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Subsidiarity, Federalism, and the Role of the State

The principle of subsidiarity—the belief that decision-making should occur at the lowest level appropriate to its purpose—is a staple of conservative thought. In fact, it is sometimes asserted that subsidiarity “is a bulwark of limited government and personal freedom.” In general, local control is usually preferable to a decision-making process based on larger political units, in which the responsible officials are far-removed from the affected population. Local government officials are typically more responsive to individual citizens than are federal officials; local decision-making enables regional preferences and variations in lieu of stultifying uniformity; and voters can more easily replace an unresponsive local elected official than his state or federal counterparts.

Subsidiarity and Federalism

The principle of subsidiarity seems to dovetail with our system of federalism, which preserves the states as the basic unit of government. Distant bureaucrats often ignore the wishes of the public they supposedly serve.  Nevertheless, local control is not a talisman; abstract concepts can become complicated when applied to real-life situations. In Federalist No. 10, James Madison warned that factions would have greater influence in a smaller polity than a larger one, as anyone who has endured the pettiness of small towns or homeowners’ associations can attest. Cities with a small number of voters may also be subject to corruption. Moreover, there are many instances in which larger units of government are more suitable—even necessary—to discharge important public functions. The Constitution assigns certain tasks to the federal government for this reason. Accordingly, it is simplistic to contend that local control is always preferable.

I have previously written about the tension between state and local control, and am prompted to return to the topic by two, seemingly unrelated, recent events. The first is the state of California’s ongoing resistance to the immigration policies being implemented by President Donald Trump. California, home to at least 2.3 million illegal immigrants, has declared itself a “sanctuary state,” University of California President Janet Napolitano has sued the Trump administration in federal court to challenge the rescission of the DACA program, and, most disturbingly, California Attorney General Xavier Becerra has threatened to prosecute California employers who cooperate with federal immigration authorities conducting enforcement sweeps.

What should we make of this? Is California simply exercising “local control”? Should proponents of limited government applaud these actions as an exercise of subsidiarity, or federalism? Under the Tenth Amendment, all powers not delegated to the federal government in the Constitution are reserved to the states. Regulating immigration and naturalization, however, is exclusively a federal function.[1] The Constitution contains a Supremacy Clause, expressly overriding inconsistent state laws.[2] Leaving aside personal and political objections to the current administration, President Trump won the 2016 election and has the constitutional authority to enforce federal law. Critics of federal immigration laws should attempt to change them, not interfere with their enforcement.

A state’s defiance of lawful federal authority in a sphere properly assigned to it by the Constitution is as illegitimate and ignoble as Gov. George Wallace obstructing the enrollment of African-American students at the University of Alabama in 1963. We did not countenance “local control” or “state rights” during the civil rights era, and should not do so now in connection with rogue states’ resistance to the Trump administration. That Californians preferred Hillary Clinton over candidate Trump in 2016 by nearly a 2-to-1 margin—over 4 million votes—does not alter the outcome of the election, or diminish their obligation to accept it. Federalism does not condone nullification or sedition.

The States versus the Cities

The second recent event is a case argued before the Texas Supreme Court on January 11, 2018 challenging an ordinance passed by the city of Laredo prohibiting businesses in the city from dispensing single-use plastic bags to customers. A local merchants’ association contends that the ordinance is pre-empted by a state law that prohibits local governments from regulating “the sale or use of a container or package in a manner not authorized by state law.” The merchants object to cities’ piecemeal regulation of business practices commonly used statewide by multi-site retailers, which they contend would create inefficiency and impose burdensome compliance costs. Random municipal regulations could produce a patchwork quilt of inconsistent standards. Proponents of the ban cite environmental benefits, and defenders of the ordinance tout the virtues of “local control.”

Many people simplistically equate the relationship between cities and states with that of states and the federal government, arguing that cities have an inherent right to exercise autonomy. They do not. The United States was formed as a federation of pre-existing, sovereign states. In contrast, cities are literally creatures of the state—”political subdivisions,” in public law parlance. As such, cities and other units of local government can be regulated by the legislature at will. “Local control” exists at the discretion of the state.

