How to End the Loophole Surrounding Federalism

By Jack Shields | United States

The drinking age in most states in the United States is twenty-one. This fact is a great disappointment to me having turned eighteen this year. But the fact the age is twenty-one rather than eighteen isn’t even the most disappointing part. It’s the reason why the drinking age is twenty-one. Most states have this as their drinking age because they were coerced into doing so by the federal government using a technique that was held as constitutional in the case South Dakota v. Dole. The decision handed the federal government a mechanism by which they may go around the very idea of federalism and force the states to submit to their will, and must be overturned.

The Effects of Prohibition

In 1919, we as a nation decided that legislating morality was a good idea, and ratified the Eighteenth amendment prohibiting the sale of alcohol at a federal level. Unsurprisingly, Americans did not respond well to being told what to do, and the disaster that was prohibition was finally ended with the ratification of the Twenty-First Amendment in 1933. Section Two of the Twenty-First amendment clearly stated that states had a right to regulate alcohol if they so choose, but the federal government no longer had a say in the matter. Yet, when has a constitutional provision ever been enough to stop our federal government from expanding their scope of power and informing us ignorant, ordinary people what is moral and right to do?

Congress passed a law in 1984 which required the Secretary of Transportation to withhold five percent of federal highway funds for states that did not adopt a drinking age of twenty-one. This was challenged by South Dakota, which at the time had a drinking age of nineteen. The Supreme Court ruled that this law did not violate the spending powers of Congress or the Twenty-First Amendment. Their logic for this was because the law was for the general welfare of the nation, and the way Congress went about achieving this was reasonable, then the law was within Congress’s constitutional bounds even if they were indirectly trying to achieve a goal not within the purview of Congress or the federal government in general.

The Abandonment of Federalism

This logic has now been widely accepted. In my Government class, we had to create our own bills and have our own Congress as an assignment in order to learn how Congress worked. Our teacher informed us that we didn’t have to worry at all about the fact the federal government has very few enumerated powers. We could make our bills about any subject as long as, instead of just creating the policy at the federal level, our bill listed what we wanted and what we would be willing to take away from the states if they didn’t comply. This is not federalism. This is the system my parents had for me when I was little, where if I didn’t obey them then Santa would not be coming that year.

The federal government and the states should not have a parent-child relationship. The way it was supposed to go was the federal government would have a small list of enumerated powers in which their laws would be the Supreme Law of the Land. These were policies that needed to be uniform throughout the states in order to have one country such as a single currency and regulating trade with foreign nations. But other than that, everything was left up to the states. The states were their own independent government, and with powers not enumerated to the federal government, the states’ law was the Supreme Law. That is the very idea of federalism and of limited government, and sadly we do not have that right now because of this decision.

If the federal government is supposed to have limited, enumerated powers, and nothing more, then indirectly forcing the states to do something not within the scope of their power is clearly a loophole that needs to be shut. But how? The federal government currently gives funding to the states for many things. And both the states and federal government feel the need to legislate morality on many issues like alcohol, marijuana, and many others. Whether either of these things is good is an issue for another time. It’s how things are and a fix to this problem needs to fit into that reality. So the federal government is giving funds to the states and giving money inherently grants the authority to withhold money. What should justify withholding said money?

The Solution

It should all be based upon the federal government’s enumerated powers. This is the most logical conclusion, which is clearly seen when looking at this type of situation with any other entity. If you have a phone, you have a deal with a phone company wherein they provide you with a data plan and you pay them for it. If you disobey their terms and conditions pertaining to the purchase of the data plan, it is completely reasonable for the company to cease to provide you with those things. But if you didn’t pay your rent that month, it would not be an appropriate justification for the phone company to cease to provide their services because that has nothing to do with the relationship between you and the phone company. The relationship between the federal government and state governments should be the same way.

From 1919 to 1933, it would have been appropriate for the federal government to withhold funds for disobeying their will pertaining to alcohol. Regulating it was an enumerated power and their law is the Supreme Law. But it is not an enumerated power anymore, and therefore they have no place in regulating it. Funds should only be withheld in cases wherein that pertain to an enumerated power. If the federal government wants to withhold funds because states are disobeying immigration laws, they can. Because that’s a federal power. But if the federal government wants to withhold funds because a state doesn’t pay teachers enough, that would not be allowed as that is not an enumerated power of the federal government and is therefore outside the natural bounds of the relationship between the federal and state governments.

If we are to have a system of federalism and not a system of a parent like authority dictating to their children what is okay and what isn’t we must close all loopholes by which the federal government may overstep both directly and indirectly, their natural, enumerated powers. In order to do this, it is clear South Dakota v. Dole must be overturned and replaced with a standard by which federal funds may only be withheld in cases wherein the federal government wishes to directly influence a state’s behavior pertaining to an enumerated power of the federal government.


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