Fragmented Federalism: The State of
American Federalism 2012–13
Cynthia J. Bowling* and J. Mitchell Pickerilly
*Auburn University; [email protected]
y
Northern Illinois University; [email protected]
Intense party polarization at the state and federal levels has hindered the adoption and implementation of numerous policies. One of the most important ways we see ‘‘fragmented federalism’’
is in the patchwork of policies across the country, created by factions and implemented in fragments across and within conflicted institutions throughout 2012^13. Implementation of various
policiesçnotably education and health careçhas been plagued by partisanship, pushback, and
uncertainty. Operating under conditions of fiscal stress and a federal budget plagued by roadblocks has further complicated planning and program implementation at all government levels.
Finally, Supreme Court decisions continue to contribute to the fragmented nature of federalism by
alternately protecting state sovereignty from federal intrusion and at other times endorsing broad
federal preemption of state laws.
The state of American federalism in 2012–13 is, arguably, more chaotic, complex,
and contentious than ever before. Also notable is the poor fit of many popular
descriptions of federalism and intergovernmental relations. The picket fences and
layer cakes used to describe the relationships between administrators at the federal,
state, and local levels of government are too simplistic a picture a half century later.
Federalism is no longer either ‘‘cooperative,’’ ‘‘creative,’’ or ‘‘coercive’’ (Wright
1988). Today, all of these approaches (and more) describe the interworkings of our
federal system, even within the same policy area. For instance, the Patient Protection
and Affordable Care Act (ACA) contains cooperative (grants-in-aid), creative (health
exchanges and mandates for individuals), and coercive (penalties to citizens and
businesses) elements. Although there is a degree of flexibility for health care and
education policies currently, the intergovernmental relationship is now less
‘‘nuanced’’ and more direct than even just a couple of years ago (see Conlan and
Posner 2011). States must develop both state insurance exchanges and education
waivers to No Child Left Behind (NCLB) in accordance with fairly strict federal
guidelines; recently, several state proposals have failed to reach these standards and
federal administrators have little difficulty with saying ‘‘No’’ to the states.
Publius:The Journal of Federalism volume 43 number 3, pp. 315^346
doi:10.1093/publius/pjt022
Advance Access publication June12, 2013
ß The Author 2013. Published by Oxford University Press on behalf of CSF Associates: Publius, Inc.
All rights reserved. For permissions, please email: [email protected]
316
C. J. Bowling and J. M. Pickerill
As the contributions to this issue of Publius make clear, intense partisanship at
both the state and federal levels has hindered the adoption and implementation of
policy, especially the federal budget. In other areas, Republicans have had little
difficulty in pushing their agendas through several state legislatures or by executive
orders, including restrictive election procedures, immigration laws, and ‘‘right to
work’’ laws. Finally, state and local governments are holding their own—at least for
now—in a ‘‘fend for yourself’’ policy environment (Gamkhar and Pickerill 2012).
Most state and local budgets should at least break even this year. All in all, the
current state of federalism should be viewed within the context of the polarizing
political environment. Policies, when agreement can be reached, are created by
factions. Implementation occurs in fits and starts—fragments pieced together across
and within conflicted institutions.
One of the most important ways we see fragmented federalism is in the
patchwork of policies across the country. American federalism by nature creates
variation across states; states serve as the laboratories of democracy. In recent years,
however, we see differentiation occurring not necessarily because of the
particularistic needs of the state or its efforts to improve services. Instead,
differentiation is propelled by at least four other factors. First, polarized partisan
preferences have created extreme policy responses probably best exemplified by
some states’ immigration laws. Alternatively, partisanship has created intense
‘‘pushback’’ scenarios, most recently in the implementation of the ACA. Second,
variance is created by the failure (or perception of failure) of the federal
government to act in areas traditionally seen in their domain. For example, a
number of states have resisted the federal government or adopted their own laws in
immigration policy, education, and the regulation of ‘‘fracking.’’ Third, variation is
occurring as states attempt to navigate mandates on traditionally state venues—for
instance, education and elections. Federal–state hybrids emerge as states seek to
retain elements of their own programs even as mandates and preemptions create
new processes and dependencies. Finally, fiscal stress and differences in state
administrative capacity impact states’ adoptions of federal guidelines, even when
political factors may not. In the case of NCLB, the absolute inability of states to
meet the required 100 percent proficiency standards necessitates waivers of federal
goals.
This issue of Publius addresses key federalism-related events over the past year.
The articles in this annual review of American federalism demonstrate variation in
the governmental levels at which decisions are made, the interest group or partisan
factions that impact these decisions, and the intergovernmental relationships or
agreements that result.
We begin assessment of the state of American federalism with a description of
the intense level of partisanship permeating the American political system and
intergovernmental interactions, as well as the impact of the 2012 elections. We then
Fragmented Federalism
317
update readers on the status of the ACA and the NCLB—as part of the Elementary
and Secondary Education Act (ESEA)—two vast federal policies where state- and
local-level implementation is plagued by partisanship, pushback, and uncertainty.
These policies and the resulting state reactions are making the complex web of
intergovernmental relationships even more tangled. Then we turn to a discussion of
fiscal federalism, addressing the current state of federal budgetary decision-making
and the complexity it presents for state and local planning. Next, we highlight how
recent Supreme Court decisions are shaping the landscape of federalism by defining
the scope and authority of decisions made at the state and federal levels of
government. A last section explores a set of controversial state policies which are
becoming increasingly more prominent, along with their potential impact on
intergovernmental relations. Finally, we conclude by assessing how the landscape
we present may impact federalism and intergovernmental relations now and in the
near future.
Party Politics, Elections, and Agendas
In federalism, as in other political subfields of U.S. politics today, increasing party
polarization continues to have an impact on both short- and long-term governance.
Partisanship was a factor in the conduct and impact of the 2012 election and
will likely continue to shape federalism and intergovernmental relations in future
years.
Party Polarization and Impact
For the past few years, legislative and policy decision-making has occurred within
the context of the ongoing ideological divide between the two major political
parties. There is a prominent and prolonged level of heightened partisanship that
accompanies seemingly every major policy, budget, and implementation decision at
the state and federal levels of government as well as the interactions between them.
Party tensions have been evident since President Obama’s 2008 election, but the
midterm election influx of Republicans into the House in 2011 increased party
polarization and the impact of divided government. At the national level,
Republicans and Democrats have been unable to reach compromises on most
important policy issues, including the budget. In December 2012, budget
compromise seemed almost within grasp, but disagreements within the
Republican Party stymied legislative efforts in Congress. The political parties,
factions within the parties, interest groups, and unions all contribute to intense
battles often portrayed as a zero-sum game. The zero-sum language has even
become part of the vernacular. Protestors around the country portrayed themselves
as the ‘‘99 percent’’ against the wealthiest one percent of Americans; even
318
C. J. Bowling and J. M. Pickerill
presidential contender Mitt Romney was heard denigrating 47 percent of
Americans as nonproducers and dependent on governmental prizes.
Thus, in an environment of fiscal stress and pressing policy and budget
problems, the distance between political parties has never been greater. Since the
late 1970s, party polarization—the distance between the means of the ideological
voting positions of Democrats and Republicans in Congress—has grown. Data
from Poole and Rosenthal demonstrate that ‘‘polarization in the House of
Representatives and Senate is now at the highest level since the end of
Reconstruction’’ (see voteview.com 2012). Moreover, the proportion of legislators
considered to be moderate in ideology and votes has dropped to a low of about 10
percent in each chamber of Congress (voteview.com 2012). The increasing party
polarization coupled with divided party control of the executive and legislative
branches has brought ‘‘gridlock’’ to a whole new level over the past few years. One
of the few pieces of influential policy to pass in the past four years has been the
ACA, a policy with a very complex web of intergovernmental relations that is
slowly and painstakingly taking shape despite skeptical—even hostile—reactions
from conservative governors and legislators.
At the state level, conservative Republicans have been elected into a number of
governorships and into the state assemblies. Thus, unlike the gridlock at the
national level, governorships and state legislatures dominated by conservative
Republicans have been able to make changes to state policy more readily. In 2013,
only three American states have divided party control in the legislature, and twelve
states have divided party control when the governor’s party is included (Storey
2013). For instance, for the first time ever, Alabama Republicans control both
houses of the state legislature, and there are no state-wide elected offices held by
Democrats.
Across the country, Republicans have advanced policy agendas on issues as
varied as the regulation of abortion clinics to attacks on public sector unions.
Indeed, the influence of the conservative agenda can be seen in numerous states in
a number of areas. In December, the state of Michigan—traditionally one of if not
the strongest labor union states in the country—became the twenty-fourth state to
adopt a ‘‘right to work’’ law, prohibiting unions from requiring workers to join the
union, after its neighbor, Indiana, adopted a similar law. In Spring 2013, Arkansas
adopted one of the most restrictive antiabortion laws since the Supreme Court
handed down Roe v. Wade in 1973, banning abortions after twelve weeks of
pregnancy. And Wyoming now has a law prohibiting state officials from enforcing
federal gun control laws.
In their contribution to this issue, Schraufnagel and Marquez note that the most
restrictive immigration policies are created in states with the greatest Republican
control of its institutions. In the intergovernmental arena, partisanship has also
played a major role in the implementation of federal policies and/or mandates. Also
Fragmented Federalism
319
in this volume, Rigby and Haselswerdt discuss state progress in the implementation
of the ACA, specifically regarding state insurance markets. Republican governors
have made the slowest progress toward implementation, in many cases because
they perceive themselves between the proverbial rock of following a federal
mandate (to create insurance exchanges) and the hard place of allowing the federal
government to directly implement and regulate an exchange within their states. To
many conservative ideologues, this is indeed a policy paradox.
The 2012 Election Process and Federalism
Heading into the 2012 elections, a complex web of federal, state, and county
processes coupled with partisan manipulation of election rules created fodder for a
constant media barrage of analysis and critiques. Traditionally, elections have
generally been the purview of state and local governments, specifically counties.