There is simply no notion of “federalism” or reserved autonomy equivalent to the Tenth Amendment protecting the sovereignty of cities, counties, school districts, and similar entities from state authority. The only legal issue in the Laredo bag-ban case is whether, as a matter of statutory construction, single-use plastic bags constitute a “container or package.” If so, the Texas legislature has pre-empted local regulation in the interest of promoting commerce within the state, and Laredo’s ordinance is invalid. Local interests may be overridden by state laws.

Should we mourn the lack of subsidiarity in such cases? To some, the debate over bag-bans—a trendy “green” measure popular in many progressive cities, including Austin—is between tree-huggers concerned with litter and shoppers favoring the convenience of a free bag with which to transport their groceries. But the governance issue is broader. Progressive cities—in Texas and elsewhere—increasingly seek to dictate economic and social policy at odds with state law, by setting minimum wage standards higher than the state requires, mandating paid sick leave for private employers, regulating businesses’ hiring practices, regulating gun ownership, and sometimes even declaring themselves “sanctuaries” for illegal immigrants.

To the consternation of aggressive urbanists, state legislatures can—and often do—override such local ordinances if they deem it necessary to promote a paramount state interest.  States historically have sought to maintain statewide uniformity regarding matters of environmental standards, consumer protection, economic regulation, curriculum standards in public schools, health and safety regulations, and in a host of similar areas. If every “political subdivision” within a state could function as its own fiefdom, intrastate commerce would be greatly restricted, statewide compliance would become a nightmare, and local factions would be incentivized to “capture” local government for their own selfish economic or ideological benefit.

Many purely local issues are left to municipalities to control: public safety, zoning, traffic regulation, regulation of noise, water treatment and sewage disposal, building permits, libraries, parks, trash collection, and the like.  For government services involving general application throughout the state, we understandably look to state government to set uniform standards. When that happens, local control must yield to consistency and efficiency.

In sum, the utility of subsidiarity depends on the government function in question. States control cities, not vice versa. And, of course, in many areas of life the most appropriate decision-maker will not be a government body of any sort. Americans have always relied to a great extent on the free market, voluntary organizations, service clubs, churches, neighborhood associations, friends, and families to provide the type of community they desire—and that should continue.

[1] Chy Lung v. Freeman, 92 U.S. 275 (1876); Arizona v. United States, 576 U.S. 387 (2012).

[2] Article VI.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on April 10, 2018 at 10:40:22 am

What's now going on in California, Oregon and Washington closely tracks what was going on in Virginia and Kentucky between 1798-1800. The issues are the same, aliens, free speech and foreign affairs (the Logan Act).

The people in California also seem to have closely studied the Virginia and Kentucky Resolutions as well as Jefferson and Madison's strategy of using a coalition of states to aggressively oppose the federal government.

Really, who can blame California? The federal government is grotesquely unrepresentative and corrupt. So is California but that is California's problem.

Also, cities and towns need not be subordinate to the state in all matters if their charters grant them autonomy in some matters. In early New England, the towns were autonomous in purely local matters and in all matters where the damages or fines amounted to less than 20 shillings. In England, some cities, like London, Oxford and Cambridge, had charters that granted them a good deal more autonomy than other cities like Manchester and Birmingham.

Accordingly, I will happily listen to arguments that because the Union no longer preserves our collective liberty and is oppressive and cares nothing for the Constitution the Union needs to be restructured.

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EK
on April 10, 2018 at 11:10:04 am

There is, however, something else to consider when we read (and think) about the "State" in the context of subsidiarity cited.

In most cases (if not all?) that "State" is the embodiment of authority in the legislature and in its bureaucratic excrescences (which practically all legislatures now regularly generate for actual operations). In turn, we are observing increasing instances of domination of state legislatures by dominant minorities of urban concentrations. For a period, that was accompanied by city-county and other "metropolitan" consolidations.

In addition, "States" through their legislatORS, have become "subsidiaries" of the central Federal Administrative State, as has been noted on this site by James L. Buckley (and in his "Saving Congress From Itself").

