The decision by Attorney General Jeff Sessions in January 2018 to rescind an Obama-era marijuana policy that allowed states to move forward with legalization has pushed federal lawmakers to find a legislative solution that embraces an important constitutional principle. The Strengthening the Tenth Amendment Through Entrusting States (STATES) Act introduced on June 7 by Sens. Cory Gardner and Elizabeth Warren would require the federal government to respect the decisions of states on marijuana legalization. Instead of seeking to make cannabis legal everywhere (as some would perhaps prefer) or cracking down on states that have chosen to legalize (as others might prefer), the STATES Act is essentially an agreement between Republicans and Democrats—those who would like to see marijuana legal and those who prefer the status quo—to agree to disagree.
With influential backers like President Trump, 12 bipartisan governors, and seven bipartisan co-sponsors in Congress, the STATES Act has good chance at becoming law. But perhaps more promising is the return to federalism, or the constitutional principle of returning power to the states. If successful, the STATES Act could provide a valuable framework for policy-making in a fractured and diverse country.
Federalism results in fifty different solutions, lowering the stakes for “losers” on policy decisions and providing a valuable laboratory of experimentation for other states to observe. It is, in many ways, far better than a single national solution imposed by Congress or the courts. Federalism has the benefit of alleviating the heightened alarm in American politics by promoting competition and embracing diversity. Lawmakers of both parties too often look for big, one-size-fits-all solutions that turn our national politics into an existential zero-sum game over controversial issues. If Republicans and Democrats can agree, in principle, on a federalist solution to marijuana, it just might open the door to more federalist solutions on other hot-button issues.
There is good precedent that federalism can solve difficult policy problems. The 1996 welfare reform, passed by a Republican Congress and signed by President Bill Clinton, is arguably one of the most successful pieces of legislation in a generation. It ended a federal entitlement with bad incentives and poor outcomes, the Aid to Families with Dependent Children (AFDC) program, and allowed federalism is work its magic. States were allowed to create and administer their own welfare programs through block grants. The result was a significant drop in caseloads accompanied by increases in employment and earnings. The federalist reform changed welfare from permanent dependency to a program that assists needy families while incentivizing reentry into the workforce.
So what other issues are ripe for federalist solutions? Healthcare in the wake of the Affordable Care Act remains an unresolved and contentious matter. Democrats are moving toward a full “Medicare for All” option while Republicans seek to deregulate and inject market forces. A federalist solution might be a more prudent approach. Instead of moving to national universal healthcare, why not let a state like California or Vermont try it first? Then everyone sees the costs, the complexities, and perhaps the benefits and then can decide which solution is preferable. Or, vice versa, allow a state like Texas to experiment with market reforms conservatives say will introduce market pressures to lower healthcare costs.
Immigration reform has been stuck for decades at the federal level. But a modest federalist approach could help alleviate some of the problems resulting from inaction. Wisconsin Sen. Ron Johnson introduced a bill in 2017 to allow states to voluntarily create and administer a guest-worker program. “We have a shortage of workers in all different areas of the economy. We need to recognize that a one-size-fits-all federal model for visas or guest workers doesn’t work,” said Johnson. Let states that need foreign workers get them without imposing that decision on everyone. Win-win.
America need not fracture as our communities become increasingly diverse. Let Massachusetts be Massachusetts. Let Texas be Texas. Embrace local solutions to local problems and let diversity keep our country together.