Indeed, in her contribution to this issue, Kirsten Nussbaumer demonstrates
how the subnational control over the administration of federal elections creates
dependencies and interdependencies between the national and subnational
governments that have profound effects on the nature of the country’s federalism
as a whole. In another article on election administration and federalism in this
issue, Kathleen Hale and Mitchell Brown examine factors influencing state adoption
of electronic voting systems and state participation in the voluntary federal
certification program (‘‘VVSG’’). They find that states are reluctant to sign on to
the federal program—even though it might be the most administratively easy road
to take.
Nonetheless, since the Voting Rights Act in 1964, the federal government has
played a role in overseeing local elections to ensure all voters are given equal
opportunity to vote. Several legislative acts have provided more uniform guidelines
and mandates for state and localities, most notably including the 1993 National
Voter Registration Act (NVRA), the 2002 Help America Vote Act (HAVA), and
most recently the Military and Overseas Voter Empowerment Act of 2009 (MOVE).
NVRA mandated voter registration opportunities when citizens apply or renew
drivers’ licenses. HAVA pushed state and local officials to create specific timelines,
statewide voter registration lists, and provisional balloting. MOVE ensured that
soldiers and overseas citizens receive absentee ballots in a timely manner as well as
making sure the ballots are counted. One of the primary mandates established a
strict timeline for mailing ballots overseas forty-five days before an election.
Unfortunately, implementing MOVE in the shadow of the myriad changes
mandated by HAVA was not easy. In several states, election calendars had to be
recreated with new goals and deadlines, while other states had rules or legislation
that did not match MOVE guidelines. Some states needed to adjust registration and
early voting processes. Several states were sued in 2012 for maintaining
320
C. J. Bowling and J. M. Pickerill
noncompliant election calendars or failing to mail absentee ballots on time,
including Alabama, Georgia, Mississippi, Vermont, Michigan, and Wisconsin
(Jowers 2012).
At the same time that counties and states were trying to adjust their election
processes to ensure overseas voters were enfranchised, partisan manipulation was
occurring in some states to restrict voting. In 2008, early voters tended to choose
Democrats over Republicans. Throughout 2011 and 2012, Republicans in several
states, most notably Ohio and Florida, attempted to make or made changes to
election processes that required more stringent voter identification or shortened the
time frames for early voting. Voters in Miami-Dade and Cuyahoga counties waited
in lines for many hours before casting their ballots. In Miami-Dade, the polls
stayed open past Gov. Rick Scott’s designated closure time. Still, lines stalled
because there simply were not enough resources to either serve the large crowd of
voters or stay open late. In addition, the Republican National Committee asked six
states to recalibrate their voting machines, though some states refused citing
insufficient evidence (Sullivan 2012). In other states, interest groups contested
names on voter registration lists. Though not the catastrophe of the 2000
Presidential election and resulting Supreme Court decision, the 2012 election was
plagued by long lines, partisan distrust, manipulations of voting processes, and
complicated intergovernmental relations and complex, competing guidelines. The
voting process truly exemplified federalism in fragments—states, localities, election
officers, political parties, political action committees (PACs), and calendars all
created fractures in the system.
The 2012 Presidential and Congressional Elections
Despite the issues and insinuations, the elections were completed, and some
changes occurred in the national and state government composition. President
Obama was re-elected with 51 percent of the popular vote and 332 electoral votes
to 206 for Mitt Romney. The 2012 congressional elections favored Democrats as
well, unlike the 2010 elections which had gone decidedly in the GOP’s favor. The
Democrats kept control of the U.S. Senate and picked up two seats while the
Republicans lost two. This gives Democrats a 53–45 majority, in addition to two
Independents who caucus with the Democrats. Although the GOP maintained
control of the House of Representatives, it lost eight seats to Democrats to narrow
Republican control of the House to 234–201.
The impact of the presidential and congressional elections on federalism and
intergovernmental relations is especially difficult to assess. Although much of
Obama’s first term has been characterized as ‘‘nuanced federalism’’ (Conlan and
Posner 2011; see also Gamkhar and Pickerill 2011), in which the Obama
administration sought to set the course of national policy while collaborating with
Fragmented Federalism
321
states and granting flexibility in the implementation of policy, there were some
indications after the 2012 election that Obama would pursue a more activist and
centralized federal government. Notably, President Obama’s inaugural speech
exalted the role of the federal government in both economic and social affairs.
According to Ezra Klein,
He retold the story of American history in a way that emphasized the project
of collective action and liberal governance. . . . And he painted a picture of
America that is again discovering that it has severe problems that it can only
solve through government action. If there was a core to the speech, it was
these two sentences: ‘The commitments we make to each other through
Medicare, and Medicaid, and Social Security these things do not sap out
initiative; they strengthen us. They do not make us a nation of takers; they
free us to take the risks that make this country great’ (Klein 2013).
Indeed, the speech signaled Obama’s interest in addressing a range of policy issues
at the national level, from climate change to income inequality to gay rights.
Although the electoral wins by the Democrats might suggest a mandate to pursue
the party’s and its leaders’ activist national agenda, the Republicans have remained
steadfastly opposed to much of that agenda, instead focusing on deficit reduction and
entitlement reform at the federal level. The GOP-controlled House might be an
obstacle for attempts at centralization by the Democrats. On the other hand, the
Republican Party is not particularly united in its own agenda. The influence of the
Tea Party in the 2012 elections was not as pronounced as the 2010 midterm elections,
when victories by Tea Party-endorsed Republican candidates suggested an electorate
opposed to the enlargement of the federal government and issues President Obama
supports. Indeed, in 2012, key Tea Party-backed GOP candidates for the U.S. Senate
in Indiana (Richard Mourdock) and Missouri (Todd Akin)—generally considered
Red States—were defeated by their Democratic opponents due largely to perceptions
of being too extreme. In the case of Akin, he lost to Claire McCaskill who was widely
thought to be ‘‘the most endangered Democrat’’ running for re-election (Chaddock
2012). The division in the Republican Party between those oriented toward Tea Party
values and the officials with more mainstream conservative ideology was made clear
in the Republican response to President Obama’s State of the Union address. After
Senator Marco Rubio (R-FL) gave the official Republican Party response, Senator
Rand Paul (R-KY) delivered a separate speech sponsored by the grassroots group
known as the ‘‘Tea Party Express.’’
While much has been made of disagreements within the GOP, fissures among
Democrats have also made things complicated and difficult for policymaking at the
federal level. For example, during the fiscal cliff and budget negotiations in
December of 2012, Democrats disagreed over whether reforms to Medicare and
Social Security, such as raising the age of eligibility for Medicare or tying Social
322
C. J. Bowling and J. M. Pickerill
Security cost of living adjustments to the Consumer Price Index, should be
included in a possible ‘‘Grand Bargain’’ (see e.g., Delaney 2012). In fact, in the
Spring of 2013, after President Obama and some congressional Democrats signaled
their willingness to put these and other entitlement reforms on the table for
negotiations with Republicans, ‘‘Liberal groups and some union activists are
threatening to recruit candidates to challenge [congressional] Democrats’’ who
support such reforms in the 2014 midterm primaries (Calmes 2013). While these
divisions in the Democratic party are not new, their re-emergence in the budget
debates have contributed to stalemate in Congress and the federal government,
leading to yet more uncertainty for state and local policymakers.
In short, it is difficult to know what the results of the national elections will
mean for federalism. If President Obama is successful in passing and implementing
even part of what appeared to be an ambitious agenda at the time of his
inauguration, centralization would be expected. However, given the divided and
intense partisanship on Capitol Hill and divisions within each party, as well as the
record of the past several years, it is not clear how successful President Obama can
be (at least until or unless the 2014 midterm elections work in his favor). The
federal government remains factionalized and fragmented, which also characterizes
its relationships with the American states.
The 2012 Elections and the States
After the election, several states had at least one legislative house change party
majorities. In Arkansas, both houses changed to Republican majorities. The Alaska
and Wisconsin Senates changed to Republican leadership. Democrats, however,
took over at least one house in Colorado, Maine, Minnesota, New Hampshire, and
Oregon, gaining back some ground they had lost in 2010 (NCSL 2012). Democrats
also fared better in gubernatorial races, taking seven of the eleven elections across
the country.
The agendas in several states reflect Republican control. Alabama serves as a
stunning example. After the 2010 elections, Republicans controlled both legislative
houses for the first time in a century, as well as the governorship. In 2011 and
2012, Alabama passed several bills with conservative roots, including, arguably, the
toughest immigration legislation in the country, changes to state employee pension
plans which raised required employee contributions by 2.5 percent, and resolutions
asking Congress to prohibit the Environmental Protection Agency’s regulation of
greenhouse gasses. As of March, the 2013 Alabama legislative sessions were off to a
roaring conservative start. Bills have been discussed or introduced to regulate
abortion clinics’ building specifications, allow teachers or other school employees to
carry firearms, and allow local school districts to deviate from some state
requirements, including the ability to establish charter schools.
Fragmented Federalism
323
Alabama, however, is not unique in taking the opportunity to push a
conservative agenda. Twenty-four states have enacted right-to-work legislation or
constitutional amendments, most of these from 1940s to 1970s. The issue has been
resurrected in the past decade, though. In 2011, sixteen state legislatures considered
right-to-work legislation; in 2012, nineteen states discussed it. Although few
enacted anything major, union strongholds Indiana and Michigan did (NCSL
2013c). Prominent Republican governors Scott Walker (R-WI) and Chris Christie
(R-NJ) have also attacked unions and public pensions. Despite the renewed interest
in right-to-work and related antilabor policies in some of these states, proponents
of those policies have faced significant setbacks in some instances. For example,
Wisconsin courts have invalidated attempts by Governor Walker and the Wisconsin
Assembly to strip most public workers of collective bargaining rights. And in 2011,
61 percent of Ohio voters voted to repeal a law endorsed by GOP Governor John
Kasich and passed by the Ohio state legislature that also would have limited
collective bargaining rights of public employees (Terkel and Celock 2011). Even
though conservative agendas may be the most politically obvious, a small but
significant resurgence of the Democratic Party is helping to slow the attack on
public unions and collective bargaining. For instance, in Maine, where Democrats
took the majority in the House, Right to Work legislation was defeated in Spring
2013 (Shepherd 2013). The divide over these labor issues is clearly a product of the
polarization and chaotic, fragmented nature of the intergovernmental policy
processes we examine throughout this article.