So, the effectiveness of the "subsidiarity" discussed here is subjected to other and more complex conditions.

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R Richard Schweitzer
on April 10, 2018 at 11:59:41 am

To the extent that California (or any other state) doesn't wish to assist the federal government in enforcing federal law, they are free to not do so. But there is no way that a prosecution of someone for assisting the federal government would be allowed to go forward, that would clearly be preemted.

As to cities vs states, you are right as a legal matter the cities cannot stop the state control (while the federal government is limited in how it can preempt states). But the principal of local power is valid at the state vs. city level as well. Ideally what you want are choices of when to use government power to be done at the most local level possible, but rules setup at the highest level possible prohibiting abusive use of government power.

Ideally governments should only be regulating those things that actually cause harm to others. This bag issue doesn't cause harm to any of the parties involved in the transaction (If the bags are littered later, that can be made illegal as it causes harm to third parties, but using the bag in the first instance doesn't cause harm). So Ideally states will setup rules that prohibit such regulation of non-harmful conduct by cities, and you shouldn't have to rely on the meaning of a "container or package."

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Devin Watkins
on April 10, 2018 at 14:09:12 pm

There is much to be challenged in this essay, but I do agree that much has changed since the founding of the Republic based on two competing visions - one Jeffersonian of independent farming communities and the other Hamiltonian on commercial development. Cities are the nodes of a transnational global network of commerce that make nationalism and federalism archaic as fulfilling the ideals of representative government. Rural areas are over-represented in state and federal government, and the ideology of small government only exacerbates corruption by corporate lobbying and eviscerating the role of government for establishing justice.

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Dan
on April 10, 2018 at 17:41:51 pm

Goodness gracious - check your numbers.

It is urban areas that are OVER- represented in State and Federal Legislatures.
In one sense, this phenomenon of URBAN over-representation is both the result of, and the (hidden) justification for "open-door" immigration policies favored by the Democrat Party (and, regrettably, some RINO such as McCain, Flake and Graham). Consider a city (Los Angeles) for example. California legislative districts are apportioned based upon population. The more *persons* the more seats. thus, the urban areas are afforded more representation.
Now consider California with 2.3 million *illegal*(yes, ILLEGAL) IMMIGRANTS. How does this affect its apportionment of Congressional seats?

And here is the RUB:

The Democrat party, carrying the self awarded banner of the Party for African Americans, actually causes Black Americans in these areas to lose political clout in state and municipal Legislatures when they assign either a Legislative or Council seat due in part to the inclusion of illegal aliens in their legislative apportionment(s).

Yep, the Democrat Party cares only about maintaining their political base. when they cannot, they simply CREATE a new base (illegal aliens). Indeed, it has reached the point where the lack of citizenship is no longer an obstacle to *getting out the vote.* UPDATE: California has just issued almost 2 million drivers licenses to illegal aliens. All that is required (effectively) in California to vote is a drivers license.

So no - rural areas are not over-represented. Urban areas are - especially if one includes the number of illegal aliens (and in Chicago, DEAD people) that shape the voting rolls / districts.

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gabe
on April 10, 2018 at 18:02:43 pm

I guess this must be an example of the corruption and undue influence of lobbyists to be found in rural areas wherein city streets are painted white at a cost of $40,000 per mile.

Oops, Holy Mahoskas, Batman, I forgot, LosAngeles is an URBAN area!

who'dda thunk it????

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Guttenburgs Press and Brewery
on April 10, 2018 at 18:03:26 pm

I got so excited by this rural corruption that I forgot the link:

http://www.foxnews.com/us/2018/04/10/los-angeles-painting-city-streets-white-in-bid-to-combat-climate-change.html

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Guttenburgs Press and Brewery
on April 10, 2018 at 20:02:18 pm

What does Dan mean? Really, I have no idea what he's talking about, but what he says sounds funny.

Perhaps "Dan" is a pseudonymous Professor Irvin Corey, the "World's Foremost Authority," laughable for all, intelligible to none?

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timothy
on April 10, 2018 at 20:23:59 pm

Let us hope that he does not end up, as is often the case with "authoritative experts of the world, like Richard Corey, about whom Simon and Garfinkel sang these five decades ago.

