tag:theconversation.com,2011:/ca-fr/topics/federalism-1172/articlesFederalism – La Conversation2024-02-29T17:13:16Ztag:theconversation.com,2011:article/2227052024-02-29T17:13:16Z2024-02-29T17:13:16ZWhat does a state’s secretary of state do? Most run elections, a once-routine job facing increasing scrutiny<figure><img src="https://images.theconversation.com/files/576849/original/file-20240220-28-5ht4hm.jpeg?ixlib=rb-1.1.0&rect=21%2C5%2C3573%2C2387&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Georgia Secretary of State Brad Raffensperger holds a news conference on Nov. 6, 2020, on the status of ballot counting in the close presidential race between Joe Biden and Donald Trump. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/georgia-secretary-of-state-brad-raffensperger-holds-a-press-news-photo/1229492060?adppopup=true">Jessica McGowan/Getty Images</a></span></figcaption></figure><p>They may be the most important government officials you can’t name. Their decisions have the potential to alter election results. Scholars have referred to them as the “<a href="https://books.google.com/books?id=bpPeCwAAQBAJ&printsec=frontcover#v=onepage&q&f=false">guardians of the democratic process</a>.” </p>
<p>Who are these unknown, but essential, officials? </p>
<p>State secretaries of state.</p>
<p>You probably know only one person with the title “secretary of state,” <a href="https://www.state.gov/secretary/">Antony Blinken, who conducts foreign policy</a> for the U.S. The others serve their individual states, overseeing numerous crucial state functions. In Michigan, the secretary of state <a href="https://www.michigan.gov/sos">provides motor-vehicle services</a>, such as driver’s licenses and auto registrations. In California, the secretary of state heads the <a href="https://www.sos.ca.gov/archives/">public archives</a> that document California history. And in many states, such as Pennsylvania, the secretary of state manages the process <a href="https://file.dos.pa.gov/">for business registration</a>. </p>
<p>Perhaps the most vital role that state secretaries of state play is that of chief election official. </p>
<p>In 38 states, the secretary of state supervises elections. This power is not confined simply to state and local elections, as the position title might suggest, but includes those on the federal level too.</p>
<p>Despite their importance, secretaries of state have historically managed to avoid being the center of attention during election seasons. Times are changing, though. </p>
<p><a href="https://theconversation.com/state-courts-are-fielding-sky-high-numbers-of-lawsuits-ahead-of-the-midterms-including-challenges-to-voting-restrictions-and-to-how-elections-are-run-192682">Disputes over election results and ballot access</a> have become more prominent over the past half-decade. In turn, secretaries of state have <a href="https://www.politico.com/news/2024/02/16/nass-secretaries-state-election-bipartisanship-00141840">faced newfound scrutiny and are likely to become more central figures</a> in coming elections.</p>
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<h2>Power from the Constitution</h2>
<p>The basis for secretary of states’ comprehensive authority is found in the text of the U.S. Constitution: Article I gives states <a href="https://constitution.congress.gov/browse/article-1/section-4/">the power</a> to regulate the “times, places, and manner” of holding congressional elections. Under Article II, the states <a href="https://constitution.congress.gov/browse/article-2/section-1/clause-2/">get to choose</a> how they pick their electors in presidential elections. </p>
<p>The administration of federal elections is thus largely a state affair. Secretaries of state derive their power over state and local elections <a href="https://constitution.congress.gov/constitution/amendment-10/">from the 10th Amendment</a>, which reserves to the states all powers not expressly delegated or prohibited by the Constitution.</p>
<p>This dynamic explains why the Maine secretary of state’s actions can range from keeping former President Donald Trump <a href="https://www.maine.gov/sos/news/2023/BellowsDecisionChallengeTrumpPrimaryPetitionsDec2023.html">off the presidential primary ballot</a> to overseeing <a href="https://www.newscentermaine.com/article/news/politics/elections/maine-local-municipal-elections-june-13-2023/97-a5b1f140-6740-4bef-be4e-3257069cbf87">the 2023 local elections</a>. </p>
<p>It explains why controversies over election certification by Georgia’s secretary of state occurred in both the <a href="https://www.brennancenter.org/our-work/research-reports/fact-check-trumps-georgia-call-raffensperger">2020 presidential election</a> and <a href="https://www.ajc.com/news/state--regional-govt--politics/georgia-certifies-election-results-after-nearly-two-weeks-drama/VOUIvFPmmzxad39XQFuoPP/">2018 gubernatorial election</a>. </p>
<p>As the chief election official, a secretary of state’s influence over the democratic process can extend to every single elected office. </p>
<h2>Substantial sway</h2>
<p>The election-related powers wielded by secretaries of state naturally vary by state. There are, nevertheless, common features. </p>
<p>The majority of secretaries of state determine ballot eligibility for political parties and candidates. Such determinations are typically straightforward: Is the candidate old enough? Are they a natural-born citizen? </p>
<p>Yet, as recent events <a href="https://www.cnn.com/2024/01/31/politics/colorado-secretary-of-state-tells-supreme-court-to-keep-trump-off-ballot/index.html">in Colorado</a> <a href="https://www.maine.gov/sos/news/2023/BellowsDecisionChallengeTrumpPrimaryPetitionsDec2023.html">and Maine</a> concerning Trump’s presidential eligibility under the 14th Amendment show, such decisions have the potential to be complex and <a href="https://theconversation.com/us-supreme-court-decision-on-trump-colorado-ballot-case-monumental-for-democracy-itself-not-just-2024-presidential-election-220643">extraordinarily significant</a>.</p>
<p>The majority of secretaries of state also have the job of certifying the winners of primary and general elections within their states. This is why secretaries were often named as defendants <a href="https://campaignlegal.org/results-lawsuits-regarding-2020-elections">in Trump’s 2020 legal cases</a> challenging the presidential election results.</p>
<p>Secretaries of state often have substantial sway over how you vote. This can include what your ballot looks like on Election Day. </p>
<p>For example, the Montana secretary of state, like many secretaries, has the power to “<a href="https://leg.mt.gov/bills/mca/title_0130/chapter_0120/part_0020/section_0020/0130-0120-0020-0020.html">adopt statewide uniform rules</a>” setting out, among other things, the ordering of candidates on the ballot, how to handle write-in candidates and the procedure for correcting ballots. </p>
<p>These decisions may seem trivial, but as the <a href="https://www.theguardian.com/us-news/2019/nov/19/bad-ballot-design-2020-democracy-america">infamous 2000 election fiasco in Florida showed</a>, ballot design can quite literally affect electoral outcomes. That ballot was ordered in a way that caused some Al Gore supporters to accidentally vote for third-party candidate Pat Buchanan. <a href="https://www.gsb.stanford.edu/faculty-research/publications/butterfly-did-it-aberrant-vote-buchanan-palm-beach-county-florida">Experts have argued</a> that this cost Gore the election. </p>
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<a href="https://images.theconversation.com/files/576855/original/file-20240220-22-8a9gyt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Many boxes of ballots spread across a large room." src="https://images.theconversation.com/files/576855/original/file-20240220-22-8a9gyt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/576855/original/file-20240220-22-8a9gyt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/576855/original/file-20240220-22-8a9gyt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/576855/original/file-20240220-22-8a9gyt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/576855/original/file-20240220-22-8a9gyt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/576855/original/file-20240220-22-8a9gyt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/576855/original/file-20240220-22-8a9gyt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">In Industry, Calif., on Nov. 9, 2022, ballots were received, sorted and verified at the LA County ballot processing facility.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/industry-ca-wednesday-november-9-2022-ballots-are-received-news-photo/1244649591?adppopup=true">Robert Gauthier/Los Angeles Times via Getty Images</a></span>
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<h2>Potential for abuse</h2>
<p>Secretaries of state can also control how your vote is counted. In Nevada, the secretary of state <a href="https://law.justia.com/codes/nevada/2022/chapter-293/statute-293-3677/">can adopt regulations</a> imposing statewide standards for vote counting. </p>
<p>That system gave rise to conflict in the 2022 midterms between the Nevada secretary of state and county officials, when the secretary <a href="https://apnews.com/article/2022-midterm-elections-nevada-reno-barbara-cegavske-4366bc3882e828dd6eab3d8a1c90d954">would not permit</a> county officials to conduct a hand count of mail-in ballots before election day. </p>
<p>Likewise, numerous secretaries of state have the ability to authorize the use – or nonuse – of voting equipment. Such powers were showcased in the wake of the 2020 election when many secretaries <a href="https://www.reuters.com/world/us/pennsylvania-decertifies-countys-voting-machines-after-2020-audit-2021-07-21/">decertified voting machines</a> that were subject to “Stop the Steal” audits by Trump supporters.</p>
