9. Who Has More Power, States or the Federal Government?

We know the federal government holds a lot of power, but what happens when the states and the federal government disagree?

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Thinks to Know

• Fugitive Slave Act
• Real ID
• Virginia and Kentucky Resolutions

Key Terms 

• Enumerated Powers: A list of things the government is allowed to do 
• Nullification: The right of each state to cancel or invalidate any federal law which that state has deemed unconstitutional 

Links

• Tenth Amendment Center

 

Here’s the transcription of our conversation:

Connor: Hey Brittany!

Brittany: Hey, Connor. How are you?

Connor: I am well, but I have been watching the news lately with president Trump has been out there issuing executive orders and it gave me a topic that I wanna talk to you about. So we have in America kind of layers of government, right?

Brittany: Yeah.

Connor: And so what city do you live in?

Brittany: I live in Arlington, Virginia.

Connor: Okay. So the city of Arlington has a government, a city government. And then what county is Arlington in

Brittany: Arlington county.

Connor: Arlington county. The same name.

Brittany: Yes

Connor: So, then there’s the Arlington county government, and there’s people kind of in charge of that government and then that’s in the state of Virginia

Brittany: Mm-Hmm.

Connor: And so that has state government.

Brittany: Yep.

Connor: And then that’s within the United States of America. So then there’s federal government. So you have, and, and I have, and we all have at least four levels of government on top of us, bossing us around and taxing us in different ways.

Brittany: Sounds very confusing, very, very confusing.

Connor: The question I want to ask you to kind of start the conversation let’s ignore for today city, government and county government let’s focus on the states, cuz most people are familiar with the state government. Probably a lot of our listeners have been to their state capital, at least on like a field trip or a tour or sometimes even to, you know, go try and lobby for something or talk to elected officials about it. So let’s talk about the states and the federal government. If I were to ask you which one has more power, the state governments or the federal government, how would you answer that question?

Brittany: I think I automatically would think the federal government, because when we think of the president, he is the leader that we sometimes call him the leader of the free world. So he is the leader, right. So I always assume that the federal government is calling all the shots

Connor: And that’s, I think what a lot of us thought when we were growing up, you see the president on TV all the time, he’s clearly kind of in charge. He’s kind of issuing executive orders. Yeah. He’s bossing people around and we’ve seen a lot of that with president Trump, especially, you know, during the whole coronavirus thing, he was issuing a lot of these orders and so forth. So the question becomes is that true? We talked on the past episode a little bit about how the constitution sets up. I think you had mentioned the term enumerated powers.

Brittany: Yes.

Connor: Right? And so

Brittany: Mm-Hmm

Connor: Hey president Trump or Obama or Bush or Clinton or whoever you have only certain powers that you can operate with. So the question in my mind, Brittany, is if that’s true, if the president has more power, then where are the powers of the governors control? Does the, the us constitution say what governors can and can’t do? What do you think?

Brittany: I would assume it doesn’t because it’s not about state government, right? It’s about the federal government. So it’s about all of us as a whole, but not the individual states.

Connor: That’s right. And so what’s crazy about this is we all often think, at least in my view that the federal government is very powerful that the president has a lot of power. But when I think about my life and the way that government can affect my life, You can actually go about changing state laws, federal laws, very hard, cuz there’s a lot of people up on Congress. There’s a lot of people with money, power and influence.

 because the president typically has power over the military and he is got power over the federal government, which is, you know, large, but it’s kind of spread thin. It affects different people, but not in, like, as you go about your day Brit and you think about all these laws that are kind of regulating you or bossing you around, you probably aren’t thinking so often about federal laws. It’s probably mostly laws in your state that are telling you what you can and can’t do. What do you think?

Brittany: No, exactly. No, it’s a little interesting. We won’t get into this cuz this is a discussion for a whole other podcast because I also live right near DC. Now DC is neither a state nor the federal. It’s kind of this weird in limbo.

Connor: Right?

Brittany: So in Virginia, I definitely really only think about what the state tells me to do, but what I’m in DC, that kind of switches a little bit, but definitely on a day to day basis. I wonder what my state laws are more than I, you know, am thinking about what the federal government has to say.

Connor: And that’s interesting because when you watch the news, it’s all about federal stuff. It’s president Trump.

Brittany: The Congress always talking about The Congress.

Connor: Right. And that makes sense because the news is catering to a national market usually, and, and the local newspapers and TV stations have struggled, you know, over the years, a lot of them have gone out of business or really struggled. And so we all often see the national news and that leads us to think, they’re so powerful. And yet what I find interesting, a lot of our listeners will remember that I run a think tank where I’m involved in changing laws and we work at a state level. We try and change state laws. And what’s amazing about that is that it’s not actually that hard. I mean, you can actually go about changing state laws, federal laws, very hard, cuz there’s a lot of people up on Congress. There’s a lot of people with money, power and influence.

