As Americans, we are citizens of both the US, and of the state where we live....and, as federalism - the concept of power divided between federal and state authorities - experiences a revival after decades dominated by federal power, federal and state governments have begun to clash with increasing frequency and ferocity.
Article One of the Constitution grants about 20 specific, enumerated powers to the federal government, while the tenth amendment in the Bill of Rights makes clear that all powers not specifically granted to the national government accrue to individual states or the people.
Three very important issues relating to power, enforcement and regulation have come front and center these days in which the federal government has asserted authority that a number of states have resisted with a vengeance.
In an unprecedented assertion of state power....more than half of all the states...27 in all...filed suit against the federal government challenging the validity of the individual mandate in the new health care law. The federal government asserted that the commerce clause of the constitution - located in the midst of the federal government’s enumerated powers - permitted them to require people to purchase health insurance. The states took their resistance all the way to the supreme court, which ultimately upheld most of the law..but left the battle for power unresolved.
During the same supreme court session, the question of states’ power to ENFORCE a federal law was tested in the case of the Arizona immigration law. While upholding one part of the law, the court ruled that states essentially do not have the right to take enforcement of federal law into their own hands, no matter whether the federal government is enforcing the law or not.
Then there is the issue of federal regulations which affect individual states, some more than others...an issue most significant in the case of the Environmental Protection Agency, or EPA, When the so-called cap and trade bill regulating carbon emissions was defeated in Congress, many of the regulations contained in the bill were simply adopted by the EPA, and as the costs of compliance with these regulations continue to mount, many small businesses, and energy producers in particular, have been slowed down or shut down, especially the coal industry. Many states have fought back, directly challenging the validity of these federal regulations.
The issue is not whether you or I prefer the federal government or the states to have more authority over our lives. The issue is what the constitution says. For it remains the law of the land, and not a document to be cherry-picked by grandstanding politicians using it for their own purposes.
But America’s founders did not always agree on the appropriate and exact balance of power between the federal and state governments...and they envisioned the tension inherent in federalism, or dual sovereignty...as healthy.
In the end, the courts - the judicial branch of government - is the ultimate arbiter charged with interpreting and enforcing constitutional law. And the divisions in the court...the split decisions on the Arizona immigration law and the health care law, and the many pending battles over EPA regulations....highlight the reality that the battle for power between the federal and state governments, long simmering below the surface, has been joined afresh and come front and center in the fight over a proper interpretation of the US Constitution.