<p>This list of powers is far from comprehensive. Indeed, some secretaries of state are granted such broad election authority that they have <a href="https://www.pbs.org/newshour/politics/why-should-you-care-about-your-secretary-of-state">provoked concerns</a> over the potential for abuse. </p>
<p>The Arizona secretary of state, for example, can determine the “<a href="https://www.azleg.gov/ars/16/00411.htm">maximum allowable wait time</a>” at polls. Given <a href="https://www.democracydocket.com/analysis/how-long-lines-affect-turnout/">the negative relationship</a> between poll line length and voter turnout, such power, if misused, could effectively reduce voter participation.</p>
<p>The Arizona secretary of state can furthermore <a href="https://codes.findlaw.com/az/title-16-elections-and-electors/az-rev-st-sect-16-407/">refuse to approve the certification of</a> any election officer – people who help administer elections – seemingly for any reason that does not meet the secretary’s “satisfaction.” </p>
<p>While this authority normally would not raise red flags under a secretary of state acting in good faith, it could allow a secretary with an agenda – perhaps <a href="https://www.ocregister.com/2022/11/18/americans-rejected-stop-the-steal-state-secretaries-in-midterms/">election denialism</a> or favoring one candidate over another – to staff the state’s election administration regime with ideologues.</p>
<h2>How to hold accountable?</h2>
<p>I do not raise these examples to suggest that state secretaries of state are figures to be feared. The vast majority are, from my observations as <a href="https://www.law.virginia.edu/faculty/profile/tpv6dy/jmartin">a practitioner and scholar</a> of election law, excellent public servants. </p>
<p>Nevertheless, their immense influence over the democratic process demonstrates the need for accountability measures in situations where secretaries of state abuse their power – perhaps by <a href="https://www.aclu.org/news/voting-rights/state-officials-who-have-power-suppress-vote">deliberately suppressing the vote</a> or <a href="https://kansasreflector.com/2022/10/22/secretaries-of-state-play-changing-role-in-administering-elections-and-not-in-a-good-way/">acting in an overly partisan manner</a>. </p>
<p>The most obvious means of public accountability is elections. In most states in which the secretary of state is the chief election official, the secretary is in fact elected by the people. </p>
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<p>In seven such states, however, the secretary of state is a political appointee of either the governor or legislature. Appointment certainly does not immunize a secretary from accountability. The barrier for removal, however, may be higher when politics enters the calculation – e.g., requiring a supermajority legislative vote for impeachment.</p>
<p>The drawback to this kind of accountability: lack of immediacy. If a secretary of state is actively harming the democratic process, waiting until the next election year to vote them out may not seem like the best option. </p>
<p>One alternative involves a lawsuit. In 2018, for instance, Georgia advocacy groups <a href="https://kansasreflector.com/2022/10/22/secretaries-of-state-play-changing-role-in-administering-elections-and-not-in-a-good-way/">got a federal court</a> to block then-Secretary of State Brian Kemp from tossing out absentee ballots without notifying voters. </p>
<p>Lawsuits are an imperfect solution. For one, voters will not always have <a href="https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/standing-requirement-overview">the legal right</a> to sue a secretary of state in every instance of wrongdoing. Furthermore, when a lawsuit is brought, the implication is often that harm has already been done.</p>
<p>Internal checks and balances can provide additional accountability. When a secretary of state makes an important election-related decision, that decision could be subject to the scrutiny of another official. This is how it is done in Louisiana, where the secretary of state’s decisions on issues <a href="https://law.justia.com/codes/louisiana/2011/rs/title18/rs18-1306">such as absentee and early voting</a> require the approval of the state’s attorney general.</p><img src="https://counter.theconversation.com/content/222705/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John J. Martin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There are dozens of secretaries of state in the US. Only one deals with foreign affairs. The majority of the rest, state secretaries of state, have powerful positions running elections in each state.John J. Martin, Research Assistant Professor of Law, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2230632024-02-08T21:38:05Z2024-02-08T21:38:05ZSupreme Court skeptical that Colorado − or any state − should decide for whole nation whether Trump is eligible for presidency<figure><img src="https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&rect=86%2C0%2C5131%2C3472&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Police place a fence at the U.S. Supreme Court on Feb. 8, 2024, before justices heard arguments over whether Donald Trump is ineligible for the 2024 ballot. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpInsurrectionAmendment/05e2c7bc3615410b8088714a425193c9/photo?Query=trump%20supreme%20court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5319&currentItemNo=15">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p><em>Both liberal and conservative justices weighed in during oral arguments before the U.S. Supreme Court on Feb. 8, 2024, asking questions concerning whether a constitutional provision, <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">Section 3 of the 14th Amendment</a>, <a href="https://www.nytimes.com/live/2024/02/08/us/trump-supreme-court-colorado-ballot">gave states too much power</a> to affect a national election.</em> </p>
<p><em>Colorado’s highest court relied on the provision in a <a href="https://www.npr.org/2023/12/20/1220583273/trump-colorado-supreme-court-ruling">December 2023 ruling that the state could bar</a> former President Donald Trump from the state’s primary ballot because they determined he committed insurrection.</em></p>
<p><em>“Why should a single state have the ability to make this determination, not only for their own citizens, but for the rest of the nation?” asked liberal Justice Elena Kagan on Feb. 8.</em></p>
<p><em>The Conversation’s senior politics and democracy editor, Naomi Schalit, spoke with Notre Dame <a href="https://law.nd.edu/directory/derek-muller/">election law scholar Derek Muller</a> after the oral arguments.</em> </p>
<p><em>Muller had submitted <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298021/20240118122740839_23-719%20Amicus%20Brief.pdf">an amicus brief</a> to the court “in support of neither party” in the case, using the opportunity to describe some concerns for the court’s consideration about whether and how states go about the business of judging qualifications of candidates before putting their names on the ballot.</em> </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two voting booths, with people in each one of them." src="https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Will Donald Trump be on the ballot for president in Colorado?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/voters-voting-in-polling-place-royalty-free-image/138711411?phrase=voting+booth+united+states&adppopup=true">Hill Street Studios/Getty Images</a></span>
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<p><strong>What are your first impressions of the oral arguments?</strong></p>
<p>The Supreme Court was very skeptical that, as an institution, it should be the one responsible for deciding this deeply contested question, and it seemed skeptical that the state of Colorado could do this on its own without some congressional guidance or authorization.</p>
<p>They recognized this as a contested political issue. And I think the concern that one state could effectively alter a national presidential election – without any sort of guidance from Congress or explanation at the federal level about how to go about doing that – was problematic.</p>
<p><strong>The justices did not appear to be divided and partisan in their discussion of the case.</strong></p>
<p>The notion that different states could have different standards for disqualifying presidential candidates, and that they would all come up to the Supreme Court to sort it out, was disturbing to them across the political spectrum. On the whole, they seemed inclined to reverse the Colorado Supreme Court.</p>
<p><strong>Justice Brett Kavanaugh mentioned his concerns about states having such power over a national office. The Colorado solicitor general referred to the “messiness of federalism.” What does this mean?</strong> </p>
<p>States are the ones who have the primary responsibility of <a href="https://constitution.congress.gov/browse/article-2/section-1/">running presidential elections</a>. And Colorado was leaning very heavily into this authority they have over which candidates to list on the ballot and how that can vary from state to state. The pushback from the Supreme Court in this case was to say, in essence, you’re not dealing with local or state interests, you’re not dealing with these state-specific procedures for how you list candidates on the ballot. You are interpreting a provision of the U.S. Constitution, and then you are applying it in your own state in a way that could affect what happens in other states. </p>
<p>The court did lean much more heavily into the notion that when you’re dealing with a national office, like the office of the presidency, and dealing with a nationwide issue, like Section 3 of the 14th Amendment, it should not be left to each state’s devices to decide how to apply and administer that issue to that office. </p>
<figure class="align-center ">
