Chapters 2 and 3 described the pernicious effects of state government on our democratic foundations. This chapter will demonstrate that state government is also a needless source of additional regulation, additional taxation, and inefficient duplication of functions – in short, a waste of taxpayer money and a pointless burden on the citizenry.
Section A of this chapter distinguishes between those state expenditures that would be avoided if states were abolished and those that would simply be shifted to other levels of government. It shows that the fiscal costs of the former – chiefly, those needed to support the legislative and central executive branches of state governments and those that duplicate the work of other levels of government – are substantial.
Sections B and C go on to argue that Americans get little or nothing back in return, as the functions state governments perform, while mainly essential, could easily be reassigned to other existing levels of government. For some such functions, the optimal level might be the national government, operating either directly or through specialized regional divisions; for others, it might be local governments, acting either alone or through partnerships with other local governments or the national government. These sections demonstrate that, without states, this redistribution of state governments’ functions is entirely feasible. Section B develops lists of general factors for deciding to which levels of government the various functions currently performed by states would best be reassigned. Section C concludes with selected illustrations of how those criteria might be applied in practice.
A Savings from Eliminating State Government
How would the elimination of state government translate into taxpayer savings? Here it is important not to get too carried away, for the savings, though significant, fall short of what might initially be assumed. United States Census Bureau dataFootnote 1 for fiscal year 2019 is probably the most informative, because at this writing 2019 is the last fiscal year for which there is published data that excludes the unusual distortions due to COVID-19-related federal grants and state expenditures. In that year, direct expenditures by the fifty states (not including local governments’ expenditures) totaled just under two trillion dollars. By far the two largest state expenditure categories that year were education (elementary, secondary, and tertiary) and public welfare (including hospital and health care costs). Nationwide, these items accounted for 27.5% and 26.8% of all direct state expenditures, respectively. The next-highest expenditures were 7.0% for public safety (police, fire, corrections, and inspections), 5.8% for environment and housing, and 5.1% for highways.Footnote 2
Absent fundamental changes in substantive national priorities, however, one can assume that without state government, the vast bulk of those essential costs would simply be shifted to either the national government or local governments. Admittedly, therefore, most of those costs would not be saved by eliminating state government.
Rather, the savings would come from two other kinds of state expenditures. First, there are certain costs (described presently) that every state must incur just to exist and function. Second, there are the costs that flow from fifty governmental entities having to duplicate the same tasks – as each other or as the national or local governments.Footnote 3 In the other direction, of course, the abolition of states would leave local governments as the optimal units for the exercise of many of those functions. Since there are so many more local governments than there are current states, it might initially seem that to that extent the abolition of states would actually increase the duplication rather than decrease it. But when a particular reassigned task is truly duplicative, in the sense that its exercise doesn’t need to vary with local conditions or preferences, the factors developed in Section B would ordinarily push it to the national government, thus avoiding duplication.
Although there are, therefore, significant expenditures that the elimination of state government can fairly be assumed to avoid, it is nearly impossible to assign them a precise dollar value or even a rough estimate. That is because, despite the availability of several published breakdowns of state expenditures,Footnote 4 none that I could find disaggregate the portions of those expenditures that represent either the cost of running the states (i.e., fixed costs) or the cost of fifty states duplicating the same tasks.
That said, while dollar estimates might be elusive, the fixed costs for state government just to exist – and thus the amounts wasted by retaining state government – are clearly considerable. There is, first, the cost of the state legislature itself. Members of both houses have to be paid – salary, health insurance, pension contributions, other fringe benefits, and reimbursements for food, lodging, travel, and other expenses. Each legislator has a staff; they too need salaries and fringe benefits. And so do all the employees who are needed to clean, maintain, and repair the buildings and administer the legislative process.
Then there are the costs of the brick and mortar, the landscaping, the security, the furniture, the phones, the computers, the printers, the other office supplies, and all the other necessary equipment. Add in the continuing costs of the vital utilities – the lighting, the heating, the air-conditioning, the water, the sewage, the trash collection, and so on.
That’s just the legislative branch. In the executive branch, the taxpayers bear the costs of supporting the governor, the lieutenant governor, and their staffs – again, the package of salary, fringe benefits, travel, and other reimbursements. Then there are all the capital costs of the governor’s office building and the governor’s mansion, in addition to the ongoing maintenance costs. Further, without state government, there would be no need for fifty state attorneys general, fifty secretaries of state, fifty state auditors, fifty state treasurers, and the like – and thus no need for fifty teams of assistants and other staff members for each of these offices. Nor would we need fifty sets of physical buildings, furniture, and equipment to finance and maintain for each of these state offices.
The same can be said for at least a portion of the costs of the officials, the employees, and the buildings and supplies of each of the many specialized administrative agencies operating in each state. Some portion of these – most likely, a sizeable portion – pays for functions that would otherwise have to be shifted to some other level of government. But another portion pays for work that entails either horizontal duplication of the work done by the other forty-nine states or vertical duplication of work done by the national government or the local governments. For many of these functions, in fact, there would be affirmative benefits to having one set of rules applicable nationwide. Professional licensing, life insurance, securities fraud, banking, and driver’s licenses – and many more subject areasFootnote 5 – would be better regulated by one agency than by fifty-one.Footnote 6
Cutting all these expenditures would open multiple options. The cuts could be used to reduce taxes (or at least reduce tax increases) or to avoid or reduce other spending cuts. At present, those state taxes are substantial. In FY 2021, they accounted for 47 percent of the states’ revenue nationally.Footnote 7 In that year, with dramatic variations from state to state, the main sources of state tax revenue nationwide were personal income tax (40%) and general sales tax (29%). The remaining 31% came mainly from a combination of selective sales taxes (e.g., gasoline, liquor), license fees, corporate income tax, and mining and other so-called “severance” taxes.Footnote 8
States’ rights advocates are often, if not typically, politically conservative advocates of minimizing government regulation, taxes, and spending. Eliminating state government would serve all those goals. Instead of three levels of regulation, there would be only two – national and local. And, since a significant chunk of states’ expenditures are either to maintain state government itself or duplicate the work of the other forty-nine states or other levels of government, eliminating state government would also reduce – or at least limit increases in – aggregate government spending and therefore taxes.
