11.3: Federalism and Public Policy

Chapter 2 on federalism explains that the American federal system is divided into three levels: national, state, and local. And despite the fact that there is overlap between them, each has its own functions. The policies each focus on vary, State policies vary depending on their political culture. Some may choose to be generous in the provision of social services; some may not. Some may enforce equal opportunity programs vigorously; some may not. Some may adopt a tough on crime approach; some may not. As long as the policies fit within what is allowable by the U.S. Constitution, states may do what they choose. There are areas where the national government has expanded its jurisdiction due to events and circumstances that brought doing so to the public agenda.

The national government was set up to do two specific things: facilitate the development of commerce and provide security both internally and externally.

Interstate and International Commerce: Infrastructure

Many areas of policy are shared by all levels of government. Key among these is the development of the infrastructure necessary to support an expanding economy. These are topical given President Joe Biden’s recent proposal—called the American Jobs Plan—to spend over two trillion dollars on infrastructure improvements across the nation, many in partnership with the states. The term infrastructure can loosely be defined as “the basic physical and organizational structures and facilities needed for the operation of a society or enterprise.”¹⁷ These include large scale enterprises such as the interstate highways systems and electric power production and distribution. Spending on these projects have always been controversial, though even early opponents of national power in the nineteenth century such as South Carolina’s states’ rights advocate John C. Calhoun supported efforts to “bind the Republic together with a perfect system of roads and canals.”¹⁸

The ability to pass laws related to commerce is shared by all three levels of government, which includes policies related to the infrastructure necessary for commercial growth. Co-mingling of these powers can be seen in airports, for example, which are authorized by county governments (on the local level) and owned by state and local governments (on the state level), but funded partly with grants from the federal government (on the federal level). The federal government also requires that airports be self-sustaining, such that airport revenue supports the airport without taxpayer contributions.

The national government began promoting interstate transportation with federal aid to roads in the eighteenth century. Such infrastructure development was a means to enhance the commercial opportunities of the new nation. These policies continued throughout the nation’s history. In the nineteenth century, the government focused on the development of railroads. Starting in 1848, Houston aggressively sought rail lines that would connect its port (another example of an infrastructure project supported by national, state, and local government) with other cities in Texas and eventually the entire nation as part of the Union Pacific Railroad.¹⁹ In 1852 the state approved the railroad that initially connected Houston to the Brazos River. Texas gave land grants to encourage such railroad development. Companies would receive eight square miles of land for every mile of track they laid out. Cities and counties also enticed railroad companies to build rail lines by issuing local and municipal bonds, a practice that the 1876 Constitution would later forbid.²⁰ In addition, state efforts in the nineteenth century ensured that the oil and gas industries would be centered in Texas. This involved establishing strong relationships with the national government and office holders of both parties.

The development of automobiles and the growth of the trucking industry in the twentieth century shifted attention to the construction of freeways and bridges, and similar efforts encouraged the development of highways across the state and the nation. The legislation funding the creation of the national highway system was justified by President Dwight D. Eisenhower in the 1950s. He deemed a national highway system necessary as a defense project based on his experiences driving across the nation in an army caravan in 1919.

Today, policies for infrastructure involve transportation, including highways, bridges, ports, and air traffic, as well as power supplies. The expansion of national authority—in the form of assistance for economic growth—remains an easy sell for Texas. Tens of billions of dollars from the national government flow to the state every biennium to assist with the construction of highway projects. These include the $1.063 billion spent on the State Highway 288 Toll Lanes Project.

Internal and External Security: Immigration

While immigration policy is set at the national level, the practical reality is that it is impacted by policies on all levels of government. This is especially true in a border state like Texas, which has a history as a part of Mexico and an economy that relies heavily on immigrant labor—both documented and undocumented. Often these laws work against each other, which reflects the ambivalent nature of opinion about the subject. While many oppose, for example, laws that provide benefits for the undocumented, many of these same people enjoy the advantages that come with the cheap labor they provide. Entire industries in the state rely on it, including agriculture, bars and restaurants, construction, and housekeeping. And while some—primarily older Whites—admit to being threatened by the changes being made to Texas by the influx of immigrants, others not only welcome the changes but seek to expand them. Immigrants have always brought unique skills with them, and those skills provide business opportunities.

Conflicts over immigration to the United States began soon after independence, continue to this day, and will almost certainly continue as long as people seek to emigrate here. Few laws, if any, placed limits on immigration during the American colonial era. The U.S. Constitution says nothing about immigration. Instead, the U.S. Constitution gives to the U.S. Congress the power to “establish a uniform rule of naturalization.”²¹ These are different. Immigration is “travel into a country for the purpose of permanent residence there,”²² while naturalization is the legal process by which a person can become a citizen of a country.²³ The First Congress used this authorization to pass the Naturalization Act of 1790, which immediately sought to restrict immigration to any alien who was a free White person of good character who had lived in the United States for at least two years.

In the 1800s, the eyes of Americans gazed West as the Louisiana Purchase opened new lands to American settlers. Aaron Burr, former vice-president under Thomas Jefferson, considered making his fortune by claiming parts of this territory for himself (for which he was tried and convicted for treason).²⁴ Many of the migrants who would populate Texas were part of this westward movement. They were recruited to help occupy, settle, and govern Texas, though Spanish and Mexican policy regarding Anglo immigration into Texas vacillated depending on whether they saw the Anglo arrivals as a potential source of political instability and rebellion or as necessary for the economic development and security of the northern territory. American immigration laws, as well as immigration policies in Texas, vary expeditiously as well.

