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Elections and the evolving status of Federalism

With the presidential election holding our attention of late it has been easy to overlook the phenomenon that the 10th amendment to the United States Constitution is becoming supercharged. This rapidly evolving status of our federal system is almost as intriguing as the presidential election itself.

It has not been long since the Tea Party was crying out in anguish over what it labeled as the utter demise of the Tenth Amendment. It is the last amendment in the Bill of Rights and it states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Advocates of the restoration of the 10th amendment powers use this language to underscore the rights of states to make their own laws unimpeded by the national government.

Now it seems that everywhere one looks the states are seen flexing their muscles defiantly at the government in Washington. One would be gravely mistaken to believe that the issues that are the subjects of these state activities are limited to those conservative causes generally associated with the Tea Party activists.

For example, following the 2012 elections there are 18 states that now have some form of legalized marijuana usage. Furthermore, there are now nine states that have legalized same-sex marriage. Add these to the 17 or so states that have made bold, sometimes restrictive, moves in the area of election law reforms such as voter ID requirements and the 12 states that have voted for “nullification’ of President Obama’s signature legislation, “The Affordable Care Act,” and it becomes clearly evident that unilateral action on the part of the states is becoming the new order of the day.

There is an old, somewhat “wonkish” term called “primacy,” which is meant to refer to that level of government that has primary enforcement power of a particular law or rule. The battle is shaping over the issue of which level of government, state or federal, will have primacy in enforcing various laws where these two levels come into confrontation.

An interesting example in Mississippi pertains to State Insurance Commissioner Mike Chaney seemingly going against his party’s stated position by signing a letter agreeing that Mississippi would create a health exchange as required by “Obamacare.” In reality, Chaney’s action will establish Mississippi as the primary implementer of the health care exchange, thus preempting the federal government from stepping in and establishing primacy in the absence of state action. His effort is designed to keep the authority to establish exchanges in Mississippi’s hands rather than forfeiting that authority to the federal government as would be required by the health care legislation.

What are the implications going forward if state challenges to federal superiority are increasingly successful?

For one thing, the Republicans have positioned themselves well to make significant gains by way of the states that may not be available to them at the Congressional level. Following the 2012 elections there are 30 Republican governors and 30 state legislatures with Republican majorities. This Republican strength at the state level has already produced some interesting results. Pennsylvania is a good example. President Obama carried the state by a relatively comfortable five-plus percentage points. However, due to the power of Congressional redistricting held by the Republican majority in the Pennsylvania House and Senate, Republican U.S. Representatives outnumber Democrats in Pennsylvania 13 to five. This is the case even though more Democratic votes were cast statewide.

Are we headed toward further stalemate in the U. S. Congress, thus freeing the states to act where Congress fails to do so? If so, this would seem to be just the situation that Republican strategists like former Mississippi Gov. Haley Barbour and others would relish.

With the growing influence of groups like the conservative Republican-leaning American Legislative Exchange Council (ALEC) drafting legislation on a state-by-state basis, things could get quite interesting. Given recent events, however, perhaps the most intriguing aspect of all will be how the left and the right will share the same vehicle for reaching their goals via the states.

Can rigid abortion legislation, same sex marriage initiatives, measures to abolish “Obamacare” and legalization of marijuana all advance on the same 10th amendment, states’ rights agenda? Will Congress break its stalemate and reassert itself as the superior policymaking body?

Get ready Supreme Court. Here come the 10th amendment cases.



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