3.4: You Decide- Case Studies in Federalism

Imagine you are a policymaker deciding each of the following policy issues. A crucial question is how much freedom local and state governments should have. Think about your responsibilities based on your particular role in each of the following case studies, and then decide what you will do. Each section concludes with a discussion of what actually happened.

Case Study One: Shall all California high school students be required to take an Ethnic Studies Course?

You are the governor of California. The California legislature passed a bill mandating all high school students complete a one-semester ethnic studies course. The course emphasizes the history and culture of four groups: African Americans, Asian Americans and Pacific Islanders, Latina/o/x Americans, and Native Americans. Should you sign the bill?

Advocates for the course argue that traditional social studies do not sufficiently address multicultural history, leaving students ignorant of our state's rich heritage. They also say that ethnic studies help students have more pride in their own histories, improve general academic performance, increase intercultural understanding, and contribute to a more educated citizenry better able to understand the challenges we face as a diverse society.

Opponents of the course favor teaching multicultural history, but they are concerned that the course omits many other groups, such as Armenian and Jewish Americans. Additionally, they are worried that the curriculum may overly emphasize oppression as a theme and demand that white students confess their "privilege." They argue that existing social studies courses already use a multicultural approach. At best, the class should be an elective.

Under dual federalism, the state government establishes the public school curriculum. Your choices are to sign the bill and make ethnic studies a requirement or veto it. You will be expected to justify your actions in your signing statement or veto message. What will you do and why?

What Happened?

In 2020, Governor Newsom vetoed the ethnic studies bill ("Veto Message"). Newsom expressed support for an ethnic studies curriculum, pointing out that he had already approved a bill requiring the course for California State University students. However, he asked that the curriculum be revised so that it "achieves balance, fairness and is inclusive of all communities." For the next several months, the State Board of Education revised the curriculum and included the experiences of many more ethnic groups. In 2021, a bill reflecting these changes made its way through the California legislature, and Governor Newsom signed it into law (Fensterwald).

Case Study Two: Shall all states be required to license marriage as between two people?

You are a U.S. Supreme Court justice. You are one of nine responsible for deciding whether the laws and practices of government are constitutional. It is 2015. The case before you is regarding marriage. Shall states be able to define the nature of marriage as a union between only a man and a woman, or should the U.S. Supreme Court tell states that they must offer marriage licenses to any two people?

Traditionally, the states have defined the nature of marriage. States respect the legitimacy of the marriage contracts of other states under the Full Faith and Credit Clause of the U.S. Constitution (Article IV). There are precedents for the Supreme Court to intervene. In the nineteenth century, the Court ruled that marriage shall be monogamous in all the states (Reynolds v. United States, 1878), outlawing a man having multiple wives. More recently, the Court ruled that a state ban on interracial marriage was unconstitutional based on the Fourteenth Amendment's equal protection clause (Loving v. Virginia, 1967).

There are also precedents for the Supreme Court about gay rights. In 1986, the Court affirmed the right of a state to ban homosexual relations (Bowers v. Hardwick). It then reversed this decision in Lawrence v. Texas (2003), with the majority arguing that the right to privacy includes a right to consensual sex between two people.

State laws about marriage were rapidly changing beginning in the mid-1990s. Some states legalized same-sex marriage; others defined marriage as only between a man and a woman. A few had a middle ground of "civil union" that gives states, but not federal, marriage rights to same-sex couples without using the word marriage. The U.S. Congress passed the Defense of Marriage Act (1996), permitting states to refuse to recognize same-sex marriages from other states.

California voters passed Proposition 22 in 2003, which defined marriage as only between a man and a woman. The California Supreme Court declared this proposition unconstitutional because it violated California equal protection laws. Then California voters passed Proposition 8 in 2008, which added an amendment to the California Constitution, again defining marriage as solely between a man and a woman. The drama continued with gay rights advocates turning to the federal courts, which ruled Proposition 8 unconstitutional. Meanwhile, similar messes were brewing in the rest of the country with a mishmash of laws and conflicting Court rulings causing legal and practical confusion.