Brittany: A lot of people you’ve gotta even just get through to even even get to your, you know, your elected official, you’ve gotta go through all sorts of hoops.

Connor: They have gatekeepers.

Brittany: Yep.

Connor: Preventing you from meeting with them. But so here’s a different question then moving on from this idea that, you know, it’s easier maybe to change laws at the state level or that the states have more power to kind of control our lives. I have a little bit of a different question, Brittany.

Brittany: Okay.

Connor: So the federal government and the state governments don’t always agree. No. So you might feel, or our listeners might feel that, oh, well the federal governments have more power, but the states might say, well, no, we wanna do things a little bit differently. So what happens when the federal government wants things done a certain way or when they say, you know, this is how it should be. And when the states disagree they, they kind of have separate divisions of power, separate kind of spheres of influence. You might say what happens when they disagree.

Brittany: Yeah. So in the constitution there is a clause called the Federal Supremacy Clause or I think it’s just yeah. Federal Supremacy Clause, which says that the federal government has the final say that is, is what’s in there. That when it comes to the laws of the land, if there is nothing expressively prohibiting them. So saying, no, you can’t do this, that they have final say, but we’ve seen that this isn’t really always the case. Is it because there’s some states and we talked about this before we started recording today, where they’ve actually had to take this to court. We have the Supreme Court who deliberates these cases. So sometimes when the state and the federal governments can’t agree, federal government can’t agree, they actually have to go in front of judges and, and make their case. It’s really interesting to see when that happens, because there’s all sorts of different sides of this as we’ll talk about in a second.

Connor: Yeah. I think that’s right. The Supremacy Clause is interesting because people who believe that the federal government is kind of in charge or has powered, they’ll say, the supremacy clause. And they’ll, say it in a way that the federal government, whatever it wants to do, it can do. But if you read the supremacy clause, it basically says that it, the federal government is Supreme when it comes to powers that are in the constitution.

Brittany: Enumerated, we just talked about that word too. Exactly. Enumerated powers.

Connor: So if the powers are enumerated, then in those cases, what the federal government says clearly is the law of the land. And it’s superior to any state that try or local government, like a city who tries to do something different. But the real question becomes what happens when the federal government is involved in something that the constitution does not enumerate that doesn’t say, Hey, Congress, you can do this. And then the state governments are like, you know, whoa, wait a minute. We, we definitely don’t wanna do something like that. There are a number of examples in history.

Brittany: Yeah. I wanna hear some of this cuz this sounds very interesting.

Connor: So Nullification is the idea nullification is this concept where the states are going to nullify or basically cancel a federal law and they say, well, we don’t think you guys have that power. We as a state, think that we should be able to do something different, that, that we decide as our own state legislature or the governor. So we’re gonna go in a different direction. So one example that I often think of in history is a, a law, a federal law called the fugitive slave act. So this is,

Brittany: Oh, there’s a bad one, but it’s a good, it’s a bad one. It’s a good example.

Connor: Good example of a bad law.

Brittany: Yes

Connor: This is the exam. This is a case before slavery was prohibited. Right. And the federal law.

Brittany: 19 what?

Connor: 18

Brittany: Or 18? Sorry, 18. Wow.

Connor: Much longer, again.

Brittany: Much longer.

Connor: This is the mid yeah. Mid 19 century. So early 18 hundreds.

Brittany: Before the 1860s, when the civil war happened then.

Connor: Right. So the law at the time said that if you catch a slave, the federal law said that you’re required to help providing or returning that slave to its rightful owner.

Brittany: Even if your state was not a slave state.

Connor: Yes. Correct.

Brittany: Oh, wow.

Connor: Correct. Even if you were in one of the Northern states, slavery is illegal. They don’t support it. If a runaway slave comes and you see, and you know, you’re required to help get that slave back to the slave’s owner.

Brittany: So you would be committing a crime if you did not.

Connor: Exactly.

Brittany: Wow.

Connor: Exactly. So there were people who commit this crime, they go to court and people, there was one story where people literally barged into court and grabbed the guy, the defendant, the person who did not help return the slave to his quote unquote owner. And the other people there grabbed him outta court and basically rescued him from the government and said, we’re not gonna let you prosecute this guy. So, it’s very interesting, right. Because here you have a state kind of flexing its own muscles, right? There’s the, the game called chicken, right?

Brittany: Yes.

