Have you ever given any thought to why our nation is called the United States of America? Are we “one nation, indivisible” or fifty states retaining power delegated and not prohibited by the 10th Amendment?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
A little history:
The Revolutionary War (1776-1783) was grueling, the colonial armies lost battle after battle, the British controlled the cities; it became a war of attrition with the British people increasingly resisting the expense of the war.
The rebellious colonies needed a governmental structure and the Articles of Confederation (drafted: 1776, affirmed: 1781) loosely aligned the thirteen colonies. By the end of the war the governing structure was subject to criticism, in fact, the Articles threatened the existence of the new nation.
After the war, nationalists, especially those who had been active in the Continental Army, complained that the Articles were too weak for an effective government. There was no president, no executive agencies, no judiciary and no tax base. The absence of a tax base meant that there was no way to pay off state and national debts from the war years except by requesting money from the states, which seldom arrived.
The nation struggled through the eighties, and in the spring of 1787 delegates trickled into Philadelphia. There was agreement that the Articles must be amended; however, Madison and Hamilton had different ideas. The delegates came and went, threatened to leave permanently, schemed, formed alliances, compromised and in September affirmed a new document: a constitution.
Throughout the fall and winter, one by one the states ratified the new constitution. The Federalists and the anti-Federalists argued pro and con across the nation; Madison, Hamilton and Jay wrote 85 essays, the Federalist Papers, today we would call them op eds.
Hamilton and Madison proposed instead of the absolute sovereignty of each state under the Articles of Confederation, the states would retain a” residual sovereignty” in all those areas which did not require national concern.
This assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and individual States to which they respectively belong.
Survival as a respected nation required the transfer of important, though limited, powers to the central government. They believed that this could be done without destroying the identity or autonomy of the separate state
The constitution remained silent on the question of slavery, even though most of the states attending the convention had outlawed slavery. The question of slavery was “reserved” for the states.
The passage of the Thirteenth Amendment, in the waning months of the Civil War required extensive political maneuvering by Lincoln. The Reconstruction Amendments were slowly and inexorably eroded by the Black Codes in the decades after the war. The Supreme Court deferred to the states in a number of decisions. For example, in 1896 the Court ruled that “separate but equal” public facilities were constitutional.
It wasn’t until the Great Depression and the actions of President Roosevelt that the federal government began to act aggressively. Presidents, from Roosevelt to Obama increasingly interpreted the constitution in a way that shifted powers away from state capitals to Washington.
Opposition to an increasingly activist role of the executive and or legislative branches is called New Federalism.
New Federalism is a political philosophy of devolution, or the transfer of certain powers from the United States federal government back to the states. The primary objective of New Federalism, unlike that of the eighteenth-century political philosophy of Federalism, is the restoration to the states of some of the autonomy and power which they lost to the federal government as a consequence of President Franklin Roosevelt‘s New Deal.
As a policy theme, New Federalism typically involves the federal government providing block grants to the states to resolve a social issue. The federal government then monitors outcomes but provides broad discretion to the states for how the programs are implemented. Advocates of this approach sometimes cite a quotation from a dissent by Louis Brandeis in New State Ice Co. v. Liebmann:
It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.
Conservative Justice Rehnquist limited the expanding powers of the federal government,
The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.
In the modern era Obama, faced with an obstructionist Republican Congress used his executive authority to issue regulations to create policy without Congress. Regulations issued by governmental departments and executive orders evade the necessity of Congressional approval. The President reshaped the national education landscape through his power of the purse, Race to the Top; and, aggressively utilizing the assumed powers of the Secretary of Education, a presidential appointee.
The passage of the Every Student Succeeds Act (ESSA) was a resounding defeat for the president. The law undermines his entire eight year education policy initiatives. The law devolves education policy to the states. Does the bipartisan passage of ESSA presage additional erosion of the powers of the executive?
This evening I was listening to former general and head of the CIA David Petraeus being interviewed at the New York Historical Society; the interviewer, Max Boot, a highly regarded military historian and frequent contributor to Foreign Affairs and other prestigious journals. Petraeus is widely reported as candidate for Secretary of State in the Trump cabinet. Boot began by listing a number of outrageous Trump assertions regarding foreign policy. Petraeus immediately differentiated “political rhetoric” and governing.
Will Trump continue the erosion of the power of the states or will the Congress succeed in restoring authority to the states?
Will a huge infrastructure bill, crafted by the executive enrich the billionaires, as NY Times columnist Paul Krugman fears, or, provide block grants to the states to determine priorities and projects?
Will Trump cave to the right wing of the Republican Party and reduce taxes and pay for the reduction through slashes to Social Security and Medicare/Mediacid?
Will we get the “Build the Wall,” “Internment Camps,” “Fiscally Reckless” Trump or the president who sheds “political rhetoric” for pragmatism?
We await the direction of the nation over the first hundred days of the new administration.