Ken Hicks

One of the good fortunes of teaching at a small, regional public university like RSU is the opportunity to stretch my teaching muscles, and teach a wide variety of courses. One of the courses I teach is “intergovernmental relations,” its principal focus is on federalism, detailing the often complex dance of collaboration and conflict among the federal, state, and local governments.

The study of federalism neatly divides into historical periods, and federalism scholars are over-fond of deploying metaphors accentuating some dimension of the federal-state relationship in a particular period. For example, historians and academics characterize the era from the ratification to the New Deal era as “layer cake federalism,” with the states and the federal government occupying distinct and separate “zones of sovereignty,” which precluded the federal government from regulating state’s domestic policies.

For some, the Civil War’s principal casus beli was “state’s rights” rather than slavery, but over time, industrialization rendered the layer cake interpretation of federalism unworkable.

The Great Depression ushered in an era of “marble-cake federalism,” where the federal government used aggressive “New Deal” fiscal policies in the form of grants-in-aid, nudging the states in the direction of desired national policies like building schools, hospitals, and roads.

Also known as “cooperative federalism,” the Roosevelt administration largely ignored southern state government’s systematic discrimination and oppression of their state’s minority populations, highlighting a darker aspect of federalism: if states may act as “laboratories of democracy, they may also act as “laboratories of oppression.”

The 1960s ushered in an era conservatives often described as “rum-cake federalism,” as Congress exploited state and local government’s increasing dependence on the federal largesse to impose conditions on aid, sparking intense debates over the expanding nature and scope of federal influence and authority

Legislative tools to compel states to respect civil rights and regulate local industries included “crossover sanctions,” which withheld federal funds from lucrative road development matching-grant programs unless states complied with a given federal mandate to reduce the number of billboards on federal highways. Similarly, “cross-cutting requirements” included in the Civil Rights act of 1964 required that state governments respect the nondiscrimination clauses, placing conditions on eligibility for the increasingly significant amounts of federal grants states increasingly depended on for many state services. Increasingly, the federal government imposed “unfunded mandates,” forcing responsibilities on state and local governments, but not providing the means to pay for them.

By the 1981s, animosity over the more coercive elements of federalism boiled over. Ronald Reagan began his administration with the declaration, “… government is not the solution to the problem; government is the problem.” Republicans became the party of “states’ rights,” the legal rationale for secession in the service of slavery rendered anodyne as a critique of federal overreach, and calls to return responsibility to the states. Democrats lost many of the fights over federalism, but the coercive tools remained, deployed by whichever party controlled the federal government to pursue ends inimical to the other party.

Contemporary federalism now confronts a schizophrenic pastiche of its past manifestations, sometimes cooperative, sometimes coercive, with the lower levels of government often frustrated by a lack of consistent guidance from the upper levels of government. Intergovernmental relations scholars often characterize the status quo as “fend-for-yourself” federalism, in which state and local governments are often compelled to muddle through with inadequate resources, where even innovations amount to an exercise in muddling through rather than upholding the government’s responsibilities.

While allowing states the latitude to experiment in non-emergencies is one of federalism’s strengths, a strong federal government was created by the Constitution to act when decisive action is required. Failure to act to help the states in times of emergency creates a Hobbesian “devil-take-the-hindmost” environment in which the states – confronted by circumstances beyond their control – compete for scarce resources.

The administration of George W. Bush’s response to the 2005 devastation of New Orleans by Hurricane Katrina provided an illustration of the defects of a fend-for-yourself approach. The Bush administration’s attitude toward disaster response was signaled by his naming Joe Albaugh as director of the Federal Emergency Management Agency. Albaugh and his successor, fellow Oklahoman Michael Brown, brought a laissez faire philosophy to disaster relief, motivated by the conviction that states should take more responsibility for disaster response.

Following the 9/11 attacks, FEMA found itself buried deeply within the Frankenstein’s monster of a cabinet agency Department of Homeland Security, its priorities minimized. Morale plummeted. When Katrina made landfall, the administration’s theory of federalism consigned tens of thousands of New Orleans citizens to horrors no American citizen should have had to endure, replete with images of white vigilantes from white neighborhoods and the outer parishes shooting African Americans desperate to escape the carnage.

Regretfully, the COVID-19 pandemic exhibits a further regression of American governing capacity. Delays at the federal level in acknowledging the nature of the threat were compounded by delays among state and local officials, which allowed the virus to take hold and spread exponentially in several large metropolitan areas.

Despite Congress’s rapid passage of the CARES Act – nothing concentrates the mind of an elected official like the prospect of blame for a failed pandemic response tied around either (or both) parties’ collective necks – state and local governments still confront huge deficits and empty coffers, with no way to cover the salaries of those brave public servants deemed “essential.”

The partisan bluster has already begun. Senate Majority Leader Mitch McConnell recently characterized aid to help state and local governments meet their basic funding obligations as a “blue state bailout,” ruminating states should be allowed to explore the idea of bankruptcy. Similarly, Florida Sen. Rick Scott has declared, “We sit here, we live within our means. And then… Illinois and California and other states don’t, and we’re supposed to go bail them out? That’s not right.”

As Florida governor, Rick Scott declared states of emergency on multiple occasions, and accepted billions in federal disaster relief, displaying an impressive talent for equivocation.

To be clear, so-called “blue states” are not in a fiscal free-fall because of their public employee pensions, nor are they alone.

As Maryland Governor Larry Hogan, the Republican chair of the National Governors Association, recently noted, “The last thing we need in the middle of an economic crisis is to have states all filing bankruptcy all across America and not able to provide services to people who desperately need them.”

Dr. Ken Hicks is a political scientist and department head of History and Political Science at Rogers State University. The opinions, beliefs, and viewpoints expressed in this column are those of the author, and do not necessarily reflect the official position of Rogers State University.

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