The United States, as every grade school child knows, has a federal system of government. There is a federal government and there are fifty state governments. States too are organized closely on the federal model. All but one have bicameral legislatures, both houses of which are elected, with the lower house having more representatives than the upper house, and a separately elected Governor (one has a unicameral legislature and a seperately elected Governor). Just about all states make some distinction between "state government" and separate local governments with considerable legal protection for their existence (far more than British local governments, which can be dissolved and reined in at will by the central government, for example) and autonomy and separately elected governing bodies (unlike the traditional French and Italian models in which prefects appointed by a higher level government official wielded great power at the local level).
Colorado is no exception. A Congressional delegation of two Senators and seven Representatives represent us in Congress, and we have a nine electoral vote say in the selection of the President. At the state level we have a Governor, a State Senate and a State House that together make legislation. Then, here in Denver, a Mayor and City Council together make legislation.
Certain truths about the way this basic framework works out in practice are apparent from half way up the federalism mountain, which is where I have a fly on the wall view as an attorney in the same office as a state legislator.
Everyone Deals With Everything
One thing you notice is that people aren't very discriminating about which elected official they should turn to in order to solve their problems.
For example, immigration is a matter entrusted almost exclusively to the federal government. State and local governments lack the power to authorize visas, grant people U.S. citizenship, deport people for lack of citizenship, or do very much else about the issue either. Yet, some people seem to care a great deal about the issue and doggedly look for ways to suck state legislators, school board members, district attorneys, and city and county officials into the debate.
Even though the Estes Park town board has no influence or say over any religous matter, a recall election was organized and a board member was recently removed from office by the voters in that election, as a consequence of his religious beliefs.
Officials at the local, state and federal government levels all seem to feel an urgent need to address the issue of guns, and enact their own laws with criminal punishments.
Drug laws present another example. In Denver, possession of small amounts of marijuana is not prohibited by Denver's ordinances at all, is illegal except pursuant to a doctor's prescription at the state level, and is illegal and subject to harsh penalties under federal law. Legislators at different levels all felt compelled to make a statement about marijuana possession with a confusing mish mash ending up as the result.
Gay marriage is another example. Denver has a domestic partnership law. Gay marriage has been debated repeatedly at the state level. And, the federal government has passed a statute, but not a constitutional amendment, prohibiting recognition of (or full faith and credit for) gay marriages in many cases.
Both state and federal law protect trademarks. Colorado has its own laws regarding unions, even though many are pre-empted by federal law. There are parallel state and federal fair debt collection practices acts. There are parallel securities laws and anti-trust laws. Almost every federal crime has a state counterpart. There are state banks and there are federal banks, for no particularly good reason.
Indeed, it is hard to identify any area where some level of government is not definitively pre-empted that does is not subject to parallel state and federal laws. One of the biggest issues facing school boards across the countr is how to comply with the federal "No Child Left Behind Act." One of the biggest issues in the latest round of military base closing has been the authority of the federal government to unilaterally make decisions that impact state national guard facilities. While copyright law is predominantly federal, the protection of sound recordings is governed by state law. Much of the law of Wills is state law, but estate planning is primarily driven by federal tax laws. Similarly, while the vast majority of businesses are organized under state law, federal tax laws are the primary consideration in choice of entity decision and federal securities laws are the predominant non-tax consideration of public companies. The law of real estate is quintessentially a local issue, yet real estate financing is heavily regulated by federal law. Medicaid is a joint state and federal program (and also makes up a significant share of both state and federal budgets). Even in areas like employee benefits, where strong federal pre-emption provisions apply, there is constant pressure to regulate and provide legislative guidance at the state level as well. Both the state and the federal government have parallel legislation governing matters from lawsuits against food retailers related to obesity to a seller's obligation under a warranty to a buyer of consumer goods.
The race to please constituents by legislating about everything is, at least, as pervasive an influence on what ends up in the law books as the much better publicized "race ot the bottom" in areas like the regulation of corporate internal affairs as states compete for corporate business.
States Are Copycats And Different Policies Are Often Accidental
Another important truth about state legislation is that the states are not to any great extent the laboratories of democracy. We have fifty state legislatures, but almost invariably, state laws on any given subject are either uniform, or fall into two or three different stances on an issue. It is often the case that legislation is copied verbatim, or nearly so, from that of some other state.
More often than not the differences between state on issues, moreover, is not so much intentional, as it is a product of historical accidents. Colorado is not a separate property state, and California is not a community property state, for any strong policy reason. California has community property because Mexico did when California was part of Mexico, and Mexico has community property because Spain did, and Spain did because all of continental Europe did. Colorado has separate property because its settlers came mostly from U.S. state to the East, which had seperate property, and the East in turn, draws its legal traditions from the original colonies that pre-dated the United States, and the English legal view of separate property prevailed in the original colonies, because they were British colonies, and Britain used a eparate property regime. It is easy to enact legislation via initiatives in most Western States, because the progressive party pushed for that in constitutional conventions around the time those states were formed. It is hard to get intiatives on the ballot in the East, because the idea was not incorporated into the state constitution, and state legislatures have been jealous of their monopoly on the legislative process.
State Legislators Are Highly Constrained In Their Freedom To Act
The flip side of this rush to pass parallel legislation, is that state legislators are frequently overwhelmingly hemmed in by federal by and state constitutions and internal legislations, greatly limiting their ability to pass sensible legislation on many topics.
In short, Colorado legislators are like middle management. Despite a superficialy large freedom to legislate on any matter not pre-empted, in practice, this power is rarely utilized to the fullest. Likewise, home rule provisions of the state constitution, signficantly influence the kinds of laws that state legislators can pass.
For example, federal ERISA laws severely constrain state regulation of employee benefits and forces most regulation that does occur into the field of insurance, which is not pre-empted by ERISA. Almost no innovative Medicaid legislation is possible without a fedeal waiver of Medicaid rules. Any attempt to overhaul the state income tax system in a manner significantly different from federal law imposes a huge complexity burden on state taxpayers. Entity organization laws, charitable and otherwise, also live in the shadow of federal tax law. Regulation of drinking ages is hemmed in by federal transportation money strings. And so on.
The kind of bold choices that political theorists are often prone to propose often are not possible. This doesn't mean that a good state legislature can't pass laws that make the state better, but this power is far more limited than one would intiutively guess.
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