Federalism and The Politics of Tobacco

Late in 1998, the United States acquired a new regime of tobaccocontrol engineered by the states' attorneys general. Nearlyall of them had filed lawsuits against the major cigarette manufacturers,allegedly with the aim of recouping Medicaid costs attributableto smoking. Despite latent differences of culture and interestin regard to tobacco control, all of the states eventually joinedin settlements with the industry that exacted large paymentsand restricted the industry's advertising and marketing practices.This article explains how it was possible for many differentpolities to agree on the settlement terms, and asks what thecase shows about the impact of federalism on tobacco policymaking.It concludes that tobacco policymaking in the 30 years priorto the lawsuits (1964–1994) was more consonant with constitutionalprinciples and not ineffective in achieving control.     

Coercive Federalism and the Search for Constitutional Limits

This article explores several constitutional bases for questioningthe federal government's use of unfunded mandates and otherforms of coercive intergovernmental regulation. The "anti-coercion"and "anti-commandeering" principles of the Tenth Amendment areproposed as general arguments against these forms of regulation.The constitutional requirement of "uniformity" attached to indirecttaxation, the "anti-discrimination rule" in the area of intergovernmentaltax immunity, and the "equality rule", which stems from theunwritten tradition of maintaining equality among the states,are developed as additional bases for striking down federallaws that distribute mandate burdens disproportionately amongthe states.     

The Supreme Court's New Constitutional Federalism: Implications for Public Administration

Since the early 1990s, the Supreme Court has been issuing decisions that, taken together, constitute a new judicial federalism. This effort is rearranging intergovernmental relations as we have known them for several decades. However, the boundaries of this new doctrine and its implications for public administration are not well understood. This article analyzes the principal constitutional bases for the Court's actions and gauges the balance of this new judicial federalism. It then sorts out the implications for public administration and projects where the Court may be going with this doctrine in the future.     

The Politics of Coercive Federalism in the Bush Era

During the period of the Bush Presidency, the federal governmentproceeded to centralize and nationalize policy in major areasformerly controlled by states and localities. The extensionof federal goals and standards to such areas as education testing,sales tax collection, emergency management, infrastructure,and elections administration were among the areas of significantmandates and preemptions. The continuation of policy centralizationin areas under a conservative and unified political regime showshow strong and deep the roots are for centralizing policy actionsin our intergovernmental system.     

Garcia: Of Federalism and Constitutional Values

In Garcia v. San Antonio Metropolitan Transit Authority (1985),a majority of the U.S. Supreme Court's justices did violenceto the principles of the U.S. Constitution by leaving the statesto take their Tenth Amendment complaints to the Congress. Inabdicating their proper constitutional role, the majority ofjustices ignored history, political realities, and constitutionalprinciple. The Constitution's institutional arrangements, ofwhich federalism is a key component, are an intrinsic part ofthe constitutional scheme by which government power is limitedand individual rights are protected.     

German Federalism After Unification: The Legal/Constitutional Response

The collapse of communism in East Germany and the resultingGerman unification produced a new focus on the operation offederalism in a unified Germany and on certain reforms concerningfiscal federalism and various constitutional amendments. Theinitial decisions about financing the new Länder in theEast soon proved to be inadequate, and after much controversya new "solidarity pact" was concluded between the federal andLand governments in March 1993. To counter recent trends towardincreasing centralization, a constitutional commission proposeda number of amendments, now under consideration by the federalparliament, which would strengthen the Länder vis-à-visthe federal government. The Länder have also been concernedabout the growing interference by Brussels in their affairs.As a result of recent changes in the Basic Law, they have strengthenedtheir position in relationship to the federal government andthe European Union.     

Australian Federalism: Developments and Prospects

This article discusses the principal recent developments in,and future prospects for, constitutional change, judicial review,fiscal arrangements, local government, public policy, and intergovernmentalrelations since the 1977 Publius issue on Australian federalism,taking into account the arguments presented in the other contributionsto this volume. It highlights the continuing vertical imbalanceof Australian fiscal federalism, and the Hawke Labor government'srecent initiative for a closer working partnership with thestates for reforming intergovernmental arrangements. It arguesthat while there is scope for the latter, there is greater needfor the former. Nevertheless, the 1980s was significant as adecade of predominantly Labor governments working with the federalConstitution, while the 1990s promises to be a decade of celebratingthe centenary of the Australian Constitution and working towardimproving the functioning of its federal system.     

Where Judicial Politics Are Legislative Politics: The French Constitutional Council

Judges on France's ordinary and administrative courts make law and policy by interpreting and applying statutes, but the Constitutional Council is overtly involved in policy‐making. The Council serves as a type of ‘third’ chamber of the French parliament, where it may annul unconstitutional legislation, ‘constitu‐tionalise’ various legal principles, and sometimes even prescribe the precise terms of legislation. This ‘court‐like’ body, thus, plays a significant and growing role in French policy‐making.     

From Constitutional to Treaty Federalism: A Comparative Perspective

Federalism in the European Union differs significantly fromthe American model. First, instead of relying on fixed constitutionalrights, the EU remains committed to a treaty-based process offlexible accommodation. Second, the federal system of constitutionalpower division has been replaced by the subsidiarity principle.The scope and dimension of Community action are tied to negotiatedcriteria of necessity and efficiency. Third, European federalismhas not adopted the American senate model. Member-state participationin the decision-making process is based on the German modelof weighted council representation. Regions and civic organizationshave gained an additional consultative voice. As a novel typeof federal polity, the EU may gain model character for a globalizingworld of nation-states whose interests appear loosely interconnectedby federal arrangements rather than firmly nested in a federalstate.     