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gabe
on April 10, 2018 at 20:36:11 pm

In response to a recent commentary by Professor McGinnis about academic papers that argue for subsidiarity in order to evade federal and state laws, I noted the following:

The Left’s move toward subsidiarity is an illegitimate sham aimed opportunistically at the Machiavellian political ends of intensifying Democrat Party power and control in those states where it is not already absolute. (Say Texas, Virginia, North Carolina, Pennsylvania, Ohio, Michigan, Wisconsin.) It is a power-grab that is not based on subsidiarity’s underlying political philosophy (as is constitutional federalism) or on its moral insight into the nature of man (such as the subsidiarity of Catholicism.)
True subsidiarity holds as the Founders believed (but as the Democrat Party now rejects both in theory and practice): 1) that societal forms are based on and in service to the autonomy and dignity of the human person in community, 2) that government should undertake only what cannot be done effectively by individuals or private groups, 3) that in order to protect the dignity and autonomy of the individual in community the decision-making functions of fundamental institutions (whether government or private, business or philanthropic, religious or secular) should be as local as feasible consistent with practical administrative considerations.) With subsidiarity the family, the community and voluntary associations of men and women serve as intermediaries linking the local with the larger society and any necessary higher levels of decision-making and administrative organization.
None of that is true of Democrat Party attempts using the rationale of subsidiarity and their vast urban power centers to undermine (not to further) state protections and defenses of the vital principles of subsidiarity against intrusions by the centralized bureaucracy of the national government which carries out, for the most part, the will of the Democrat Party.
It is a false notion that the city councils of Dallas and Houston (for example) in the name of subsidiarity should be permitted to preempt or undermine legislative decisions made in Austin by exempting most of the population of Texas from those decisions and substituting therefor the separate and more intrusive city decisions over the people in those large urban areas. That leads not to respecting and protecting the dignity of the individual in community. It leads, rather, to the nullification of federalism and the intensification of centralized bureaucratic control.
AND THAT IS THE SOLE PURPOSE OF CRYPTO-NATIONALISM MASQUERADING AS SUBSIDIARITY.

One complication arises in determining the purpose and the impact of the (ostensible) subsidiarity effort. i.e. whether what purports to be subsidiarity is aimed at recognizing the dignity and protecting the worth of the individual in community, diminishing government control, rendering government less burdensome and enhancing freedom of the individual in community by reducing bureaucratic power.
Subsidiarity, it seems to me, should always operate (overall and on balance) on the side of those angels.

It seems to me that, overall, where one reasonably suspects the opposite purposes or sees the opposite effects then subsidiarity is not at work but rather crypto-statism. E.g., on the one hand, local opposition to state bans of local bag taxes which inevitably increase regulation and diminish freedom is not subsidiarityism (wow, there’ s a word for the ages) but statism. While, on the other hand, as in the immigration enforcement matter, it would be subsidiarityism for locals and local communities to oppose a state’s prohibiting them from cooperating in, even from aiding and abetting, federal protection (ICE) of the public safety of those individuals and of their communities against criminal aliens and drug-trafficking. Defense of self and of community is a dignified expression of human worth and, thus, by definition an act of subsidiarity.

Subsidiarity holds that government should not do what can be privately done. Hence, for a local government to impose a cumbersome, unnecessary regulation , such as a plastic bag tax, when voluntary recycling would suffice (there is NO data to the contrary) violates the principle of subsidiarity, albeit the needless law has been enacted at the lowest level of government.

The recent organized effort of some California localities to decline participation in the obstruction of immigration justice campaigns of California’s legislature and Attorney General is much more than subsidiarity, it is a) civil disobedience visa vis an unlawful state law and an unlawful conspiracy of state officials to obstruct justice, b) admirable compliance with federal law and c) praiseworthy performance by the "disobedient" localities of their duty to defend public safety, which they have taken an oath to do.