Another issue prominent on recent state agendas is abortion restrictions. Using a
strategy that bypasses the question of abortion itself, Mississippi passed regulations
making ‘‘health and safety’’ guidelines so stringent (equivalent to those of
hospitals) that its one remaining abortion clinic may be forced to close; other states
are requiring hospital privileges. Conservatives in Texas are pursuing a ban on
abortions after twenty weeks; seven states already have twenty-week bans
(Guttmacher Institute 2013). Arkansas and North Dakota more directly challenged
Roe v. Wade (1973) by passing legislation banning abortion when a fetal heartbeat
can be heard, about ten to twelve weeks into a pregnancy (Eligon and Eckholm
2013). Other states now require ultrasounds before an abortion can be performed.
Several states have attempted to cut state or federal funding to Planned Parenthood
organizations in an effort to decrease access to abortions, though federal courts
stopped some of these actions. Texas successfully created a new state-run Women’s
Health Program which denies funding to providers who affiliate with abortion
clinics. To this point, they have forced the closure of fifty-three clinics that
provided gynecological exams, STD testing, and birth control for low-income
women; ironically, none of these provided abortions (Lee 2013). Whether in the
Deep South or across the Rust Belt and Midwest, state legislative and gubernatorial
agendas have shifted to more conservative policy goals with the influx of elected
324
C. J. Bowling and J. M. Pickerill
Republican officials and right-biased policy opinions. However, it is worth noting
that more liberal policies have emerged in primarily Democratic states, as we
discuss more in depth later in this article. Notably, voters in three states—Maine,
Maryland, and Washington—approved ballot initiatives to legalize same-sex
marriage, whereas Minnesota voters voted down an amendment to the state
Constitution that would have in effect banned same-sex marriage. And in
Washington and Colorado, voters approved ballot initiatives to legalize marijuana
(NCSL 2012).
Health Care and EducationçContinued Complexity
Two of the most important policy areas with deep federalism implications are
health care and education. Health programs and public education are large
portions of national and state budgets. These two policy arenas are also two of the
most controversial issues related to state sovereignty; to what extent should the
national government be involved in the regulation and oversight of health-care
choices and educational goals, both of which are seen as individualistic and/or
community domains? Indeed, in his contribution to this volume, ‘‘Rules to
Exceptions: Cross-State Variation in Federal Education and Medicaid Waivers,
1991–2008,’’ Bryan Shelly provides systematic empirical analysis of waivers granted
to states in Medicaid and education policies from 1998 to 2008. His article
highlights the complexity of fitting federal programs to the particularistic needs and
capacities of states. This section highlights the current state of health care and
education within the complexity of federalism institutions, fiscal stress, and the
partisan polarization we outlined above.
The Patient Protection and Affordable Care Act (ACA)
Approximately three years ago, the ACA became federal law in March 2010. Several
parts of the law, those most regulatory in nature, have already gone into effect.
These statutes primarily have been aimed at requiring changes in insurance systems.
They include requiring insurance companies to provide coverage for adult children
(until the age of twenty-six years), requiring coverage of preventative services,
limiting the percentage of funds that insurance companies can spend on
administration, and prohibiting insurance policies from creating or enforcing yearly
or lifetime benefit limits as well as preexisting condition exclusions. Although
partisan bickering has sparked during this implementation phase, primarily the
public has supported these provisions and politicians have moved on to more
ideological arguments surrounding two larger, more expensive and expansive
provisions of the act—required Medicaid expansion and the creation of state
insurance exchanges.
Fragmented Federalism
325
In Summer 2012, the Supreme Court decided the National Federation of
Independent Business v. Sebelius case, which we discuss in more detail later in this
article. One part of the decision nullified the overly coercive requirement that all
states expand Medicaid coverage or face massive losses in federal funding. In
essence, expansion decisions were no longer federal mandates but sovereign state
choices. As of April 27, 2013, twenty-six states currently plan to expand Medicaid
eligibility, twenty oppose expansion in their states, and four states are still weighing
their options. Of the twelve states with the highest proportion of uninsured
persons, eight are opposed to expanding Medicaid access. This includes Texas,
where 58 percent of the population whose incomes are under 139 percent of the
federal poverty line are uninsured. Primarily, the traditionalistic states of the south
are the largest portion of those against expansion, along with a few of the midwestern states (Kaiser Family Foundation 2013).
Certainly, with many of the southern states’ regressive, limited state revenue
sources, funding Medicaid expansion is a concern. Even though the national
government will fund 100 percent of the expansion for three years, if all states were
to expand Medicaid coverage, the states would spend about $76 billion and
increase Medicaid coverage to over 21 million people in the next 10 years (Kaiser
2012). However, analysis by the Kaiser Family Foundation estimates that this is
only about $8 billion more than would have been spent without passage of the
ACA. For over half the states, the costs of Medicaid expansion would increase
expenditures by about 5 percent, with no state estimated to pay more than 11
percent more by the year 2022 (Kaiser 2012). Although costs are not negligible,
expansion refusals seem more based on state political culture and partisan
opposition.
Partisan pushback against federal mandates is also a factor of a second major
aspect of ACA implementation—the creation of state health exchanges. In this
issue, Rigby and Haselswerdt examined the factors influencing the states’ decisions
to begin implementation of health insurance exchanges required by the ACA. Not
surprisingly, partisanship of state leaders is a main predictor. Mainly in the west
and northeast, there are eighteen states creating state-based insurance exchanges. In
the south and mid-west, twenty-six states will default to the federal insurance
exchange markets. A few states in the eastern half of the country are partnering
with the federal government to create insurance markets (Kaiser 2013).
The current actions toward 2014 requirements of the ACA add complexity to
the federal landscape through its diverse and fragmented implementation. State
decisions on whether to enact Medicaid expansion in many ways defeat a main
national goal of the ACA—to increase health insurance access. The refusal of states
to create their own insurance exchanges may create regulatory confusion as well,
with some individuals’ insurance plans regulated by states and other plans overseen
by the federal government. Further, states could refuse to enforce (or simply
326
C. J. Bowling and J. M. Pickerill
ignore) some federal ACA regulations. Shared implementation that is complicated
by partisanship and state pushback leaves oversight fragmented and the promise of
improved health care unfulfilled for a fraction of citizens.
Education and Uncertainty
Another complex intergovernmental policy arena is education. At the federal level,
four policies are interacting to create uncertainty for state and local governments.
First, NCLB, a major part of the last reauthorization of the ESEA in 2001, is
pushing state and federal governments to a fiscal showdown. The deadline for the
states to meet the goal of having 100 percent of students reach proficiency in
reading and math is 2014. Needless to say, no state will meet this requirement. In
fact, Hechinger and Brower (2011) note that about 80 percent of schools will face a
loss of federal funding. Coupled with the loss of funding most localities suffered
during the recession, public education, especially in poorer districts, would be
devastated. Legislative overhaul of NCLB is desperately needed.
Throughout 2011 and 2012, both houses of Congress battled over the details of
ESEA reauthorization. Disagreement on issues of the creation of charter schools,
state flexibility in the use of federal funds, and teacher accountability continued to
preclude compromise (Hyslop 2013). This disagreement has led to the second
policy contributing to states’ uncertainty for state and local education systems.
Without new legislation from Congress, President Obama and his Education
Secretary Arne Duncan used executive authority to provide waivers to states who
would meet certain requirements, including new state standards, new methods of
evaluating and aiding low performing schools, new personnel evaluation systems,
and streamlining state reporting systems (U.S. Department of Education 2012).
Forty-four states have applied for waivers; thirty-four have received them (U.S.
Department of Education 2012). In a new report from the Center on Education
Policy, officials in a vast majority of the states with waivers think that the waivers
help alleviate most problems caused by NCLB and will help improve student
learning and outcomes. However, they worry about how the reforms they have
implemented will fit with federal guidelines when (if) ESEA is reauthorized
(McMurrer and Yoshioka 2013). In this case, uncertainty is exacerbated by
federalism ‘‘through end-run’’ around partisan factions.
The third federal policy is the Race to the Top (RTTT) initiative created by the
Obama administration as part of the federal stimulus package. The RTTT grants
have been allocated to states that applied and agreed to meet the standards of the
program, which are similar to the rules required by NCLB waivers. The most
problematic part of RTTT involves new performance-based teacher and principal
evaluations and pay scales that are tied to increases in students’ test scores (Ravitch
2010; McNeil 2012). Over $4 billion has been granted to state applicants, but some
Fragmented Federalism
327
are having difficulty implementing programs due to teachers’ unions and lobbies.
Other states would not apply for the grants (Nicholson-Crotty 2012). Thus, RTTT
represents a third set of criteria that states and school districts may be trying to
follow.
Finally, the fourth element leading to uncertainty is really the conclusion of a
policy—the end of the ARRA stimulus funding. ARRA, over the past three years,
pumped about $92 billion (Recovery.gov 2013) into education budgets alone, at
least a third in the form of budget stabilization funds that helped states and
localities avoid some employee layoffs and reduction in services. Though state
budgets are now growing again, they are not necessarily growing as quickly as the
stimulus funds have trickled away (NASBO 2012a). However, states have managed
to account for some of these revenue shifts. What they have not accounted for are
the new threats to state funding that may occur with the implementation of federal
sequestration, although most cuts to education funding will likely not cause
problems until the 2014 education year (Farmer 2013).
