Policy Analysis No. 744

How States Talk Back to Washington and Strengthen American Federalism

By John Dinan
December 3, 2013

Effective federalism requires that state officials be able to secure relief from national directives that impose undue burdens on state governments or improper constraints on state policy discretion. Many analysts focus on clearly legitimate and occasionally effective tactics such as lobbying or lawsuits. Some activists consider discredited tactics such as nullification that are a nonstarter in the 21st century. This policy analysis calls attention to various ways that states talk back to Washington using tactics that go beyond lobbying and litigation but fall short of nullification.

First, when state and federal governments both possess regulatory authority, states can enact measures decriminalizing certain practices, hoping federal executive officials will not enforce federal statutes in states with contrary policies. Second, states can decline to participate in federal programs and accept the designated penalties, hoping Congress will revise statutes or executive officials will issue rules or waivers that moderate the programs. Third, when federal judicial doctrine is uncertain or in flux, states can enact measures inconsistent with Supreme Court precedents, hoping the Court will reconsider and relax judicially imposed constraints on state policy discretion. Fourth, when federal judicial doctrine is uncertain or in flux, states can enact measures inconsistent with federal statutes, hoping the Supreme Court will invalidate or limit the reach of federal statutes. In recent years, state officials have relied on each of these tactics and with some success in responding to federal directives relating to marijuana, education, abortion, and health care, among other areas. State officials have resources to push back against national officials, thereby improving American federalism.

John Dinan is professor of politics and international affairs at Wake Forest University. His research focuses on federalism and constitutionalism and he is the author of The American State Constitutional Tradition (University Press of Kansas, 2006) among other books.