aid and vehicle miles traveled in a state.

Medical Marijuana Policy and the Virtues of Federalism

Pickerill, J. M., Chen, P. — 2007-12-03

We analyze the policy issue of medical marijuana to illustrate how key virtues of federalism can be used to make a threshold determination as to whether a particular public policy should be subject to federal regulation or reserved for states. When the substantive merits of the policy issue are currently debated and unresolved, and that issue area has traditionally been regulated by states, we employ a three-prong test for determining as a threshold matter whether the federal government should assert preemptive jurisdiction over the policy. That test has is roots in well-established theories of federalism that comprise what we refer to as the "classic virtues of federalism." Based on our analysis, medical marijuana is a policy that should be left to the states.

Aristocratic and Confederate Republicanism in Hamiltonian Thought and Practice

O'Hara, J. — 2007-12-03

This article identifies and explores the presence of republican thought in the intellectual and policy writings of Alexander Hamilton, particularly as it applied to his theoretical understanding of the American executive branch. The article moves chronothematically, highlighting, through the Revolutionary, Constitutional, and Governmental periods of American political development, Hamilton's unique sense of republicanism with respect to international and domestic politics, as well as American political economy. The article not only attempts to demonstrate Hamilton's intellectual adherence to the republican tradition, but also his commitment to rhetorically applying the ideology to the realization of practical executive policy goals.

Challenges to Federalism: Homeland Security and Disaster Response

Scavo, C., Kearney, R. C., Kilroy, R. J. — 2007-12-03

This article examines the state of federalism in the Bush Administration from the perspective of the policy area of homeland security and disaster response. The article uses the International City and County Management Association homeland security survey completed in the spring and summer of 2005 as a source of data. The article argues that while it is tempting to look for one single agency to control homeland security and disaster response, a networked model is better supported by the survey data and by recent experience in terrorist and natural disaster response.

Work Sharing Policy: Power Sharing and Stalemate in American Federalism

Balducchi, D. E., Wandner, S. A. — 2007-12-03

Work sharing benefits are partial unemployment benefits, and federal policy related to them is in an administrative muddle. A lack of leadership by the federal government has stalled state implementation. During economic downturns when political voltage is high, policy makers look to work sharing as one way to manage job loss. Conversely, work sharing is often forgotten during prosperous times. This article describes how federalism sometimes facilitates state initiation of work sharing policy and at other times impedes it. The authors discuss work sharing through six policy phases during a thirty-year era of devolving federal authority to states for employment services and job training, and they make observations about the stalemate in federal policy.

Congressional Intrusion to Specify State Voting Dates for National Offices

Stonecash, J. M., Boscarino, J. E., Kersh, R. T. — 2007-12-03

Through the nation's first century, states used their concurrent constitutional right to schedule presidential and House elections at widely varying times. Senators were also elected within the states at diverse times. This study examines the gradual establishment of uniform election dates and offers an explanation of why Congress felt it appropriate to override state autonomy to eventually establish uniformity of state practices.

A Failure of Initiative: Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina (House of Representatives, February 15, 2006 www.gpoaccess.gov/katrinareport/mainreport.pdf) * The Federal Response to Hurricane Katrina Lessons Learned (White House staff, February 2006 www.whitehouse.gov/reports/katrina-lessons-learned/)

Landy, M. — 2007-12-03