And a third additional subsidiarity point:
The Democrat Party has consistently advocated an open-door policy on illegal immigration, opposing both restraints on and barriers to it and efforts to enforce laws against it, including going so far as to a) provide sanctuary to illegal aliens, b) to aid and abet illegal aliens in violating federal and state law, and c) to prohibit communities and citizens from i) complying with federal immigration law, ii) voluntarily assisting federal enforcement of immigration law sand iii) enforcing separate state local laws aimed at protecting states and local communities from the adverse effects and the crime of illegal immigration. (The Hazleton, Pa and the Arizona immigration enforcement efforts were both opposed by Obama’s DOJ and declared unconstitutional.) Similarly, the Democrat Party has consistently opposed and successfully challenged state voter ID laws and unofficially advocated “open polling place”/ ”anyone can vote” policies intended to encourage illegal voting.
Both of these Democrat Party policies are contrary to the principle of subsidiarity. They are decisions made at the highest level of government that deprive state and local communities of the legal and political power to control their own jurisdictions, protect their own citizens and elect their own public officials.
Thus, it is a matter of the greatest hypocrisy for Democrats to advance the principle of subsidiarity in defense of statism and centralized government.

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timothy
on April 10, 2018 at 20:38:40 pm

Today's conservative libertarian crowd is no heritage of William F. Buckley, Jr. - just a sorry excuse of sheep bleating Faux News. I'm disappointed in the level of intelligence and logic.

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Dan
on April 10, 2018 at 22:19:41 pm

This reflects much of my thinking as well. In particular, I distinguish between state agents declining to participate in a federal initiative and state agents actively obstructing a federal initiative.

That said, I still ponder the idea that federal laws can be enforced in state courts. The last time we discussed in there, one of the authors (Pulliam?) cited a case which I believe explained the matter--but I don't recall the details.

A point of distinction: It would surprise me that states could impede government agents from cooperating with the feds ON THEIR OWN TIME, but states should have the power to direct their employees how to behave on company time much as any employer could. And the fact that someone was acting for the purpose of advancing some federal agenda should not immunize them from liability. For example, the feds restrict the sale of pot. A state employee might want to support that federal objective. So the employee shoots a pot grower. I'd say that the mere fact that the employee was motivated by a desire to cooperate with the feds--indeed, even if he was acting at the fed's direction--would not render the employee immune from prosecution or liability.

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nobody.really
on April 11, 2018 at 12:29:39 pm

As long as it is on their own time (not the states), and not using the information and other resources provided by the state to its employees.

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Devin Watkins
on April 11, 2018 at 16:10:59 pm

Yep, Democrat CENTRAL PLANNING masquerading as subsidiarity.

subsidiarity, by definition, means not having to regurgitate the Central Committee's *manifestos*.

Then again, it could mean "never having to say you are sorry" as that appears to be the most observed behavioral characteristic of the Democrat Party "Love Story" - and just like that saccharin meretricious epic, the object of one's affections is going to die, in this case we may soon expect memorial services for subsidiarity.

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Guttenburgs Press and Brewery
on April 12, 2018 at 00:30:09 am

[…] Subsidiarity, Federalism, and the Role of the State Mark Pulliam, Library of Law and Liberty […]

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PowerLinks 04.12.18 – Acton Institute PowerBlog
on April 20, 2018 at 17:15:07 pm

This -

"Regulating immigration and naturalization, however, is exclusively a federal function."

is exactly 50% false. And really more like 75% false. We have a Naturalization Clause, not an Immigration and Naturalization Clause. And secondly, EVEN IF you think you can successfully conflate the two, there is NO authorized power for anyone but the States to act on Immigration by force. The clause only allows for a RULE. It in no way ever has offered any power to send jack booted armed thugs into a state to do violence upon its residents.

#SAD

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John Ashman
on December 23, 2018 at 13:28:48 pm

We need to better define what each level government can do and not do. We have given to much reponsibility to all the levels of government, even the counties and cities.

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John Glackin
on November 11, 2019 at 06:02:12 am

[…] Milton Friedman noted in Capitalism and Freedom, the simple arithmetic of democracy favors subsidiarity: the smaller the unit of government, the fewer voters who “lose” in the majoritarian political […]

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Exit Stage Right

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