"I don't think any state or anybody should have the right to do that," President Joe Biden pronounced a few months ago regarding legislation passed in Arkansas and pending elsewhere banning the use of so-called gender-affirming healthcare on children. "As a moral question and as a legal question, I just think it's wrong," he concluded.
Setting aside the morality of Biden’s endorsement of medical procedures that one recovering liberal called “unscientific, bizarre, and cruel,” there is the “legal question” as to which Biden is equally in error. After all, the 10th Amendment, which enshrines the principle of federalism, provides that “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.”
Thus, states may serve as “laboratories of democracy,” a phrase derived from Justice Louis Brandeis’s 1932 dissent. “It is one of the happy incidents of the federal system," he wrote, "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.”
That Biden is a foe of federalism became clear in the early days of his administration, when he condemned, as guilty of “Neanderthal thinking,” the governors of Mississippi and Texas, who took an approach different from that of Dr. Anthony Fauci concerning COVID-19.
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That former President Ronald Reagan, a former governor of the nation’s most populated and third largest state, California, was a fan of federalism is hardly surprising. After all, he was a strict constitutionalist, conservative, limited-government Republican, but he also dealt with the federal government, which owned half the land mass of his state, as well as the vast outer continental shelf 3 miles beyond its coastline. Moreover, California’s southern border adjoins Mexico. With all the challenges facing the nation in 1981, when Reagan took office, it seems natural that federalism featured prominently in his first inaugural address:
"It is my intention to curb the size and influence of the federal establishment and to demand recognition of the distinction between the powers granted to the federal government and those reserved to the states or to the people. All of us need to be reminded that the federal government did not create the states — the states created the federal government."
To that end, Reagan signed a “Federalism” executive order that recognized “fundamental federalism principles,” including that federalism is “rooted in the knowledge that our political liberties are best assured by limiting the size and scope of the national government,” that “[t]he people of the States created the national government when they delegated to it those enumerated governmental powers,” that “[t]he constitutional relationship among sovereign governments, state and national, is formalized in and protected by the Tenth Amendment to the Constitution,” and that, “[i]n most areas of governmental concern, the States uniquely possess the constitutional authority, the resources, and the competence to discern the sentiments of the people and to govern accordingly.”
Although Reagan took various actions in defense of federalism, the most significant demonstration of his perspective was his quelling of the “Sagebrush Rebellion” that arose in response to former President Jimmy Carter’s "War on the West."
Former President Bill Clinton revoked Reagan’s executive order on federalism and replaced it with one of his own while he was traveling in England. But it created such an outcry that he suspended and then replaced it in 1999 with one that paid mere lip service to federalism. By then, however, Clinton had resumed Carter’s "War on the West," which revealed his disdain for federalism. In decreeing a vast national monument in Utah, for example, he consulted not with the Beehive State’s governor and congressional delegation but with environmental groups and Robert Redford.
Clinton's successor, former President George W. Bush, made his No Child Left Behind Act the hallmark of his domestic policy. Constitutionally and historically, education had been a matter for states, and Bush was a former Texas governor. But none of that mattered. Neither did objections by states to the damage his new law did to federalism. Instead, Bush lawyers used every legal weapon to force states to toe the line.
Although former President Barack Obama, early in his first term, signed a “Preemption Memorandum,” in which he cited both Clinton’s federalism executive order and Justice Brandeis’s dissent, the directive was ignored when it conflicted with Obama’s policy goals. And so Arizona’s attempt to address the impact of illegal immigration drew fire from Obama personally, litigation from his Department of Justice, and public shaming from his diplomats when meeting with China.
Former President Donald Trump’s first foray into federalism occurred in February 2017, when he signed an executive order, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States,'" noting the responsibilities of “States under the Constitution.” This and other actions throughout his term were reminiscent of Reagan’s ending of another "War on the West," this time the one undertaken by Obama.
It matters what presidents say, do, and sign into law regarding federalism. What matters more finally, however, is what the Supreme Court decides. Fortunately, the court has reined in Congress’s incursions on state sovereignty as protected by the 10th Amendment and other provisions of the Constitution. In 1992, in New York v. U.S., the court recognized that “federalism secures to citizens the liberties that derive from the diffusion of sovereign power ... just as [does] the separation and independence of the coordinate branches of the Federal Government.”
States are not mere political subdivisions of the U.S. State governments are neither regional offices nor administrative agencies of the federal government. The positions occupied by state officials appear nowhere on the federal government's most detailed organizational chart. The Constitution instead "leaves to the several States a residuary and inviolable sovereignty," reserved explicitly to the states by the 10th Amendment. Whatever the outer limits of that sovereignty may be, one thing is clear: The federal government may not compel states to enact or administer a federal regulatory program.
Neither may the federal government intrude upon the ability of states to “perform their role as laboratories for experimentation” by making it a federal crime to possess a firearm in a school zone, as the Supreme Court ruled in the 1995 case U.S. v. Lopez. Nor may the federal government “conscript the States' officers directly … to administer or enforce a federal regulatory program,” as the court ruled in the 1997 case Printz v. U.S. As recently as 2018, the court reaffirmed federalism’s “anticommandeering principle” in Murphy v. NCAA, but it has not had the opportunity to apply federalism’s “laboratories of democracy” rationale since Lopez over a quarter century ago.
Today's Supreme Court, given its strict construction rulings in West Virginia v. EPA, Dobbs v. Jackson Women's Health Organization, and New York State Rifle & Pistol Association, Inc. v. Bruen, is the one to strengthen federalism further. That Biden has vowed no changes in his lawless governance and that governors and attorneys general are more willing than ever to challenge Biden’s actions, the court might get the chance. We need it — after all, as Justice O’Connor once put it, in federalism “lies the promise of liberty."
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William Pendley is a Wyoming attorney and Colorado-based public-interest lawyer for three decades. He served in the Reagan administration and led the Bureau of Land Management for President Donald Trump.