By Kelsey Bleiweiss, THELAW.TV
The struggle between the state and federal governments is a hallmark of the history of the United States, constantly shaping how politics progress. But for the past few months state legislatures across the country have put extra pressure on this centuries-old tension, proposing and passing laws that come into conflict with federal policies on some of the most controversial issues in the political arena.
Though the outcomes of these conflicts are yet to be determined, they will certainly lead to battle in the nation’s courtrooms, particularly in the final arbiter of the federal-state debate, the Supreme Court.
Recent conflict between the states and the federal government has involved a wide range of issues, including free speech. As THELAW.TV reported, Florida’s legislature is working to pass a bill that would expand the state’s policy banning protests at funerals.
This bill is in response primarily to protests at military funerals by members of the Westboro Baptist Church. But the bill could be in conflict with the Supreme Court’s 2011 decision that such protests are protected speech under the First Amendment. If passed, the law will likely face challenges in court.
And while free speech is certainly a hotly debated topic in the constitutional conversation, it pales in comparison to the current controversy around gun control.
In Texas a proposed bill would make it a crime for police officers to enforce future federal gun control laws prohibiting assault rifles and ammunition magazines. Such policies have not been enacted at the federal level yet, though President Obama has proposed them as possible reforms.
Wyoming’s pending Firearm Protection Act would similarly prevent state and local police from enforcing future federal bans or restrictions on firearms.
Lawmakers throughout the country are struggling to answer the question of where federal power ends and state authority begins, but average citizens are involved in this conflict as well.
Recent popular referendums in Washington and Colorado legalized the commercial sale and use of marijuana, though such laws may violate federal drug policy.
President Obama has stayed fairly quiet on the topic thus far, saying that the country has “bigger fish to fry” than going after recreational drug users. But a statement from United States Attorney Jenny A. Durkan suggests that the Justice Department may pursue legal action.
The funeral protest, gun control, and drug use laws are in obvious conflict with current or potential federal laws, but the issue of federal versus state authority gets even more complicated when a state law only indirectly challenges a federal policy.
Mississippi has been at the center of the abortion debate for some time, but controversy has recently erupted because the state’s legislature passed several laws that place more restrictions on abortion providers.
Though the laws do not expressly prohibit abortion, which would be in direct violation of the Supreme Court’s decision in Roe v. Wade, pro-choice advocates argue that the laws will do just that, as they will force the state’s last abortion clinic, Jackson Women’s Health Organization, to close.
The clinic’s owner, Diane Derzis, said that the organization will be taking legal action: “Our attorney…will be, if she hasn’t already, filing a brief on our behalf claiming the law is unconstitutional…then the court battle begins.”
It is important to note, however, that the question of state versus federal authority does not simply pit the states against the federal government.
Just this week, the Supreme Court heard oral arguments for Shelby County v. Holder, a case challenging the constitutionality of Congress’ 2006 decision to reauthorize Section 5 of the Voting Rights Act.
Though several states filed amicus briefs in support of Shelby County and its challenge to Congress’ decision, New York, Mississippi, California, and North Carolina have filed amicus briefs in support of the United States Government.
State leaders do not automatically oppose the federal stance on an issue: as this case and the wide range of policies involved demonstrate, the debate is much more complex than that.
And though election reform might not immediately attract the same passionate controversy as guns, drugs, or abortion, this case could provide some insight into how the Court will address those issues in the future.