When I was in high school six decades ago, my civics textbook had a graphic depicting American government. It was a pyramid with the federal government at the top, state government in the middle, and local government at the bottom. Many people seem to believe this graphic is an accurate depiction, but it is wrong. Under our federal system of government, the states are not under or subordinate to the federal government; the state governments and the federal government have a co-ordinate relationship in which the states are sovereign and independent except for specific functions that are delegated solely to the federal government by our Constitution.
Among these functions are the power to declare and wage war, regulation of interstate and foreign commerce, the establishing of laws and regulations for immigration and naturalization, the establishing of post offices and courts, regulation of intellectual property rights, and punishment of maritime crimes. The entire list is long and some of the functions are fuzzy.
Consider robbery. Protection of personal property is a function left to the states. But back in the 1930s, John Dillinger and his gang were robbing banks, then driving across the state line and thumbing their noses at the police, who could not pursue them into another state. The federal government got involved in 1934 when Congress declared that money in a bank that was a member of the federal reserve system was federal property and put bank robbery under the jurisdiction of the FBI.
Similarly, murder is not a federal crime, and each state has its own laws and penalties for homicide. But the Civil Rights Act of 1968 declared the use of force to injure, intimidate, or otherwise interfere with any person on account of their race, color, religion, or national origin was a “hate crime.” This act allowed the federal government to get involved in any crime that meets those criteria.
Today, the lines between federal and state jurisdiction are being blurred on both sides of the political spectrum. For example, the Supreme Court recently overturned Roe v. Wade, a 1973 decision that established a constitutional right to abortion during the first trimester of pregnancy. This did not make abortion illegal in the United States as some have implied; rather, the court said abortion was not a constitutional function of the federal government and turned the issue over to the states to deal with as each state saw fit. The pro-abortion crowd is not happy with this decision because they believe the court made abortion illegal in the United States, while abortion foes are upset because people can cross state lines to get an abortion in a state where it is legal. Some are calling for a federal law that would make abortion illegal everywhere in the United States. The problem with this proposal is that it would make all murder a federal crime unless one argues that a fetus has civil rights which expire at birth.
Another area where federalism is blurred is immigration. Regulating immigration and naturalization, and defending our borders, are among the powers granted to the federal government in the Constitution. Most of the undocumented persons in the United States are students and travelers who have overstayed their visas. And even though they are not citizens, the Fourth Amendment of the U.S. Constitution protects all persons, not just citizens, from random and arbitrary stops and searches. But this protection is not extended to those crossing our borders. Thus, the U.S. Border Patrol, which is a department of the federal government, has the right to detain persons crossing our border, except those seeking political asylum.
While some areas of the country may welcome immigrants and the cheap labor they bring (and are hence “sanctuary cities”), the influx of undocumented persons during periods of lax federal border enforcement places a disproportionate burden on states along our southern border, which is the most frequently crossed border in the world. But those border states cannot impede the movement of people and goods across their borders with other states, and it is the responsibility of the federal government to control our borders with other countries.
Another tricky area involving federalism is our election laws. The Constitution says all states must hold elections for federal office on the “Tuesday following the first Monday in November.” But it says nothing about how those elections are to be conducted. It is mute about where people vote, how long the polls must be open, mail ballots, voting machines, poll watchers, recounts, primary elections or even secret ballots. All these are left up to the states, and they are different in just about every state.
The Constitution is also mute on who can vote. The U.S. Supreme Court has consistently ruled that voting is a fundamental right implied in the Constitution (Dunn v. Blumstein, and Richardson v. Ramirez) and Congress has extended this right to women and 18-year-olds. And in the Anti-Gerrymandering Act of 1979, it prohibited the drawing of congressional districts for the purpose of diluting the voting strength of any language minority group or of any racial minority group. But these rules apply to who can vote, not the actual process of voting.
But in my opinion, the greatest threat to federalism and the separation of powers between state and federal government has been the growth of the federal bureaucracy. This growth has been fueled by the federal government’s perpetual deficit spending and the ability of the federal government to extend grants to the states with strings attached: If a state wants the money it must comply with a slew of federal regulations. This has allowed the federal government to stick its fingers into nearly every aspect of our daily lives. The whole matter will be the subject of my next Lagniappe column.
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