November 22, 2016
If you were to poll Republican Members of Congress on the question of which Constitutional Amendment shapes their governing philosophy, it’s a good bet the majority would choose the Tenth Amendment – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Republicans in Congress regularly invoke the Tenth Amendment on issues ranging from criminal justice to education to social policy.
More often than not, they apply the Tenth Amendment as a matter of principle rather than a matter of political expedience, but there are a growing number of issues that make it difficult to apply the principle neatly or cleanly. According to the most recent data, more than 30% of a state’s annual revenue (on average) comes from the federal government; mainly in the form of Medicaid payments, education and transportation funding, and housing and law enforcement grants. As the states’ collective reliance on the federal government has grown, so has the willingness of federal legislators to use these programs and their funding streams as levers to overturn state or local policies they view as anathema.
Although Republicans currently control 33 governorships (to 16 for Democrats) and 32 legislatures (to 13 for Democrats), Democrats still control 33 of the top 50 mayors’ offices (to 13 for Republicans), including nine of the 10 biggest cities in the country. The increasingly imbalanced political landscape is certain to create more scenarios where Republican Members of Congress use the legislative process to attack local – rather than state – policies they oppose on issues such as immigration, gun control, taxes, spending and anything hinting of a social agenda.
The intellectual equivalent of the Tenth Amendment siren song at the state level is the clarion call for “local control.” In Texas, for example, the near entirety of Republicans in the legislature embrace the governing philosophy of local control, which is seen as the most effective tool to devolve and decentralize power from Austin. However, cracks in the veneer of local control have started to materialize over the last few sessions. Cities (either through council votes, mayoral dictum or referenda) have enacted bans on fracking, texting while driving, plastic bags at grocery stores, as well as regulations on transportation network companies, only to see those efforts overturned or meet strong resistance at the state level because they run counter to the views of free-market conservatives.
The fundamental challenge for state legislators on the issue of local control is very similar to the challenge for federal legislators on the Tenth Amendment – namely when and where to apply it. Large urban areas continue moving to the left as legislatures across the country move to the right, putting them on a paradoxical collision course over the whole idea of local control. Much like their counterparts at the federal level, state legislators are increasingly reluctant to accept any policy decisions cities make that they find objectionable. We can expect these types of federal and state versus local battles to become more visible and more visceral during the first year of the Trump administration and upcoming state legislative sessions as lawmakers grapple with the consequences of the growing demographic divide.