The states are far from powerless under the realities of cooperative and coercive federalism.[1] The states can and do influence national policy, in some cases by plotting their own course and in other cases by pushing back against federal policy.
- States can make national policy through the constitutional amendment process (Article V). Thus far, however, no constitutional amendment has resulted from petitions from two-thirds of the states.
- The states can lead through policy innovation and diffusion. The 19th Amendment, giving women the right to vote, was adopted in 1920, was achieved in this manner.[2] In 1869, the Wyoming Territory granted the right to vote to all female residents age 21 and older. When Wyoming was admitted to the Union in 1890, that right remained part of the state constitution. Between 1910 and 1918, the Alaska Territory and 16 additional states extended voting rights to women. Seeing the writing on the wall, Congress adopted the Susan Anthony Amendment granting women the right to vote in 1919. By 1920, three-quarters of the states had ratified the amendment.
- Some states can create de facto national laws because of their large markets. For example, many car manufacturers follow California’s air pollution standards, even though they are more demanding than federal regulations, because they do not want to miss out on California’s market.[3]
- Coalitions of state attorneys-general can exert strong legal pressures to create de factor national policies.
- These coalitions can be bipartisan. State A.G.s can and do cooperate, particularly in corporate litigation, to address allegedly widespread, illegal behavior. Notable examples include efforts by 41 states in 2017 to address the role of the major pharmaceutical firms in the opioid epidemic and, before that, an agreement between 46 states and four major cigarette manufacturers in 1998 to restrict the sale and advertising of cigarettes.[4]
- The coalitions can also be partisan. Groups of state A.G.s have been increasingly willing to sue the federal government. For example, in 2015, a number of Republican state A.G.s filed suit against a Clean Power Plan proposed by the Obama administration. In 2017, seventeen Democratic A.G.s filed suit when the Trump administration sought to repeal the same Clean Power Plan.
Overall, both political parties tend to compete more strongly in the state arenas when they cannot control the federal government.[5] Examples of outcomes achieved within the states include regional environmental compacts, anti-abortion laws, pro-gay marriage laws, gun rights, gun-controls, and pro-marijuana laws.
This ends Part 3 of 4. Next week we will start Part 4 which reviews some of the pros and cons of federalism. If you want to read ahead, you can do that by clicking here.
Image: CSPAN.
[1] This section draws on Nolette, P., & Provost, C. (2018). Change and continuity in the role of state attorneys general in the Obama and Trump administrations. Publius: The Journal of Federalism, 48(3), 469-494.
[2] See https://www.history.com/topics/womens-history/19th-amendment-1
[3] Rozell & Wilcox, 2019, p. 67-68.
[4] Public Health Law Center, Mitchell Hamline School of Law. https://www.publichealthlawcenter.org/topics/ commercial-tobacco-control/commercial-tobacco-control-litigation/master-settlement-agreement
[5] Kincaid, 1990, p. 152. Kincaid, 2017, pp. 1078-1088. Rozell & Wilcox, 2019, p. 1.