Rodney Hall has advocated the abolition of the six Australian states. Except for an occasional aside, his book, “Abolish the States,” focuses entirely on fiscal waste.Footnote 9 He asks “Why are colossal amounts of tax money spent propping up a state system which is never called upon to justify itself?”Footnote 10 Hall refers to the “duplication of support services for running our multiplicity of parliaments, a massive overload of bureaucrats, …”Footnote 11 By way of illustration, he notes Australia has “nine Education Departments [he is counting the six states, the two territories, and the national government], nine health departments, nine departments of transport/aviation, and so forth.”Footnote 12 Through a series of elaborate calculations, Hall estimates that abolishing the Australian states would save approximately 30 billion Australian dollars per year, or $1,500 per year per resident.Footnote 13 Finally, he points out that when citizens move from one state to another, there are not only the bureaucratic costs to the state governments in changing driver’s licenses, car registrations, and other documents, but also costs to the time of the citizen in all those areas, in addition to the need to cope with different laws, health care systems, and so on.Footnote 14 All those statements (except the specific dollar amounts) could equally be made about the current federal system of the United States.
Of course, merely noting that the functions states currently serve could be performed instead by either the national or the local governments doesn’t mean that those functions should be so transferred. Chapters 2 and 3 of this book have demonstrated the harmful effects of state government on our democracy, and this chapter has now identified the main fiscal costs of maintaining fifty state governments. But it remains to be shown that abolishing state government and redistributing its functions between the national and local governments would be a net improvement. That showing turns on whether state governments provide affirmative benefits that outweigh their democratic and fiscal costs. Among other things, that inquiry raises the question of whether state governments are any better suited to perform their current functions than either the national or the local governments would be. That comparative question is reserved for Chapter 5, which concludes that the answer is no.
B Reassigning State Functions: General Factors
This section considers a “who should govern?” issue: If states were abolished, which levels of government – national or local – would be better suited to take over responsibility for the various functions the states currently perform and the decisions they currently make?
There is an antecedent question: Who should decide who decides? That is, who should decide the reassignment of the current state functions? Congress? The state legislatures during the transition period between ratification of the required constitutional amendments and their effective dates? An independent commission? That antecedent question has two parts: First, who should decide how to reallocate the current state powers between the national government and the local governments? Second, who should decide how the latter functions are then parceled out among the jumble of local governments – municipalities, counties, townships, and special purpose districts – in addition to unincorporated areas? Possible approaches to these antecedent issues are deferred to Chapter 6.Footnote 15
But if the resulting redistribution is to be both principled and coherent, then whoever is charged with that task will first need to identify the factors that the sorting of the various governmental functions depends on. What characteristics make a given subject area a good fit for national decision-making, and what makes it a good fit for local decision-making? My own thoughts on these questions are the subject of this section.
I start with a basic premise as to what should not drive the criteria: expected policy outcomes. I appreciate that this is a vain hope. Human nature will have to be remade before politicians of any partisan and ideological stripes set aside all calculations as to whether the policies they favor are more likely to emerge from assigning responsibility to the national government or the local governments. Who decides often determines what is decided. But it is imperative to try, if for no other reason than that predictions about long-term political winds are generally fraught.
Perhaps nothing illustrates the importance of that premise more than conservatives’ historic reliance on the mantra of “states’ rights.” As noted in the Introduction, too often the argument that a given set of policy decisions should be left to the states has been driven by expectations that the states were more likely than the national government to produce desired outcomes. And too often those desired outcomes have been the perverse substitution of states’ rights for individual rights.
Examples abound. Slavery was the claimed “right” that the confederate states asserted as a justification for secession. New York Times columnist Jamelle Bouie elaborates:
To suppress antislavery agitation and secure the peculiar institution within their borders, slave state legislatures trampled over every right mentioned in the Bill of Rights. They banned the circulation of antislavery materials, banned public speech against slavery, banned religious gatherings among free and enslaved Blacks, allowed the arbitrary search and seizure of any Black person found outside the dominion of a master, and mandated cruel and unusual punishments for Black people who broke these and other laws.Footnote 16
Edward Rubin and Malcolm Feeley offer several additional examples:
During the Kennedy–Johnson era and the heyday of the Warren Court, states’ rights became a rallying cry of those who opposed desegregation, social welfare, and controls on law enforcement agents. During the years of the Reagan and Bush administrations and the Rehnquist Court, proponents of abortion, gay rights, and abolition of the death penalty became enamored of federalism for equivalent reasons.Footnote 17
The pretextual nature of conservatives’ reliance on states’ rights arguments is exposed by the ease with which they will jettison that ostensibly central belief when doing so serves the strategic purpose of promoting almost any other conservative cause. The Supreme Court decision in Bush v. GoreFootnote 18 was one of the early clues. To install a Republican president, a majority consisting of five conservative “states’ rights” Justices had to navigate around not just one, but two fundamental conservative orthodoxies: deference to state courts’ interpretations of state laws and narrow interpretations of the equal protection clause.Footnote 19
In Altria Group, Inc. v. Good,Footnote 20 a cigarette manufacturer was sued, under a Maine law prohibiting false advertising, for fraudulently representing its product as relatively safe. The company, represented by leading conservative lawyer Ted Olsen, argued strenuously that the Maine law was preempted by a federal law on cigarette advertising. In a 5-4 decision, the Supreme Court rejected that claim. But the four dissenters (Chief Justice Roberts and Justices Scalia, Thomas, and Alito – all card-carrying states’ rights conservatives like Mr. Olsen) voted in favor of the tobacco company. To do so, they had to set aside their passion for states’ rights and argue that Maine had impermissibly invaded federally preempted turf.
During the Trump presidency, conservatives suddenly acquired a taste for broad federal legislation to supersede state legislation, at least when that state legislation was progressive. President Trump’s EPA Administrator, Scott Pruitt, objected to California’s tough emissions standards. How best to balance environmental protection against compliance costs was a job for the federal government, he insisted.Footnote 21
Antiabortion advocates spent decades protesting indignantly against Roe v. Wade.Footnote 22 They argued that abortion policy was properly a matter for the states, not the federal courts. Until the Court in DobbsFootnote 23 overruled Roe v. Wade, that is. The ink on the Dobbs opinion was barely dry before hordes of antiabortion advocates did a sharp, collective 180, advocating federal legislation to prevent or restrict states from protecting abortion rights. Republican and staunch antiabortion Senator James Lankford of Oklahoma said that “a group of Republican senators has discussed at multiple meetings the possibility of [Congress] banning abortion at around six weeks.”Footnote 24 The president of one leading antiabortion group reports that most of the ten potential Republican 2024 presidential contenders would not only support a national ban on abortions, but make that support a centerpiece of their campaigns.Footnote 25
If cynical use of the states’ rights banner and other result-oriented strategies are inappropriate guidelines for redistributing the current state functions between the national and local governments, what should the criteria be?
