NCPA - National Center for Policy Analysis

How States Talk Back to Washington

December 12, 2013

States can use a number of tactics to push back against the federal government and preserve federalism, says John Dinan, a professor at Wake Forest University.

Federal directives can pose fiscal and administrative burdens for the states, which often lobby for repeal or file lawsuits in response. But there are several ways that states can preserve their power against the federal government beyond lobbying, filing lawsuits or using nullification. Dinan offers four tactics that states can use against the federal government:

  • Decriminalization: Sometimes, federal and state governments both have authority to regulate in certain areas. When this is the case, states can decriminalize activities or behaviors with the hope that federal officials will not enforce federal statutes in the states with contradictory policies. Many states have challenged the Controlled Substances Act in this way, by legalizing marijuana in their states.
  • Nonparticipation: States can accept the penalties of not participating in a federal program rather than participating. This can lead the legislative branch to revise the law, or the executive branch to issue new rules or waivers for the programs. This was the case with the No Child Left Behind law, as state objections led the Secretary of Education to issue waivers for the law's directives.
  • Judicial reconsideration: Often, judicial doctrine is unclear. States can enact laws that are inconsistent with precedents set by the Supreme Court, hoping to spark reconsideration of the issue. States have continued to pass laws regulating abortion, and many cases are working their way through the court system.
  • Judicial veto: Similarly, states can enact laws that are directly inconsistent with federal laws, with the hope that the Supreme Court will invalidate the federal statute or limit its application. When the Affordable Care Act required individuals to purchase health insurance, states passed laws exempting their citizens from the requirement.

Federalism is strengthened the more that states are able to challenge the federal government. Using these four tactics, states can correct burdensome federal policies.

Source: John Dinan, "How States Talk Back to Washington and Strengthen American Federalism," Cato Institute, December 3, 2013.


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