Defying the Greater Government: Local and State Governments’ Innovative Approach to Policymaking

Michael Tomasino

30 August 2015

Since the economic collapse of 2008, American citizens have grown increasingly skeptical oftheir government’s ability to pass socially and economically beneficial legislation. As citizens criticize large-scale government entities, such as the federal government or state legislatures, lower-level politicians have attempted to keep the masses at bay by passing legislation that will appease the voters in their districts. However, much of this newfound legislation is at odds with the policymaking efforts of their superior levels of government. In particular, over the last three years lower-level governments have attempted to limit, or usurp, the power of their superior governmental entities by attempting to pass legislation that either modifies the enactments of their federal and state-level counterparts, or, is expressly contrary to it. The Rutgers Center on Law in Metropolitan Equity, more commonly known as CLiME, has investigated the phenomenon of innovative exercises of government authority. In particular, CLiME has developed hypothesis as to why municipalities, cities and states seem to be legislating on issues typically reserved to higher governmental authority.

Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union . . . would present obstructions which the federal government would hardly be willing to encounter.

Since the Union’s construction, citizens have feared greater government’s incompetence and theimplementation of widely unsupported policies. The above text illustrates James Madison’s theory that subordinate governmental entities should nullify, or refuse to enact and police, policies that bring about a widespread detriment to citizens of a particular state. Historically, the concept of nullification wasattached only to states’ refusal to implement federally-mandated policies. However, in recent years subordinate government nullification has been expanded to such an extent that the original theory may soon burst at the seams. Contemporary lower-level governments have not only refused to enforce federal statutes; but also have gone as far as enacting statutes in blatant defiance of federal law and even enacting statutes punishing those who attempt to enforce federal law within certain states’ jurisdictions.

In addition to nullification’s conceptual expansion, the practice’s implementation, which was once exclusively reserved for states, is now being utilized by all levels of subordinate governments -- often including the rejection of state policies by cities and boroughs. Over the last three years the United States has seen boroughs defy cities; cities defy states; states defy the federal government; and cities defy states which are themselves defying the federal government. This widespread governmental defiance firstbegs the question: “Why have lower-level governments lost faith in the policy-making abilities of their superior tiers of government?” Second, these innovative practices beg the question: “Are lower tiers of government employing a Jeffersonian application of the Tenth Amendment; or are these policies ablatantly dubious attempt to usurp the powers of greater government?”

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Defying the Greater Government: Local and State Governments’Innovative Approach to Policymaking