Both the federal policy and fiscal uncertainty has taken its toll on state and local
school districts. However, state and local officials have already begun to implement
new policies through waivers and budgets have adjusted to lower revenues over the
past three years (not including any impact sequestration might cause). One of the
most notable initiatives has been the creation of the Common Core Standards by
states, developed through a joint effort of the National Governors Association (NGA)
Center for Best Practices and the Council of Chief State School Officers. These
standards were developed by state and local education officials, education researchers,
and teachers, creating a uniform set of goals and guidelines to help all states improve
college and career readiness through K-12 education. It is noteworthy that the federal
government had no direct involvement in the creation of the Common Core
(corestandards.org). Indirectly, scholars have asserted that the standards were a
collaborated state effort to meet some of the requirements within the RTTT
competitions. A main criticism of NCLB legislation was that it encouraged states to
lower their own educational standards to meet Annual Yearly Progress goals (Manna
2010). Although NCLB and RTTT promoted standards-based reform, the RTTT
further emphasized the development of equivalent goals across multiple states and
internationally recognized benchmarks (Manna and Ryan 2011).
However, because only a small number of states have been awarded the RTTT
competitive grants, this initiative alone was not the sole cause of state
collaboration. Perhaps because of the complex maze of policies described above,
the states were incentivized to create uniform goals and share education resources.
While a recent letter from the NGA to Congressional leaders seeks a full
reauthorization of the ESEA, it also urges ‘‘federal policies that authentically
support state and local innovation so that every student will be prepared for college
or careers’’ (NGA 2013). The Common Core, and its focus on critical use of
328
C. J. Bowling and J. M. Pickerill
reading and math skills, may be this innovation. Forty-five states have adopted and
begun implementation of the Common Core (Common Core Standards 2013),
with most states reaching full implementation by 2014 or 2015.
Though many states and local education entities have begun implementing new
standards and new evaluation systems, and revenues for education finance are
finally beginning to increase, many local districts are still having difficulty,
especially with teacher unions and budget shortfalls. The lack of salary increases,
pressure on unions to cede benefits and tenure, and the new evaluation
requirements from NCLB waivers are creating crises in several cities including Los
Angeles, San Francisco, Albuquerque, and Philadelphia. The most notable
occurrences have been the 26,000 teacher strike in Chicago over teacher pay and
evaluations tied to test scores and the closing of twenty-three lower performing
schools in Philadelphia due to a $1.3 billion budget deficit (Greenhouse 2012; Rich
and Hurtle 2013). Over fifty schools will close in Chicago in an effort to close a $1
billion budget gap (Yaccino and Rich 2013).
Although the Common Core has not been fully implemented or evaluated, it is a
rare attempt at cooperation among all the states. In an otherwise fragmented
federalism, the creation of the Common Core represents a bipartisan, state- and
local-led attempt to find agreement on and advancement of a common goal for
education systems. In this case, it seems that innovation has been spurred by the
complexity of federal laws, intense partisan wrangling by Congress, and fiscal stress.
For 2012–13, most states and localities are in better shape than in the previous
three years, though continued fiscal austerity raises tensions particularly among the
street-level workers most impacted by expenditure reductions. Uncertainty
continues to loom, however, dependent on Congress’ ability to agree on the
ESEA reauthorization and on a federal budget that avoids continued across the
board spending cuts.
Fiscal Federalism: For Lack of a Budgetary Theory
The intense, factional approach to setting partisan agendas in the states has been
and still is just as evident in the politics surrounding federal and state budget
processes. In the overview of the Annual Review 2011–12, Gamkhar and Pickerill
(2012, 359) wrote, ‘‘The federal executive branch remained embroiled in political
standoffs with Congress on debt and budget issues.’’ This statement is still the most
accurate description of fiscal federalism in 2012–13. Ideological roadblocks
continue to create uncertainty about intergovernmental transfers for state and
localities’ own budgeting efforts. In 2013, however, the impacts of the past three
years’ slow economic recovery, the increasing federal debt, and perpetual partisan
stalemates may be coming to a head. As of April 2013, the federal government had
yet to pass the federal budget for fiscal year 2013 (which should have begun
Fragmented Federalism
329
October 1, 2012). More importantly, however, the budget impasse has, as of March
1, 2013, resulted in the implementation of automatic reductions in federal spending
called sequestration. Many of these cuts will, if sustained, have direct effects on
state and local government budgets and economies.
Background of Budgetary Battles
Several occurrences set the stage for the current fiscal problems faced by federal,
state, and local governments. Over the past decade, the exploding federal debt,
driven by deficits created by war-time military spending, a world-wide economic
recession, and the rising costs of health services (including the addition of Medicare
Part D) has become the topic of discussion among partisan elites, academics, and
average citizens. President Obama and Congress are wrestling with the paradoxical
problems of decreasing the national debt and providing an influx of funds into the
U.S. economy to stimulate growth. Since 2001, the Bush-era tax cuts decreased
revenues as defense and entitlement expenditures grew quickly. Additionally, in
2009, the federal stimulus provided by the American Recovery and Reinvestment
Act (ARRA) added to the federal debt crises yet more than likely provided a
‘‘floor’’ to the impact of the economic recession, especially for states and localities
facing severe own-source revenue shortfalls. As of February 2013, the stimulus
package had put almost $800 billion into the economy (and onto the total debt
balance) through tax expenditures, grants, and entitlement payments (recovery.gov
2013).
Coupling party pressures with an economy in search of a solution, different
economic perspectives have also added to the national budget gridlock. The supplyside philosophy is at odds with Keynesian economic theory. The major emphasis by
both political parties is currently the federal budget deficit and debt, and calls for a
balanced budget are dominating media coverage. However, for Republican supplysiders, reducing taxes to spur investment and production is the key to economic
growth and a balanced budget. According to Keynesians, however, major
reductions in government spending would slow economic growth, primarily by
reducing demand for goods. Republicans are adamant that no more tax increases
will be included in the budget; Democrats want increased taxes on the wealthiest
Americans and balanced budget cuts that protect entitlement programs.
Either way, decisions made at the federal level will be pivotal as intergovernmental transfers are a large part of state budgets. While both political parties
believe the federal budget is out of control, they appear to be several filibusters
away from a solution. In 2011, Congress and the president passed the Budget and
Control Act (BCA), which raised the debt ceiling and made small budget cuts.
However, more importantly, the BCA set into motion the automatic federal budget
reductions should Congress and the President not reach agreement on federal
330
C. J. Bowling and J. M. Pickerill
spending cuts by the end of 2011 (Gamkhar and Pickerill 2012). They did not.
Throughout 2012 and the election season, partisan bickering postponed any
agreement to forestall the sequestration. The result has been a series of stalemates
and short-term agreements, no FY2013 budget, and a dysfunctional budget process.
The year 2013 has brought even more uncertainty.
Even with President Obama’s reelection, no serious attempts at agreement were
made until another last-minute deal emerged in January 2013 (Dwyer 2013).
However, the midnight deal provided only a fragment of a budget agreement,
focused narrowly on tax increases and a few spending extensions. The fiscal deal,
titled the Taxpayer Relief Act of 2012 (TRA), had three main elements. First, it
extended most of the Bush tax cuts for everyone making less than $400,000;
wealthier individuals will pay a marginally higher tax rate, lose some tax
exemptions, and face higher capital gains rates. However, poorer people will also
pay higher taxes as the payroll tax rate reductions expired, rising 2 percentage
points for everyone. Second, entitlement programs were not reduced, including
social security payments, and unemployment benefits were also continued. Third,
implementation of across-the-board spending cuts was postponed until March 1,
2013, giving leaders another two months to agree on more precise spending
reductions. The debt ceiling limit was also postponed until late March (Dwyer
2013). In essence, while postponing decisions for another two months, this
agreement did nothing to reduce the deficit (arguably increasing it in the short
run), addressed limited portions of the federal budget, and left more uncertainty
for all levels of government by failing to address most major spending categories. In
some cases, though, even this limited action affects states. For example, six states—
Alabama, Iowa, Louisiana, Missouri, Montana, and Oregon—allow a state
deduction for federal taxes paid. Thus, any increase in federal taxes paid will
reduce the state taxes collected.
With the fiscal cliff and automatic spending cuts postponed until March 1, the
President and Congress continued negotiations over spending reductions. Despite
all efforts, no spending plan emerged and automatic budget cuts of $1.2 trillion
over the next ten years went into effect (Akabas 2013). For 2013, this equals about
$87 billion spread over seven months. The sequestration requires half of the cuts
come from defense budgets and half from other domestic, discretionary programs.
The main entitlement programs, Social Security and Medicare (except for a 2
percent reduction in provider payments), are exempted from cuts as are Medicaid
and Supplemental Nutrition Assistance Program (SNAP) (Roberts 2013). The most
recent budget battle occurred in late March, when the current government funding
agreement was scheduled to end. Again, at the last minute, another continuing
resolution was passed (funding government at current levels, including the
retention of sequestration plans). The resolution continues until FY2014 begins on
October 1, 2013. Regardless, agreement on the FY2014 budget is still clearly a long
Fragmented Federalism
331
way off. The Republican Paul Ryan-led budget proposal contains entitlement
spending reductions too deep to be accepted by the Senate majority, much less the
President. On the other hand, even moderate changes in entitlements suggested by
President Obama’s proposed budget is drawing criticism from Democrats. The
Congressional Budget Office has adequately described this stalemate:
It is possible to keep tax revenues at their historical average percentage of
GDP, but only by making substantial cuts, relative to current policies, in the
large benefit programs that aid a broad group of people at some point in
their lives. Alternatively, it is possible to keep the policies for those large
benefit programs unchanged—but only by raising taxes substantially, relative
to current policies, for a broad segment of the population. Changes in other
federal programs can affect the size of the changes needed in taxes or large
benefit programs, but they cannot eliminate the basic trade-off between those
two parts of the budget. Ultimately, significant deficit reduction is likely to
require a combination of policies, many of which may stand in stark contrast
to policies now in place (CBO 2012).
Fiscal Federalism: Implications for State and Localities
Whatever ultimately emerges from the federal budget process will have wideranging consequences for states and localities. Many states are finally beginning to
see significant improvement in their economies. Overall, state revenue collections
in FY2013 are projected to surpass prerecession levels in 2008, though some states
lag behind this average growth level. More indicative, though, is that forty-two
states have enacted higher spending budgets in FY2013 than in the previous year.
