It’s been more than a quarter-century since President Bill Clinton memorably proclaimed that “the era of big government is over.”
Clinton was premature.
The ensuing 26 years have seen both Democratic and Republican presidents expand federal authority: the No Child Left Behind Education Act, the Medicare Prescription Drug Act, the Affordable Care Act, the Dodd-Frank Securities Regulation Act and several measures to mitigate the COVID pandemic’s impact.
But Clinton’s proclamation is far more apt today, as a combination of factors curb the federal government’s ability to address major problems and encourage states to do so.
They’re reordering the federal-state balance dominated by the federal government for the last 90 years. But that is creating new problems, including sharp policy splits between Democratic-dominated states and Republican-controlled ones and increased state domination of localities.
The most obvious reason for this change is the persistent congressional gridlock preventing federal solutions to such controversial issues as voting rights, abortion, gun control and immigration.
Close national elections are one factor, since a Congress in which neither party enjoys a workable majority is a prescription for deadlock. So is today’s increased partisanship — and the relative paucity of centrist lawmakers.
But more significant has been the way the Senate’s innate imbalance has been exacerbated by the tendency of whichever party is in the minority to invoke the requirement of 60 votes to pass legislation; that makes it easier for that minority to keep the majority from acting.
The Supreme Court has also played an important role. Its failure to curb political gerrymandering has increased partisanship in the House of Representatives and state legislatures. And it has increasingly voted to restrict federal actions, including a 2013 decision curbing Justice Department enforcement of the Voting Rights Act, its reversal of its 1973 Roe v. Wade abortion ruling, and the decision curbing the Environment Protection Agency’s authority to regulate greenhouse gases.
Its conservative majority is increasingly invoking the originalist theory that the federal government only has the authority specifically granted in the Constitution.
That trend could be dramatically escalated next year when the court hears arguments on a North Carolina case raising the extent of the state legislature’s authority in elections.
It’s true that many recent cases concern issues that were not addressed when the Constitution was written in 1787, like abortion and gay marriage. Whether justified or not, the court seems likely to keep letting states decide policy in such areas and make federal actions harder to sustain.
The reaction to the abortion ruling graphically illustrates the inconsistent fallout. Predominantly Republican states in the southern and central states are moving to ban all abortions; Democratic ones in the northeast and west are expanding protection for women seeking them.
Other controversial issues display a similar split: On elections, blue states are generally making voting easier, and red states are making it harder; on gun control, blue states are curbing personal ownership of firearms, and red states are easing it; on immigration, red states are implementing more restrictive policies than Washington; and on education, they are curbing local school districts from allowing student discussion of controversial subjects like racism.
Many conservatives have long argued that the Constitution’s framers wanted this by reserving all powers not specifically grated to the states.
But starting with Franklin Roosevelt in the 1930s, presidents of both parties recognized that many problems extend beyond individual states and require national solutions. That led to Roosevelt’s groundbreaking New Deal federal regulatory measures, President Dwight Eisenhower’s interstate highway system, President Lyndon Johnson’s Great Society, and the civil rights laws Congress enacted during Democratic administrations with backing from both parties.
In theory, it’s sensible to tackle some problems on the state level and others nationally. But the latter often requires compromise, and the increase in partisanship and disappearance of more centrist lawmakers have made that increasingly difficult. Besides, institutional factors on both levels are exaggerating the problem.
On the federal level, the combination of each state having two United States senators and the more rigid partisanship has allowed states representing a minority of the electorate to often out-vote ones representing the majority. Most smaller states are solidly Republican, most of the bigger ones tend to be Democratic.
On the state level, the failure of the courts to curb partisan gerrymandering has enabled parties to convert timely election successes into permanent legislative majorities that don’t always reflect public attitudes.
The poster child is Wisconsin, a closely divided state that Republicans carried in seven out of nine presidential elections from 1952-84 and Democrats in eight of nine since.
In 2011, the Republicans benefited from midterm election victories to create 2-to-1 majorities in both legislative houses that have outlasted future elections. The same election helped the GOP produce smaller but equally solid margins in other swing states like Michigan and Pennsylvania. Only their election of Democratic governors has limited enactment of policies at odds with their prevailing viewpoints.
But in Florida and Texas, the combination of Republican governors and solid GOP legislative majorities has enabled them to force their conservative views onto more liberal-minded localities, as in recent divisions over how best to fight COVID.
One reason to transfer power from the federal to the state level was to bring it closer to the people. But malapportioned state legislatures and rigidly partisan state policies undercut that goal, creating the top-down rule at the state level its advocates opposed in Washington.
