Federalism Rankings

Two months ago, we made note of the Cato Institute’s Freedom ranking, which places Nebraska towards the bottom (at 38th) of the 50-state analysis of freedom components. 

A new ranking system—a “Federalism Scorecard”  has just been released by the Center for Practical Federalism, and Nebraska’s ranking on that index is even lower—at 43rd. 

This latest scorecard is focused on the importance of federalism—the system of shared powers between state and national government that the founders of the United States envisioned. This principle was premised on the notion that some powers inherently rested at the national level to maintain order and good relationships among the states—things like national defense and interstate commerce and creating a national currency. 

On the other side, however, were the powers best left closer to the people with their assorted local and regional differences in perspective—the governing powers best left to the states. Over time, those powers have included things like determining speed limits and most crimes or developing laws for the health and safety of the population. 

Over the years, federalism has taken on two primary forms, waxing and waning between the two: dual federalism and cooperative federalism.  

Dual federalism was most clearly seen from the early days of the republic until the Franklin Roosevelt administration. It marked a clear delineation between national and state powers. In political science circles, this is often called “layer cake federalism.” 

Roosevelt’s administration, entering office during the Great Depression, ushered in a new era of cooperative federalism. In that model, the national government stepped in to help states carry out the functions they had previously been responsible for—primarily concerning public welfare. Cooperative federalism—keeping the cake analogy—is often called “marble cake federalism,” given the intermixing of federal and state governmental functions into traditional state spheres. 

At the root of much of our political discourse today is disagreement about the appropriate role of the national government in what used to be state functions. Education, infrastructure funding, and public welfare aid are among the many areas that significantly overlap national and state roles in the 21st century. 

While not entirely intuitive, the “state federalism scorecard” seeks to assess how vulnerable states are to national government overreach into government functions best handled by the states. As long as Americans want states to be free to have their own political characters and marginal independence from national overreach, we need to look at those elements of state governance that leave us more vulnerable to national influence, and consider whether there are ways to address those vulnerabilities. 

Nebraska’s rankings found our state vulnerable and unprotected from national intrusion in the following areas:

• Oversight Committees 
• Agency Lobbying* 
• Legislative Regulatory Review*
• Independent Regulatory Review
• Injunctive Relief for Citizens
• Limited judicial deference to agency decision-making*
• Balanced Emergency Powers
• Legislative Oversight of Grants
• Legislative Intervention on Grants
• Elected Executives Oversee Grants
• Contingency Plans for Fund Loss
• Account for the Cost of Grants
• Oversight of Clean Air Act SIPs 

Protection against national intrusion seems to require a “back to the basics” mindset, where checks and balances, and separation of powers are understood and preserved. Those starred (*) in the list above are discussed briefly below. 

The good news is that the Platte Institute has already been engaged in some areas.  

Since 2018 passage of LB299 (the Occupational Board Reform Act), legislative committees have been engaged in at least limited review of regulations promulgated by licensing boards. While that process is ripe for revision and reinvigoration, it’s a great model for the legislature to follow in reminding executive branch agencies that their accountability is to the people who granted them authority.  

LB43 (on Select File as this is being written) would address the issue of judicial deference to agency decision-making. While some would argue that “the experts” in the agencies should be deferred to in interpreting the law and their rules, ultimately, executive agencies receive their grants of authority from the Legislature, which should work to add clarity to the laws.  

Although not a Platte Institute priority, discussions have been had regarding agency lobbying or testimony. Senator Justin Wayne’s proposed rule change (not adopted) would have prohibited agencies from testifying in committee hearings in anything other than a neutral capacity—avoiding an effective “pre-emptive agency veto” of proposed laws.  

Nebraska’s actual vulnerability may be less than shows up on the index. We have numerous elected bodies (State School Board, Public Service Commission, Natural Resource Districts, for instance) who spread power in certain areas out more, leaving less to the state to legislate and delegate. But most of Nebraska’s deficiencies in the federalism index could be solved with a renewed focus on the basics: maintaining separation of powers, promoting transparency in government, and the legislative branch taking a more aggressive approach to oversight of regulations and regulatory bodies.  

One set of rankings showing weaknesses might leave room for skepticism. When a second shows even more weaknesses, it may be time to take stock of remedial efforts, and this scorecard serves as a reminder for us at Platte, and all Nebraskans, that we need to be constantly looking for ways to restrain both state and national interference in our lives, so that government can serve us properly.