John Dinan is Associate Professor of Political Science at Wake Forest University in North Carolina, USA. He is the author of The American State Constitutional Tradition and Keeping the People’s Liberties: Legislators, Citizens, and Judges as Guardians of Rights, among other books.

Face-off against national gridlock

Republican control of the presidency and both houses of Congress for part of 2001, and from 2003 to the mid-term elections in 2006, might have been expected to facilitate passage of national legislation, especially after the 2004 election when Republicans added to their margins in the House of Representatives and Senate. To some degree, this expectation has been borne out, with passage in the 109^th Congress (2005-06) of a comprehensive energy policy act, a class-action reform bill and a bill protecting gun manufacturers from civil liability suits, all of which would have encountered more difficulty under divided party government of the kind seen from 1969-76, 1981-92, 1995-2000 and 2001-02.

But enactment of national policy in other areas has

proved elusive, either because Republicans are not all on the same page or because of plentiful opportunities for minority party obstruction. And in many of these instances, states have been led to fill in the vacuum.

Illegal immigration is a leading issue where states in 2006 have been forced into action by splits in the Republican majority in Washington. In December 2005, the House passed a bill that focused heavily on securing the border and on requiring employers to verify the legal status of their workers. But in May 2006, the Senate, with the support of President George W. Bush, approved a very different bill that would combine border security and employerenforcement provisions (which are both quite popular with the public) with a pair of highly controversial plans: a major new guest-worker program and a process to permit most of the 11 million illegal immigrants currently in the country to become legal residents and eventually citizens. Although the usual procedure is to iron out such inter

cameral differences in a conference committee, there has been a long delay in convening such a committee, resulting in no major immigration law emerging from Congress before the November 2006 elections, thereby boosting state and local government efforts to pass their

Forum of Federations

Democrats are still generally the

party of centralization and federal

power, whereas Republicans tend

to favour decentralization and

state power more often than not.

positions on federalism have

been determined as much by

pragmatic calculations of political

advantage as by principled

assessments of the virtues of

centralization or decentralization.

rejected by the New York Court of

Washington. President Bush

Appeals. Opponents have enjoyed

considerable success in working

research on existing stem-cell lines but would not allow federal funds to support research on stem cells created after that time. Then in July 2006 he used his veto pen — for the first time in his presidency — to block a law seeking to authorize federal funding of newly created stem cells. However, state governments are free to fund this research, and several states have done so, most notably when California voters approved a 2004 ballot initiative authorizing the issuance of $3 billion in state bonds for such research over the next decade. A number of other states have authorized funding on a smaller scale, including several grants announced in the wake of, and in response to, the president’s July 2006 veto. In November 2006, Missourians voted on a constitutional amendment ensuring the continuation of embryonic stem-cell research in that state.

Action in areas outside federal control

Because the federal government possesses limited enumerated powers, states retain sole responsibility for a number of policy areas, as was made quite clear in 2006 in regard to laws governing marriage and land use. In both cases, efforts were made during the last year to centralize the issue and bring about a national resolution, but without success. This left the matters to the states, which have been quite active this year on both fronts.

Same-sex marriage has been a bitterly disputed issue since the Massachusetts Supreme Judicial Court in 2003 interpreted the state constitution as requiring marriage licenses to be granted to same-sex couples, making Massachusetts the only state to legalize gay marriage. Several others permit same-sex civil unions. Although this ruling inspired same-sex marriage supporters to file similar lawsuits in other state courts around the country, it also prompted critics to advocate a federal constitutional amendment to declare marriage in the

U.S. to be between a man and a woman, and to prohibit judges from issuing contrary rulings. This proposed Federal Marriage Amendment failed in 2004 to receive the necessary two-thirds votes in the House and Senate to be sent to the states for ratification, and it failed again when it was brought for votes in June and July of 2006. As a result, states are left to decide whether to legalize samesex marriage, and this question has been at the forefront in 2006 of the state judicial docket and the legislative and constitutional agenda. Supporters continue to press other through state legislatures to prevent

legalization of same-sex marriage, and

they have gone on to cement these bans

by enacting state constitutional amendments. Before this year, 19 states had already enacted constitutional provisions of this sort. Then, in a June 2006 vote, Alabama became the 20^th state to approve such an amendment.

Eminent domain is not an issue that one would usually expect to leap to the forefront of the national political agenda, but this is exactly what has happened in the aftermath of the U.S. Supreme Court’s June 2005 decision in Kelo v. New London. At issue was whether state and local governments are prohibited by the U.S. Constitution from invoking their eminent domain power to condemn private property (with just compensation) for economic development purposes. The plaintiffs in this case, along with supportive interest groups, wanted the court to set a national policy prohibiting such actions. But in a 5-4 vote, the court declined to do so, thereby leaving the matter to the states. Roused to action by a public that had not previously been aware of the full extent of the use being made of the eminent domain power, state governments have responded with a flurry of wide-ranging legislation intended to better protect property owners and limit the use of the eminent domain power. Four states passed such laws in the remaining months of 2005, and 2006 has brought even more activity. The National Conference of State Legislatures reported that as of August, 23 states have passed such legislation in their 2006 session.

Laboratories of democracy

The U.S. states have long been celebrated as laboratories of democracy, by which it is usually meant that policy experiments in some states are later implemented in others, and then at the federal level. But as can be seen from a review of political developments in 2006, state policy innovation also takes other forms, such as providing an outlet for policies blocked in Washington by gridlock or unified party control, and permitting a range of policy outcomes on controversial issues ripe for different treatment in various states. This could be fortunate, given the difficulty of governing such a large and diverse country if the national government would ever come to be seen as the sole policy incubator, with no recourse for proposals blocked in Washington, and if onesize-fits-all solutions were to be imposed on controversial issues over which citizens are bitterly divided.

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