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Federal Laws Versus States Rights Re-Visited

USRENEW NEWS EDITORIAL

By: USRENEW NEWS Reporters

(Scout Burchill, Ron Israel, Tim Loftus, Rod Maggay and Lynn Waldsmith)

January 1, 2022

Header photo taken from: Attorneys Worldwide

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Photo taken from: Pew Research Center

Introduction

The United States has a democratic federal form of governance with law-making responsibilities divided between the federal government and our 50 states. The U.S. Constitution, written in 1789, seeks to provide a framework for areas of governance that belong to the states and those that belong to the federal government. The way in which the Constitution was written reflects a compromise between mostly urban-based advocates of a strong central government, led by Alexander Hamilton, and the mainly rural-based part of our country led at the time by Thomas Jefferson.

Throughout the course of U.S. history the role of the federal government, in relationship to states rights, has shifted- from weak to strong and back to weak again. This shift in the locus of power has taken place in response to the changing historical/economic and social circumstances in which the country finds itself. The federal government tends to play a larger role in times of social and economic upheaval and a lesser role during periods of peace and calm.

Today is a time of upheaval as civil discourse is disappearing, misinformation is widespread, and old forms of conduct and democratic institutions are under attack. If we stay together as a nation there is a need for our federal government to assert itself, bring us together, and play a strong leadership role.

USRENEW NEWS asked members of our reporter team to make the case for greater or lesser federal governance in key public policy areas during the times in which we live. Here is what they wrote:

Civil Rights

The big issue today in civil rights, maybe even the entire country, is voting rights. It is one of the few issues that makes headlines across the U.S. when Congress debates reforms at the federal level and individual states pass new voting rights laws. 

The Constitution in Article One, Section Four, Clause One actually gives each state legislature the power over the time, place and manner of elections but qualifies that grant of power by stating that Congress may “make or alter such Regulations.”

photo taken from: The Guardian

The focus of the argument shouldn’t be a simple choice between state power and federal power. It should be on whether access to the ballot box is being unduly burdened and if either the state or the federal government can do anything about it. Recently, in line with former President Trump’s false claim that the election was stolen from him, a number of states have enacted laws that have made it harder to cast a ballot. While new absentee ballot restrictions was an easy target for new laws, it can be said that some of the new restrictions were not necessary and were only passed in response to President Trump’s unfounded claims of fraud.

In this instance, the federal government can step in and offer ways to counter some of the misplaced efforts going on in the states – they can pass new laws that every state must follow and offer new guidance and minimum standards.

The Environment

Other natural resources, such as wildlife, are left largely to states to manage with their own set of regulations. Here, federal law essentially establishes a threshold of minimum species existence below which the federal Endangered Species Act takes over to set the rules for species recovery.

photo taken from: US Fish and Wildlife Service

Marine fisheries management on the other hand is largely a federal responsibility, but one that involves regional management councils and interstate commissions. States are allowed to manage within the first three miles of their coastline before the federal role triggers for management within the three-200 nautical mile from coastline, U.S. exclusive economic zone.

In most of these cases where the resources are seen as common-pool rather than private property, federal law sets a minimum standard of resource protection and leaves it to states to manage resources at or above those standards. Federal law in effect acts as a guide for states that are free to “improve” on federal guidance for the betterment of the resource or society, but states cannot regulate at levels that ignore federal guidance. Marine fisheries management is more nuanced and cooperative in practice.

The judicial branch of federal government plays a crucial role in interpreting the laws as they are either upheld or ignored by states and/or other entities (e.g., private individuals, corporation, federal agencies charged with implementing law.) The matter of environmental protection, therefore, is neither a solely federal oversight nor a strictly states’ rights issue, but rather a cooperative venture in joint governance with mediation provided as necessary by the court system. An informed citizenry also has a role to play in ensuring that laws and rulemaking at both levels remain current and effective.

Healthcare

Although healthcare is not included in the U.S. Bill of Rights, it is included in the Universal Declaration of Human Rights adopted by the United States and 191 other countries. Health care as a basic right has become part of the lexicon of many U.S. politicians on both sides of the aisle. 

photo taken from: Forbes

However, with few but noteworthy exceptions (e.g., Medicare) federal legislation has failed to support the widespread belief in health care as a human right. The U.S. public health system is fragmented with the federal government limited in what it can prescribe and with states having the ability to enact their own regulations in many areas vis-à-vis the prevention and treatment of disease.

However, illness and disease, like climate change, know no political boundaries. The current Covid 19 global pandemic is testimony to that assertion. The Covid 19 virus will not be contained in any single country until people in all countries are fully protected from the virus; nor in any one U.S. states until people in all 50 states are fully protected.

Unfortunately progress in stopping Covid within the United States has been slow because many states for political reasons refuse to enact vaccination and mask mandates, and because many citizens believe that such mandates are an infringement of their civil rights. The politics of Covid are perhaps the first time in U.S. history when public health has become so politicized. In a public policy arena greatly in need of federal leadership and management, the cry of states’ rights and individual citizen rights are being used to mitigate our ability to keep people healthy.

Education

The federal government has a limited role in education. This is mainly because public schools are mostly funded at the local and state level, while states fund state universities and private organizations establish schools and colleges as well. 

This myriad of institutions leads to a variety of curricula and educational standards throughout the country.

photo taken from: Center for American Progress

While local and state school systems should and do have the right to teach students in their jurisdictions as they see fit, the federal government historically has intervened when necessary.