The ARRA stimulus grants and aid helped states to recover from average general
fund spending decreases of 4 percent in FY2009 and 6 percent in FY2010 to modest
3 percent increases in 2011 and 2012 (NASBO 2012a, b). Unfortunately, federal
grants to states fell faster than state revenues grew. Although most states enacted
higher budgets, on average budgets are only authorized to increase about 2 percent
in 2013 (NASBO 2012a). Although some states were able to rebuild their fund
balances or ‘‘rainy day funds,’’ several project a zeroed ending balance in FY2013.
Only about half of the states project a fund balance over 5 percent of state
expenditures, a percentage deemed inadequate to smooth state expenditures in case
of physical or fiscal disasters (NASBO 2012a). In other words, many states have
found some degree of stability in terms of own-source resources, though some are
still operating on a slim margin.
If the sequestration remains in force, states will face losses in federal funding in
a variety of areas beyond current lowered levels. Even with Medicaid exempted,
states will lose federal funding in education grants, especially grants targeted toward
332
C. J. Bowling and J. M. Pickerill
Head Start, special education, and poorer school districts; community development
block grants (CDBC); and maternal health programs like the Women, Infants and
Child Nutrition program (Farmer 2013). Much of the lost funding has a direct
impact on local governments and programs; teachers will be laid off, workforce
training programs limited, and economic development programs stopped.
Although state and local governments have significantly reduced their budgets
and streamlined services—they have prepared for some reduction in intergovernmental transfers—over time federal funding loss will take its toll on services
provided by states and localities, slowing economic growth across the country.
Thus, the challenges at the federal level—the party polarization, the budget
deficit, the level of tax increases and spending cuts required, and the inability of
lawmakers to compromise—resonate to the subnational governments. Balancing
the federal budget is in many ways an intergovernmental zero-sum game. Federal
grant programs, both competitive and matching, have increased the dependence of
states and localities on national funding. Although the number of federal grants has
fluctuated over the past half century, overall more state agencies receive federal
funding than ever before, with three in four agencies receiving federal funds; over
half of those receiving federal funds are dependent on intergovernmental transfers
for more than 25 percent of their overall budgets (US Department of Education
2012). This reliance on federal funding has slowly developed since the 1950s, and
states and localities will have difficulty reducing their own services in response to
decreases in federal grants and aid. Although Rivlin (2012) suggested that the
national and state governments must do more to create division between their
respective responsibilities and develop tax structures to adequately fund more
separated budgets, this is much easier said than done. The states and localities have
streamlined their budgets and focused on spending within their resources; for the
foreseeable future, austerity and uncertainty are the most prominent elements of
budget decision-making.
The Supreme Court and Constitutional Federalism
Just as fiscal federalism continues to be a focal point of state politics and policy,
constitutional federalism remains in the spotlight in the U.S. Supreme Court. The
Court has continued to accept and decide cases with important federalism
implications. In 2012, the Court was at center stage when it decided the
constitutionality of President Obama’s signature piece of legislation from his first
term—the Patient Protection and Affordable Care Act. As we discuss here, although
the high Court did uphold the individual mandate, Chief Justice Roberts’ opinion
in the decision also established important limits on federal power. The Court also
has continued to support state sovereign immunity from lawsuits. On the other
hand, it has favored the federal government in other cases, such as those involving
Fragmented Federalism
333
the preemption of state law by federal statutes. In this section, we examine each of
these areas of constitutional federalism in turn.
The ACA and Federalism
By far the most anticipated Supreme Court decision of 2012 was National
Federation of Independent Business v. Sebelius (NFIB) (2012). The case involved a
challenge to the Patient Protection and Affordable Care Act of 2010, President
Obama’s signature piece of legislation passed during his first term in office. Writing
for the majority in the case, Chief Justice John Roberts upheld almost the entire
Act, including the controversial ‘‘individual mandate’’ that requires individuals to
purchase health insurance and penalizing those who can afford to buy insurance
but do not. For the most part, the media portrayed the decision as a victory for
President Obama as well as an endorsement of broad federal power. This was
especially the case given the sharp dissents of the four conservative justices (Scalia,
Kennedy, Thomas, and Alito) and the revelation that Roberts had initially voted
with those four justices to strike the entire act down (see Greenburg 2012).
However, Roberts’ opinion was a nuanced one that, while upholding the act
under Congress’s taxing power, also established some clear and potentially
significant limitations on federal power with protections for states. In fact, Roberts
began the opinion with an analysis of Congress’s commerce power, concluding that
the individual mandate of the ACA could not be upheld using the commerce
clause. Roberts’ holding there thus reinforced and arguably expanded the
limitations placed on the commerce power in the seminal decisions from the
Rehnquist Court, United States v. Lopez (1995) and United States v. Morrison
(2000). In Lopez, the Court invalidated the Gun Free School Zones Act because it
concluded that the possession of a gun at a local school was not an ‘‘economic
activity’’ that had a substantial effect on interstate commerce, and in Morrison, the
Court similarly struck down portions of the Violence Against Women Act because,
although there was evidence that gender-motivate violence was a national problem,
it was not an ‘‘economic activity.’’ Although health care, including the purchasing
of health insurance, is undoubtedly an ‘‘economic activity,’’ Roberts held that the
decision not to participate in the health insurance market cannot properly be
characterized as an economic activity in accordance with precedent—most
pointedly Lopez and Morrison. And thus, despite the fact that the individual
mandate was part of a comprehensive economic regulatory scheme (which was not
the case with the provisions at issue in either Lopez or Morrison), it could not be
upheld as a legitimate exercise of Congress’s commerce power.
In addition, Roberts held that the provisions of the ACA that required states to
accept all the conditions placed on them to continue participating in an expanded
Medicaid program or forfeit all federal funding for the program were overly
334
C. J. Bowling and J. M. Pickerill
coercive on states and violated principles of state sovereignty. This holding again
reinforced key Rehnquist Court precedents on state sovereignty, namely, New York
v. United States (1992) and Printz v. United States (1997). The Medicaid holding
also seems to put teeth in the Court’s spending clause jurisprudence articulated in
1987 in South Dakota v. Dole to uphold broad federal power under the so-called
Spending Clause, which has not been applied to limit Congress’s spending power
until NFIB. In the Dole case, the Court had upheld federal law that conditioned the
receipt of federal transportation funds on the State’s adoption of a twenty-one-year
old drinking age law. The Court established a multiprong test for analyzing the
scope of Congress’s spending power; in part, the Court required that the
condition(s) placed on states to receive federal funds must be related to the
spending in question, states must have a clear choice to turn down funds related to
the condition being placed upon them, and the conditions placed on states could
not be unduly coercive. In NFIB, Roberts argued that states essentially had no
choice to turn down all federal Medicaid funding because of the fiscal impact of
Medicaid spending on state budgets. Thus for the first time, the Court has found
conditions on receiving federal spending to be overly coercive on states. While it is
impossible to tell, this development may provide states with opportunities to
challenge burdensome conditions for receiving federal funding in other federal
policies.
Perhaps counterintuitively, even Roberts’ analysis upholding the individual
mandate under Congress’s taxing power creates some potential problems for
Congress. Because the Court ultimately concluded that the individual mandate
could stand because the penalty for not purchasing health insurance amounts to a
tax, the implication is that for Congress to pursue similar policies in the future, it
will have to do so through policy mechanisms that amount to a tax. While the
holding in NFIB would make such policies constitutional in a legal sense, members
of Congress might find themselves in a politically untenable or at least unpopular
position of having to label the policies they vote for as a ‘‘tax.’’ In any event, the
Court was divided in its reasoning and conclusions, and the holdings of the Court
in the decision could have both broadening and narrowing effects on federal power.
State Sovereign Immunity
Although the NFIB decision was the most widely covered federalism decision by the
Court in the media, it handed down other decisions continuing a trend of
constitutional protections for state sovereignty over the past two decades. In
Coleman v. Court of Appeals of Maryland (2012), the Court held that an employee
at the Maryland Court of Appeals could not sue the state under the ‘‘self-care’’
provisions of the Family Medical Leave Act. Daniel Coleman had argued that the
self-care provisions—which allow employees to take time off work to take care of
Fragmented Federalism
335
their own medical conditions—operated along with other family leave provisions
allowing employees to take time off to care for other family members, such as a
newborn, to alleviate gender discrimination. In Nevada Department of Human
Resources v. Hibbs (2003), the Court held that state employees could sue the state
for violating family leave provisions because Congress was attempting to remedy
gender and sex discrimination (under the powers granted to it in Section 5 of the
Fourteenth Amendment) in the workplace and intended to abrogate State
Sovereign Immunity under the Eleventh Amendment.
However, in a 5-4 decision, the five conservative members of the Court held
that, unlike the ‘‘family leave’’ provisions upheld in Hibbs, the self-care provisions
were not intended to fight sex discrimination, and that there was no evidence
Congress intended to abrogate State Sovereign Immunity. Instead, writing for the
majority, Justice Kennedy understood the self-care provisions as being targeted at
discrimination based on medical conditions as opposed to remedying a history of
sex discrimination as the family-care provisions had. In so doing, the majority
reinforced and adhered to the high bar it set for remedying past discrimination
under Section 5 of the Fourteenth Amendment and for abrogating sovereign
immunity in previous decisions such as Kimel v. Florida Bd. of Regents (2000),
College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd. (1999), and
City of Boerne v. Flores (1997), all cited prominently by Kennedy in his majority
opinion. Although the case does not extend the protection of state sovereignty
dramatically beyond those earlier cases, it makes clear that the Hibbs decision was
not a retreat by the Court in its earlier efforts to protect it.
Federal vs. State Ownership of Riverbeds and the Equal Footing Doctrine
In a somewhat narrow and obscure decision that could have implications for future
environmental policy, the Supreme Court decided how to determine whether the U.S.
government or a state government owns a particular segment of riverbed. In PPL
Montana v. Montana, a utility company operated hydroelectric dams on rivers in the
state of Montana. The company had long been regulated by the Federal Energy
Regulatory Commission, and it had paid rents for use of the river at those dams to the
United States. In the early 2000s, Montana demanded rents and claimed ownership of
certain riverbeds. The Montana Supreme Court ruled for the state, interpreting the
Equal Footing Doctrine for determining riparian rights as granting ownership of
riverbeds to the state where the river is currently navigable, including recreational
navigation. The Equal Footing doctrine is derived from Article IV, Section 3, Clause 1
of the Constitution, and essentially establishes that when new states are admitted to
the Union, they have equal legal rights with all existing states at the time of admission.