<img alt="A man on at a lectern, flanked by American flags, talking to a crowd of people, many wearing red hats." src="https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Republican presidential candidate and former U.S. President Donald Trump speaks during a campaign event in Las Vegas on Jan. 27, 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/republican-presidential-candidate-and-former-u-s-president-news-photo/1966049773?adppopup=true">Photo by David Becker/Getty Images</a></span>
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<p><strong>So you’re saying this actually isn’t a problem of federalism, it’s a problem created by a lack of clear understanding of this 14th Amendment provision?</strong></p>
<p>Federalism is a way of thinking about the proper allocation of authority between the federal government and state governments. Federalism is not simply the idea that states get to do what they want.</p>
<p>Sometimes they can. But in other places the federal government has the final say, or the federal government is the one with the authority to make these determinations. And when it came to Section 3 of the 14th Amendment, when you have these messy, contested disputes, should this happen on a state-by-state basis? </p>
<p>The court seemed inclined to think that this is something better left to Congress, rather than states unilaterally interpreting Section 3 on their own. </p>
<p><strong>So does that mean the court would like Congress to make things more clear?</strong> </p>
<p>Absolutely. Is it a dodge to say Congress needs to be responsible for this area? Yes. And you can look at Congress and say, have they really legislated in this area? Are they realistically going to legislate in this area? The answer is probably no. Congressional inaction means that these provisions are not going to be enforced, at least as they apply to the events of Jan. 6, 2021, for federal candidates. </p>
<p><strong>How would a court decision affect states other than Colorado?</strong> </p>
<p>If the court issues a decision in the way it seems that it’s going to decide this case, it would prevent any states – at least in presidential elections – from keeping candidates off the primary or general election ballots under Section 3 of the 14th Amendment without some kind of federal guidance to get there. </p>
<p>That means there won’t be similar cases in other states, and the ones that are pending will be resolved in Trump’s favor. So I think this will be left to the political process. Trump will appear on the ballot, and the candidacies will proceed as if none of this had happened. </p>
<p><strong>But does that then just kick a decision down the road, and Congress would have to decide after the election whether the president-elect – if Trump wins – is qualified to serve, a problem that the Colorado plaintiff’s lawyer said “could come back with a vengeance”?</strong> </p>
<p>Congress has the power to count electoral votes. In the past, it has rejected electoral votes, including in 1873 when a presidential candidate died. The worry here is that perhaps Congress would refuse to count electoral votes for a candidate who was an insurrectionist. And if that happens on Jan. 6, 2025, that puts the nation in a precarious place. Or if Trump takes office, there are likely to be many lawsuits to challenge his official actions by others who are saying he’s an insurrectionist who cannot hold office or act as president. </p>
<p>So a decision in the direction the court appears to be going in has the virtue of allowing the political process to play out. But it does leave open questions later about counting electoral votes or even serving in office, and open questions about mechanisms to challenge those actions and what they look like.</p><img src="https://counter.theconversation.com/content/223063/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I filed an amicus curiae brief in support of neither party in this case.</span></em></p>Partisan differences at the Supreme Court seemed to be set aside as conservative and liberal justices alike asserted concerns about giving states too much power over national elections.Derek T. Muller, Professor of Law, University of Notre DameLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2215032024-01-23T15:13:06Z2024-01-23T15:13:06ZWhat does Wales’ future hold? New report maps options for more devolution, federal and independent futures<figure><img src="https://images.theconversation.com/files/570678/original/file-20240122-25-8l3je8.jpg?ixlib=rb-1.1.0&rect=20%2C20%2C6968%2C2305&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Independent Commission on the Constitutional Future of Wales was set up in 2021 and has been gathering evidence since then.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/united-kingdom-vs-wales-welsh-smoky-1354803587">vladm/Shutterstock</a></span></figcaption></figure><p>A <a href="https://www.gov.wales/independent-commission-constitutional-future-wales">commission</a> set up to consider the constitutional future of Wales has published its <a href="https://www.gov.wales/sites/default/files/publications/2024-01/independent-commission-on-the-constitutional-future-of-wales-final-report.pdf">final report</a>. The Independent Commission on the Constitutional Future of Wales, co-chaired by former Archbishop of Canterbury Dr Rowan Williams and Cardiff University’s Professor Laura McAllister, maps three different “viable” options.</p>
<p>First, they suggest “enhancing” devolution. This would see Wales operating similarly to how it does now, only with more powers for justice and policing, financial management and rail services. This option also proposes greater cooperation between Cardiff and London on energy and broadcasting.</p>
<p>Second, it suggests Wales joins a federalised UK system. This <a href="https://www.centreonconstitutionalchange.ac.uk/opinions/federal-future-uk">idea</a> often draws comparisons to the <a href="https://www.law.cornell.edu/wex/federalism">US model</a>. But the key feature here is granting Wales guaranteed legal rights and defined areas of responsibility, while the UK government handles broader matters like national security and international treaties.</p>
<p>Finally, it suggests a Wales which is fully independent from the UK.</p>
<p>While the commission finds all of the options to be possible, with advantages and disadvantages, it does not recommend one as the “correct” outcome. Instead it finds that there needs to be a constructive and evidence-based debate which engages Welsh citizens, so that an informed choice can be made. </p>
<figure class="align-center ">
<img alt="Rowan Williams stands next to Laura McCallister in the middle of a shopping street." src="https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/570683/original/file-20240122-29-v8agms.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Former Archbishop of Cantebury Dr Rowan Williams and Professor Laura McCallister co-chaired the commission.</span>
<span class="attribution"><span class="source">Independent Constitutional Commission for Wales</span></span>
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</figure>
<p>The Welsh government <a href="https://www.gov.wales/node/42768/latest-external-org-content?page=4">established</a> the commission in 2021. It was set up to ensure Wales is ready for any radical changes in the union, such as Scottish independence, for example. The panel included people from the four main political parties, various organisations and also surveyed the Welsh public.</p>
<h2>Criticising the status quo</h2>
<p>The report maps the deficiencies in the current devolution settlement. It identifies how the fall-out from Brexit has exposed the fragility of devolution, through Westminster disregarding the <a href="https://commonslibrary.parliament.uk/research-briefings/sn02084/">Sewel convention</a>. This states the UK parliament will “not normally” pass a law which is within the remit of the devolved legislature without the <a href="https://www.parliament.uk/site-information/glossary/legislative-consent/">agreement</a> of the devolved institution. However, the convention is not legally enforceable. </p>
<p>Since the <a href="https://www.consoc.org.uk/wp-content/uploads/2018/04/Gordon-Anthony-Devolution-Brexit-and-the-Sewel-Convention-1.pdf">2016 referendum</a>, the report points out that the Sewel convention has been overridden on 11 occasions with virtually no scrutiny in Westminster. It finds that devolution is at risk of gradual attrition if steps are not taken to add legal enforcement to the current convention system.</p>
<p>In their <a href="https://www.gov.wales/sites/default/files/publications/2022-12/independent-commission-the-constitutional-future-of-wales-interim-report-december-2022.pdf">interim report</a>, published in December 2022, the commission found that the status quo is neither viable for the stability nor prosperity of Wales. However, in the <a href="https://www.gov.wales/sites/default/files/publications/2024-01/independent-commission-on-the-constitutional-future-of-wales-final-report.pdf">final report</a> the language surrounding this was revised slightly to reflect citizens having a choice to choose “no change”. </p>
<p>The language used by Professor McAllister at the Senedd report launch, however, was more critical. She expressed disappointment with the quality of evidence from those who should have been in a position to defend the status quo. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/WSOlBi1VY-g?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Final report launch event at the Senedd.</span></figcaption>
</figure>
<h2>Communication and engagement</h2>
<p>Part of the commission’s work included surveying Welsh citizens. The report finds people in Wales are often unsure about who makes the decisions on different issues. Some people mistakenly believe areas like policing and broadcasting are already devolved to the Welsh government, while others incorrectly identified the UK government as being responsible for health. </p>
