It’s easy to forget at times, but the Founding Fathers left us with a carefully drawn list of enumerated federal powers in the Constitution. Conditions have obviously changed dramatically in this country since 1787. How does the list hold up today? What would you change, if you could?
Unfortunately, federalism today is more a bad faith, opportunistic argument made by both parties than a matter of principle. In my opinion, if you really wanted to start from scratch and create a list that makes sense irrespective of any partisan political points, it would work like this:
- ISSUES INVOLVING THE SINGLE MARKET, ENTITLEMENTS, AND THE ENVIRONMENT WOULD BE DELEGATED TO THE FEDERAL GOVERNMENT: To a large extent, these concerns overlap. Having state-based entitlements would reduce mobility between states and thus damage the single market. State boundaries are irrelevant to issues involving air, water, and climate. Different state environmental regulations, such as California’s emissions standards, can create serious obstacles to the single market, and should not be permitted.
- ISSUES INVOLVING IMMIGRATION, BORDER PROTECTION, AND FOREIGN POLICY SHOULD BE LEFT EXCLUSIVELY TO THE FEDERAL GOVERNMENT: Please note that “sanctuary cities” are actually a perfectly reasonable local law enforcement approach that should not be prohibited; declining to actively cooperate with immigration officials is not the same as frustrating them. Otherwise, the rationale for this is obvious.
- TRANSPORTATION FACILITIES THAT OPERATE ACROSS STATE LINES SHOULD BE CONTROLLED BY THE FEDERAL GOVERNMENT: Relying on state governments to reach agreements would be way too difficult.
- THE ENFORCEMENT OF ESSENTIAL CIVIL RIGHTS IS A FEDERAL ISSUE: History requires us to take that position; the states cannot be trusted with civil rights questions.
- ALMOST EVERYTHING ELSE CAN BE LEFT PRIMARILY TO THE STATES: That includes, among other things, housing, education, and infrastructure which operates purely at the local level.
How does this compare to the status quo? It isn’t terribly different, which is a tribute to the ability of the judiciary to adapt the Constitution to the needs to contemporary society.