During the run-up to the 2013 federal government shutdown, the National Governors Association made a startling admission: the federal government depends on the states to do pretty much everything it does.
As the government was threatening to “shut down,” the National Governors Association sent a panicked letter to congressional leadership begging them to avoid the shutdown. In this email, the governors affirmed the feds need the states.
“States are partners with the federal government in implementing most federal programs. A lack of certainty at the federal level from a shutdown therefore translates directly into uncertainty and instability at the state level.” [Emphasis added]
Did you catch that?
Most federal programs.
A 2021 Pew Research Foundation report on surface transportation funding reiterated this important point. The paper is the first in a series on “Fiscal Federalism in Action.” In the “about this report” section, the authors make the same admission as the National Governors Association made eight years ago.
“The federal government and the states are partners in almost every major domestic policy area. Together, their dollars pay for health care, education, transportation, public safety, and many other programs important to the American public.” [Emphasis added]
This has significant ramifications. The federal government depends on teamwork to get virtually anything done. What happens if half the team quits?
Things don’t get done.
Alexander Hamilton stumbled on the truth in Federalist #16. He argued that the states should not have any say in executing the powers of the federal government. In so doing, he unwittingly laid the foundation of state nullification.
“If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated.”
Hamilton got what he wanted in one sense. State legislatures have no say in approving or disapproving federal measures. But states still play a significant role in enforcing the federal government’s will. While state legislatures do not approve federal measures directly, the federal government almost always depends on state resources and personnel to carry them into effect. By refusing to act, states have the power to defeat federal measures for all practical purposes.
James Madison understood this dynamic and turned it into a blueprint to confront overreaching federal power. Even before the Constitution was ratified, he wrote in Federalist #46 that states could “impede” and “obstruct” federal actions through “a refusal to cooperate with officers of the union.”
Madison developed this strategy when everybody assumed the federal government would be tiny in size and scope. With the federal government now involved in almost everything, his blueprint can prove even more effective today.
Fox News senior judicial analyst Judge Andrew Napolitano explained how this strategy could work in practice to shut down enforcement of federal gun control. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
To a lot of people, this probably sounds like a radical proposition. But the Supreme Court jurisprudence fully supports this strategy. In a nutshell, the federal government cannot require states to expend resources or provide personnel to help it carry out its acts or programs. Known as “anti-commandeering,” this doctrine rests primarily on five major SCOTUS cases.
The Court first established the doctrine in the 1842 fugitive slave case Prigg v. Pennsylvania. Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it.
“The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.”
Over the years, the Court built on this decision in four more landmark cases: Printz v. U.S. (1997) serves as the cornerstone. Justice Scalia wrote the opinion for the majority.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
This captures the heart of Madison’s advice in Federalist #46 – a “refusal to cooperate with officers of the Union.”
And as we have seen, this refusal to cooperate can shut down “most federal programs.”
After all, partnerships don’t work very well when half the team quits.