<p>The report offered insights as to why this may be the case. This includes an absence of a Welsh perspective on UK affairs in the media. For example, 73% of people agreed they don’t see or hear enough about how Wales is run. </p>
<p>Public confusion is another concern. When the UK government steps in on matters already devolved to Wales, citizens struggle to understand which government is calling the shots and on which issues.</p>
<p>It finds that 81% are very or fairly concerned about how Wales is run. But Welsh citizens also lack confidence in their knowledge of the governance of Wales when discussing the constitution in abstract terms. Despite the maturity of Wales’ democratic institutions, the commission finds that devolution does not yet enjoy citizens’ full confidence, and that Welsh democracy therefore needs strengthening. The findings stress the need for more democratic innovation and community engagement that is appropriately resourced. </p>
<p>The commission acknowledges the wider challenges surrounding the current UK environment, particularly in terms of declining trust in political institutions, and the polarisation of debates surrounding Brexit and COVID-19. It acknowledges that many conflate questions about constitutional structure with assessments of the government of the day, and so greater civic engagement is needed. </p>
<h2>What next?</h2>
<p><a href="https://www.gov.wales/sites/default/files/publications/2024-01/independent-commission-on-the-constitutional-future-of-wales-final-report.pdf">The commission</a> stresses that all options are theoretically viable. Which step is pursued is dependent upon the values and risks people are willing to accept. </p>
<p>The report details the harm independence would cause to the Welsh economy in the short to medium term, making it a particularly unattractive option in the current climate. It also states that support for an independent Wales, or indeed the abolition of the Senedd, are in the minority. </p>
<p>Regarding the federal model or Welsh independence, wider UK input would be needed. This is because some of the issues are outside the current <a href="https://commonslibrary.parliament.uk/research-briefings/cbp-8544/">competence of the Senedd</a>. </p>
<p>The option of an enhanced and protected devolution is more achievable, it says. But inter-governmental relations would need to be improved to achieve this. Some 92% of people surveyed believed it was important for governments to work together. The Welsh citizens who were questioned had little time for governments blaming each other, which ultimately feeds disaffection with politics entirely. </p>
<p>The next step must be about moving away from political point scoring and slogans, and widening the national conversation about what could be the best constitutional future for Wales. Politicians in the Senedd and Westminster will set the initial tone but that debate needs to be mature and evidence-based.</p><img src="https://counter.theconversation.com/content/221503/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Clear does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Independent Commission on the Constitutional Future of Wales acknowledges each option requires UK government involvement.Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2200402023-12-19T19:02:18Z2023-12-19T19:02:18ZFrom COVID to climate: Queensland’s new emissions pledge shows state governments are once again leading change<p>A striking development in recent years has been the increasing role of state governments in responding to global crises. </p>
<p>The <a href="https://www.theguardian.com/australia-news/2023/dec/15/steven-miles-announces-ambitious-emissions-reduction-plan-in-first-speech-as-queensland-premier">announcement</a> by newly installed Queensland Premier Steven Miles of an ambitious 75% by 2035 emissions cut target is a case in point.</p>
<p>The renewed centrality of state governments became dramatically evident as the COVID pandemic unfolded, where the states responded strongly while the Commonwealth <a href="https://www.themonthly.com.au/issue/2021/september/1630418400/john-quiggin/dismembering-government">often seemed paralysed</a>.</p>
<p>But it is also true of the response to climate change, where successive national governments have been unable or unwilling to take serious action. The only notable exception – the 2012 carbon price under the Gillard minority government – was extracted by the Greens in return for their support.</p>
<p>Does it matter who does the work? Yes. State efforts can take us a long way towards cutting emissions. But we need federal policies on nationwide issues such as electrifying transport. </p>
<h2>How did we get here?</h2>
<p>Several decades of neoliberal reform and the mantra of <a href="https://anzsog.edu.au/research-insights-and-resources/research/has-new-public-management-improved-public-services/">new public management</a> – bringing business-style competition to the public service – have hollowed out the capacity of the national government to do anything directly. Instead, they have to <a href="https://www.themonthly.com.au/issue/2021/september/1630418400/john-quiggin/dismembering-government">rely on contractors and consultants</a>, limiting any real federal capacity for decisive policy action. </p>
<p>By contrast, hollowing out has been much more muted at state level, where the need to provide schools, hospitals, police and other services have kept governments closer to the actual business of policy delivery.</p>
<p>This pattern of Commonwealth inertia and state activism goes back as far as the 2008 <a href="https://apo.org.au/node/3028">Garnaut Review of Climate Change</a>, commissioned by state governments in response to the Howard Coalition government’s unwillingness to act. </p>
<p>The Labor government took over support for the review after the 2007 election, but the Rudd Government was unable to secure bipartisan support for climate policies. </p>
<p>When the Coalition was back in office from 2013 to 2022, climate denialists in their ranks sought to do the minimum possible without openly rejecting global efforts to stabilise the climate. </p>
<p>By 2022 it was clear Australia would easily exceed our Paris Agreement commitment of a 26% reduction on 2005 emissions through land use change and the rise of renewables. Even so, the power of the denialists was such that the government’s backbench would not consent to an official increase in the target.</p>
<p>As a result, the new Albanese government could commit to a substantially higher target of 43% without any significant policy effort. </p>
<p>Instead of the carbon price Opposition Leader Bill Shorten had promised in 2019, Albanese offered <a href="https://theconversation.com/australia-will-have-a-carbon-price-for-industry-and-it-may-infuse-greater-climate-action-across-the-economy-202728">an upgrade</a> to the Safeguard Mechanism, introduced by the Coalition. Energy and Climate Minister Chris Bowen has <a href="https://www.smh.com.au/politics/federal/no-compulsion-for-households-to-buy-evs-or-greener-appliances-government-pledges-20231130-p5eo1m.html">ruled out</a> modest steps such as ending the sale of internal-combustion engine cars by 2040.</p>
<p>Almost all states and territories now have 2030 emission cut goals more ambitious than the national 43% target:</p>
<ul>
<li>New South Wales: 50% </li>
<li>Victoria: 50%</li>
<li>South Australia: at least 50% </li>
<li>Western Australia: 80% below 2020 levels</li>
<li>Australian Capital Territory: 65–75% below 1990 levels</li>
<li>Tasmania: achieved net zero in 2015. </li>
</ul>
<p>Until last week, Queensland was the odd state out, with a 2030 target reduction of only 30% relative to 2005. The new goal – 75% by 2035 – moves Queensland from the back of the pack almost to the front. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/cop28-deal-confirms-what-australia-already-knows-coal-is-out-of-vogue-and-out-of-time-219906">COP28 deal confirms what Australia already knows: coal is out of vogue and out of time</a>
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<h2>Can Queensland really move so quickly?</h2>
<p>The first step towards achieving this goal was largely symbolic: the knockback of a new coal-fired power station proposed by mining magnate Clive Palmer. The proposal was almost certainly unviable, as it assumed the use of <a href="https://www.atse.org.au/news-and-events/article/does-ccs-make-economic-sense/">economically questionable</a> carbon capture and storage technology. </p>
<p>The easiest option is to accelerate the transition away from existing coal power plants. In Queensland, it’s made easier because coal generators are owned by the state. </p>
<p>To achieve a 75% reduction target, the government’s clean energy agency, CleanCo, will have to be expanded substantially, and coal power put out to pasture faster than already planned.</p>
<p>If the state fully greens its power sector, that would remove <a href="https://www.stateoftheenvironment.des.qld.gov.au/pollution/greenhouse-gas-emissions#:%7E:text=In%202018%2C%20emissions%20from%20the,or%2045%25%20of%20total%20emissions.">45% of the state’s emissions</a>. </p>
<p>There are harder emissions to cut. It will need policies encouraging heavy industry to shift towards carbon-free energy sources such as electricity and hydrogen derived from wind and solar energy. The necessary technologies exist for industries such as steelmaking and cement, but have yet to be fully developed. </p>
<p>But the really hard challenge will be when new coal mines and gas fracking projects are proposed. </p>
<p>When buyers burn fossil fuels exported from Queensland, these emissions don’t count towards the state’s targets. But what does count are fugitive emissions of highly potent methane, which have been systematically underestimated. Using satellites, the International Energy Agency <a href="https://www.smh.com.au/politics/federal/australia-vastly-underreporting-methane-pollution-report-finds-20230704-p5dll7.html">has estimated</a> Australia’s methane emissions from coal mines to be 81% higher than official estimates, and 92% higher than official estimates of emissions from fracking and oil extraction. </p>
