If You Want To Fix the Country, Devolve Power

Revived federalism is a start, but it doesn’t go far enough.


It's a given in American politics that partisans become born-again believers in federalism when their faction is out of power in Washington, D.C., only to lose faith in decentralization the next time they win control of Congress and the presidency. Bossing folks around is, after all, a lot more fun than being bossed around. So, it's refreshing to see in this deeply divided country at least tentative steps towards bipartisan agreement that not every issue should be settled by dictates issued from the nation's capital. As encouraging as it is, though, this grudging acceptance of live-and-let-live doesn't go far enough.

"American federalism has always been a partisan issue — the GOP are the modern advocates," notes Democratic political adviser and former legislator Frank Pignanelli in the Deseret News. "But the left-leaning have reason to be equally suspicious of overreaching nationalism on key issues: privacy, immigration, environment, etc."

Pignanelli joined with Republican counterpart LaVarr Webb to warn of frantic pandemic-era spending and rules-making by first the Trump and then the Biden administrations. "[T]his immense federal intervention comes at the risk of making states even more subservient to the federal government, both financially and with more federal regulation and mandates."

Pignanelli isn't the first Democrat to discover the attractions of decentralization. 

"In the wake of the presidential election, as Democrats realized that Republicans will soon control all three branches of the federal government, progressives disinclined to secede from the Union rediscovered another exit strategy: states' rights," Jeffrey Rosen wrote for The New York Times in 2016. Democrats spent the next several years battling for local governance against the Trump administration's insistence on federal control over matters such as immigration and marijuana.

Since then, Democrats have recaptured the presidency, the House, and (sort of) the Senate. Now they're back to insisting that beltway preferences should prevail—at least when their party's positions on issues such as guns and taxes differ with local preferences.

This back-and-forthing on the value of local control vs. central supremacy is exhausting, not to mention overtly opportunistic. As Pignanelli adds, with Webb's agreement, "Federalism must be a bipartisan issue. Otherwise, it will continue to be subject to the inconsistent whims of elections."

To some extent, this opportunism is baked into American politics, argued Ernest A. Young, then of the University of Texas at Austin School of Law, in a 2004 Brooklyn Law Review article about attitudes towards federalism during the War on Terror. He saw switching preferences on central vs. local power as inherent to a system in which elections are won and lost, rotating factions through control of the federal government and localities. "Federalism is about dividing power; nothing much depends on what the power in question is being used for," Young wrote. 

But "[i]t is also about providing institutional space for a diversity of political views" and so is inherently important beyond its utility to whoever lost the last federal election. State and local autonomy functions "as a rallying point for political opposition to national policy" and "assures that a particular faction cannot become entrenched and unaccountable in power."

Or, as Webb put it in the Deseret News, "On issues like gun control and the minimum wage, why not let Wyoming be Wyoming and New York be New York? Half of congressional dysfunction could be eliminated by modestly accepting the diversity of our country."

That political differences are coming into dangerous conflict is obvious not just from the formal contests observed by Pignanelli, Webb, and Young, but from the national tensions and strife of recent years. February polling by CBS News/YouGov found that 57 percent of Republicans think of Democrats not as political opponents, but as "enemies"; 41 percent of Democrats return the sentiment.

"The country is increasingly split into camps that don't just disagree on policy and politics — they see the other as alien, immoral, a threat," Nate Cohn commented in The New York Times last month. It's not an unprecedented problem, he notes, and other countries that have divided into mutually loathing camps have kept the peace and held together through arrangements including "power-sharing agreements, devolution or home rule."

Power-sharing, devolution, or home rule sounds a lot like federalism, come to think of it, and for good reason. Decentralization of power reduces the danger that people will resent top-down decisions that are contrary to their own preferences – and that may even be maliciously intended to hurt "enemies" in a sectarian society. If you believe that people of varied values and preferences shouldn't be forced to live in lockstep, it makes sense to embrace "space for a diversity of political views" and to largely "let Wyoming be Wyoming and New York be New York." 

But the federalism of the Constitution was designed for a nation of about 4 million people; many states and even some counties are now more populous than the whole country was at the founding. Are you really allowing free range for diverse views by devolving control down to the level of a California or a Texas that each contain multitudes sufficient to entertain many more conflicting ideas than the original United States could have contemplated? Even Los Angeles County, with 10 million people, is far larger than the entire United States of 1790.

At this point, real federalism, through the devolution of power, requires more than paying lip service to the existence of states and their ability to set independent policies. Decision-making has to go further down the food chain, at least to the county level, to revive something like the federalism of the Constitution. To the extent possible, power should devolve to individuals whose right to make their own decisions and govern their own lives should be respected. Individual self-rule is about as pure an expression of the distributed power embodied by federalism as you'll find.

Failing that, the major parties will continue to pretend that they care about federalism when they've lost control of Washington, D.C., and discard their faith in the principle when they've regained a grip on the central political apparatus. And the country will continue to descend into sectarianism and strife as they play their opportunistic games.