A few preliminary explanations might be useful:
First, the factors suggested below are just that – factors, not requirements or prohibitions. They would need to be weighed and balanced, and some might be found to command greater weight than others. Naturally, too, they will sometimes point in opposite directions. Moreover, even the application of a single individual factor can require personal judgment. Three of the factors favoring national authority, for example, involve fundamental rights, basic economic needs, and substantial national impact, respectively. Disputes can arise over whether a right is fundamental, an economic interest basic, or the national impact substantial. For both reasons, these calculations are malleable. And that means they are vulnerable to cynical political manipulation.
I concede this. In my defense, I don’t see how the problem can be avoided. For the foregoing reasons, it seems impossible to formulate a hard-and-fast rule that would produce dispositive results in all possible subject areas. At least I have been unable to come up with one. But having a list of factors to consider can generate useful insights and at any rate can’t be worse than having no guidance at all. In addition, it is precisely when a principle requires either the application of broad guidance to wide-ranging fact situations or the balancing of competing values that the resulting judgment call should be made by the people’s elected representatives. Yes, some of those decisions will invariably fall prey to poor judgment or even bad faith, but that is what it means – and that is the price we pay – to live in a democracy.
For some subjects, the optimal arrangement might involve lodging concurrent policymaking authority in the national government and the local governments. Analogous systems of concurrent national and state government policymaking authority are in common use today.Footnote 26 In the event the policies conflict, the supremacy clause gives precedence to national law.
Moreover, within a given subject area, the broad policymaking function and the implementation function can be divided between two entities, as they frequently are today. There are many areas, some of them included as examples in Section C.3, that combine national policymaking with local administration.
Here I must acknowledge the obvious risks of vesting additional power in local governments. Nestor Davidson sums it up well: “For every instrumental argument in favor of bolstering local autonomy, there is a counterargument. Local governments often give life to the Madisonian fear of the tyranny of local majorities: they sometimes reinforce racial, ethnic, and economic segregation; exclude outsiders; and generate significant externalities for neighboring communities.”Footnote 27
That risk can never be fully eliminated, but there are ways to temper it. One way is to make sure that concern is adequately reflected in the factors that determine which levels of government should be responsible for which subject areas. One of the factors that I propose below as favoring national responsibility over a given subject area is that the subject area is likely to implicate fundamental rights. Another is that the area is one in which local control would create too high a probability of local governments adopting policies that shift the costs to other local governments or to the nation as a whole.
A second safeguard is that reassigning a current state function to local governments doesn’t mean they have to go it alone. When collaboration is beneficial, they can form partnerships with other local governments or with the national government. They might not want to do so even when collaboration makes eminent sense, for example for reasons that relate to local self-interest or ideological differences. In those cases, Davidson suggests that Congress mandate or at least encourage such partnerships, as it has often done.Footnote 28
Conversely, reassigning a function to the national government doesn’t necessarily mean creating one monstrous, monolithic, unwieldy bureaucracy physically distant from the scattered local communities that it serves. In many subject areas, the national government can operate through geographic regions. That is precisely what it commonly does today. At any rate, modern transportation makes travel easier, and digital innovation often makes it avoidable entirely.Footnote 29
Here, first, is my suggested list of six factors that, when present in a given subject area, favor national responsibility (illustrations to follow in Section C.3):
N1. The subject area is one in which fundamental rights or interests are at stake. As to this factor, the scholarly literature has approached, but not quite attained, universal consensus.Footnote 30 In my view, examples of interests fundamental enough to trigger this factor include voting; nondiscrimination based on race, ethnicity, religion, sex, sexual orientation, age, and other evolving lines of division; equal access to justice; fair procedure; and access to basic human needs, to name a few.
N2. National action is needed to address serious geographic economic inequality. Many communities are too poor to meet such basic human needs as food, health care, housing, and education. The importance of national regulation to address economic inequality has been well covered by others.Footnote 31
N3. Either nationwide uniformity in and of itself is distinctively important in this subject area, or there is simply no affirmative reason that the policies in this subject area should vary by geographic location. Uniformity might have special importance, for example, when the subject is one on which it is especially vital that the nation speak to the world with a single voice. There are also subjects for which differing regulations would make interstate travel or transactions difficult or impossible to navigate, particularly for companies that do business in many areas of the country.Footnote 32 Convenience and efficiency aside, uniformity serves the goal of equal treatment.
N4. Local governments might achieve or at least perceive benefit from a given policy, but only by externalizing significant costs – that is, by shifting them either to neighboring populations or to the entire nation.Footnote 33 Local action that affects a wider region or even the entire country is increasingly common today, as people, products, pollutants, effluents, viruses, and other matter now travel easily across subnational boundaries. Some kinds of external costs – for example, lowering corporate tax rates or relaxing public safety restrictions – can take the form of a race to the bottom,Footnote 34 where the self-interested actions of a single local government leave its competitive neighbors with little choice but to follow suit. No local government should be permitted to impose its will on other local governments or on the nation as a whole.
N5. The nation as a whole would benefit from government providing certain goods or services, but individual local governments (or even a group of local governments) ordinarily can’t afford the cost.Footnote 35
N6. Assigning the task to multiple local governments would duplicate resources or generate other inefficiencies.
Now, here are factors that favor assignment of particular subject areas to local authority:
L1. The subject is one in which concentrating the entire power in a single national government would be too dangerous.
L2. There is a particularly strong reason to vary the policies to reflect the distinctive needs or political preferences of the local populations. This factor is the flip side of a need for uniformity.Footnote 36
L3. For this subject, knowledge of local conditions is imperative.
L4. Local governments have already amassed a great deal of experience in this area and might even have the necessary administrative structures already in place.Footnote 37
L5. This subject presents a special need for social innovation or experimentation by multiple authorities.
C Reassigning State Functions: Selected Illustrations
1 What States Do
As noted earlier, the states – unlike the federal government – have plenary power over any subject matter that the Constitution does not affirmatively delegate, explicitly or implicitly, to the federal government.Footnote 38 They also have whatever additional powers the federal government willingly entrusts to them or shares with them. Any of these state powers might in turn be delegated to local governments or shared with them.