And thus, the title to riverbeds, like other legal rights, must be determined in a way
that places states on equal footing with one another.
336
C. J. Bowling and J. M. Pickerill
The U.S. Supreme Court reversed the state high court. Writing for a unanimous
Court, Justice Kennedy determined that navigability of a particular river must be
determined ‘‘segment by segment,’’ at the time of statehood. This means that states
did not have title to segments that required a portage at the time of statehood
because those segments of the river were not navigable. Kennedy’s opinion relied
on a host of historical documents, including the journals of Lewis and Clark, to
determine navigability of the segments in question. The decision could have an
impact on a range of environmental and related policies involving waterways
throughout the country, because it limits states’ ability to exercise their duty to
protect the public trust by limiting their control over private companies or other
owners for the purpose of regulating waterways such as rivers. These could include
dam removal for environmental purposes, promoting fisheries, or opening
waterways for recreational purposes, among others.
Federal Preemption
The Court has also remained active in deciding cases involving federal preemption
of state laws, and consistent with other preemption cases in recent years, it has
tended to side with the federal government. In a widely followed case, Arizona v.
United States (2012), the Supreme Court reviewed whether an Arizona state law
intended to discourage and curb illegal immigration into the state (known as ‘‘SB
1070’’) was preempted by federal regulation laws. The Obama Department of
Justice (DOJ) argued that nearly all of the legislation was preempted by federal law
because the federal government has complete authority to regulate immigration.
Although the Court largely agreed that federal laws preempted important
provisions in SB 1070, its holding was narrower than the DOJ sought.
In short, the Court determined that three of the four challenged provisions of
SB 1070 were preempted by federal law, but one key provision was not. Writing for
the majority, Justice Kennedy determined that provisions that (1) made it a state
crime to be in the country illegals, (2) made it a state crime to work in the state as
an illegal immigrant, and (3) empowered state law enforcement to arrest
individuals they suspected of being guilty of a deportable offense without a warrant
were all preempted by detailed immigration laws passed by Congress. However, the
majority upheld one of the most controversial provisions in SB 1070, which
requires state and local police in Arizona to check the immigration status of
individuals who are detained before releasing them. The court said it was not clear
that federal law preempted that provision, although it did appear to leave the door
open for future challenges based on future applications of the law (which was
challenged before taking effect).
In another 2012 case, the Roberts Court also decided in favor of the federal
government in a preemption challenge. In Kurns v. Railroad Friction Products
Fragmented Federalism
337
Corp. (2012), the family of George Corson, a railroad employee who had been
exposed to asbestos throughout his thirty-year career as a machinist who repaired
locomotives and died of asbestos-related cancer, sued the manufacturers and
distributors of the locomotive products that contained asbestos. In many respects,
the case was a traditional design defect and failure to warn product liability case
under traditional state tort law. However, the defendants in the case removed the
case to federal courts, where they alleged that the state action was preempted by the
federal Locomotive Inspection Act (LIA).
Applying an eighty-five-year-old precedent that interpreted the Boiler Inspection
Act (which the LIA replaced), the Court agreed that the LIA extensively regulated
all design aspects of locomotives and preempted state law on any issues involving
design defects. Although the LIA did not explicitly address failure to warn (about
potential dangers) matters, Justice Thomas wrote for the 6-3 majority and
concluded that the ‘‘gravamen’’ of a failure to warn claim was essentially based on
the equipment being defective and not on the actual lack of warnings. Justice
Kagan filed a concurring opinion in which she agreed that under precedent the
state claim was preempted by the LIA, but she questioned whether the eighty-fiveyear old precedent should be reconsidered and reversed.
As these Supreme Court decisions make clear, the Roberts Court continues to be
active in its scrutiny of issues involving federalism, state sovereignty, and intergovernmental relations. In particular, despite Justice Roberts’ decision to uphold
the ACA under the taxing power, the more conservative members of the court have
held steady in limiting the federal commerce power and acting to protect state
sovereignty—showing a commitment to the course set by the Rehnquist Court in
these areas in the 1990s. On the other hand, the Court has been willing to uphold
federal power over the states in preemption cases, which is also consistent with
earlier Roberts Court decisions (especially when federal preemption has favored
business interests, see e.g., Pickerill 2009). Moreover, in most of these cases, there
remain divisions along ideological lines over the proper resolution of these issues
and the proper role of the Court in deciding them. And thus, as we have seen in
other policy, political, and economic developments, the state of constitutional
federalism as articulated by the Supreme Court is fragmented.
Controversial Policy and Implications for Federalism
One of the elements of ‘‘fragmented federalism’’ is the development of state-specific
policy. Often, these policies are created in response to a perceived need to which
the federal government has failed to respond, even though it may be a ‘‘national
interest.’’ One example is outlined in Barbara Warner and Jennifer Shapiro’s
contribution to this volume, which discusses how the abdication of federal
regulation of a relatively new energy production technique and environmental issue
338
C. J. Bowling and J. M. Pickerill
has led to a mixed bag of state and local regulation within a broader interest group
environment. Alternatively, state policies might be developed in response to federal
guidelines, like in the case of education waivers or health insurance/Medicaid.
Further, many state-specific policies have high political salience and are motivated
at least in part by partisanship. For instance, in this volume, Scot Schraufnagel and
Timothy Marquez explore the role of partisan preferences and electoral opportunity
in the development of immigration laws that vary widely across states.
Sometimes, though, state-specific policies emerge from waves of controversy and
as a result of issues which resonate both politically and emotionally within
segments of the population who push their goals onto the state agendas. Arguably,
over the past 100 years, states have been the primary impediment to individual
freedoms, formally or informally restricting civil liberties or rights—blue laws, Jim
Crow, antimiscegenation are a few examples. This still occurs, as evidenced by the
states that have passed laws banning gay marriage. Over the past few years,
however, three issues firmly rooted within the complexity of the Second, Ninth,
and Tenth Amendments have risen to the states’ agendas. Gay marriage, marijuana
legalization, and firearm regulation were all part of initiative ballots or proposed
legislation this year in different states. While some failed to pass, others were
approved and will further complicate intergovernmental relations and ‘‘full faith
and credit’’ decisions.
Trends in State Legislation and Votes: Focus on Freedom?
First, gay marriage initiatives have been on the voting agendas of many states for
the past decade and longer. This comes after years of debating homosexuality as an
issue of morality and criminal law before finally moving the issue to an individual
and civil rights framework. Over the years, thirty-five ballot measures have sought
to ban homosexuals from marrying; all but one has passed (Condon 2012). At the
federal level, aside from the Defense of Marriage Act (1996) defining marriage as
between one man and one woman, very little regulation exists. With the repeal of
‘‘Don’t Ask, Don’t Tell’’ policy and recent cues from President Obama and VicePresident Biden supporting equal rights for homosexuals, the tide has turned in
public opinion and across states. In three states, Connecticut, Massachusetts, and
Iowa, the state Supreme Court ruled that gay couples should be afforded the same
rights as heterosexual couples, as did a California appeals court. All four ballot
measures in 2012 affirmed this right for gays, lesbians, and bisexuals as well. By
narrow margins, homosexuals were granted the legal ability to marry in Maine and
Washington, and state law allowing gay marriage was approved by referendum in
Maryland. In Minnesota, an initiative to ban gay marriage failed (CNN.com 2012).
In contrast to gay rights, federal law on marijuana is quite clear. It remains a
controlled substance, and its distribution is a federal crime. Along with other
Fragmented Federalism
339
restricted substances, the federal government has had an explicit ‘‘War on drugs.’’
Until recently, this had also been the position of most states. Since the late 1990s,
increasing evidence of marijuana’s medicinal use, rising state and local
incarceration costs, changing public opinion, and a plethora of new and more
dangerous illegal drugs have encouraged states to take the initiative in liberalizing
marijuana use. At first, medicinal use garnered support, and over the past decade
eighteen states have legalized marijuana for that purpose (see e.g., Pickerill and
Chen 2008). In November, 2012, Massachusetts became the nineteenth state
approving of medical marijuana use. Also in 2012, and Washington and Colorado
became the first two states to approve the recreational use of marijuana (NCSL
2013a). Three other state initiatives failed.
The regulation of firearms is again at the forefront of federal, state, and citizen
agendas. Of these three prominent issues, firearm regulation and gun rights have
regularly been on the governmental and public agendas over the past half century.
From Kennedy to Reagan, Martin Luther King Jr. to Trayvon Martin, and from
Columbine High School to Virginia Tech University to a Newtown Elementary
School, the impacts of gun violence are widespread and affect every citizen.
Moreover, firearms are explicitly addressed in the U.S. Constitution. It is not just
an issue of personal freedom but also one of personal security and public safety.
After the Newtown tragedy in 2012, however, the window of opportunity for the
federal government to place a widespread ban on assault weapons was opened,
perhaps only briefly. As time passed, that window closed as interest groups lobbied
in Washington and in the states to protect their guns.
Most states have their own laws to regulate firearms. Forty-one states have ‘‘shall
issue’’ laws, which issue gun permits to everyone who meets basic guidelines, and eight
more states have more discretionary issuance of gun permits (NRA 2013). The states
also have widely varied ‘‘concealed carry’’ laws and regulation of firearm sales.
However, in the wake of the Newtown violence, New York and Colorado passed
legislation to ban more assault weapons and place more restrictions on gun permits,
with five other states actively discussing more regulation (Riccardi and Moreno 2013).
