Will Federalism make a reappearance?

Before someone drops the Grant v. Lee (1865) reference hear me out.

A lot of states were upset by the No Child Left Behind unfunded mandates. One state (Utah) stood up to the Feds and refused the money and the strings with it which was apparently their right under South Dakota v Dole. Utah got slapped down via a lawsuit so I guess the states do NOT have a right to refuse legislation by pursestrings despite what SCOTUS said. Now they are seeing the same thing with UHC and 13 states are filing suit and they will be slapped down too by the judiciary. That doesn’t even count states like mine (Arizona) that are considering not filing suits because they can’t afford to fight a sure-fire loss.

Now let’s combine that with the unwillingness of the Federal government to combat illegal immigration and refusal to pay their legally mandated bills to the states. Even California’s attitude of turning a blind eye to the problem is being tested when “the illegals are taking our jobs” and we are at a 10-20% unemployment rate depending on how you measure it. If I were a governor of a border state I would put the national guard on the border myself or start billing the Republic of Mexico directly for caring for their nationals and let the Feds deal with the international crisis. I also would challenge the validity of Wong Kim Ark in SCOTUS contending that in Ark, his parents were LEGAL residents. Probably because these efforts are destined for failure, California, Arizona, New Mexico and Texas jus complain about money, the border (non)fence and anchor babies.

The states did ban together to call for a Constitutional Convention in 1900-1910 which resulted in the 17th Amendment before 3/4 of the states voted for a Convention so they are not powerless. And just yesterday, Arizona pulled out the pre-Civil War theory of state nullification when it declared that handguns manufactured and used in the sovereign state of Arizona were exempt from federal regulation. So when all of these legal challenges to federal powers are dismissed, will the states get together and call for a Constitutional Convention? If so, will the Feds back down like they did in 1910? Is it just possible that a wacky-ass state will actually rebel like calling out the National Guard and challenging the Feds to enforce their laws? Or will it all flicker away once football season starts?

The original Federalists were Hamiltonians, but the OP seems to be using the word to mean Jeffersonianism.

Yes, the Hamiltonian Federalists were in favour of strengthening the Federal Government. A term that seems closer (in normal use) to the opinions of the OP is “states’ rights”.

On the other hand, when Montana raised its speed limit above the federal standard and turned down the associated highway funds, nobody had a problem with it.

Sorry. Let me clarify.
I’m using Federalism to denote a system in which power is held by the states and given to the Feds as limited by the 10th Amendment. I purposely did not use the term states’s rights because I feel that that connotes the states are superior to the Feds whereas I think of Federalism as the Feds and states as more equal with the Feds focused on the big picture (common defense, international relations) and the states focused on the little picture (industry regulation, drinking age, education).

But, with that equality between states and the federal government, surely immigration (including illegal immigration) is a federal issue. If you don’t like the effects of immigration in Arizona or California, then you need to get the feds to do something about it.

Cite as to a lawsuit by the feds to make Utah comply, in spite of it refusing the money? I’ve googled the Utah situation a few times, and all I see is:


(0) Congress passed NCLB, which conditions federal education funding on meeting certain criteria, but letting states opt-out, give up some portion of federal education funding, and run schools however they want
(1) Utah passed a bill that was arguably inconsistent with NCLB’s mandates.
(2) the bill was worded to try to not function as an opt-out from NCLB, and Utah continued to claim that it was entitled to federal funds
(3) The then-Secretary of education threatened to withhold federal funds, claiming the bill was, in effect, opting out from NCLB
(4) the debate was not over whether Utah had to comply with NCLB in spite of a valid opt-out, but rather if its law amounted to an opt-out (and hence it lost federal money), or if it was consistent with NCLB, and so it remained entitled to federal funding.

I can’t find any resolution, except for a few stories talking about negotiations–suggesting that Utah and the feds settled.