Below I have compiled a long, albeit incomplete, list of functions that the states currently perform. To make the list manageable, I have sorted these functions into rough groups. Several of the functions would easily fit into two of more of these groups, but to avoid repetition I have listed each only once. The groups are not listed in order of importance.
Many of the state functions relate to public safety and public health. These include access to medical care; pandemic measures; disaster relief; police, fire, and ambulance services; traffic control; gun safety; environmental protection; vehicle inspections; child protection; consumer product safety; workplace safety; and tort law. Some functions are meant to provide a social safety net – for example, means tested public assistance, unemployment insurance, and worker’s compensation.
States make major policy decisions relating to public elementary, secondary, and tertiary education. All three branches of state governments make important human rights decisions, particularly with respect to nondiscrimination and reproductive freedom. They are also the prime policymakers in matters of marriage, divorce, child custody, and other family law issues.
States perform several political functions: they set voter qualifications; decide the times, places, and manner of both state and congressional elections; choose presidential electors; administer elections; send representatives to the US Congress; and ratify US constitutional amendments. They also operate justice systems – civil litigation, including juvenile justice and the probate process, and criminal justice, including law enforcement, prosecution, probation offices, public defender systems, courts, and corrections.
The states have primary responsibility for land use and housing policies. These functions include city and town planning, zoning, eminent domain, conservation of natural resources, historic preservation, parks, housing codes, landlord–tenant law, and mining restrictions. They spend much of their time on infrastructure issues: transportation, including roads and bridges, trucking regulations, mass transit, bicycle trails, railways, waterways, and airports; public utility management and regulation, including telecommunications, energy, water, sewage, and other refuse; and acquisition and maintenance of state office buildings.
Another major state function is licensing – driver’s licenses and motor vehicle registrations; occupational licenses; and hunting and fishing licenses. States are immersed in business regulation, including contract law, bankruptcy, usury, predatory lending, consumer fraud protection, corporate and securities regulation, labor law, agriculture, banking and insurance regulation, and promotion of tourism and economic development. They record vital statistics relating to births, marriages, and deaths, as well as real property transactions.
2 What Local Governments Do
As earlier discussion explained,Footnote 39 local governments for the most part have only whatever powers either their state constitutions or state legislatures affirmatively give them. Local governments are also quite diverse. Among other things, they vary by population, geographic area, legal status, and internal organization. Most importantly here, they also have different functions.Footnote 40 The various local governments are typically classified as either general purpose governments, which as their name implies provide a general range of services, or special purpose entities, which are created to perform (typically) just one specific function.
The general local governments include municipalities, which are incorporated, and counties, which are not.Footnote 41 In twenty states, counties also contain unincorporated “townships.”Footnote 42 Municipalities commonly provide such services as “[roads], police and fire protection, parking, libraries, housing and urban redevelopment, and sewerage and sanitation.”Footnote 43 Counties’ functions overlap with some of the services provided by municipalities, but the main job of counties is to administer statewide programs. Common examples include “property tax assessment and collection, deed recording, law enforcement, jails, courts, highways, public works, welfare and social services, health care and Medicaid, and agricultural and economic development. Urban counties often provide additional services, such as mass transit, parks and recreation, airports, planning, zoning, and regional governance.”Footnote 44 Townships’ powers vary a great deal, sometimes approaching those of municipalities; in many cases, their principal function is to provide and maintain roads in the unincorporated areas that they cover.Footnote 45
The various special purpose districts span a wide range. School districts are probably the most familiar, since education accounts for about one-third of all local government expenditures nationwide. Other special purpose districts are charged with “[f]ire protection, water supply, soil conservation, housing and urban renewal, and drainage.” Some are the creations of municipalities; others are independent political subdivisions.Footnote 46
The total number of local government units has been increasing steadily since at least the early 1970s. By 2017, they numbered more than 90,000. These included approximately 39,000 general local governments (of which roughly 20,000 were municipalities) and 51,000 special purpose districts.Footnote 47 Almost every state has counties or their equivalent.Footnote 48
For several reasons, local governments have been increasingly inclined to partner with one another. Urban sprawl, combined with huge migrations from urban centers to suburbs, have made the resulting metropolitan areas the main locus of economic activity. Further, those large, expanding metropolitan areas typically comprise many municipalities with racially and economically diverse populations and uneven qualities of public services. Regional partnerships serve multiple goals – economies of scale, environmental protection, and social and economic justice.Footnote 49
These regional partnerships take many forms. They range from formal mergers to informal cooperation, and the functions they combine or share can range from general governance to administration of specific programs.Footnote 50 There are jointly run transit systems, special purpose utility districts, and other common arrangements.Footnote 51
For present purposes, the point is that without state-imposed constraints the local governments would be free to collaborate, and free to choose the precise form of collaboration, that they believe to be in the best interests of their combined populations. Moreover, many metro areas cross current state lines. Examples include Kansas City, Missouri and Kansas City, Kansas; Portland, Oregon and Vancouver, Washington; and St. Louis, Missouri, and East St. Louis, Illinois. For these kinds of twin city metro areas the abolition of state government has an additional benefit – eliminating any pointless barriers that the laws of either of the two states might currently pose.
3 Specific Applications of the Reassignment Criteria
As noted in Section B, the process of applying my suggested reassignment factors to the functions currently performed by states is not cut and dried. Most of the factors, when applied to many of the functions, are defined broadly enough to require judgment calls. In addition, for some functions, multiple factors will apply and will push in opposite directions. But in the selected examples below I have done my best, fully accepting that many will disagree with my bottom line results.
My other prefatory note is one of humility. I claim no specialized expertise in any of the subject areas that I have selected as examples. The armies of experts in each of these areas will no doubt find my summaries simplistic. I plead guilty. My objective in offering them is merely to illustrate the meanings of the general factors from Section B and how they might favor the reassignment of a particular (current) state function to the national government or the local governments – not to weigh in dogmatically on the bottom line conclusions. For the latter, I defer to those who actually know what they’re talking about.
For ease of reference, the general factors favoring either national or local responsibility are repeated here in abbreviated form:
Factors favoring national authority:
N1. Fundamental rights or interests are at stake.
N2. National action is needed to address serious geographic economic inequality.