Connor: When like two people are on other side and they’re like, okay, are we gonna crash into one another? Or are you gonna move outta the way and get scared while I’m kind of, you know, barging in that direction. And it is kind of that way. Sometimes I feel like with the federal government on one side and the states’ on another and they sometimes play chicken and they’re like, okay, who’s gonna blink first. Are, are you gonna kind of recognize that you don’t have the power to boss us around federal government or the state’s gonna get scared? A lot of times what happens is the federal government will say, ah, well, we’re not gonna give you funding unless you comply.

Brittany: So it’s not that they’re coming with guns blazing and, telling the governors, they can’t do it sometimes it’s pulling money away or maybe not giving other perks. Interesting.

Connor: Do you remember Britney a few years ago, the big controversy over real ID, do you remember that?

Brittany: I do. I do.

Connor: That was a big

Brittany: ID was and we got that. Didn’t we end up, they’re kind of rolling it out now, right? Yes. Yeah.

Connor: Yes. A lot of states push back. They did not like this ID of having a national ID card cuz every state had its own, you know, driver licenses and ID cards in the federal government that said, well, we want one for everyone. And we want all of the, the IDs in the states to comply with these different criteria so that they all kind of match so that they all, you know, are the same. And a lot of the states pushed back. They, they passed laws and resolutions, which are more like opinions

Brittany: Mmm-Hmm.

Connor: And they’re like, we disagree with this. We’re not gonna comply. This was like 2007, 2008. I wanna say a little bit before the, the tea party. And, and so they pushed back and what’s amazing is in the decade after that the federal government started not just withholding money, but they started giving money to states to help them comply and say, Hey, we’ll help you so slowly. Even though the states initially resisted when the federal government started basically bribing them to they comply.

Brittany: They were, they wanted to do it.

Connor: Exactly.

Brittany: That’s not great.

Connor: Yeah. So, so that’s a case where maybe a state isn’t standing up, but I think there’s, what’s another example, Britney, that comes to mind when the states in the federal government are trying to kind of push back against one another.

Brittany: I think of California and I think of medical cannabis which is a medicine. Some people take its a plant that grows in the ground, but it’s a, a medicine you can take, you can eat it, you can smoke it a bunch of different ways. You can take it. But the federal government has said that cannabis, the plant is illegal. It’s 100% illegal. You cannot grow it. You know, possessed anything. However, the state of California back in the nineties, this is a long time ago passed a law where they decided that it was okay to use this plant. If you were sick, if you were suffering from a lot of people who were going through cancer treatments, chemotherapy, they get very nauseous. And if they use the cannabis plant, they feel better. There’s a lot of other things. Epilepsy is another one for people who have seizures.

If they take if they take cannabis or CBD oil, which is, is it comes from that plant. They feel better. So there’s a lot of medical benefits to this, but the federal government kept telling the states that they couldn’t do this. And so a lot of times they would have these they called them dispensaries or yeah, dispensaries — is the name they called ’em in California and they would be legal in the state, but the federal government would come in and they would close them down and they’d come in with guns. This isn’t just like you said, you know, we’ll give you money to do what we say. Instead. This was actually coming in and taking business owners, monies and taking their actual, their, their medicine, like what they were selling. So this has been happening a lot and we’re seeing this happen more and more. But today the federal government is kind of easing back, even though cannabis is not legal federally. So many states have now passed medical cannabis laws that you’ve seen lately that they’re not really enforcing it as much. Are they?

Connor: Yeah, that’s exactly right. And that gets to the game of chicken when a whole bunch of states stand up together and say, you know, we’re not gonna comply with this. Initially it was real ID when a ton of the states came and said, push back on real ID, the fed federal government kind of backed off and like, oh, okay. We won’t push this until they kind of quietly did behind the scenes. Yeah. But in this case, you’re right. So many states are saying, we want our, our citizens, our, the individuals in our state to be able to use cannabis appropriately. They often appropriate kind of bound boundaries and regulations and stuff like that. But under those regulations, they’ll say, we think it’s okay for people to do this. The federal government says no, and you’re right. They’ve backed off. And they they’ve written kind of legal memos saying, well, okay, in states that have legal medical cannabis, we won’t enforce the federal law under these circumstances. And usually they want to go after like the big drug king pins and really bad guys and not grandma with epilepsy and stuff like that.

Brittany: No, exactly. Yeah. But yeah, so that’s been happening a lot, but we’re seeing, that’s kind of one that we’ve won. Right. That’s one that hasn’t had to go be fought over on, on a grand scale. That’s just been social change. People changing their opinions.

Connor: That’s right.