<p>Even by Queensland’s own conservative estimates, these emissions accounted for <a href="https://www.stateoftheenvironment.des.qld.gov.au/pollution/greenhouse-gas-emissions/fugitive-emissions-sector-greenhouse-gas-emissions">11% of the entire state’s total</a> in 2018. </p>
<p>Miles <a href="https://www.theaustralian.com.au/nation/steven-miles-guarantees-future-of-queensland-coal-mining-gas-production/news-story/cbe7fc1e6c85f17cd0a2f04a5773bdbc">has promised</a> new fossil fuel projects will be assessed on a case-by-case basis. </p>
<h2>What do we need the Commonwealth for?</h2>
<p>State ambition will take us a fair distance, but not the whole way. On electrification of transport, states will need the Commonwealth government to lead since vehicle standards are set nationally.</p>
<p>Queensland’s fresh ambition puts us in the paradoxical situation where all of Australia’s states are committed to doing more than the Commonwealth. That is, in part, because states are able to do more. </p>
<p>But with the next federal election less than two years away, a slump in the polls and a very thin record of policy achievements, we may yet see the Albanese government leave behind its timidity and take braver action. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/two-charts-in-australias-2023-climate-statement-show-we-are-way-off-track-for-net-zero-by-2050-218930">Two charts in Australia's 2023 climate statement show we are way off track for net zero by 2050</a>
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<img src="https://counter.theconversation.com/content/220040/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Quiggin is a former Member of the Climate Change Authority</span></em></p>Australia’s federal government has been hollowed out in recent decades. But states can – and still do – deliver. That’s why they are the main drivers of climate action.John Quiggin, Professor, School of Economics, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2191032023-12-06T13:27:44Z2023-12-06T13:27:44ZSandra Day O’Connor’s experience as a legislator guided her consensus-building work on the Supreme Court<figure><img src="https://images.theconversation.com/files/563407/original/file-20231204-27-mosbtg.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C6000%2C4275&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sandra Day O’Connor, shortly after her Supreme Court nomination was confirmed by the Senate on Sept. 1, 1981. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/USSENATECONFIRMSOCONNOR/9e83ced460e5da11af9f0014c2589dfb/photo?Query=Sandra%20Day%20O%27Connor&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=Anytime&totalCount=481&currentItemNo=20">AP Photo/Scott Applewhite</a></span></figcaption></figure><p>When Sandra Day O’Connor <a href="https://www.supremecourt.gov/visiting/sandradayoconnor.aspx">stepped down from the U.S. Supreme Court</a> in 2006, she was the last justice to have <a href="https://oconnorinstitute.org/civic-programs/oconnor-history/sandra-day-oconnor-policy-archives-research-library/biography/">served as an elected legislator</a>. She previously was a member of the <a href="https://apps.azlibrary.gov/officials/Legislators/Person/1047">Arizona state Senate and later its majority leader</a>. </p>
<p><a href="https://www.nytimes.com/2023/12/01/us/sandra-day-oconnor-dead.html">O’Connor died at age 93 on Dec. 1, 2023</a>, and since then, the many obituaries and tribute columns for her noted her state legislative experience and the unique perspective it gave her on the court’s work. </p>
<p>That experience included building coalitions and crafting legislative compromises, reaching across partisan divisions to find agreement on contentious policy issues. </p>
<p>O’Connor the state legislator learned the value of incrementalism, of the importance of small steps to produce majority support. O’Connor brought this value to her judging, which fostered consensual decision making. </p>
<p>These were the features of her contributions that I highlighted in my studies of her judicial record, “<a href="https://books.google.com/books/about/Justice_Sandra_Day_O_Connor.html?id=fhdeG-09Fq0C">Justice Sandra Day O’Connor: Strategist on the Supreme Court</a>” and “<a href="https://books.google.com/books/about/Queen_s_Court.html?id=PPwVAQAAIAAJ">Queen’s Court: Judicial Power in the Rehnquist Era</a>.” O’Connor’s ability to <a href="https://www.cnn.com/2023/12/01/politics/oconnor-legacy-biskupic-analysis/index.html">find the court’s center</a>, expressed in rulings and persuasive legal arguments, was magnified by more than two decades of being at the court’s ideological center, as its pivotal justice and deal-maker between conservative and liberal blocs. </p>
<p>Yet despite this power and innate political sense, her commitment to principles – structural ones such as <a href="https://www.law.cornell.edu/wex/federalism">federalism</a>, which is the division of power between national and state governments, and procedural ones such as <a href="https://www.law.cornell.edu/wex/stare_decisis">stare decisis</a>, in which courts followed precedent in their rulings – was never in doubt. But her commitment was not rigid, and her principles allowed her to make credible bargains with many different justices with whom she served.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/563430/original/file-20231204-21-xganjc.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two pamphlets urging voters to vote for State Senator Sandra O'Connor." src="https://images.theconversation.com/files/563430/original/file-20231204-21-xganjc.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/563430/original/file-20231204-21-xganjc.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=712&fit=crop&dpr=1 600w, https://images.theconversation.com/files/563430/original/file-20231204-21-xganjc.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=712&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/563430/original/file-20231204-21-xganjc.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=712&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/563430/original/file-20231204-21-xganjc.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=895&fit=crop&dpr=1 754w, https://images.theconversation.com/files/563430/original/file-20231204-21-xganjc.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=895&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/563430/original/file-20231204-21-xganjc.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=895&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Pamphlets related to Sandra Day O’Connor’s campaign for the Arizona state Senate.</span>
<span class="attribution"><a class="source" href="https://www.supremecourt.gov/visiting/exhibitions/SOCExhibit/Section2.aspx">U.S. Supreme Court</a></span>
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<h2>Independent, not ideological</h2>
<p>As <a href="https://www.politico.com/news/2023/12/01/sandra-day-oconnor-death-tributes-00129581">many of</a> her <a href="https://schiff.house.gov/news/press-releases/a-tribute-to-justice-sandra-day-o-and-39connor">recent tributes</a> have noted, O’Connor banded with the centrist and moderate conservative justices on the Rehnquist Court to preserve the “essential holding” of Roe v. Wade that “protects a woman’s right to terminate her pregnancy in its early stages” in the joint opinion of <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood v. Casey</a> in 1992.</p>
<p>She also found common cause with fellow <a href="https://www.oyez.org/justices/william_h_rehnquist">Arizona Republican William Rehnquist</a> – a much stricter judicial conservative than she – toward a doctrine of constitutional federalism more protective of states’ interests. With her liberal judicial colleague Ruth Bader Ginsburg, <a href="https://www.pbs.org/wgbh/americanexperience/features/sandra-day-oconnor-and-ruth-bader-ginsburg-changed-supreme-court-and-country/">she voted in support of</a> <a href="https://www.oyez.org/justices/ruth_bader_ginsburg">dismantling systems and practices that perpetuated sex-based discrimination</a>. </p>
<p>Some commentators derided her jurisprudence as <a href="https://www.dorfonlaw.org/2023/12/the-justice-of-compromise-rip-sandra.html">overly legislative in character</a>. She did practice a fact-based balancing approach to the formation and application of case law and an incremental, case-by-case approach to developing legal rules. </p>
<p>Her opinions generated a series of doctrinal “tests,” which identified key facts of concern in the case record and proposed standards – or “rules of thumb” – to be used to balance the interests at issue in future applications of the law. </p>
<p>One example: In the abortion context, O’Connor wrote that the threshold against which a state regulation or restriction of pre-viability abortion <a href="https://oconnorlibrary.org/supreme-court/akron-v-akron-ctr-for-reprod-health-1982">should be measured was that it could not “unduly burden”</a> the pregnant woman’s choice. Reproductive rights should be overtly and consciously balanced with important state interests in protecting life, both maternal and fetal. Such commonsense judicial doctrine – and the legislative and policy compromises that it acknowledged and engendered – has been what the current court, under Chief Justice John Roberts, has almost <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">gleefully repudiated as “unworkable</a>.” </p>
<p>The 2022 majority opinion in <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson Women’s Health Organization</a> that overturned both Roe and Casey never did adequately explain just how “undue burdens” was unworkable. Arguably, what doomed the “undue burdens” standard in the eyes of the court’s modern conservative justices was that it constituted a calibrated compromise and one that was rooted in facts, not ideological rules or interpretive purity.</p>
