Just a two-hour drive and a ferry ride away from Harvard Square is Martha’s Vineyard, a bustling vacation island for prominent politicians, businesspeople, and celebrities. Summer residents find a different pace of life, exchanging hectic ports for picturesque bike paths and glass high-rises for charming beach houses. However, among its peculiar distinctions comes another trade-off: Unlike their mainland counterparts, vineyard beach-goers are not able to purchase legal recreational marijuana.
Why is it so difficult to use marijuana on Martha’s Vineyard? Do they simply hate fun? The answer, in short, is federalism.
On November 8, 2016, Massachusetts voters passed ballot question four, effectively legalizing the recreational use of marijuana in the state. However, the decriminalization of marijuana stands in direct contrast to federal law, which still classifies cannabinoids as a Schedule I drug with “no currently accepted medical use in treatment.”
This poses a novel problem for Martha’s Vineyard because the island is surrounded by federal waters over which the state of Massachusetts has no jurisdiction. Although Massachusetts state and local law enforcement would have no problem with cannabis on Martha’s Vineyard, the transportation of the drug from the mainland to the island would put the industry in the crosshairs of federal agencies. Numerous federal agencies have the ability to seize and prosecute offenders under federal law regardless of Massachusetts law.
This tangle of drug policy, enforcement, and jurisdiction exemplifies the complicated and oftentimes quarrelsome interactions between federal and state governments. The implications of these interactions not only keep Martha’s Vineyard residents grounded but also raise broader questions about the appropriate relationship between state and federal governments.
In the 20th century, the federal government expanded its influence over state governments by overinterpreting the Commerce Clause, growing the national regulatory state, and using fiscal measures to change state policy. It is now time to recalibrate that balance, affirming states’ powers and supporting policy diversity — but not at the expense of individual rights.
Court Interpretations
Until the Rehnquist Court of the 1990s, the Supreme Court claimed near-total deference to the Commerce Clause, allowing it to expand federal power and promote minority rights. However, the Supreme Court only tenuously expanded federal power when it based its decisions on the Commerce Clause alone, which may not have the constitutional basis to pass muster. Instead, interpretations of the Commerce Clause should be restrained unless a stronger case can be made through the lens of other clauses, such as the Supremacy, Necessary and Proper, and Equal Protection clauses.
In an interview with the HPR, Virginia Supreme Court Justice Steven McCullough cited Wickard v. Filburn, in which the Court decided that individual wheat production could be regulated by the federal government. This marked the beginning of Commerce Clause overextension. Although the court conceded that individual farmers had miniscule effects on interstate commerce, it ruled that the aggregate production of these farms could be considered under the Commerce Clause. McCullough posited that although Congress has interstate commerce powers, “growing wheat for your own animals in your ‘back 40’ under any conception of the term is not commerce.”
However, expansions of federal power are not always so problematic. When 14th Amendment equal rights are involved, expansions of federal power have a stronger textual basis. For instance, in Katzenbach v. McClung, which ultimately forbade racial discrimination in restaurants, the Court conceded that the federal government could not regulate the business of restaurants doing intrastate commerce. The Court instead used Title II of the 1964 Civil Rights Act, which derives its authority from the 14th Amendment, to justify its decision. McCullough stated, “At least on civil rights and racial segregation, you can point to specific constitutional provisions that give both certain rights and allow Congress to legislate.” Specifically, Justice William O. Douglas’ concurring opinion in Katzenbach was correct in that equal protection provided a stronger constitutional basis for accepting the majority opinion than the Commerce Clause.
From employment conditions in United States v. Darby Lumber Co. to marijuana regulation in Gonzales v. Raich, the modern Court has used the Commerce Clause to regulate countless aspects of American life. McCullough has “no particular objection to Congress regulating interstate commerce as it is specifically authorized to do … [however] the Commerce clause provides a sickly justification for intervention in all these other areas.” With federal institutions setting these standards, state governments can be left powerless to tailor legislation according to their regional characteristics without defying federal law.
A potential fix to allow state-level voices on national decisions is a new judiciary act allowing two-thirds of state legislatures to force the Supreme Court to hear a certain case, essentially giving a supermajority of states plenary review power. Such an external limit maintains the court’s insulation from the political process but reaffirms the principle of federalism. For example, South Dakota v. Wayfair, which overturned a federal prohibition on states’ abilities to tax internet sales, would have been heard earlier. A less severe and more plausible recommendation is to give oral argument time to a specified number of state attorneys or solicitor generals during court hearings.
Growth of National Regulatory State
As McCullough remarked, “It is really quite amazing how federal regulation is pervasive in your life. Nearly everything that is sold is fairly extensively regulated at the federal level.” Thus another way federal power has expanded is through the growth of the national regulatory state.
Sometimes, federal regulation is an efficient method to streamline policy or business with inconsequential reductions in state power. For instance, the National Highway Traffic Safety Administration releases national guidelines on automobile door latch specifications. If each state were to set different standards for latch safety, carmakers would face extraordinarily high compliance costs. Therefore, if the federal government sets regulatory standards that improve economic efficiency or promote a common interest, such as protecting the environment, then they are a sensible expansion of federal power.