With the current calls for more federal regulation, several state bills or ballot measures
have the opposite purpose—to preempt any attempt by the federal government to
restrict state citizen’s rights to own and use all types of firearms. Louisiana passed a
referendum during the 2012 election asserting the right to keep and bear arms. Since
the 2012 November elections, six states (Wyoming, South Dakota, Kansas, Tennessee,
Texas, and Arizona) loosened their firearms restrictions, Arkansas now allows
concealed weapons in churches, and the Kentucky Senate voted to approve a ‘‘a bill
outlawing the enforcement of federal gun laws that do not yet exist’’ (DeLuca 2013;
NCSL 2013b). With state action, though, comes the possibility of state preemption of
local statutes. For instance, whether a locality approves or not, state laws could allow
guns on campuses or in your church down the street.
340
C. J. Bowling and J. M. Pickerill
Implications for Federalism
The variation in state policies relating to these three issues demonstrate the
complexity that can be created within federal–state and state–state relationships,
especially as related to Articles IV and VI of the U.S. Constitution. Article IV
discusses the ‘‘full faith and credit’’ relationship between states, recognizing that
actions of one state need to be recognized by other states. In many instances, this is
not necessarily complicated—birth certificates issued in one state are recognized by
others. One only needs a Florida driver’s license to drive across the United States. A
marriage license from Maryland is recognized by Maine . . . or is it? There is no
overarching theory of which particular acts are recognized in the other states; the
more controversial the action the more complex relationships among states
become. A primary example is gun registration and concealed carry permits. Every
state has created their own reciprocity agreements with chosen states, creating a
patchwork picture of firearm regulations across the country.
Article VI of the U.S. Constitution contains the ‘‘Supremacy Clause.’’ Each of
the state policies above challenges federal policy. States allowing gays to marry
contradict the national Defense of the Marriage Act. Legalizing marijuana attempts
to override federal drug regulations. States traditionally have had jurisdiction over
public safety, so particularistic firearm regulations and guidelines are not
necessarily problematic. However, in addition to complicating interstate regulation,
gun laws are part of a problematic, extreme form of ‘‘pushback federalism’’
(Gamhkar and Pickerill 2012). The states’ reaction to the ACA, demonstrated by
states’ ballot measures, underscores this problem. In 2012, Alabama, Montana, and
Wyoming all voted to refuse to enforce the ACA individual mandate, and Missouri
voted to refuse development of a state insurance exchange. Although states have
balked at enforcing federal law in previous years, public referenda or legislation
directly expressing a refusal to enforce federal law in this case is unusual. Twenty
states have publicly refused ACA actions. The same phenomenon is occurring in
firearm regulation; Louisiana passed a strongly worded defense of the right to bear
arms and Kentucky is outright refusing to enforce future firearm bans (NCSL
2013b). Similar legislation is pending in several states. The controversies discussed
here, along with other issues, and the forthrightness with which state governments
and the majority of their citizens are engaged in refuting federal acts (or potential
federal laws) demonstrate polarization in the varying agendas and the increasing
salience of state’s rights issues within that context.
Conclusion
Peering across and within several policy areas, at both the federal and subnational
levels, scholars are left scratching their heads about how to best describe the state of
American federalism. After exploring several intergovernmental developments,
Fragmented Federalism
341
political relationships, pending agendas and implications, American federalism in
2012–13 is an unclear, perhaps uncharted, landscape. In any number of areas, we
have observed over the past year states and the federal government simultaneously
pursuing their own policies, from gun control to fracking to immigration. We have
witnessed states taking the lead on social issues such as gay marriage and marijuana
legalization in Washington and Colorado. In other cases, Governors continue to
‘‘push back’’ against the Obama administration and the federal government while
at the same time facing coercive carrots and sticks in education and health-care
policy developments.
The outcomes of the 2012 elections seem to reinforce the polarization of politics
and policy preferences. At the federal level, President Obama was re-elected and the
Democrats increased their majority in the Senate. The President has proactively and
passionately signaled an interest in a more activist federal agenda, with a willingness
to work with Republicans if middle ground can be found. Similarly, the GOP, who
lost seats in the House but maintained their majority, has indicated opposition to
the President’s progressive policy positions but has displayed some willingness to
compromise. For example, they did reluctantly agree to limited tax increases in the
ARRA 2012. At the state level, most statehouses are controlled by one party, with
only a minority of states having some sort of split-party arrangement after the 2012
elections. Republican-controlled states appear poised to both oppose some
directives from the federal government and to go it alone by pushing conservative
policies. Democratic controlled states, on the other hand, may seek to take the lead
in some policy areas, such as legalization of marijuana and same-sex marriage. In a
rare instance, almost all states have adopted education standards known as the
Common Core, even as federal education policies remain in disarray.
Finally, developments in constitutional federalism as articulated by the U.S.
Supreme Court also reinforces the picture of federalism as disjointed and chaotic.
In general, the conservatives on the Court have voted to narrow federal power
under the commerce clause and to enforce notions of state sovereignty that
emerged during the Rehnquist Court. Surprisingly, though, Chief Justice Roberts
voted with the four more liberal members of the Court to uphold the individual
mandate of the ACA, but only by labeling it as a tax. In the area of preemption of
state law, the Court has tended to vote in favor of the federal government over
states, especially in legal areas that affect business interests (such as product
liability) where the federal law is more favorable to those business interests than
state laws.
So what are the implications of this chaos, contentiousness, and fragmentation
for theories of federalism? Today, intergovernmental relations are deeply affected by
political factions; fragmentation continues as policy implementation occurs in a
piecemeal fashion driven by the states for all the wrong reasons. States are veering
in their own directions as partisanship steers them away from federal mandates,
342
C. J. Bowling and J. M. Pickerill
differences in administrative capacity allow some states to progress while others lag
behind, and the inability of Congress to agree on anything leaves states with no or
impossible policies. These myriad trajectories point to no single direction for
federalism.
Perhaps the institutions of federalism are experiencing a midlife crisis of some
sort from which it will emerge. Perhaps intergovernmental relationships are being
reaffirmed, rearranged, or simply disintegrating. Is federalism at a juncture or
encountering a generational or cultural shift? Is federalism in a state of dysfunction
reflective of the national partisan, political, and policy environment? Regardless of
what the answer is, it seems clear that no single conventional theory can explain the
current state of affairs. There can be no grand description or overarching theories
of federalism when different trends and tensions exist within the same policy arena
and across the fifty states. The actions of the national, state, and local governments
are not predictable, unless we perhaps refer to polarized party goals. Differentiated
preferences overpower cohesive state–federal or state–state relationships. For the
time being, prior models of federalism have been fractured, and only fragments of
theories explain current features of intergovernmental interactions.
Notes
The authors would like to thank Carol Weissert and the two anonymous reviewers
for their helpful comments and suggestions.
References
Akabas, Shai. 2013. The Sequester: Mechanics and Impact. Bipartisan Policy Center. Available
at http://bipartisanpolicy.org/sites/default/files/The%20Sequester-%20Mechanics%20and%
20Impact.pdf (accessed April 25, 2013).
Arizona v. United States. 2012. 567 U.S.
Calmes, Jackie. 2013. Obama’s budget revives benefits as divisive issue. The New York Times,
April 13, 2013. Available at http://www.nytimes.com/2013/04/14/us/politics/presidentobamas-budget-revives-benefits-as-divisive-issue.html?_r¼0 (accessed April 25, 2013).
Chaddock, Gail. 2012. Claire McCaskill, ‘Most Endangered Democrat,’ Wins Missouri Senate
Race. Christian Science Monitor, November 7. Available at http://www.csmonitor.com/
USA/Elections/Senate/2012/1107/Claire-McCaskill-most-endangered-Democrat-winsMissouri-Senate-race-video (accessed April 25, 2013).
City of Boerne v. Flores. 1997. 521 U.S. 507.
CNN.com. 2012. Ballot measure results. Available at http://www.cnn.com/election/2012/
results/race/ballot (accessed April 25, 2013).
Coleman v. Court of Appeals of Maryland. 2012. 566 U.S.
Fragmented Federalism
343
Condon, Stephanie. 2012. Marijuana, same-sex marriage initiatives are winners.
CBSNEWS.com, November 7. Available at http://www.cbsnews.com/8301-250_16257546156/marijuana-same-sex-marriage-initiatives-are-winners/ (accessed April 25, 2013).
Congressional Budget Office (CBO). 2012. Choices for deficit reduction. Report released
November 8. Available at http://cbo.gov/sites/default/files/cbofiles/attachments/43692DeficitReduction_print.pdf (accessed April 25, 2013).
Conlan, Timothy J., and Paul L. Posner. 2011. Inflection point? Federalism and the Obama
administration. Publius: The Journal of Federalism 41 (3): 421–46.
Common Core Standards. 2013. Available at http://www.corestandards.org.
Delaney, Arthur. 2012. Fiscal cliff cuts: Democrats divided over whether to putsocial security
‘on the table’. Huffington Post, December 4. Available at http://www.huffingtonpost.com/
2012/12/04/fiscal-cliff-cuts-social-security_n_2238313.html (accessed April 25, 2013).
DeLuca, Matthew. 2013. After Newtown, states slow to embrace new gun laws.
NBCNEWs.com. Available at http://usnews.nbcnews.com/_news/2013/03/02/17151151after-newtown-states-slow-to-embrace-new-gun-laws?lite (accessed April 25, 2013).
Dwyer, Paula. 2013. 10 Things you need to know about the fiscal cliff deal. Huffington Post –
Bloomberg View, January 2. Available at http://www.huffingtonpost.com/2013/01/02/fiscalcliff-deal_n_2395828.html (accessed April 25, 2013).
Eligon, John, and Eric Eckholm. 2013. New laws ban most abortions in North Dakota.
New York Times, March 26. Available at http://www.nytimes.com/2013/03/27/us/northdakota-governor-signs-strict-abortion-limits.html?pagewanted¼all&_r¼0 (accessed April
25, 2013).
Farmer, Liz. 2013. Six state and local questions about sequestration. Governing.com, February
28. Available at http://www.governing.com/blogs/fedwatch/gov-sequestration-effect-statescities-local-government-faqs.html (accessed April 25, 2013).