<p>The current GOP appointees on the Supreme Court have no exclusive claim to the label of doctrinaire behavior, of course. Legislators are also quite capable of doctrinaire thinking and righteous resistance to building difficult consensus – as majorities in the House of Representatives and several statehouses <a href="https://apnews.com/article/republicans-house-leadership-chaos-states-infighting-bb5d9287214cd5aa0a1fdf03b56bebcb">currently demonstrate</a>. </p>
<p>But O’Connor was a different kind of Republican politician with a very different attitude toward accommodating solutions. Where critics might see a standardless, finger-to-the-wind type of judicial decision making, in my analysis, O’Connor identified durable, practical ways of proceeding that offered something for both sides of a political dispute.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/563432/original/file-20231204-15-89vvpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two women seated in a large, marble-floored hall, surrounded by large statues of men." src="https://images.theconversation.com/files/563432/original/file-20231204-15-89vvpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/563432/original/file-20231204-15-89vvpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=417&fit=crop&dpr=1 600w, https://images.theconversation.com/files/563432/original/file-20231204-15-89vvpq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=417&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/563432/original/file-20231204-15-89vvpq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=417&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/563432/original/file-20231204-15-89vvpq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=524&fit=crop&dpr=1 754w, https://images.theconversation.com/files/563432/original/file-20231204-15-89vvpq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=524&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/563432/original/file-20231204-15-89vvpq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=524&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Supreme Court Justices Sandra Day O'Connor, left, and Ruth Bader Ginsburg in the U.S. Capitol’s Statuary Hall, on March 28, 2001. Both voted in support of dismantling systems and practices of sex-based discrimination.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-only-two-female-justices-of-the-u-s-supreme-court-news-photo/72440265?adppopup=true">David Hume Kennerly/Getty Images</a></span>
</figcaption>
</figure>
<h2>Pragmatism and compromise</h2>
<p>O’Connor <a href="https://www.supremecourt.gov/visiting/sandradayoconnor.aspx">retired from the court almost two decades ago</a>, and the legacy of her approach to the law seems more diminished with each passing term of the Roberts era. </p>
<p>That erosion of her influence didn’t sit well with her. </p>
<p>“<a href="https://www.latimes.com/opinion/story/2023-12-03/sandra-day-oconnor-supreme-court-abortion">What would you feel</a>?” she retorted in response to a question in 2009 about her rulings being reversed by an increasingly right-wing court. </p>
<p>Jurists who practice O’Connor’s method, with its balancing-of-interests, case-by-case and fact-based approach to rule making, cannot guarantee that their accommodations will survive. </p>
<p>O’Connor famously predicted, in her <a href="https://www.oyez.org/cases/2002/02-241">2003 Grutter v. Bollinger opinion</a> for the court, that a narrowly tailored use of racial preferences – or a limited and circumscribed affirmative action admissions policy – <a href="https://theconversation.com/a-2003-supreme-court-decision-upholding-affirmative-action-planted-the-seeds-of-its-overturning-as-justices-then-and-now-thought-racism-an-easily-solved-problem-208807">would no longer be necessary in 25 years</a>. </p>
<p>The Supreme Court majority made much of this observation of hers last term in their <a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf">invalidation of race-conscious admissions programs</a> at Harvard and the University of North Carolina. It was a rejection of her pragmatic understanding of affirmative action admissions policies. </p>
<p>When I think about O’Connor’s contributions and legacy, I too think of one of her famous doctrinal tests – one rooted in context and practicality, not an ideologically defined interpretive philosophy. </p>
<p>In the contested area of religion in the public sphere, O’Connor became identified with something called <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4265992">the “endorsement” test</a>. It looked, quite commonsensibly, at whether a government sponsorship or support of a religious practice, entity or symbol could be understood as conveying a message of endorsement of a religion, <a href="https://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion">which the First Amendment forbids</a>. The test required an assessment of the context and the facts on the ground to determine whether that message was also an impermissible public statement about who belongs to the community and who doesn’t.</p>
<p><a href="https://constitution.congress.gov/browse/essay/amdt1-3-3/ALDE_00013073/">Without ever being officially adopted</a> as the court’s doctrinal rule, O’Connor’s endorsement test guided judicial judgments about public display of religious images, state aid for religious institutions and religious conduct by public officials until very recently. </p>
<p>But questions about First Amendment establishment of religion and a separation of church and state were becoming more politicized even before O’Connor left the court. And in 2022, in <a href="https://www.oyez.org/cases/2021/21-418">Kennedy v. Bremerton School District</a>, the majority upheld a high school football coach’s religious freedom to engage in prayer at the close of a public school football game. </p>
<p>In that majority decision, the Roberts court dismissed any concern for endorsement of religion by the government, dismissing also the “ahistorical” and “atextual” test. But in order to get there, the conservative justices in the majority also minimized and even disregarded much of the case’s factual record: about players and other school employees joining the public prayer and disruption from media sensationalizing of the conflict.</p>
<p>Facts that were relevant to understanding the actual message of the prayer exercise and its actual impact on the community were swept aside in Bremerton. I think of this decision as showing the distance, here and now, that the court and its justices have moved from O’Connor’s approach to the law and to being a judge.</p><img src="https://counter.theconversation.com/content/219103/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nancy Maveety does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The first female justice on the Supreme Court was also the last justice to have served as an elected official. And her contributions to the court reflected her political experience and pragmatism.Nancy Maveety, Professor of Political Science, Tulane UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2172172023-11-26T08:40:58Z2023-11-26T08:40:58ZWhat is federalism? Why Ethiopia uses this system of government and why it’s not perfect<p><a href="https://books.google.co.uk/books?hl=en&lr=&id=0CQBBAAAQBAJ&oi=fnd&pg=PR7&dq=Elazar,+federalism&ots=7_EoePhxVm&sig=vtSyxjKaMi8qqzhyHsk9Oj_OIrU#v=onepage&q=Elazar%2C%20federalism&f=false">Federalism</a> is a system of government where power is shared between a central authority and smaller regional governments. </p>
<p>Many countries adopt federalism to manage ethnic diversity within their borders and help promote unity. There are <a href="https://forumfed.org/countries/">25 federal countries globally</a>, representing 40% of the world’s population. </p>
<p>Federalism allows regions to govern some of their affairs – such as decisions regarding education or working languages – while being part of the larger country. </p>
<p>Ethiopia adopted federalism in 1991 when the Ethiopian People’s Revolutionary Democratic Front (EPRDF) – a coalition of four major parties – came to power. This followed 17 years of insurgencies to depose the Derg, a communist military junta that ruled the country from 1974 to 1991.</p>
<p>The primary aim of Ethiopian federalism is to accommodate the country’s <a href="https://www.cambridge.org/core/books/history-of-modern-ethiopia-18551991/C0852BA84C34071333C899ACC8F1C863">diverse ethnic groups</a>. Before 1991, Ethiopia had a <a href="https://doi.org/10.1177/00219096221097663">centralised unitary government</a> that suppressed diversity. It restricted ethnic groups from using their languages in official settings and schools. </p>
<p>Ethiopian federalism grants ethnic groups the <a href="https://www.ethiopianembassy.be/wp-content/uploads/Constitution-of-the-FDRE.pdf#page=13">right to self-determination</a>. An ethnic group can form its own region or become an independent country. This approach has drawn both praise and criticism. </p>
<p>Some academics view it as a <a href="https://doi.org/10.2307/524968">novel approach</a> to resolving conflicts and preventing state disintegration. It’s impossible to forge unity without the voluntary alliance and assurance of the right to self-determination. Others <a href="https://www.cambridge.org/core/journals/journal-of-african-law/article/abs/ethiopias-leap-in-the-dark-federalism-and-selfdetermination-in-the-new-constitution/A05454ABA30C4C79F78DD7397FF91BED">argue that it worsens tensions</a> and could eventually lead to disintegration. </p>
<p>I have <a href="https://doi.org/10.1093/publius/pjad015">studied</a> Ethiopian politics for more than a decade, with a <a href="https://doi.org/10.1093/publius/pjac039">focus</a> on <a href="https://kar.kent.ac.uk/92367/">the implementation of federalism</a>. After more than 30 years, ethnic conflict in Ethiopia hasn’t been resolved – but neither has the country disintegrated. </p>