N3. Either nationwide uniformity in and of itself is distinctively important in this subject area, or there is simply no affirmative reason that the policies in this subject area should vary by geographic location.
N4. Local governments might achieve or at least perceive benefit from a given policy, but the policy would have a significant impact on neighboring populations or the entire nation.
N5. The nation as a whole would benefit from government providing certain goods or services, but individual local governments (or even a group of local governments) ordinarily can’t afford the cost.
N6. Local regulation would duplicate resources or generate other inefficiencies.
Factors favoring local authority:
L1. In the particular subject area, concentrating power in a single national government would pose special dangers.
L2. In this area, there is an especially strong reason to vary the policies to reflect the differing needs or political preferences of the local populations.
L3. Knowledge of local conditions is imperative.
L4. Local governments have already amassed a great deal of experience in this subject and might even have the administrative structures already in place.
L5. This subject presents a special need for social experimentation or innovation.
Now, some illustrations:
(i) Public health and safety: This broad grouping has several component parts. For the traditional police, firefighting, and ambulance services, the most salient factors all seem to point toward local control. Every community has different needs and preferences (L2), particularly with respect to the crime rates, the proper role of the police, and community relations. Knowledge of local conditions is essential (L3). The local governments have experience in all these areas and even, typically, have the necessary administrative structures already in place (L4). And with so much current controversy surrounding the subject of police, there is exceptional need for the kind of social experimentation and innovation that multiple policymakers can bring to the table (L5). By way of exception, national law enforcement agencies such as the FBI, the DEA, and BATF remain necessary for large-scale law enforcement operations that exceed either the reach or the resource capabilities of local governments (N5).
Consumer product safety is different. In this area, national regulation is critical. For one thing, uniformity assumes great importance (N3), because multiple conflicting standards would pose difficulties for manufacturers who produce items for nationwide sale. In addition, because products travel easily throughout the country and the world, the lax standards of one local government could cause harm to residents of another (N4).
For the same reasons, and more controversially, gun safety standards cry out for national regulation. Whatever one’s view on the two most contentious issues – background checks and assault weapons – leaving those decisions to local governments would create the same problems that state regulation creates today. If one local government allows possession of assault weapons and its neighboring municipality does not, nothing prevents someone in the first locale from buying an assault weapon there and traveling to the second locale to commit a mass murder (N4). Conversely, someone who lives in a local area where assault weapons cannot be sold could easily drive to a nearby area where they are legally available and then return home to commit a violent crime. Rural local governments might counterargue that the popularity of hunting by their residents should allow them, not the national government, to decide how best to regulate guns (L2). But assault weapons are not used for hunting, and at any rate the popularity of local hunting is no reason to skimp on background checks.
Prevention of, and responses to, calamitous events that endanger entire communities typically demand the combined efforts of national and local authorities. Local governments, even in partnership with other local governments, lack the resources to singlehandedly respond to natural disasters, pandemics, foreign invasion, or terrorism (N5). But in all these areas they are essential partners to the national government. Their officials know their own local areas far better than national officials do (L3), and they have the preexisting experience and administrative structures to deal with several of those problems (L4).
For similar reasons, the national government is the optimal governmental unit for medical research to fight common fatal diseases, both directly and through grants to private sector researchers. Local governments lack the resources for that job (N5). Even if they had the resources, efficiency would not be served by 90,000 local governments all duplicating the same task (N6).
(ii) Public assistance: Some of the current welfare programs are currently funded by the federal government, some by state governments, and some by a combination of the two.Footnote 52 Some are administered by the federal government, some by the states, and a few by local governments.Footnote 53 Because they are meant to cover such basic human needs as food, shelter, health care, and general or specific cash assistance (N1),Footnote 54 and because the nation’s local communities are separated by such vast differences in wealth, national funding of these programs is the only realistic way to address the extreme inequalities (N2 and N5).Footnote 55 Administration, in contrast, calls for different attributes. The experiences of local governments in a range of face-to-face interactions with individuals equip them well to administer many of the various public assistance programs (L4).
One countervailing factor is that public assistance is a perennial hot-button issue. Demagoguery is never far away. And when issues are controversial, diffusing government power arguably takes on its greatest importance (L1). Separation of powers at the national level provides some diffusion, however, and the social imperative of addressing profound economic inequality is, for me, the decisive factor. It is an imperative that only the national government is realistically positioned to confront.
(iii) Justice: In the United States today, more than 90 percent of all court cases – civil and criminal – are handled by state courts.Footnote 56 The abolition of state government would thus require a major decision: Where should the current state court caseload be relocated?
In an American republic shorn of its states, all laws would be passed by either the national government or the local governments. My general view is that, in municipalities that choose to operate their own courts, those courts should continue to have jurisdiction over one narrow slice of cases – civil cases that arise under the ordinances of those municipalities. All other civil cases, and all criminal cases, should be heard in the national courts.
This massive transformation of the country’s judiciary will require a number of decisions as to the method of selecting judges, the length of their appointments, court procedures, and the funding of these additional national courts. Those issues are deferred to Chapter 6, Section C, as part of the structure of the new American republic proposed here. For now, it is enough to consider which set of courts would be best suited for which categories of cases.
Since laws that affect the nation as a whole would generally be the province of the national government (N4), the kinds of civil cases left for the municipal courts under the proposed scheme would implicate only local affairs. For that reason, these cases will frequently require knowledge of local conditions and local laws (L3).
Criminal cases present other issues. First, the seriousness of a criminal conviction means that fundamental individual interests are especially likely to be at stake (N1). That fact elevates the importance of procedural fairness. And procedural fairness is not the strong suit of the existing criminal municipal courts. One writer has described them as “kangaroo courts.”Footnote 57 The leading article on those courts offers several key observations:
Nationwide, there are over 7,500 such courts in thirty states. Collectively they process over three and a half million criminal cases every year and collect at least two billion dollars in fines and fees. Created, funded, and controlled by local municipalities, these courts – sometimes referred to as “summary” or “justice” or “police” courts – are central to cities’ ability to police, to maintain public safety, and to raise revenue. At the same time, they often exhibit many of the dysfunctions for which lower courts have been generally criticized: cavalier speed, legal sloppiness, punitive harshness, and disrespectful treatment of defendants. Unlike their state counterparts, however, the U.S. Supreme Court has formally excused municipal courts from some basic legal constraints: judges need not be attorneys and may simultaneously serve as city mayors, while proceedings are often summary and not of record. …
As the 2015 U.S. Department of Justice (DOJ) investigation of Ferguson revealed, the revenue from municipal courts may supply a substantial percentage of a municipality’s budget and thus incentivize systemic overcriminalization.Footnote 58
Procedural fairness aside, the fundamental interests at stake also suggest uniform national policies (N1). Nor is there any particular reason that either the decision to criminalize particular behavior or the severity of the punishment should hinge on where the person lives (N3).