Now, let's move forward to 2015. The Supreme Court has consolidated several cases from multiple federal appeals courts to focus on whether the states shall be required to legalize same-sex marriage. The question before us is also very much a question regarding federalism. Shall the federal government impose its will on the states regarding marriage? If so, this nation-centered approach is an example of cooperative federalism. Alternatively, the Court may defer to the states and let their legislative or judicial authorities resolve the matter, an example of dual federalism.

Advocates for requiring states to license same-sex marriages make two arguments based on the Fourteenth Amendment and prior Court cases that provide the precedents for promoting privacy and equal protection of the law. First, lesbian and gay people are entitled to equal dignity before the law. Dignity means that states respect the autonomy and privacy of two people of the same sex to marry. The due process and equal protection clauses of the Fourteenth Amendment provide this fundamental right to dignity concerning marriage. Second, particular costs burden gays and lesbians and their children if marriage is limited to heterosexual couples. Health insurance and family leave may be inaccessible. Hospital visits and next-of-kin medical decisions are off-limits. Property laws leave partners destitute in the event of the breakup of relationships. Marriage gives the children and spouses in same-sex families the same rights as those in heterosexual unions.

Opponents of same-sex marriage make two general arguments, one substantive and the other procedural. First, they argue that states have traditionally defined marriage as between a man and a woman. It is in the child's interest to receive care and financial support from both their mother and father. Hence, the institution of marriage is central for one generation to raise the next. Second, procedurally, opponents argue that the Supreme Court should not have jurisdiction over this matter. Instead, elected officials, whether at the state or the national level, are the proper authorities to address this question. The Supreme Court should avoid establishing fundamental rights not clearly enumerated in the Constitution.

You are a Supreme Court justice. Redefining marriage will force all states to change their laws to increase liberty and equality. On the other hand, retaining the absence of a federal definition of marriage respects dual federalism. It leaves the states to address the issue through the democratic process, allowing for a diversity of choices among the states. How will you rule?

What Happened?

In 2015, in Obergefell v. Hodges, the U.S. Supreme Court ruled 5-4 to legalize same-sex marriage. The majority decision, authored by Justice Anthony Kennedy, argued that the Fourteenth Amendment requires that same-sex marriage be protected under law to extend equal dignity, or marriage equality, to the same-sex couple:

"No union is more profound than marriage, for it embodies the highest ideal of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. They hope not to be condemned to loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

Figure \(\PageIndex{1}\): The White House, the day after the Obergefell decision in 2015 (public domain; A1Cafel via Wikimedia)

Chief Justice Roberts, in one of the dissenting opinions, argued that the Supreme Court was exceeding its jurisdiction with its decision, that elected officials rather than justices should decide this issue:

"If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."

After the Supreme Court decision, a single policy for all Americans applied: states must allow same-sex couples to marry, and they will enjoy the same state and federal rights and benefits as opposite-sex couples. The marriage contract and all other marriage-related laws changed to reflect the new view about our fundamental rights as Americans.

Case Study Three: Should the Affordable Care Act be repealed?

It is 2017. You are a Republican member of the United States House of Representatives representing the 25th district of California (in 2022, this district, encompassing the Santa Clarita and Antelope valleys, was renamed the 27th district as part of the redistricting process). The 25th district is what political scientists call a swing district, meaning that the district is evenly divided between Democrats and Republican voters, with candidates winning with less than 55% of the vote. In 2016, you won reelection with 53% of the vote ("California's 25th Congressional District Election"). However, the Democratic presidential candidate, Hillary Clinton, won the district by 50.3%, suggesting that some voters engaged in split-ticket voting, voting for both Republican and Democratic candidates ("Presidential Election in California").

The President, Mr. Trump, is a Republican. One of Mr. Trump's central campaign platforms was to repeal the Affordable Care Act (the "ACA") passed under his predecessor, President Obama. You must decide whether to vote to repeal the ACA, which will improve your support among Republicans, especially the President, or reject the repeal to avoid alienating yourself from moderates and Democrats in your district.

