DEVOLUTION AND FEDERALISM IN HISTORICAL PERSPECTIVE

The word "devolution" became a staple in political discourse with the capture by the republican party of decisive majorities in both houses of Congress in the 1994 election. Under the banner of a "Contract with America," and directed by Speaker Newt Gingrich, who outspokenly demanded absolute acceptance of party leadership, the new majority in the U.S. house of representatives undertook to implement a broadly based neoconservative agenda. One main instrument for achievement of that agenda's specific goals was a carefully crafted shift in policymaking authority and administrative responsibility, away from the national government and into the hands of the states.

Many of the key portions of the 1994 conservative agenda were a restatement of main themes in the policies pursued by the White House and the Republican Party during the administrations of ronald reagan and george h. w. bush. One of these themes was embodied in an attack on the powers of federal regulatory agencies in general, with emphasis particularly on the Environmental Protection Agency, the National Labor Relations Board, and the Occupational Safety and Health Administration. Also prominent were demands for reduction of federal capital gains taxes and for tempering the progressivity of federal taxation. Conservatives also condemned what they termed an unwarranted "activism" by so-called liberal judges in the federal courts—a reflection of the conservatives' dissatisfaction (dating from the time of the warren court desegregation and criminal justice decisions) with the Supreme Court's interpretations of minority rights, with judicial broadening of the criteria for standing to litigate environmental and consumer causes, and with the emerging concept of the entitlement rights of welfare clients and others against bureaucratic decisions. Withal, as Herman Belz indicated in his " constitutional history, 1980–1989" entry in this encyclopedia, the 1980s witnessed the consolidation of a conservative program of deregulation and reestablishment of "market values"; pursuit of a social agenda; and the paradoxical attack on taxes and the bugaboo of "big government" that went forward with a steady burgeoning of federal deficits in the annual budgets of the Reagan years. And, as Belz emphasized, polarization of political differences and the dynamics of conflict were heightened by the persistence of divided government, with one party controlling one or both houses of Congress while the other held the presidency—a situation that would continue to pertain throughout most of the presidency of william j. clinton as well.

Other elements of the 1994 "Contract with America" platform, however, reflected a significant extension of the earlier programs and a distinct hardening of ideological lines. These developments involved opposition to abortion rights; affirmative action in the schools and the workplace; and federal welfare and health programs, especially those designed to reach the poorest (and hence politically the most vulnerable) elements of the nation's citizenry. (The only plank in the 1994 platform that was not pursued zealously was campaign finance reform, which proved to be of less interest as a concrete legislative goal to the newly elected senators and representatives than it had been as a campaign pledge.)

A notable feature of the 1994 agenda was the extent to which conservatives pursued their goals through a shifting of policymaking responsibility and administrative authority out of the federal government's control and into that of the states. So insistent and so broad in scope was this effort that some analysts applied the term "devolution revolution" to what was being attempted, especially with regard to the attack on the inherited policies and institutions of the post-1935 welfare state and its social security, health care, and welfare programs. An increasing number of state legislatures and governorships won by the Republicans enhanced the attractiveness of such devolution ideas as they were advanced by the congressional leadership. And, indeed, the 1994 Republican Governors' Conference welcomed the election as "a historic moment of opportunity—an occasion when the political climate makes possible fundamental change in the federal–state relationship."

Whatever the differences between 1980s conservatism and the heightened ideological character of the new Republican strategies that crystallized in 1994, a vital element of continuity was the extent to which the conservative appeal was articulated in explicitly constitutional terms, and not merely in the language of policy or the imperatives of specific versions of morality. Devolution, in this sense, appeared as a constitutional imperative, a return to " original intent " and "correct" principles. The champions of devolution thus appealed to a version of the Framers' principles in 1787, downplaying the intent or historical development of the post–civil war "nationalizing" amendments (the thirteenth, fourteenth, and fifteenth), to argue for a federal constitutional order in which state sovereignty was central to governmental legitimacy. Also mobilized was a new emphasis on the need to rebuild safeguards of state autonomy that conservatives regarded as assured by the tenth amendment, which they interpreted anew in terms akin to the Supreme Court's view in the 1850s and again in the 1920s and early 1930s, at the height of conservative states ' rights jurisprudence.

Reinforcing this political campaign to devolve powers and programs was the movement of the conservative bloc on the rehnquist court to revitalize Tenth Amendment restraints on the reach of congressional regulatory powers, to reassert eleventh amendment –based barriers to suits against the state governments, and to retrench in the important realm of federal procedure with regard to welfare clients' rights and standing for litigants in public interest suits. Now the 1980s strategy of appointing federal judges at all levels who would be likely to advance the conservative agenda was reinforced by a strategy of withholding consent for Clinton judicial appointments seen as "too liberal." By the end of the 1990s, the results of this strategy were evident in, for example, the decisions in Seminole Tribe of Florida v. Florida (1996) and united states v. lÓpez (1995) that dramatically revealed the cramped and hostile view of modern federal government powers that was held generally by a five-Justice majority on the Court. Then, in June 1999, the Court handed down three decisions (Alden v. Maine and related cases) that heavy-handedly reversed long-held doctrines so that the states and their agencies (including state research universities) would be immunized from damages in patent and trademark suits, and so that millions of state employees would be denied the right to sue in state courts for damages for violation of national labor-law entitlements and (presumably) other federally guaranteed rights.