One countervailing factor is that decisions as to what behavior to criminalize, as well as decisions as to the appropriate punishments (particularly capital punishment), are highly controversial. As with welfare reform, demagoguery on this subject is commonplace and thus there is danger in concentrating excessive power in one place (L1). But separation of powers at the national level again provides some diffusion, and in the absence of states the only alternative – 90,000 sets of local criminal law codes – seems untenable.
Within the sphere of criminal justice, therefore, I would allocate the bulk of the legislative and judicial functions to the national government. The other components of the criminal justice system are a different matter. These include policing, prosecution, probation offices, public defender systems, and corrections. As already discussed under the heading of “public health and safety” above, these functions should remain the job of the local authorities.
Chapter 3, Section F earlier highlighted the increased zeal with which state legislatures have begun to preempt local government policymaking in a wide range of subjects that have traditionally been the subject of municipal governance. As that discussion showed, the pattern has been highly asymmetrical – in the vast majority of cases, it has been Republican legislatures narrowing the authority of Democratic-run cities. In an age of renewed public attention to police violence and its racial implications, many local governments have revamped their law enforcement policies and reordered their police and prosecutorial priorities. State legislatures have often responded by preempting such local decisions. Not surprisingly, a good deal of modern scholarship has been devoted to advocating a greater role for the local governments on such matters as police staffing, prosecutorial discretion, and other elements of the law enforcement process.Footnote 59 Those writings emphasize various goals: reducing racial disparities, accommodating differences in local fiscal capacities, and democratizing the administration of criminal justice.
(iv) Education: This subject ticks almost all the factor boxes, and the collaboration of national and local governments is crucial. For public elementary and secondary education, the national government should set certain uniform minimum curricular requirements. First, education in modern day America and throughout the world rises to the level of a fundamental individual interest (N1). Moreover, in our increasingly homogeneous and highly mobile society, employers should not need to wonder whether job applicants have missed out on a well-rounded education that included all the basics of a common knowledge base (N3). At the same time, local governments should be encouraged to enrich the basic curriculum in ways they believe to be beneficial, particularly if the needs and conditions of the local area suggest either extra priority on specific elements of the basic package or additions of locale-specific subject matter. Pupils who remain in the geographic area will benefit from the enhancement (L2), and the local educators will know more than their national counterparts about local conditions (L3). The professional educators in the local governments should have broad discretion over teaching methods; among other things, education is an area in which the benefits of experimentation and innovation (L5) are valuable and new insights are constantly evolving.
Standards for teacher training and licensing should be uniform nationwide. When talented, well-educated teachers are shut out from teaching jobs because they were educated in a different geographic region, everyone suffers – the teachers themselves and the pupils and school districts that are deprived of their service. There is simply no reason that a school should be barred from hiring a teacher because the teacher received his or her education in a different geographic area (N3). Nor is there any good reason to introduce the inefficiency of teachers having to duplicate the training they have already received in order to obtain the required certification (N6).
National funding of education would need to be increased to reflect the loss of state funding. Ideally, it should be further increased to help equalize educational opportunity. Local governments would continue to pay much of the costs for their schools, but the fundamental interest in education (N1), the inequalities attributable to geographically unequal economic conditions (N2), and the practical inability of the more cash-starved communities to provide the education (N5) their students deserve are all reasons for a generous national role in shoring up the schools in economically depressed areas.
The former state institutions of higher education (colleges, universities, and technical and vocational schools) should become national institutions. There would no longer be a need for out-of-state students to subsidize the tuitions of instate students, because state lines would no longer have legal or political significance. The national government would establish maximum tuition rates for all such institutions; those rates could take account of the extra educational costs in particular disciplines (e.g., medical education and science labs) and geographic differences in the cost of living. And, of course, the maximum rates could be updated over time to reflect inflation. But they would not depend on the location of the student’s hometown. Uniform maximum tuition rates would mean that students who are admitted to their preferred institutions could choose the institutions that are best for them (N3). By way of exception, every institution of higher learning would have the discretion to reduce their tuition rates below the national maximum, as well as the discretion to offer scholarships. Review of the current programs for government-provided financial aid might well be beneficial but is beyond the scope of this discussion.
(v) Land use, city and town planning, and infrastructure: This heading covers a broad variety of interrelated government functions, in all of which the states currently play significant roles. Traditional land use and planning services include zoning, eminent domain, housing codes, building and occupancy permits, urban development, local parks, and libraries. Perhaps recording of real property transactions could be considered under this heading as well. All of those services are mainly in the hands of local governments today, and there is no reason that the abolition of states would need to change that. These decisions have to reflect local conditions and the needs of the local population (L2). Local governments will also have far greater knowledge of those needs than the national government will (N3), and they will have had both the experience in meeting those needs and existing administrative structures already in place (L4). Current state parks and forests, as well as any future large parks and forests that serve wider areas, would be more properly regulated and managed by the national government. The fate of those natural areas affects wider populations and geographic areas (N4), and the costs of conserving and maintaining them would ordinarily exceed the resources of local governments (N5).
Infrastructure raises some different issues. Local governments, operating under state law, currently make decisions on projects such as local roads, local bridges, and local transportation, including mass transit (often with federal subsidies) and local bicycle trails. Without states, they should continue to do so. As with most other city and town planning decisions, there is good reason to tailor those policies to local needs and preferences (L2), local officials will have the most knowledge of those needs and preferences (L3), and they will have the experience and existing administrative structure to effectuate them (L4).
In the absence of state government, the more major infrastructure projects – those that serve wider areas and today are regulated by either the national government or the state governments or both – should remain with the national government. These include long-distance transportation, such as interstate and current state roads and bridges, trucking regulations, railways, navigable waterways, and airports. They also include most utility regulation – power grids, water and sewage treatment, telecommunications, and broadband. These projects too are often beyond the fiscal means of individual local governments (N5). National regulation also serves efficiency goals, as central control permits the shifting of resources when drought or other natural disaster temporarily alters the demands for energy, water, or the like (N6).