For example, when Southern states refused to educate former slaves after the Civil War, Congress created federal schools to do so. In the early 20th century, Congress funded vocational education programs to train immigrants for employment. In the 1950s and ’60s, after the Soviet Union launched a satellite into space, Congress funded major new efforts to improve the teaching of science and mathematics. And the passing of Civil Rights laws eventually made it possible for Black students to receive access to the same education as their white peers.

Education in the U.S. is a complex system and the federal government should try to stay out of decisions that are best left to governors, state legislators, school boards, superintendents, and teachers. However, when local leaders are unable or unwilling to provide for all children’s needs, federal policy makers have an obligation to become involved.

The federal government should focus its educational efforts on these four areas:

Universal Pre-K

A wealth of research shows that high-quality preschool programs tend to be extraordinarily effective in helping kids succeed in school, but access to pre-K is painfully inadequate in most of the country, especially for children from low-income families.

Teacher quality

Teacher recruitment, preparation, and retention were already problems before the pandemic. Meager wages, lack of respect, poor working conditions and burnout have been exacerbated during the Covid-19 crisis, leading to teacher shortages.

Funding

The funding of public education needs to be overhauled. Local property taxes continue to be a major source of educational funding in most states, which allows affluent communities to allocate more money per pupil. According to the Organization for Economic Cooperation and Development, the American approach to school funding is one of the most dysfunctional systems in the world: “[The] vast majority of [advanced] countries either invest equally in every student or disproportionately more in disadvantaged students. The U.S. is one of the few countries doing the opposite.” 

Safety

School shootings are every parent’s worst nightmare and the country is reeling from far too many of them. Given the gun violence epidemic in this country with student anxiety and depression at all-time highs, occasional active shooter drills are simply not enough. The federal government needs to adopt and enforce proactive and proven safety measures at every school in the U.S.

Social Justice

Social justice issues in the U.S. are ever-growing. From voting rights to racial injustice to gun violence in America, there is a demand for the federal government to act on behalf of its citizens.

Social justice issues should be addressed at the federal level through various types of legislation and organizations dedicated to reforming the issues that matter. 

photo taken from: Harvard Gazette – Harvard University 

In the past, we have seen the U.S. government pass laws regarding some of these issues. For example, there have been small efforts by the new administration to reform gun control – however, these laws are usually not far-reaching enough to make an impact. What is needed is a government who is willing to pass laws that will not only prevent tragedies and social injustice but prosecute those who willingly harm other people to ensure they cannot do it again.

This is not something that can be achieved solely at the state level. There are states that are unwilling to pass laws to protect their citizens, believing the 2nd Amendment has priority over the safety and security over their residents. This calls for the federal government to step in and draft laws that will help address things like gun violence and racial injustice. Mass shootings are on the rise in the U.S., and we are lacking the legislation (and cooperation) to protect our citizens from tragedy. Something must be done by lawmakers to curb violence in all states and make America a safe place for people to live again.

Technology

Almost two years into a pandemic, the power of technology to shape our societies, economies and everyday lives is clearer than ever. 

From Zoom-schooling, meme-stocks and Twitter-driven political discourse to skyrocketing inequality, cyberwarfare, surveillance capitalism and disinformation, the nation needs a bold and unifying vision that addresses the issues of our exponential age.  Unfortunately, when it comes to our nation’s leadership, clarity of purpose is blurry at best.

photo taken from: The New York Times – “Ohio’s battle to classify Google as a public utility”

Too often, our nation’s politics are purely reactive, lacking in foresight and beset by petty political in-fighting. Systems only adjust, if ever, after damage is done. In the rapidly emerging sphere of digital governance, this state of affairs has us barreling toward an uncertain future as technology rapidly alters the fabric of our society, and our ability to proactively shape its influence is stymied by political morass, big money interests and a loss of faith in our own institutions’ ability to govern.

To amplify the benefits and reign in the harms of technology, the federal government needs to rise from its slumber and rediscover its raison d’etre – to serve, protect and guarantee the rights of all Americans. Currently there are no federal laws on the books protecting our data privacy from ravenous data brokers or enshrining our digital rights. As the vague distinction between our online and offline worlds grows more indistinguishable, the federal government’s lack of action imperils us all.

This has pushed states to take matters into their own hands, resulting in some interesting experimentation in the areas of digital governance. Some examples that come to mind are: Ohio’s battle to classify Google as a public utility, Vermont’s stringent data protection laws, the 40 states that came together to file an anti-trust suit against Facebook, and even Florida’s half-cocked attempt to stop Big Tech censorship. 

No doubt, some of these initiatives can produce good models going forward, but more often than not, the overall result is a fractured patchwork of states pushing and pulling in various directions. Furthermore, state initiatives that truly take on the concentrated power of Big Tech are almost bound to fail given that tech interest groups tend to have far more patience and much deeper pockets than most state attorneys and legislatures.

There will be no unified vision, no concerted effort, without the federal government leading the charge. States may try to forge their own paths, but without the leadership and vision of a determined federal government, the odds are squarely stacked against them.

Conclusion

Our Reporters make a strong case for stronger federal legislation in most of the public policy issues covered by this Editorial. 

The arguments for stronger states’ rights and individual liberties lose their luster at a time when so many issues like climate change cannot be contained just at the state level; when the importance of public health and safety take precedence over the behavior of people who believe they have the right to purchase an AK 47 or  not to wear a mask in the midst of a pandemic.

photo taken from: Cincinatti.com

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