Viewed in a longer historical perspective, the political and constitutional confrontations of the 1990s over devolution policy and law are new variants of a persistent dynamic—the debate over "sorting out" which realms of law and policy should be governed from Washington, and which from the states and local governments. The issue had been joined in the earliest years of the Republic, when the Federalists and the emerging Jeffersonian parties had debated in constitutional terms such questions as the powers appropriate to a national bank (questions that ultimately reached the Supreme Court in formal constitutional terms in the 1819 case of mcculloch v. maryland). Throughout the pre–Civil War years, too, every aspect of the anti-slavery debate had been embedded in a constitutional framework of doctrine regarding federalism. The new and explicitly nationalized constitutional order that emerged after the Civil War fundamentally changed the framework of those debates, but the terms of argument had remarkable continuities. Thus, even after the foundations of a federal administrative law in the 1880s, and significant expansion of centralized power in banking, antitrust, and labor relations, much of the Progressive era's politics was dominated by the question of how much power the national government ought to excercise and to what extent states' rights—a cause always kept at the forefront, partly because Southern segregationists were determined to retain state control of race relations—should be respected. Similarly, the constitutional issues of the interwar years, climaxing in the responses to the Great Depression in the new deal period, were constantly framed in terms of the legitimate reach and limitations of state versus federal power.

Those who would recite the mantra of states' rights and "state sovereignty" in recent times have had to carry the burden of its historic association with racism and Jim Crow. Still, a determination to take seriously the constitutional requirements of federalism has never been the exclusive preoccupation of extremists. A federal "creed" commonly has been given respect, or at least lip service, by politicians and lawyers across the political spectrum. Progressive intellectuals and judges, too, have recognized the imperatives of federalism as a consideration in policy. Thus felix frankfurter, writing in 1922 of the Court's invalidation of a federal anti-child labor law, said "We must pay a price for federalism," even when that price must be "the [constitutional] impotence of the federal government to correct glaring evils unheeded by some of the states." Even the New Deal administration fashioned some of its major departures in policy, such as the Social Security system, in the style of "cooperative federalism" that gave the states a major policy role and extensive fiscal support through grants-in-aid, rather than going full-bore toward nationalization of policy and administration. And during the administration of lyndon b. johnson—the high point of post-war expansion of the national government's role in social legislation, regulation, and welfare programs—the President's principal advisers contended that by adopting a cooperative state–federal approach for many of his initiatives Johnson was honoring "our whole national history as a federal system." Similarly, few in the Democratic Party's leadership in the post-Johnson years have taken an ideological position against devolution in areas of law they have seen as susceptible of assignment to the states or as requiring for efficiency's sake a shift of authority away from the center. It has been intended and anticipated consequences, not the issue of devolution in raw ideological or constitutional form, that have divided the liberal and centrist elements in both major political parties on questions of major policy change. Despite the conservative opposition to Clinton's posture on major policy questions—concededly not a posture of wholesale antigovernmentalism—he too has been willing to make important concessions to the states, as for example in accepting the compromise of a sweeping welfare rights reform bill in 1996 that diminished federal authority and transferred vital discretionary powers to the states.

At the end of the twentieth century, it would appear likely that one reform successfully supported by conservatives and more generally by state officials has been set in place for a long time. This is the policy against "unfunded mandates," by which Congress had extended rights as entitlements to individuals and groups without providing state and local governments with funding that would permit them to fulfill those mandates. This change is a two-faceted victory for its proponents. On the one hand, it constrains the national government with respect to instituting new programs; on the other, it is linked with the larger, and legally distinct, policy of devolution insofar as it effectively curbs the power of federal courts to play a major role in defining benefits and entitlements in terms of constitutional rights, or to extend the terms of specific legislation through statutory interpretation. Moreover, many of the same political leaders who call for devolution and for enhancement of state authority have led a successful campaign since the late 1970s to curtail, often radically, the fiscal competence of the states by dint of extreme constraints on their taxing powers.

Still, the ongoing controversy over federalism and devolution can take unexpected turns in the hands of judges. Thus, the rehnquist court, in a decision that startled nearly all commentators but was welcomed on its substantive terms by opponents of the new welfare cutbacks, in saenz v. roe (1999) eviscerated one of the strongest devolutionist features of the 1996 welfare law. The Court held invalid Congress's devolution to state governments of the power to establish a two-tier system of benefits that would disadvantage newly arrived residents by limiting them to the level of benefits that the states of their previous residency allowed. In respect to devolution, then, not only evolving Tenth Amendment law and the enhanced political power of neoconservatives, but also as a countervailing force in the courts, the privileges and immunities clause of the Fourteenth Amendment might well operate in a complex judicial role in the continuing evolution of state–federal relations.

The latest moves by the Justices seem to confirm the wisdom of the late Carl Friederich when he contended that as a working system, American federalism cannot be understood unless it is analyzed in dynamic terms—as a process, and not only a concept to be interpreted in formalistic doctrinal terms.

Harry N. Scheiber
(2000)

Bibliography

Mashaw, Jerry L. and Calsyn, Dylan S. 1996 Block Grants, Entitlements, and Federalism: A Conceptual Map of Contested Terrain. Yale Law & Policy Review/Yale Journal on Regulation 14:297–323.

Melnick, R. Shep 1994 Between the Lines: Interpreting Welfare Rights. Washington, D.C.: Brookings Institution.

Scheiber, Harry N. 1996 Redesigning the Architecture of Federalism—An American Tradition: Modern Devolution Policies in Perspective. Yale Law & Policy Review/Yale Journal on Regulation 14:227–296.