<p>In my view, federalism remains the best approach for Ethiopia. It allows for cultural and language freedoms. It enables self-rule at regional levels, and has contributed to economic growth. The system, however, is not without its drawbacks. An increase in democratic space would allow more voices to be heard.</p>
<h2>How Ethiopian federalism works</h2>
<p>Ethiopia’s approach to federalism is bold <a href="https://doi.org/10.1093/publius/pjad015">compared to other highly diverse African</a> federal states. Nigeria, for instance, has avoided constitutional recognition of ethnic diversity. <a href="https://www.ethiopianembassy.be/wp-content/uploads/Constitution-of-the-FDRE.pdf#page=13">Article 39 of Ethiopia’s federal constitution</a>, adopted in 1995, explicitly acknowledges the country’s ethnic diversity.</p>
<p>Ethiopia is a federation comprising nations and nationalities, each possessing sovereignty as defined in <a href="https://www.ethiopianembassy.be/wp-content/uploads/Constitution-of-the-FDRE.pdf#page=4">Article 8 of the constitution</a>. Nations and nationalities with defined territorial homelands have the right to establish their own regions or even seek independence. </p>
<p>There are 12 regions in the country, each with <a href="https://www.ethiopianembassy.be/wp-content/uploads/Constitution-of-the-FDRE.pdf#page=20">extensive authority</a>. This includes policymaking, constitution making, choosing a working language, and maintaining regional police and civil services.</p>
<p>However, the exercise of these powers has been constrained by <a href="https://brill.com/view/journals/ijgr/28/5/article-p972_972.xml">the dominance of the party system</a>. </p>
<p>Between 1991 and 2019, the EPRDF tightly controlled regional governments. It <a href="https://doi.org/10.1177/00219096221097663">suppressed any demands for self-rule</a>. The coming to power of Abiy Ahmed in 2018 helped open up the political space. The prime minister established the Prosperity Party by <a href="https://www.bbc.co.uk/news/world-africa-50515636">merging three of the parties that made up the EPRDF</a>, as well as its smaller affiliates. The Tigray People’s Liberation Front refused to amalgamate. </p>
<p>Abiy addressed some of the demands from various ethnic groups for <a href="https://doi.org/10.1177/00219096221097663">regional status</a>. He created three <a href="https://www.voaafrica.com/a/ethiopia-creates-a-12th-regional-state-/7168313.html">additional regions</a> between 2019 and 2023.</p>
<p>The working of Ethiopian federalism, however, depends on the party system. Party norms often supersede constitutional principles. Internal party crises tend to lead to government instability and potential conflict. </p>
<p>The <a href="https://www.bbc.com/news/world-africa-54964378">Tigray war</a> between 2020 and 2022 is a stark example. It originated from tensions between the Tigray People’s Liberation Front and the federal government. Disagreement was triggered by <a href="https://doi.org/10.14321/nortafristud.21.2.011v">the dissolution of the EPRDF</a>.</p>
<h2>Major benefits</h2>
<p>Ethiopian federalism has had three major benefits. </p>
<p>First, it allows for language and cultural freedom. The country’s 80 ethnic groups fought long and hard to secure their rights to culture, language and identity. More than <a href="https://journals.sagepub.com/doi/10.1177/00219096221097663#tab-contributors">57 of Ethiopia’s 80 languages</a> are used as mediums of instruction in schools. </p>
<p>Second, the system has allowed many <a href="https://doi.org/10.1177/00219096221097663">ethnic groups to exercise self-rule</a> in areas where they constitute the majority. Ethnic minorities are also entitled to form local governments, such as district administrations. </p>
<p>Third, the federal system has contributed to the <a href="https://www.worldbank.org/en/country/ethiopia/overview#:%7E:text=Ethiopia%20aims%20to%20reach%20lower-middle-income%20status%20by%202025.,one%20of%20the%20highest%20rates%20in%20the%20world.">country’s economic growth</a> and its <a href="https://doi.org/10.1080/13523260.2022.2091580">relative stability</a>. It achieved this by <a href="https://doi.org/10.1002/pad.2020">decentralising power and resources</a> to regions and local governments.</p>
<h2>Key challenges</h2>
<p>One of the primary challenges of Ethiopian federalism lies in its <a href="https://doi.org/10.1080/00083968.2015.1124580">inability to entirely resolve conflicts</a>. </p>
<p>Some of these conflicts – for instance in the western region of <a href="https://www.nytimes.com/2021/01/13/world/africa/ethiopia-ethnic-killings.html">Benishangul-Gumuz</a> and in <a href="https://www.hrw.org/news/2023/06/01/ethiopia-ethnic-cleansing-persists-under-tigray-truce">western Tigray</a> – are instigated partly by the system’s attempt to empower a particular ethnic group in an area. This has created divisions between empowered groups and others. </p>
<p>A <a href="https://ethiopia.iom.int/news/more-438-million-people-displaced-ethiopia-more-half-due-conflict-new-iom-report">recent report</a> by the International Organization for Migration found that more than half of the 4.4 million internally displaced people in Ethiopia left their homes due to conflict. </p>
<p>A second challenge is the gap between the constitution and the practice of political rights. <a href="https://doi.org/10.1177/00219096221097663">Certain ethnic groups have not exercised their rights</a> due to political repression. </p>
<p>Since Abiy assumed power in 2018, ethnic groups’ demands for regions has increased. The government addressed some of these demands, but repression of certain requests has led to grievances and conflicts. Some ethnic groups are too small to have their own region. </p>
<p>A third challenge is the dominance of the ruling party and the lack of democracy. The tendency of party norms to undermine constitutional principles casts a shadow on the federal system. </p>
<h2>Way forward</h2>
<p>While federalism may exist in form, it struggles to operate effectively without democracy and a multiparty system.</p>
<p>In a democratic system, the rule of law and protection of individual rights complement federalism by ensuring respect for citizen rights. A multiparty system would include diverse voices in decision-making and help protect minorities. Following these principles would help build peace and unity in a country as ethnically diverse as Ethiopia.</p><img src="https://counter.theconversation.com/content/217217/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bizuneh Yimenu does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>After more than 30 years of federalism, ethnic conflict in Ethiopia hasn’t been resolved – but neither has the country disintegrated.Bizuneh Yimenu, Teaching Fellow, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1810812023-09-09T05:11:30Z2023-09-09T05:11:30ZMangosuthu Buthelezi was a man of immense political talent and contradictions<figure><img src="https://images.theconversation.com/files/460365/original/file-20220428-12-znj7si.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Mangosuthu Buthelezi inspired very different assessments of his roles and legacies.</span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p><a href="https://www.sahistory.org.za/people/chief-mangosuthu-gatsha-buthelezi">Mangosuthu Gatsha Buthelezi</a>, <a href="https://www.thepresidency.gov.za/press-statements/president-ramaphosa-announces-passing-honourable-prince-mangosuthu-buthelezi%2C-traditional-prime-minister-zulu-nation-and-monarch">who has died</a>, was a history maker. He was born on 27 August 1928 into a tumultuous global century, and into the local conditions of racist rule.</p>
<p>A man of singular political talent, Buthelezi was among the country’s most influential black leaders for the majority of his long and remarkable life. Yet he occupied an anomalous position within the politics of the anti-apartheid struggle. He brokered Zulu ethnic nationalism, feeding a measure of credibility into apartheid ideals of <a href="https://www.sahistory.org.za/article/history-separate-development-south-africa">“separate development”</a>. This, against growing calls for unity under a democratic, South Africanist banner. But he claimed his position to be a realistic strategy, as opposed to armed struggle.</p>
<p>He will be remembered as the founder and stalwart campaigner of the <a href="https://www.ifp.org.za/">Inkatha</a> Zulu movement. He’ll also be remembered for the violent civil strife between his followers and the <a href="https://omalley.nelsonmandela.org/omalley/index.php/site/q/03lv02424/04lv02730/05lv03188/06lv03222.htm">United Democratic Front</a> and African National Congress (ANC). The violence <a href="https://www.fromthethornveld.co.za/violence-and-solace-the-natal-civil-war-in-late-apartheid-south-africa/">claimed nearly 20,000 lives</a> during the last decade of racist <a href="https://www.sahistory.org.za/article/national-party-np">National Party</a> rule.</p>
<p>Buthelezi’s mother was <a href="https://www.sahistory.org.za/people/princess-magogo">Princess Magogo</a>, granddaughter of <a href="https://www.sahistory.org.za/people/king-cetshwayo">King Cetshwayo</a> and sister of <a href="https://en-academic.com/dic.nsf/enwiki/282741">King Solomon</a>. She was an important person in her own right. His great-grandfather was said to be “prime minister of the Zulu nation during King Cetshwayo’s reign”. He took up this role himself <a href="https://www.amazon.com/Appetite-Power-Buthelezis-Inkatha-Africa/dp/0253308127">in relation to the monarchy of King Goodwill Zwelithini</a>. </p>
<p>A complex figure, Buthelezi (or Shenge, as he was known to many) enjoyed traditional titles of chief and prince. He was also rooted in Christian and modernist ideals.</p>