Since then, over two dozen major laws have been passed by the United States Congress that have adjusted the criteria for both immigration and naturalization, depending upon the needs of the nation at a particular moment in time. For example, the Burlingame-Seward Treaty of 1868 opened immigration from China to the United States when labor was needed on the West Coast. By 1882, when the demand subsided, the Chinese Exclusion Act was passed to not only limit immigration but also create the concept of “illegal immigration.”²⁵ This was the idea that unauthorized presence in the nation was a crime. Prior to this, laws primarily concerned naturalization—who could become a citizen, who could vote and participate politically, and who could receive benefits from the government. Currently some opponents of immigration also define it in terms of an “invasion” which the national government is required to stop under the language of Article 4, Section 4 of the U.S. Constitution.²⁶

In Chy Lung v, Freeman (1875), a case from that period, the Supreme Court ruled that the national government, and not the states were responsible for immigration policy.²⁷ In the 1860s, some states began passing laws restricting immigration into the state. California passed a few such laws in response to hostility towards Chinese immigrants from the general population, and from labor unions. The California Immigration Commissioner sought to deport Chy Lung on the grounds that she was “lewd and debauched.”²⁸ She appealed and won. Part of the Supreme Court’s reasoning was that state immigration laws could undermine foreign policy, which is fully a national concern.

In the minds of many in Texas, conflict over immigration comes down to securing the border, but any interest in regulating immigration into Texas is limited by the pragmatic fact that its border with Mexico is long, desolate, and hostile. Physically containing it is costly and difficult. Some consider it pointless since the great expanse of territory, largely lacking in water and other resources, creates a natural barrier. What’s more, Texas’s historical past as a Mexican state, and the ties that continue to exist between many residents and Mexico, have made the border porous. People flow back and forth in population centers such as Laredo and El Paso, often living on one side and working on the other. The border economy depends on the relative ease of traveling back and forth.

From the passage of the Immigration Act of 1891 and into the twentieth century with the creation of the Border Patrol in 1924, the Bureau of Immigration and Naturalization Service in 1933, and the tellingly named Operation Wetback in 1954, it has become increasingly difficult to cross over—primarily when going from Mexico into the United States. These immigration programs demonstrate that the national government was increasing both its attention to immigration issues and its ability to enforce those rules.

Other events also raised the profile of border security. Battles occurred along the border during the Mexican Revolution of 1910–1919. These included conflict near El Paso and raids on San Ygnacio. The United States military ventured into Mexico in an unsuccessful attempt to capture one of those responsible for the border incursions—Pancho Villa. Thus, border security became intertwined with national security. Increased violence associated with drug smuggling, people, and more recently the so-called caravans of refugees escaping hardships in Central America have helped raise awareness of the permeability of the border, and immigration is increasingly seen as harmful and threatening and defined as a public safety issue.

The Texas legislature commonly addresses a variety of issue that either directly or tangentially impact immigration in the state. In 2017 the legislature tried to address the hiring of undocumented workers by mandating the use of the E-Verify system , where employer information is cross-checked against records for the Department of Homeland Security in order to determine if applicants were in the country legally (SB 374). In the same session, the legislature passed a law purporting to ban sanctuary cities, cities that protect the undocumented populations from state and local laws targeting them (SB 4). Currently the legislature is considering repealing the Texas Dream Act which was passed in 2001 providing in-state tuition for undocumented students (HB 2862).

---

17. Oxford Languages, s.v.”infrastructure,” https://www.google.com/search?q=infr...hrome&ie=UTF-8.

18. John C. Calhoun, quoted in Adam J. White, “Infrastructure Policy: Lessons from American History,” The New Atlantis (Spring 2012): https://www.thenewatlantis.com/publi...erican-history.

19. George C. Werner, “Houston and Texas Central Railway,” Texas State Historical Association Handbook of Texas,” https://www.tshaonline.org/handbook/...-public-aid-to.

20. Stephen G. Wilson, “Railroad Construction: Public Aid to,” Texas State Historical Association Handbook of Texas, https://www.tshaonline.org/handbook/...-public-aid-to.

21. U.S. Const. art. I, § 8- 4, https://www.law.cornell.edu/constitution/articlei.

22. Merriam-Webster Dictionary, s.v. “immigration,” https://www.merriam-webster.com/dict...ry/immigration

23. U.S. Citizenship & Naturalization Overview,” Findlaw, May 13, 2020, https://www.findlaw.com/immigration/...-overview.html.

24. “The Burr Conspiracy,” American Experience, https://www.pbs.org/wgbh/americanexp...rr-conspiracy/

25. Ben Railton, “Considering History: The Chinese Exclusion Act and the Origins of ‘Illegal’ Immigration,” Saturday Evening Post, May 24, 2018, https://www.saturdayeveningpost.com/...ese-exclusion- act-origins-illegal-immigration/.

26. Matthew Lindsay, “Immigration as Invasion: Soveriegnty, Security, and the Origins of the Federal Immigration Power,” ScholarWorks @ UB School of Law (Winter 2010), https://scholarworks.law.ubalt.edu/all_fac/392/.

27. “Chy Lung v. Freeman et al.,” Legal Information Institute [LII], Cornell University, https://www.law.cornell.edu/supremecourt/text/92/275.

28. Chy Lung v. Freeman (1875) Educating about Immigration, http://crfimmigrationed.org/index.ph...lung-v-freeman.