All I can find is a story that is the backwards of what you’re saying—Utah tried to pass a law that limited the effect of NCLB without acting as an opt-out, and without giving up federal funds, and the feds threatened to withhold education funds as if Utah had failed to comply with NCLB, not to force Utah to comply. I can’t find any evidence of a lawsuit by the feds.

So, unless you have a cite for a lawsuit by the feds requiring Utah to comply with NCLB in spite of a valid opt-out, ISTM that your assertion is not factually correct.

And without the utah example, I don’t really see you having a claim that the feds are forcing the states to comply–just that the feds are (as is their right) conditioning federal funding on certain criteria. IMHO, that is very proper–the federal government should be cautious about what it funds–for example, requiring state programs meet certain criteria in order to get federal funds. That’s what’s called careful budgeting–making sure that funding is accompanied with accountability.
There were several state lawsuits claiming a federal obligation to fund NCLB; that was a totally different issue, started by the states, trying to force the feds to do something, and IIRC, they failed.

I think the full story is not readily available via google but I do remember the news story that Utah was willing to forego federal funding because NCLB cost more than the funding would provide. Like you said, the whole contraversy over that aspect seemed to quietly go away so I emailed the law division of the Utah Dept of Education asking exactly why Utah accepted NCLB after standing so firmly against it under the auspices of SD v Dole.

And IIRC, the lawsuit was not from the Feds but a parent claiming that a state choosing to forego Title I funds was a form of discrimination which I could actually see a judge agreeing with.

Well, then please cite it–since you’re the one asserting that it exists.

If there was a news story, it would more than likely be searchable; I point out that that’s exactly what I found.

You seem to be confused about what I said, or perhaps about SD v Dole–the case I pointed out was a debate over whether Utah was in compliance with NCLB, and so entitled to federal funding–it claimed that it was. Not that it could turn down federal funding–but that it should be entitled to same

SD v dole was about whether the feds could condition funding on state action. Now, if you’re arguing that’s a bad thing, you seem to be arguing against fiscal discipline–and for federal funding to take place without accountability. It said nothing about whether the federal government could directly mandate state action, whether or not funded by the feds–which is what you seem to be discussing. That’s a different line of cases entirely.

First of all, it would be handy if you cited the case. Then we could all understand what you’re claiming. More importantly, then it would be clear that such a case exists–that you’re not misremembering, or confusing it with something else. Details matter, especially as you’re asking for some pretty drastic action based on this case–which is hard to justify if you can’t even cite the case.

More importantly, how is that a federalism problem? Are you even talking about a federal antidiscrimination provision ('cuz if not, it’s just plain not a federalism issue-it’s a state law issue). I can’t offhand think of one that would force a state to establish a program to get federal money–especially as there is more than one example under dole of states choosing to opt out–according to Wiki, wyoming for a while, and puerto rico U.S. history of alcohol minimum purchase age by state - Wikipedia.

So again, cite please? I think my demand should have more weight, given that (1) I have found a cite that provides a story that, IMHO, could be easily confused with the situation you describe, (2) it’s hard to even think of how the kind of claim you describe could be made, (3) if it was made, it clearly failed, as states can opt out, and (4) If such a claim was made under state law, it similarly undercuts your demand for more “federalism”–as the problem simply isn’t with the federal/state relationship.

So it’s over to you.

A 3/4 majority of the states could overturn the power of the Federal government, but long before such a supermajority arose, individual grievances could be addressed by amendment, with the 17th amendment mention in the OP being a good example. And before that happened there would a big enough faction in Congress to pass or repeal whatever laws would address the issue.There’s nothing any single state or small group of states can effectively do unilaterally, short of going before the SCOTUS and hoping to win their case.

There is a lot of grumbling about the seemingly limitless extension of Federal power, both at the populist level and the state government level. But without some specific issue to band together over, then nothing changes. You have one state grumbling about federal highway regulations, another grumbing about federal narcotics laws, another still about health care reform, etc. A coalition of the disaffected is not a cause; what single specific thing other than “the Fed is too powerful” can everyone agree on?

