The U.S. Supreme Court concluded its recent ruling overturning Roe v. Wade by saying that decisions on abortion would now be returned "to the people and their elected representatives." This raises the question of which elected representatives. It is possible that the voice of the people and their elected representatives could be heard through abortion laws passed at the national level -- either allowing or banning abortion. But with a divided Congress, such national laws appear unlikely at this juncture.
Instead, the focus has mainly been on the 50 states of the union. Long active in passing abortion legislation, many states have accelerated that activity in anticipation of the Supreme Court decision. This seems to have been the assumption of the court, who in the penultimate paragraphs of the Dobbs decision say, "The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion."
Are States Becoming More Powerful?
Certainly, the states are where the action is today on a number of key policy and values issues -- including not only abortion, but also gun control, marijuana, healthcare, and most recently the way in which schools teach about racism, gender theory and sexual orientation. The Supreme Court's recent decisions would appear likely to increase the focus on the power of the states versus the power of the federal government. The recent court decision limiting the power of the Environmental Protection Agency to make sweeping regulations on emissions serves as another example of the shifting foundations on which federal power is based.
The issue of state and federal power was, of course, the crux of debates at the founding of our nation. The U.S. Constitution was a compromise in federalism that gave states baseline power but granted the federal government overriding power in certain areas. In the 234 years since, the nation has continually been beset by arguments over exactly how this federalism should play out -- arguments that led to the Civil War and that have remained at the center of policy debate ever since.
The American Public Weighs In on State vs. Federal Power
There is some evidence speaking to Americans' preference for state versus federal control of government. In 2016, Gallup asked Americans, "Which theory of government do you favor: concentration of power in the state government or concentration of power in the federal government?" This was an update of a question included in one of Gallup's earliest surveys in 1936. At that point, in the middle of the Great Depression and President Franklin Roosevelt's massive mobilization of the federal government in the New Deal program, 56% of those interviewed favored the federal government approach. By the time Gallup asked the question again in 1981, in Ronald Reagan's first year in office, the public had flipped, favoring the state power alternative by 56% to 28%. The most recent results from 2016 showed a similar response, with 55% choosing the state government alternative and 37% choosing the federal government.
Political identity is highly related to preferences for state versus federal power. Remarkably, this partisan difference has persisted over the past eight decades. In 1936, 72% of Democrats favored the federal government theory of government, compared with 35% of Republicans. In 2016, 80 years later, 62% of Democrats favored the federal government, compared with 17% of Republicans.
More generally, a good deal of data show that the American public is more confident in their state government than in the federal government. This reflects the truism that Americans are, in general, more positive about government the more local it is. State governments routinely inspire more confidence than the federal government. And local governments inspire more confidence than state governments. As a September 2021 Deloitte Insights review pointed out, "Distant government tends to be distrusted government."
Gallup's most recent Governance poll, conducted in September 2021, showed that 37% of Americans have a great deal or fair amount of confidence in the legislative branch of government, 44% of Americans have confidence in the executive branch and 54% have confidence in the judicial branch. Americans' confidence in their state government is at the 57% level (a great deal or fair amount) and faith in local government is at 66%.
A Pew Research survey conducted April 25-May 1 of this year showed similarly that 32% of Americans have a favorable opinion of the "federal government in Washington," 54% have a favorable opinion of "your state government" and 66% a favorable opinion of "your local government." Last August, as another example, a Gallup survey showed that Americans gave the federal government the lowest positive image rating of any of 25 business and industry sectors tested.
In summary, we have a situation as far as public opinion is concerned in which Americans have for decades been more positive about their state government than the federal government, in which Americans hold the federal government in very low regard, and in which, when asked, Americans appear to tilt toward the idea that states should have more power than the federal government.
Implications of an Accelerating Devolution of Power to the States
There are several possible consequences if the states continue to gain power and control over key issues and policies and if the federal government becomes less relevant.
- The most general implication of an expansion of state power is the potential to sharpen the line between the current red state/blue state divide.
- Companies and businesses may also begin to pay more attention to the politics of a state before making relocation decisions. New Jersey Gov. Phil Murphy, for example, recently sent out letters to nearly 60 companies urging them to move to New Jersey because it is "a state where they can be confident that the rights of women, the LGBTQIA+ community and voters will always be protected."
- If the federal government has less power and states more power, the emphasis on elections for state legislatures may rise in importance vis-a-vis the importance of U.S. House and Senate elections. Republicans appear to have been quite sensitive to this trend over the past four decades, undertaking successful efforts, often under the national media's radar, to take over state legislatures. Republicans now control 30 state legislatures, while Democrats control only 18.
- Presidential candidates themselves may become somewhat less focused on domestic policy issues -- or at the least become less lofty in their campaign rhetoric. Presidential candidates have traditionally created very broad platforms touching on all aspects of American life, domestic and international. If the federal government has less influence over certain policies in the future, presidential candidates' attention could divert to other matters (such as national security) where their powers are preserved. A presidential candidate's positions on specific domestic issues may be less significant if decisions on that front are being made mainly at the state level.
- There is also the possibility that the process of the devolution of power could extend below the state level. Many states have significantly different constituents at the county level, just as the nation has significantly different constituents at the state level. There could be increasing conflict in situations where those living in local jurisdictions have different views than the state taken as a whole. State constitutions differ in terms of prescribing what power the state has versus the power of local government entities, of course, and states don't have the explicit focus on state versus federal powers of government entities embodied in the U.S. Constitution. But there is the potential for disputations along these lines.