Brittany: But what happens? I wanna know with things like the fugitive slave back what happens when there is no other recourse when it’s not something that the government decides like, you know, maybe we were wrong. We’re not gonna change the law yet. What happens then?

Connor: Yeah. You know, it’s a, it’s a question. It like real idea act. Do we kind of slowly kind of break down our will and just end up complying with what the federal government wants or are we gonna stand up for our rights and say, no, even if you’re gonna try and incrementally chip away at our rights, we’re gonna stand strong and we think this is wrong. I, I wanna give our listeners, Brittany, a little bit of homework on this issue because it’s a very fun topic to read about and we’re winding down the discussion. So I’m only gonna mention this a little bit, but you may remember that there’s a couple of res resolutions that kind of got this whole nullification idea started. They’re called the Kentucky and the Virginia resolutions. And they were written in secret by Thomas Jefferson and James Madison. So what was happening in the late 17 hundreds is that John Adams was the president. The Federalists were in charge and John excuse me, Thomas Jefferson was actually in a different political party. And he was the vice president, which I always thought was kind of weird. Right? Cause you could have a president in one party and a vice president from the total opposite party. And they disagreed a lot with one another and yet they had to work together.

Brittany: I think that changed after that administration because they didn’t get along so well.

Connor: Right. Yeah. So it’s not that way anymore. And so here you had Thomas Jefferson who disagreed with what president John Adams was doing it when it came to like immigration and they passed what are called the alien and sedition acts, which would be a really interesting thing for our listeners to go look into in terms of, you know, kicking people out who are from a different country in that case, it was France. Or if you said anything bad about say

Brittany: Censorship was a big one. Yeah,

Connor: Absolutely. And so they, the president now had power to criminalize people, Benjamin Franklin’s grandson owned a newspaper where he was being critical of the government. He was thrown in jail. And so that’s the alien and sedation acts. And so John Adams is in charge. He’s enforcing this law. And then here you have vice president, Thomas Jefferson, who’s like, this is crazy. The federal government does not have authority to do this. The constitution does. It says Congress shall make no law regarding speech. Right. and yet here they are, as you point out doing censorship. So Thomas Jefferson and James Madison got together and they were big believers in, in so-called states’ rights. Right. They thought that the constitution only allowed for a very limited federal government, the enumerated powers that we talked about, but everything else as the ninth and 10th amendment of the, I was gonna say ninth and 10th

Brittany: Amendment kind give us the states that power. Don’t they?

Connor: Exactly. Well, and to be correct, and you’ll agree with me on this. It doesn’t give them that power. It makes sure that they retain that power. Yeah. Because they didn’t delegate it right to the federal government. And so Thomas Jefferson’s like, no, this is not the way that we set up this government. So in secret he wrote and Madison wrote the Kentucky and the Virginia resolutions where they explain why nullification is important and why people should be able to stand up for their rights against the federal government. So your question Brit was a great one. What happens when the federal government won’t back down? What happens if we just need to fight for our rights? And so I want to give our listeners a little bit of homework. It’s, it’s a fun topic to learn. There’s a cooler organization that you can learn from.

You can go to Wikipedia or there’s an organization called the 10th Amendment Center where they talk a lot about this kind of stuff. Cuz the 10th amendment says that any powers not enumerated or not delegated in the constitution are retained to the people. In other words, if, if we haven’t said to the federal government, you can do this, then they don’t get to do it. The power stays with the states or with you and I, as people directly now, Brittany, as we’re parting, let me get your final thought here. How well has the federal government stayed within its constitutional bounds? Clearly the constitution has, has worked well enough to make sure that the president and the federal government have not expanded their powers at any point in history. Right?

Brittany: Yes. And to be fair, even though we have our problems here and there have been some times, believe me, you and I both know where the federal government has exceeded or gone beyond its power. However, if we look at other constitutions of the, of the world that have both been created and destroyed ours is one of the longer lasting ones. And I think that says something it’s not perfect. There are some things that could be different maybe, but we’ve done a pretty good job. And considering like you said, the federal government does not always stay within its powers, but or within it, sorry within its limitations, but we’ve done a pretty good job compared to other countries. So I’ll say that.

Connor: And so, the takeaway here with a little bit of homework to learn about nullification and states’ rights is that the federal government is supposed to be very limited. The states should have a lot more power, but oftentimes the federal government just wants more power and they start to boss the states around. And so, the question is we as states, we as individuals, what are we gonna do about it? So that’s a parting question for you and I Brittany, to think about for listeners to think about thanks for the chat, Brittany,

Brittany: Of course, see you next time.

Connor: We’ll catch all you guys next time. Make sure you’re subscribed.