Some background about the Affordable Care Act and the arguments by supporters and critics will help you decide this issue. The ACA is often called "Obamacare" for short because President Obama's central campaign platform in 2008 was to help Americans with health care by improving existing health insurance coverage and expanding coverage to reach uninsured people. It was quite a political battle to push it through a very polarized Congress. When it finally passed in 2010, Obamacare had become the most significant change in healthcare policy in more than a generation. It also represented a substantial shift in the relations between the federal government and states. Some aspects of the ACA expand national power, hence representing a deepening of cooperative federalism. Other parts allow states to set their own policies, representing a deepening of new federalism.

The reach of the federal government increased in many ways. Some of the most significant were: first, employers with fifty or more full-time employees were required to provide health insurance; second, individuals were mandated to buy health insurance and received subsidies from the federal government if their income was up to 400% of the poverty level, and third, insurance companies had to cover preexisting conditions and preventative care. In addition, the ACA preempted, or displaced, state health insurance regulations and hence is an example of cooperative federalism where the national government takes control over a policy area and mandates changes in state policies.

However, aspects of the ACA gave states some freedom to implement the law and are therefore consistent with new federalism. First, states were allowed to create state health insurance exchanges for their residents to buy private insurance. If they chose not to, their residents would have to buy from the federal health insurance exchange. As of 2022, fourteen states and Washington D.C. have set up their own exchanges, including California (CoveredCalifornia.com). The state exchanges allow states to have greater autonomy. Second, the ACA expanded Medicaid, the existing public health insurance plan for low-income people established in the 1960s, to cover people who make up to 133% of the federal poverty level. However, because both the federal and state governments fund Medicaid, the U.S. Supreme Court ruled (National Federation of Independent Business v. Sebelius, 2012) that states were not required to expand Medicaid eligibility. Hence, eligibility and income requirements for Medicaid vary from one state to another. These variances in ACA policies and programs among the states illustrate the signature characteristic of New Federalism: giving states flexibility based on state political preferences (Health Reform).

Now, we return to your dilemma as a representative. Should you vote to abolish and replace the Affordable Care Act with the American Health Care Act? Most prominently, this 2017 bill ends the expansion of the Medicaid program and income-based subsidies, saving the federal government hundreds of billions of dollars but causing approximately fifteen million people to lose coverage.

Advocates of replacing the ACA are motivated by ideological and partisan reasons. Ideologically, conservatives are skeptical of further government involvement in the healthcare sector of the economy. Seeing health care as an optional consumer product, individual consumers, businesses, and health insurance companies should not be subject to government coercion. Historically, states have been in control of their insurance markets. The ACA undermines state autonomy. Second, for many years, the health care debate has become intensely partisan, with this issue having a prominent role in the platforms of each party. Republicans had invested much importance in defeating President Obama's program. Mr. Trump promised he would succeed in this regard when other Republicans had failed.

Supporters of the Affordable Care Act argue that millions more Americans have health insurance coverage; health insurance coverage is better, and, in the long term, these improvements will lead to a healthier population. Further, they argue that the federal government's appropriate role is to devise a program that provides affordable health care for all. It has long been noted that the U.S. spends far more per capita with far worse health outcomes than other countries and is the only high-income country without some form of universal health care ("U.S. Health Care from a Global Perspective"). The ACA is a significant step to remedy this situation.

Public opinion is split along ideological and partisan lines in your district and the country. However, given that more people in your congressional district voted for Hillary Clinton than Donald Trump, it is likely that a vote in favor of repeal will make you less popular. On the other hand, if you vote to keep the ACA, you will likely be ostracized by Republicans in Congress and publicly criticized by the President, making it harder for you to accomplish anything else. Will you vote to repeal and replace Obamacare?

What Happened?

This case study has assigned you the role of Representative Steve Knight. He was elected in 2014 to represent California's 25th district, encompassing the Antelope and Santa Clarita valleys and a portion of Simi Valley. Representative Knight chose to vote with the Republican majority. The vote was intensely partisan and highly visible. Along party lines, the bill passed the House, 217-213, but then a similar bill failed in the Senate, 49-51. Nevertheless, the Affordable Care Act survived.

As a representative, Mr. Knight found that he was in an increasingly difficult position. As a Republican in a swing district, he tried to chart a moderate course. Still, because of the increasingly polarized nature of party politics and the shift of the Republican party to the right, this was increasingly difficult. As a result, in 2018, Knight was defeated by his Democratic opponent.