However, the federal government is oftentimes hindered by a slow-moving or inflexible bureaucracy. McCullough describes the states as “more nimble,” while the federal government “gets some sort of sclerosis with bad legislation that won’t be revisited. It does make sense to have uniformity in interstate commerce. But when it comes to other policies, it has been damaging to innovation and local autonomy.” More flexibility among states to fill in policy gaps is an avenue to promote innovative legislation. California has demonstrated this by passing regulation regarding self-driving cars which can serve as an example for federal legislation in the future.
The regulatory state also has implications for the individual rights of citizens. For instance, the federal government streamlined civic participation standards in the Voting Rights Act of 1965. As Jenna Bednar, a professor of political science at the University of Michigan and preeminent researcher on federalism, told the HPR, “Voting rights is an interesting one because we had this centralization, but now states are exploring other ways of regulating who is able to participate politically that is either not in violation of the Voting Rights Act or through the Supreme Court which has minimized the effect of the Voting Rights Act.”
The court also has internal doctrines that favor the growth of federal regulatory power. For instance, Chevron and Auer give preferential treatment to the federal government and federal bureaucracies respectively to interpret Congressional statutes. In a highly complex policy arena such as environmental regulation, these interpretative and enforcement advantages can significantly impact state sovereignty in the judicial system. If an industry-heavy state were to stray from the Environmental Protection Agency’s internal CO2 standards, for example, the Court would be unlikely to support a state legal challenge.
Unbalanced Spending Powers
The third and final reason for the expansion in federal power is simple: money. Before the federal income tax, the national government was starved for revenue, primarily relying on land sales to fund itself. With the passage of the 16th Amendment, McCullough asserts “any fiscal constraints on the expansion of federal power were removed.” This means that many of the modern comforts of life are dictated by federal prerogatives — often with strings attached, such as the individual mandate of the Affordable Care Act, as decided by NFIB v. Sebelius.
This imbalance in spending power can force states to adopt new policies in order to keep old programs alive. As McCullough put it, “States, which were meant to function sovereignly and autonomously within their own sphere, are slowly morphing to become atrophies of the federal government because of the spending power. In the long run, it has a destructive effect on policymaking because they have a need to use federal money to balance their budget. You can see that in Virginia, which was originally a holdout on the Affordable Care Act before caving to the siren song of the federal purse.”
In an interview with the HPR, Delegate Schuyler VanValkenburg, a Democrat from Virginia’s 72nd District, supported Medicaid expansion but also noted the fiscal incentive of adopting a federal program. He said, “I was for Medicaid expansion for the coverage piece, but also it was insane to not expand just financially. Because once you expanded, you got federal dollars. We saved hundreds of millions of dollars … Once we expanded Medicaid, it allowed us to spend more on education and restore our reserve funds … If you can get that money [for programs] without taxing your citizenry, why wouldn’t you do that? That’s the incentive structure.”
Other crosscutting requirements, such as a minimum drinking age when funding state highways, are often attached to promote federal interests. Or, federal funding for state education budgets is only renewed if schools meet national testing standards. Without this federal funding, states could not practically provide the services and responsibilities expected of them by both the Constitution and their constituents. Bednar added, “If you can attach strings to your spending, then you can shape state policy environments … [and] the court [has] left open the use of spending authority to shape policy.”
Many government programs available today are only available through federal grants. The education and Medicare/Medicaid systems are often the largest items on a state budget, and federal funding has undoubtedly improved these programs for almost all state citizens. However, the Court must protect state governments from being unnecessarily or unfairly coerced by the federal government through its spending power.
What Should be Done?
With renewed attention on the federal government’s increase in power, the question becomes: Should states be empowered again? The answer is yes, but only when the federal government fails in its duties or oversteps its bounds.
McCullough mentioned the important check states place on potential federal abuses of power. He said, “When you diffuse power, it is more inefficient, but it makes it harder for that power to be abused. One of the consequences in centralizing power is there is a greater opportunity to abuse that power because barriers that used to stop the flow of that power in bad — or good — directions has been removed.”
State legislatures can sometimes be the only places to pass new policy, especially in hyperpolarized national climates like ours. Bednar asserted that “the rise of divisions between the parties is paralyzing Congress. Congress cannot pass anything, so we have a policy vacuum that the states can step in[to].” If Congress, the Court, and the president fail to innovate on policy, protect rights, or enforce law, the states have a responsibility to act within their constitutional bounds.
Federalism is a two-way street to make laws specific to a state, not a wholly partisan issue. Conservatives have already applied federalism to abortion while liberals have used it to protect transgender rights. Politicians from both sides of the aisle can find use in concentrating policy interests to individual states. As VanValkenburg would say, “We are all fair-weather federalists.”
Simply put, our nation is too large to uniformly expect agreement from all states. Instead, the federal government should focus on issues that are either clearly national or are delegated to them in the Constitution. Other policies should be left to state and local governments, which can cater laws to their specific constituents. McCulloug’s view is simple: “Just give the states the flexibility to enact legislation appropriate to the citizens of their states. Give them the latitude to experiment with different policy proposals and I think that would work to everyone’s benefit.”
The discrepancy faced by marijuana users on the drive from Boston to Martha’s Vineyard is not just a novel problem caused by happenstance geography. Instead, it reflects a classic point of contention between the different layers of government. A few things are clear: The Supreme Court must evaluate federalism claims from a rights-based perspective, the national regulatory state is necessary for uniform standards, and spending powers must not be coercive. With a more balanced power structure between national and state governments, citizens will have a government that is more representative, more robust, and more equal.
Image Credit: unsplash/Jassim Vailoces