Florida Prepaid v. College Savings Bank Postsecondary Expense Board. 1999. 527 U.S. 666.
Gamkhar, Shama, and J. Mitchell Pickerill. 2011. The state of American Federalism 2010–
2011: The economy, healthcare reform, and midterm elections shape the intergovernmental agenda. Publius: The Journal of Federalism 41 (3): 361–94.
———. 2012. The state of American federalism 2011–2012: A fend for yourself and
activist form of bottom-up federalism. Publius: The Journal of Federalism 42 (3): 357–400.
Greenburg, Jan Crawford. 2012. Roberts switched vote to uphold healthcare. Cbsnews.com.
Available at: http://www.cbsnews.com/8301-3460_162-57464549/roberts-switched-viewsto-uphold-health-care-law/ (accessed April 25, 2013).
Greenhouse, Steven. 2012. In standoff, latest signs of unions under siege. New York Times, September
10. Available at http://www.nytimes.com/2012/09/11/education/in-chicago-teachers-strikesigns-of-unions-under-siege.html?pagewanted¼all&_r¼0 (accessed April 25, 2013).
Guttmacher Institute. 2013. 2012 saw second highest number of abortion restrictions ever.
Guttmacher Institute Media Center, January 2. Available at http://www.guttmacher.org/
media/inthenews/2013/01/02/ (accessed April 25, 2013).
344
C. J. Bowling and J. M. Pickerill
Hechinger, John, and Kate Anderson Brower. 2011. No education agenda left behind
becomes Obama legal hurdle. Bloomberg News. Available at http://www.bloomberg.com/
news/2011-06-20/no-education-agenda-left-behind-becomes-obama-hurdle-as-congressdeadlocks.html (accessed April 25, 2013).
Hyslop, Anne. 2013. Waiver watch: The real lessons learned from the senate waiver hearing.
February 14. Available at http://www.newamerica.net/taxonomy/term/1753 (accessed April
25, 2013).
Jowers, Karen. 2012. States blasted for late absentee ballots. Air Force Times, October 12.
Available at http://www.airforcetimes.com/article/20121012/NEWS/210120311/Statesblasted-for-late-absentee-ballots (accessed April 25, 2013).
Kaiser Family Foundation. 2012. The cost and coverage implications of the ACA Medicaid
expansion: National and state-by-state analysis: Executive Summary. November. Available at
http://www.kff.org/medicaid/upload/8384_ES.pdf (accessed April 25, 2013).
———. 2013. Health reform. Statehealthfacts.org, April. Available at http://www.
statehealthfacts.org/index.jsp (accessed April 25, 2013).
Kimel v. Florida Bd. of Regents. 2000. 528 U.S. 62.
Klein, Ezra. 2013. A speech that shows how Obama has changed. Washington Post,
January 21. Available at http://pqasb.pqarchiver.com/washingtonpost/access/2870731111.
html?FMT¼ABS&FMTS¼ABS:FT&date¼Janþ21%2Cþ2013&author¼EzraþKlein&pub¼
TheþWashingtonþPost&edition¼&startpage¼n%2Fa&desc¼Aþspeechþthatþshowsþ
howþObamaþhasþchangedþ%28Postedþ2013-01-21þ19%3A47%3A50%29
(accessed
April 25, 2013).
Kurns v. Railroad Friction Products Corp. 2012. 565 U.S.
Lee, Jaeah. 2013. This is what happens when you defund planned parenthood. Mother Jones,
March 14. Available at http://www.motherjones.com/politics/2013/03/what-happens-whenyou-defund-planned-parenthood (accessed April 25, 2013).
Manna, Paul. 2010. Collision course: Federal education policy meets state and local realities.
Washington DC: CQ Press.
Manna, Paul, and Laura L. Ryan. 2011. Competitive grants and educational federalism:
President Obama’s race to the top program in theory and practice. Publius: The Journal of
Federalism 41 (3): 522–46.
McMurrer, Jennifer, and Nanami Yoshioka. 2013. States’ perspectives on waivers: Relief
from NCLB, concern about long-term solutions. Center on Education Policy. Available at
http://www.cep-dc.org/displayDocument.cfm?DocumentID¼418 (accessed April 25, 2013).
McNeil, Michele. 2012. Big race to top problems in Hawaii, Florida, N.Y., says Ed. Dept.
Edweek.org. January 12. Available at http://blogs.edweek.org/edweek/campaign-k-12/2012/
01/race_to_the_top.html (accessed April 25, 2013).
National Association of State Budget Officers (NASBO). 2012a. Fiscal survey of the states,
Fall 2012. Available at http://www.nasbo.org/sites/default/files/Fall%202012%20Fiscal%20
Survey.pdf (accessed April 25, 2013).
Fragmented Federalism
345
———. 2012b. State expenditure report: Examining fiscal 2010–2012 state spending. Available
at http://www.nasbo.org/sites/default/files/State%20Expenditure%20Report_1.pdf (accessed
April 25, 2013).
National Council of State Legislatures (NCSL). 2012. State vote 2012. Available at http://
www.ncsl.org/legislatures-elections/elections/statevote.aspx (accessed April 25, 2013).
———. 2013a. Issues research (health). Available at http://www.ncsl.org/issues-research/
health/state-medical-marijuana-laws.aspx (accessed April 25, 2013).
———. 2013b. Issues research (justice). Available at http://www.ncsl.org/issues-research/
justice/self-defense-and-stand-your-ground.aspx (accessed April 25, 2013).
———. 2013c. Issues research (right to work). Available at http://www.ncsl.org/issuesresearch/labor/right-to-work-laws-and-bills.aspx (accessed April 25, 2013).
National Federation of Independent Business v. Sebelius (‘‘NFIB’’). 2012. 567 U.S.
National Governors Association (NGA). 2013. Letter from NGA to Congress. February 4, 2013.
Available at http://www.nga.org/cms/home/federal-relations/nga-letters/education–workforcecommittee-l/col2-content/main-content-list/february-4-2013-letter—esea-re.html.
National Rifle Association (NRA). 2013. Available at http://www.nraila.org/gun-laws.aspx.
Nevada Department of Human Resources v. Hibbs. 2003. 538 U.S. 721.
New York v. United States. 1992. 505 U.S. 144.
Nicholson-Crotty, Sean. 2012. Leaving money on the table: Learning from recent
refusals of federal grants in the American states. Publius-The Journal of Federalism 42
(3): 449–66.
Pickerill, J. Mitchell. 2009. Something old, something new, something borrowed, something
blue. Santa Clara Law Review 49 (4): 1063–101.
Pickerill, J. Mitchell, and Paul Chen. 2008. Medical marijuana policy and the virtues of
federalism. Publius: The Journal of Federalism 38 (1): 22–55.
PPL Montana v. Montana. 2012. 565 U.S.
Printz v. United States. 1997. 521 U.S. 898.
Ravitch, Diane. 2010. Obama’s race to the top will not improve education. Huffington Post,
August 1. Available at http://www.huffingtonpost.com/diane-ravitch/obamas-race-to-thetop-wi_b_666598.html (accessed April 25, 2013).
Recovery.gov. 2013. Available at http://www.recovery.gov/Pages/default.aspx (accessed April
25, 2013).
Riccardi, Nicholas, and Ivan Moreno. 2013. Colorado one of few victories for gun control
backers. March 19. Associated Press. Available at http://www.ed.gov/blog/2013/02/duncanto-congress-giving-states-flexibility-is-working/ (accessed April 25, 2013).
Rich, Mokoto, and Jon Hurdle. 2013. Rational decisions and heartbreak on school closings.
New York Times, March 8. Available at http://www.nytimes.com/2013/03/09/education/
rational-decisions-and-heartbreak-on-school-closings.html?pagewanted¼all (accessed April
25, 2013).
346
C. J. Bowling and J. M. Pickerill
Rivlin, Alice M. 2012. Rethinking federalism for more effective governance. Publius: The
Journal of Federalism 42 (3): 387–400.
Roberts, Amy. 2013. By the numbers: Automatic spending cuts. CNN Library, February 19.
Available at http://www.cnn.com/2013/02/15/politics/btn-automatic-spending-cuts/index.
html (accessed April 25, 2013).
Shepherd, Michael. 2013. Maine democrats defeat two right-to-work bills. Maine Sunday
Telegram, April 24. Available at http://www.pressherald.com/politics/state/Maine-Houseconsiders-right-to-work-dues-bills-.html (accessed April 25, 2013).
South Dakota v. Dole. 1987. 483 U.S. 203.
Storey, Tim. 2013. Democrats bounce back. State Legislatures Magazine, December, 2012.
Available at http://www.ncsl.org/legislatures-elections/elections/democrats-bounce-back-1.
aspx#One-Party Control of State Government.
Sullivan, Sean. 2012. Voting issues surface in battlegrounds in advance of election day.
Washington Post, November 5. Available at http://www.washingtonpost.com/blogs/the-fix/
wp/2012/11/05/voting-issues-surface-in-battlegrounds-in-advance-of-election-day/
(accessed April 25, 2013).
Terkel, Amanda, and John Celock. 2011. Ohio issue 2: Controversial anti-union law defeated
by voters. Huffington Post, November 8. Available at http://www.huffingtonpost.com/2011/
11/08/ohio-issue-2-_n_1083100.html (accessed April 25, 2013).
United States v. Lopez. 1995. 514 U.S. 549.
United States v. Morrison. 2000. 529 U.S. 598.
United States Department of Education. 2012. ESEA flexibility (website). Available at http://
www.ed.gov/esea/flexibility (accessed April 25, 2013).
Voteview.com (Keith Poole). 2012. The polarization of congressional parties. Available at
http://voteview.com/political_polarization.asp (accessed April 25, 2013).
Wright, Deil S. 1988. Understanding intergovernmental relations. 3rd ed. Pacific Grove:
Brooks/Cole.
Yaccino, Steven, and Motoko Rich. 2013. Chicago says it will close 54 schools. New York
Times, March 22. Available at http://www.nytimes.com/2013/03/22/education/chicagosays-it-will-close-54-public-schools.html?_r¼0 (accessed April 25, 2013).