March | April 2017

Acknowledge the Past, but Look for the Future

John Kincaid is the Robert B. and Helen S. Meyner professor of government and public service and director of the Meyner Center for the Study of State and Local Government at Lafayette College in Easton, Penn. He has written and lectured extensively on federalism, including speaking at a Federalism Task Force hearing during CSG’s 2013 National Conference. Here are his thoughts about federalism, why the tensions are so high right now and what state legislators can do about it.


Kincaid said while the term federalism may be looked upon with disdain in politics these days, it’s a form of government that can be very equal. “You have self-rule in the sense that each state governs itself,” he said. “The federal government has its own sphere of authority. At the same time, the two have to work together. … Ideally, you’re looking for a balance of power between the federal government and the states whereby neither one dominates the other.”


Kincaid said the U.S. has had dual federalism for most of its history, where the federal and state governments don’t work together much. In the 1930s, it changed to cooperative federalism, where states and the federal government worked more closely together to combat the Great Depression. With the rise of the Civil Rights movement, environmental awareness and Supreme Court rulings that weakened the old party system in the ‘60s, the balance of power began shifting. “I would term it as the rise of coercive federalism, in which the federal government has definitely become top dog in the system,” Kincaid said. “It’s conditions attached to federal aid, pre-emptions to state power, mandates on the states. In terms of making policy, the federal government predominates.” But, Kincaid said, he believes there are ways states can have more influence over the federal government.


Kincaid believes state leaders must strive to be involved. “Have more input into federal policymaking in the first place,” Kincaid said. Think about how “to have more voice before the federal government enacts major legislation like the Affordable Care Act.” While states had some input into health care reform, Kincaid said Congress and the president drove the debate. States also can influence environmental legislation, he said, but it will take an effort to “put more pressure on … members of Congress to have the state point of view reflected in Congressional deliberations.”


Kincaid said legislators can press state program administrators, whether it’s in things like education or Medicaid, to push for more flexibility in how the state implements those programs. “We’re seeing the federal government willing to do that, I think, a bit more,” he said. “Although the states have to comply with the federal government, it’s much more amenable to finding ways to adapt to state and local circumstances.”


Another way states can regain some lost power is to find emerging trends where the law is not yet written, Kincaid said. “Think about emerging issues, like autonomous automobiles, they’re coming down the pike,” Kincaid said. “Ten, 20 years from now, maybe most cars on the highway will be driven by computers. This is an area where the states—and I think they are beginning to legislate in this area—can lead the way in appropriate legislation.” Those state bills, he said, come with the hope that any federal legislation would complement rather than contradict state legislation; it also could reduce the need for federal legislation, he said.