(vi) Environmental protection: Certain services that can be classified as environmental – for example, trash collection and disposal and recycling – have traditionally been performed by local government, and sensibly so. Yet again, the policies need to reflect the needs and preferences of the local population (L2), the requisite community knowledge resides in local officials (L3), and they have both the experience in providing these services and the administrative structure already in place (L4).
But major environmental regulation has rested with the national and state governments and, without state government, should remain with the national government. These include the restrictions on pollutants (including greenhouse gases), effluents, the conservation of soil, forests, and coral reefs, and the prevention of coastal erosion. Local governments could have perverse economic incentives to externalize costs by permitting factories to belch out pollutants that the prevailing winds carry to neighboring areas or permitting them to discharge effluents into waterways that will carry the effluents downstream (N4). And the adversely affected communities might be unable to afford measures that would avoid or minimize the resulting environmental damage (N5). Uniform nationwide regulation, therefore, is essential.
(vii) Licensing: Today, practicing any of a long list of professions or trades requires a license issued by the state in which one is practicing. These occupations include many different groups of health care workers – physicians, dentists, dental hygienists, registered nurses, occupational therapists, physical therapists, dieticians, pharmacists, and veterinarians; certain mental health professionals, such as psychologists, clinical social workers, mental health counselors, and marriage and family therapists; teachers and principals in public elementary and secondary schools; certified public accountants; attorneys; engineers; architects; barbers; cosmetologists; and most funeral service workers.Footnote 60
Many have criticized various occupational licensing requirements as unnecessarily restrictive.Footnote 61 I won’t wade into that debate, because my concern here is the “who decides?” question: in the absence of states, should occupational licensing be the responsibility of the national government or the local governments?
The case for transferring the licensing function to the national government is overwhelming, mainly because of the benefits of uniformity (N3). There is simply no reason that the required qualifications for a health care worker, an accountant, a barber, or one who works in any of the other fields for which licenses are required should vary within the territory of the United States. Your physiology doesn’t change when you move from Philadelphia to Camden. Neither does your hair, your mental health, or the needs of your pets. In our current state-based system, perhaps one could argue that attorneys need to master the relevant laws of the states in which they practice. But that factor (i) is weak even today, since law schools and law practice teach and require certain skills, not memorization of laws that quickly change; and (ii) disappears entirely if state government is abolished. Meanwhile, limiting one’s professional activity to a narrow geographic area either inhibits mobility or forces people to expend great effort to re-qualify in other locales when they move – or when their practices would otherwise encompass more than one locale. And every time they do practice in more than one locale or want to practice in multiple locales, both they and the relevant licensing officials must duplicate the task of establishing their qualifications (N6). Implementation aside, the very need to formulate and continually update the requirements for each licensed occupation is itself a pointless duplication of effort (also N6). The situation would become even worse if each of the 90,000 local governments, instead of fifty-one US jurisdictions, had to duplicate the same licensing tasks and if the affected workers could no longer move even to an adjacent suburb without the need to re-qualify. At any rate, local governments could rarely afford the costs of formulating and updating the requirements for all the affected occupations and administering the application process (N5).
Analogous observations apply to driver’s licenses. There is no reason that the written tests, road tests, eye tests, and age requirements for obtaining a driver’s license need to vary from one US location to another. And the affirmative case for a uniform national driver’s license is a strong one. It would avoid the need for people to apply for a new license every time they moved from one local community to another, and it would avoid the duplication of effort for the government officials who have to process the applications (N3 and N6).
Unlike both occupational and driver’s licenses, hunting and fishing licenses seem well suited for local policymaking and administration. Requirements for these licenses need to reflect the natural environment of the local area, including the wildlife and fishing stock (L2). In addition, local officials will be best acquainted with those conditions (L3) and might even have prior experience with the applicable regulations (L4).
(viii) Elections for national office: As discussed earlier, the Constitution invests the state legislatures with the power to decide “the times, places, and manner” of congressional elections, but it goes on to say that Congress may supersede those decisions. Congress has exercised that power several times.Footnote 62 The Constitution also provides that each state’s presidential electors are to be chosen “in such Manner as the Legislature thereof may direct.”Footnote 63 The Supreme Court has made clear that the states, not Congress, also have the sole power (subject to various constitutional constraints) to decide who is eligible to vote in congressional elections.Footnote 64
All those principles, of course, would become moot if state government were abolished. But a different version of the question would emerge: Who would be better suited to decide the manner of elections for national office and the qualifications voters must have – the national government or the local governments?
These decisions have many component parts. How best to avoid racial and partisan gerrymandering is one of them. In addition, underlying every one of the voter suppression strategies described in Chapter 3, Section B is a legitimate issue that has to be decided: What should be the requirements, and the process, for voter registration? When is it OK to purge a name from the registration list? When should early voting start and stop? How many polling stations and how many ballot drop boxes should there be, where should they be located, and what should be the hours of operation for polling stations and the time periods for access to ballot drop boxes? And so on. Someone has to make these decisions. Who should that be?
As to the manner of choosing presidential electors, the abolition of states would also spell the end of the Electoral College. In Chapter 6, which sketches the shape of the proposed new unitary American republic, I support the arguments already made by many others for replacing the Electoral College with a national popular vote. So let’s put off that issue until that final chapter.
As for congressional elections, some might argue that the general factors developed earlier favor putting both the voting process and voter qualifications in the hands of the local governments, just as the current process assigns them to the states. After all, one of the main functions of each member of Congress is to promote the distinctive interests of his or her local constituents. Therefore, the argument would run, the local governments should decide how their own local representatives are to be elected and by whom (L2). But members of Congress are additionally bound to promote what they see as the best interests of the nation as a whole (N4). More important, while the candidate’s prospective constituents have the right to vote for those who they believe will best serve their interests, it doesn’t follow that they should get to decide which of them may do the voting in the first place.
There is, however, a more convincing argument for local government authority to decide the manner of congressional elections and the voter qualifications: Putting these decisions in the hands of a single national government is risky. Chapter 3 demonstrated how brazenly state legislators and officials have manipulated voting processes and voter qualifications for crass partisan gain. While there is no reason to assume that local politicians will be any less driven by partisan or ideological motives than their state counterparts have been, at least there will be other local governments that will not succumb to that temptation (or will act out of countervailing partisan motives). In contrast, a national trifecta – that is, simultaneous control of both houses of Congress and the White House – by an extremist party bent on subverting the electoral process could cripple democracy nationwide (L1).
