Friedman writes in American Lawyer about evolving allocation of power between state and federal governments

Friedman writes op-ed in the American Lawyer that the traditional allocation of power between state and federal governments is changing

Barry Friedman, Jacob D. Fuchsberg Professor of Law, writes in April’s the American Lawyer that one of the great engines driving American politics is federalism, the idea that certain governmental functions are more properly performed at the state and local rather than national level (or vice versa).

“The usual way of thinking about the allocation of these governmental functions was, well, functional,” he writes. “Do locally what was local and let the federal government take care of national problems. But today a new reality is trumping our understanding of federalism. 'Failure of will’ has replaced functionalism as the device that separates what is local from that which is national. When one government cannot or will not fulfill its obligations, the other steps in.”

Friedman notes that in recent decades while the federal government has largely kept out of matters like policing, education, and zoning, it has taken on issues crossing state lines such as the environment, market regulation, and foreign affairs. But that paradigm is changing.

He points to immigration, education, and environmental protection as three areas where power has shifted due to failure of will.

Stuck between those who demand stronger law enforcement to limit undocumented immigrants, and those who advocate a path toward legal status for the immigrants already here, paralysis has occurred in an area that would normally be left to the federal government, Friedman says. State and local governments have stepped into the vacuum passing laws punishing employers from housing immigrants or pursuing sanctuary laws circumventing federal limitations on in-state tuition to illegal immigrants seeking a college education.

Education presents an opposite example, in which the federal government is stepping up where states have failed, largely due to funding problems, Friedman observes. For example, George W. Bush’s No Child Left Behind legislation fully injected federal standards into local curriculums.

Finally, Friedman notes, environmental protection is an area where states have picked up the slack for the federal government. Most notably, California asked the EPA for permission to impose higher standards for greenhouse gas emissions from automobiles, and despite being joined by 14 other states, the Bush EPA vetoed the idea, but the Obama administration already has indicated it may reverse the Bush administration's decision.

“Those with strong feelings about the traditional roles of local, state, and federal governments might shudder,” Friedman writes. “But no need.” “One of the best aspects of federalism has always been the competition it fosters between governments for the hearts and minds of the people. If anything, in 'failure of will' federalism, that competition has intensified.”