Federalism As an Ideal Political Order and an Objective for Constitutional Reform

Federalism is first examined as an ideal-type political orderas possibly emergent from initial constitutional agreement amongmembers of a prospective political community. This abstractedand nonhistorical analysis is followed by an examination ofthe possible applicability of the federalist ideal as the basisfor reform in specific historical-institutional settings. Thedirection of constitutional change toward effective federalismis discussed, with the devolution of political authority fromcentralized structures carefully distinguished from the limitedconcentration of authority from previously autonomous politicalunits.     

Federalism and the Constitutional Right to Keep and Bear Arms

Until recently, the federal courts agreed that the Second Amendmentprotects the interest of states in maintaining their own militias.In United States v. Emerson, the U.S. Court of Appeals for theFifth Circuit rejected this consensus, and held that the Constitutionprotects a right of private individuals to keep and bear arms.The fifth circuit's position is more plausible than the consensusview, and the arguments for treating the Second Amendment asa kind of federalism device are weak. A different set of federalismissues is raised by the prospect that the Supreme Court mightadopt the fifth circuit's position, and then take the next stepof applying the Second Amendment to the states through the FourteenthAmendment. Finally, Emerson shows how certain technical legaldoctrines that protect the dignity of he states can operateto strengthen the federal government's ability to undermineprotections afforded by the Second Amendment.     

Deregulating Federalism? The Politics of Mandate Reform in the 104th Congress

This article examines the politics and substance of mandatereform in the 104th Congress. It briefly describes the evolutionof the mandate issue, examines the process by which the issuewas placed on the national agenda, and traces the formulationof a legislative response. It analyzes in detail the politicsof enacting mandate-reform legislation, paying particular attentionto patterns of support and opposition and to changes in thesepatterns over time. It concludes by examining the prospectsfor successful implementation of the legislation and its likelyconsequences for the intergovernmental system.     

The German Federal Constitutional Court and European Judicial Politics

With its decision on the ratification of the Lisbon Treaty, the German Federal Constitutional Court (FCC) has handed over another landmark ruling on European integration. The ruling made Germany's ratification of the Treaty conditional upon the passage of a new law giving the Bundestag greater oversight of European affairs. This and the consequences of stronger parliamentary oversight for the German government and the way it conducts negotiations at European level have been the focus of most early comments on the decision. No less important, however, are the ruling's potential repercussions on European judicial politics. Coming after a series of highly controversial judgments by the European Court of Justice, the FCC's Lisbon decision is clearly meant as a warning to Brussels and, above all, Luxembourg. The decision could undermine the Court of Justice's authority and encourage non-compliance on the part of national courts, thus bringing about a constitutional crisis at European level. Alternatively, the decision may compel the Court of Justice to reconsider some of the most controversial aspects of its activist jurisprudence and to exert more restraint in the foreseeable future.     

Homogeneity and Democracy in Austrian Federalism: The Constitutional Court's Ruling on Direct Democracy in Vorarlberg

This article seeks to analyze how homogeneity between the federationand the constituent Lander is provided by the Austrian federalConstitution in general. Focus is then put on a recent judgmentof the Austrian Constitutional Court, which has been one ofthe most outstanding cases of the Court's "homogeneity jurisdiction."The Court held a provision of a Land constitution to be in breachof the federal Constitution and therefore repealed it. The reasongiven was that the provision, which had obliged the Land parliamentto pass a law if this was demanded by a people's petition andsupported by the Land people in a referendum, endangered thesystem of representative democracy as provided by the federalConstitution. This narrow understanding of democratic homogeneityand the negligence of the principle of federalism are criticallyviewed in the article.     

The Institutional Basis of Secessionist Politics: Federalism and Secession in the United States

According to the literature on secession, the most importantdeterminant of secessionist sentiment is a high level of grievanceexperienced by the would-be secessionist group. However, therationale behind using secession (as opposed to another strategy)as a grievance-amelioration strategy remains almost completelyunexplained. This article contends that the institutional settingin which political conflict and grievance are experienced playsa crucial role in whether secession is conceived of as a viableoption. This contention is tested by examining the institutionalenvironment of federalism and the role it played in secessionin the United States in 1860 and 1861. The United States wasuniquely vulnerable to secessionist pressures—as are allfederal states, potentially—because of institutional structuresthat gave constituent states a high level of institutional authorityand capacity; this, in turn, contributed to a discourse of states'rights that included the contested right to secede.     

The Road to South Carolina: Intergovernmental Tax Immunity and the Constitutional Status of Federalism

In South Carolina v. Baker the Supreme Court struck a powerfulblow at constitutional federalism. As a result of this landmarkcase, the question of whether issuing tax exempt bonds is asovereign right of the states or a privilege they are accordedby the national government has been settled. Relying in parton precedent from Garcia, the Court determined that immunityis not a right under the Tenth Amendment. In addition, SouthCarolina established a new doctrine of intergovernmental taximmunity which formally accords superior powers to the nationalgovernment. Taken together, these results have implicationsfor the future course of intergovernmental fiscal policy aswell as the basic character of the relationship between thenational and state and local governments.     

The Politics of Indian Gaming: Tribe/State Relations and American Federalism

Since the passage of the Indian Gaming Regulatory Act in 1988,gambling on reservations has become a multibillion dollar industry.The act, however, has led to jurisdictional conflicts betweentribes and states. These conflicts are redefining the positionand role of Indian tribes in American federalism. As the tribeshave gained autonomy, states have lost jurisdictional powerand control. The federal government has become the arbiter inthe disputes and, as such, has continued to maintain its positionof supremacy and power over both tribes and states.