I believe nonetheless that other factors outweigh that fear and counsel national responsibility for deciding both the voting process itself and the voter qualifications. That the founding fathers left these powers with the states is historical fact, but not a normative argument. In a democracy, voting is indisputably a fundamental interest (N1). Uniform rules are beneficial if not paramount; no democracy should design a system in which some citizens choose the members of the national legislature while other, similarly situated, citizens are shut out (N3). Moreover, the way the people of one locale vote affects the composition of Congress and, therefore, the entire nation (N4). Additionally, as just noted, there is no defensible affirmative reason that either the basic elements of the voting process or the voting qualifications need to vary from one locale to another (N3). And the fear of an unfettered national government abusing the electoral process for partisan gain can be largely – admittedly not entirely – eliminated by placing that responsibility within the judicial branch in the particular way described in Chapter 6, Section B.3.
With respect to the electoral process itself, uniformity would bring additional benefits. As it is, different voting rules and ballot tabulation procedures in different states already confuse the process and feed suspicions among the more conspiracy-minded sectors of the population. Surely, a hodgepodge of 90,000 different local governments deciding on their own voting and ballot tabulation procedures would create yet greater cynicism and chaos.
And then there is the matter of timing. Election night junkies have certainly noticed the extreme differences in the speed with which various states, and even various counties within a state, report vote counts. State-to-state differences in the timing of a given media network’s projections of outcomes are understandable; among other things, close elections make for later projections. But why should there be such dramatic variations in the reporting of votes? Why is one state able to report 80 percent of the precincts within minutes after the polls close, while others need days to reach that point? There are only a few potential explanations for those differentials: Some states attach different relative weights to the competing values of accuracy and timeliness; some states invest more per capita resources – staffing, equipment, or technology – than others; or some states’ counting processes are simply more efficient than those of others.
I can think of no reason that any of those factors – the optimal balancing of accuracy and timeliness, the amount of resources devoted to vote-counting, or the efficiency of the process – should be allowed to vary with geographic location (N3). Surely the voters of California (a state with notoriously long delays in reportingFootnote 65) have as much right to accuracy and speed in the reporting of their votes, deserve to have the same resources invested in the counting, and have the same interest in the efficiency of the process as the voters of Florida (a state that reports its votes very promptly).Footnote 66 And if the existing state-to-state variations in vote tabulation speed are problematic, one can again assume that local-to-local variations would be greater still.
So the balance of factors tilts heavily toward national responsibility for deciding congressional election procedures and voter qualifications.Footnote 67 But what to do about actual on-the-ground implementation of those national policies – both the casting and the counting of votes – requires a different analysis.
On the one hand, local officials will know the most about the local population’s needs (L2) and expected turnout by polling station; thus, they seem well positioned to estimate the necessary staffing and equipment needs of the various precincts (L3). They will also have had experience in managing the voting process in their own local areas (L4).
On the other hand, many if not most of the decisions that relate to either election procedure or voter eligibility concern the very areas in which the voter suppression strategies described in Chapter 3, Section B have taken root. For that and the other reasons already discussed, such issues as voter registration, purging of names from voter rolls, requiring photo IDs or documentary proof of US citizenship, early and mailing voting, restricting third-party collection of absentee ballots, and disenfranchising citizens because of specified criminal convictions all cry out for uniform national remedies (N3).
Other common voter suppression instruments – particularly those relating to polling stations and ballot drop boxes – are a closer call. Who should decide how many polling stations there will be, where they will be located, and their hours? Who should decide how many ballot drop boxes there will be, where they will be placed, and for what time period they will be available? This is where the line between policymaking and implementation begins to blur. On the one hand, local officials will generally possess greater knowledge of such relevant local conditions as voter demand in the various precincts, proximity of polling stations to residential areas, and the availability of public transportation (L3). They might also have prior experience and even preexisting administrative structures already in place for these purposes (L4). On the other hand, the fundamental nature of the right to vote (N1), together with the history of manipulating the stationing of polling places and the availability of ballot drop boxes for partisan ends, point toward national policymaking even on these issues. A middle ground might be having national officials issue detailed standards governing the numbers, locations, and opening hours of polling stations and the numbers, locations, and durations of ballot boxes, while leaving some limited degree of local discretion as to implementation.
Chapter 6, Section B.3 favors a third option: administration of all national elections by a nonpartisan body that is located within the national judiciary and operated through a network of regional and local offices.
(ix) Business regulation: This umbrella term takes in a broad collection of subject areas. Among them are commercial law, including laws governing the formation and enforcement of contracts and bankruptcy law; corporations law, including incorporation, shareholder rights, acquisitions and mergers, antitrust, corporate and officer liability, corporate finance, corporate taxation, securities regulation, and partnerships; banking laws; insurance laws, including minimum reserve requirements and new product approvals; international trade; labor and employment law, including unions, minimum wage, child labor, workplace safety, and prohibitions on specified forms of employment discrimination; and consumer protection, both financial and personal safety. At present, these areas are regulated by the national government, the states, or both.
In the absence of states, I suggest all of those areas would be better suited for national regulation than for local. The benefits of uniform treatment (N3) are especially evident here. Standards that vary from place to place make operations difficult for manufacturers of products that are sold nationwide or for corporations that do business in multiple geographic areas of the country. If local governments could offer lax regulation of corporate activity or consumer safety or worker protections, or give corporate tax breaks to lure large corporations, they might well benefit by doing so, but those benefits would come at the expense of other local governments and could spur a race to the bottom that harms local government nationwide (N4). The need for 90,000 local governments to develop, update, and enforce their own sets of laws on each of these varied subjects would also duplicate efforts (N6) and would exceed the resource capabilities of many local governments if not most (N5).
There are other important subjects of current state activity – family law, reproductive freedom, taxation, and ratification of constitutional amendments, to name just a few – but this list of illustrations has already grown long. Again, while bottom line opinions have been expressed, the priority here is not to advocate that any particular set of current state government functions be reassigned to any particular level of government. There is room for wide differences of opinion in each case. Rather, the objectives here have been to demonstrate that these important government functions can be well served without state governments and that there are ways to decide whether, for each such function, the national government or the local governments are better positioned to step in. Chapter 5 addresses a related question: Even if state government isn’t essential, is it at least beneficial?