It’s like everyone complaining that their taxes are too high or unfair; yet everyone is in favor of everybody else paying taxes, so taxes continue.

I’m trying to from Utah’s DoE directly. (see above post) If they respond I’ll post it here whether I’m right or wrong.

SD v. Dole says a state does not have to abide by a Federal mandate if it pertains to a state sovereinty issue IF they are willing to give up the funds.
My understanding of the situation was:
Utah says screw NCLB and we will give up the funds since acceptance will COST us money
Suit filed by citizen(s?) claiming that refusing Title I funds is a form of discrimination.
Utah then tries an end-around to get out of NCLB complience yet still get the money.
Court opinion (rightfully) rules against them
Utah now a happy member of NCLB

I agree that there seems to be no cite for the second part which is why I contacted Utah DoE directly and if I am wrong will correct myself.

Because it is an example of state’s dissatisfaction with federal interference. In this case unfunded mandates and “legislation by pursestings” that violate the spirit (but not the law according to Dole) of the Tenth Amendment. In isolation it is probably a blip on our history but following up with illegal immigration issues (Fed issue that the states pay for) and UHC (assumed to be another unfunded mandate) the question is are the states going to try to take back power from the Feds?

The Utah branch of the NEA joined in the lawsuit against NCLB (City of Pontiac School District v Spelling), on the grounds that the law was an unfunded mandate… Is that what you’re thinking about

I wonder if you took time to consider that the reason nothing (err, not much) is being done is because the “fact” that undocumented immigrants are doing us harm, economic or otherwise, is just a racist and xenophobic myth, and the people crafting real policy know it. Actually stopping undocumented immigration and migrant labor would hurt us far worse than dropping the charade and fully legalizing movement around our shared planet Earth. Many politicians know this, but they have to pay lip service to racists and xenophobes because they’re such a monstrous demographic (and the double meaning of monstrous there is intentional.)

I think it’s a great idea. We can clearly see that the progressive states are hurt by having to pay more in federal taxes than they receive in benefits. They are also unable to implement things like a single-payer healthcare system that is used in the rest of the world to reduce the insurance burden on industry. All statistics on health, wealth, education, crime rates, and other metrics show that a more liberal approach to government is more effective. Why should we be held back by states like Mississippi and Alabama?


Technically, all it says is that the federal government can condition funding on state action, even if it could not directly mandate such state action. Your reading of it is wrong in that it’s not a federal mandate–it’s simply a choice. A federal mandate is “do this.” SD v. Dole is a situation where the feds say “do this if you want education funding.”

You need a cite for this as well. This is important because if utah didn’t say this, you have no point–they never tried to say “screw the funds, we don’t want to run our education program your way.”

Same here (this is, as far as I can tell, the part you’re looking for now.

This is the only meaningful part we’ve got a cite for. (which I have provided)

Again, cite needed. As Cisco points out, there was a second, separate set of lawsuits by many states, (not sure if Utah was included), demanding the federal government fully fund NCLB. That’s a totally different issue.

For the record, you’re missing a lot more than just a cite for the “second part”

But if the thing making the state actually comply with the federal law is state antidiscrimination law, it’s not federal interference. And again, I find it hard to think of any way in which federal law, antidiscrimination or otherwise, could force a state to accept federal funding.

You have yet to show that the antidiscrimination lawsuit you describe was in fact one under federal law–if it wasn’t, it’s just not federal interference.
It’s interference by a state antidiscrimination law, as applied to a federal mandate, that could be changed by the state whenever it wanted

Now, like you, because state law is much broader, I think it does sound more likely (not particularly likely, but better than under federal law) that a state law might create such a requirement.

Are you advocating for a situation in which federal funding cannot be made conditional? If so, how is that in any way fiscally responsible? Doesn’t that encourage the states to spend federal money like drunken sailors by making it impossible for there to be consequences if they don’t spend federal funds as demanded?

Not successfully, IMHO.