<p>Buthelezi lived his personal life as a dedicated Anglican, with a close connection to <a href="https://www.sahistory.org.za/people/bishop-alphaeus-hamilton-zulu">Alpheus Zulu, Bishop of Zululand</a>. He enjoyed a long marriage to Irene, <a href="https://www.timeslive.co.za/news/south-africa/2019-03-25-mangosuthu-buthelezis-wife-dies/">who died aged 89 in 2019</a>. He tragically endured the deaths of five children, two of them of AIDS, a fact he declared publicly. He was taking a brave stand against stigma at a time when most political elites fostered <a href="https://www.hsph.harvard.edu/news/magazine/spr09aids/">a climate of denial around the disease</a>.</p>
<h2>Political career</h2>
<p>His political career began early. He joined the ANC Youth League and was expelled for student political protest while studying at the University of Fort Hare <a href="https://overcomingapartheid.msu.edu/people.php?kid=163-574-496">in 1950</a>. Set to become a lawyer, and due to do articles with South African Communist Party lawyer <a href="https://www.sahistory.org.za/people/rowley-israel-arenstein">Rowley Arenstein</a>, he changed route to take up politics full time. This was a crucial turning point, which he attributed to <a href="https://www.nobelprize.org/prizes/peace/1960/lutuli/facts/">Chief Albert Luthuli</a>. Luthuli, a father figure whom Buthelezi claimed as a mentor, bridged Zulu traditions and modern liberal ones in his role as both a chief and as ANC president.</p>
<p>Yet South Africa was changing. When Buthelezi chose to engage with the politics of apartheid’s “homeland” policy from 1970, he initially did so with widespread support. <a href="https://www.sahistory.org.za/article/homelands">Homelands or “bantustans”</a> were the 10 impoverished rural areas reserved for black people, where, as ethnic entities, they exercised nominal self-rule separate from the developed rest of the country ruled exclusively and in the interests of all white people. </p>
<p>He was occupying a platform from which he also kept the internal flame of political opposition alive. He did this first linked to the name and direction of the banned ANC, which had reconstituted itself <a href="https://www.jstor.org/stable/722941?seq=1">in exile</a>. Buthelezi could legitimately claim to have blocked the National Party’s vision of ultimate complete ethnic “homeland” separatism, by <a href="https://www.loot.co.za/product/gerhard-mare-ethnic-continuities-and-a-state-of-excepti/lwln-6892-ga50">refusing “independence” for the KwaZulu territory</a>.</p>
<p>Had he not opposed the apartheid state’s plans for the then fledgling King Goodwill, modelled on <a href="https://2009-2017.state.gov/documents/organization/160146.pdf">the monarchy of Swaziland</a> (now Eswatini) – an executive monarch with total political and economic power – the region’s history would have unfolded very differently. In KwaZulu this would have meant a single person in control (the young Goodwill Zwelithini), beholden to the purse-string holders in Pretoria.</p>
<p>Because of Buthelezi’s stand on “independence”, and in the climate of the <a href="https://www.britannica.com/event/Cold-War">Cold War</a>, he was <a href="https://mg.co.za/article/2013-04-15-buthelezi-to-attend-thatchers-funeral/">considered</a> by many western leaders the most likely and desirable black leader to bring about a <a href="https://www.youtube.com/watch?v=6NKXyt5M_XY">democratic, and capitalist, South Africa</a>.</p>
<p>Buthelezi consistently called for the <a href="https://theconversation.com/mangosuthu-gatsha-buthelezi-a-reappraisal-of-his-fight-against-apartheid-144212">release of political prisoners</a>. He formed a political movement, <a href="https://www.jstor.org/stable/2636898?seq=1">Inkatha, in 1975</a>, and ensured its growth and survival – and thus his own – within the KwaZulu base. In 1979, <a href="https://www.researchgate.net/publication/238317279_Versions_of_resistance_history_in_South_Africa_The_ANC_strand_in_Inkatha_in_the_1970s_and_1980s">he fell out of grace with the ANC</a> in what he continued to consider both a misinterpretation of his objectives and a manipulative power play, leaving a sore point that endured.</p>
<figure class="align-right ">
<img alt="A man wearing a headband made of leopard skin folds his hands on his stomach." src="https://images.theconversation.com/files/460533/original/file-20220429-13-o6x2gr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/460533/original/file-20220429-13-o6x2gr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=898&fit=crop&dpr=1 600w, https://images.theconversation.com/files/460533/original/file-20220429-13-o6x2gr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=898&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/460533/original/file-20220429-13-o6x2gr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=898&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/460533/original/file-20220429-13-o6x2gr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1128&fit=crop&dpr=1 754w, https://images.theconversation.com/files/460533/original/file-20220429-13-o6x2gr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1128&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/460533/original/file-20220429-13-o6x2gr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1128&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A younger Mangosuthu Buthelezi in March 1994.</span>
<span class="attribution"><span class="source">Getty Images</span></span>
</figcaption>
</figure>
<p>Buthelezi increasingly worked his own base, using media masterfully in a pre-internet world. He distributed every speech on a mailing list, nationally and internationally, drawing in supportive journalists and political analysts. In the 1980s, he drew finances for innovative and convincing research, inaugurating the <a href="https://www.tandfonline.com/doi/abs/10.1080/02533958108458305?journalCode=rsdy20">Buthelezi Commission Report</a>, which investigated the entwined economies of Natal and KwaZulu. This was followed by the <a href="https://www.jstor.org/stable/3330064?seq=1">KwaZulu-Natal Indaba of 1986</a>, where the potential of a post-apartheid federal system was explored. Coming just before the political manoeuvres in the late 1980s and the transition in the early 1990s, and from such a strong source, it would have confirmed to negotiators on all sides that ethnic “homelands” would continue to feature in a democratic South Africa. </p>
<p>Attempts to initiate national linkages such as the <a href="https://www.jstor.org/stable/2636898?seq=1">South African Black Alliance</a> failed to take off. Likewise efforts to present himself as a national politician, for example through annual mass meetings in <a href="https://www.sahistory.org.za/place/soweto-johannesburg">Soweto</a>, the massive black urban settlement outside Johannesburg.</p>
<p>Buthelezi never managed to escape the political damage of “participation” and working “within the apartheid system”. His association with Zulu ethnic authority both served and undermined him. When the ambiguity of his affiliation to the ANC came to a head in 1979, he was increasingly dependent on the apartheid state. He became, inescapably, part of the <a href="https://www.tandfonline.com/doi/abs/10.1080/02582473.2021.1895878">civil war waged from 1985</a>, sharing the ANC as enemy with his apartheid state supporters. </p>
<p>For its part, the ANC could not accept another internal political position from internal structures not already committed to it. This especially once trade unions grew and civil unrest took on organisational forms under the <a href="https://omalley.nelsonmandela.org/omalley/index.php/site/q/03lv02424/04lv02730/05lv03188/06lv03222.htm">United Democratic Front</a>, which fully supported the exiled ANC movement.</p>
<p>During the complex negotiations for a democratic country – which he argued made him a bit player – Buthelezi withdrew from participation, against the background of the raging civil war. He returned after the KwaZulu government had passed legislation that ensured the clear continuation of ethnic rule in the region. It also guaranteed that all “homeland” land would continue directly under King Goodwill, as <a href="https://www.tandfonline.com/doi/full/10.1080/02582473.2021.1909116">the Ingonyama Trust Land</a>. </p>
<p>Other promises were made to Buthelezi, the non-fulfilment of which rankled him thereafter. While a member of the <a href="https://successfulsocieties.princeton.edu/publications/reconciling-impossible-south-africa-government-national-unity-1994-1996?utm_source=December+2016+Sout+Africa+Unity+Govt&utm_campaign=December+2016&utm_medium=email">Government of National Unity</a> (1994-1996), he even served as <a href="https://www.irishtimes.com/news/buthelezi-is-made-acting-president-in-peace-move-by-mandela-1.27841">acting president</a>. He continued to lead what was now the <a href="https://www.ifp.org.za/">Inkatha Freedom Party</a> for most of his remaining years. </p>
<p>He was centrally involved in the disputatious unfolding of selecting a successor to King Goodwill after his death <a href="https://www.news24.com/witness/news/kzn/buthelezi-rubbishes-claims-that-king-misuzulu-kazwelithini-may-have-been-poisoned-20210927">in 2021</a>. The continuing complexities of Zulu ethnic politics, including the <a href="https://www.youtube.com/watch?v=LeHD-ZuR7GU">installation of King Misuzulu kaZwelithini</a> in 2022, bedevilled Buthelezi’s political roles into his 90s.</p>
<h2>Talent and contradictions</h2>
<p>Buthelezi left traces of his life firmly in South Africa’s history over the past momentous 80 years or so. It is therefore not surprising that there will remain very different assessments of his roles and legacies. Some of the titles that were and can be attributed to him would include, at various moments: Zulu chief and prince, bantustan prime minister and ethnic prime minister to the Zulu king, and acting president of a democratic South Africa. </p>
<p>Others are warlord, stooge and collaborator, <a href="https://www.amazon.com/Buthelezi-Biography-Ben-Temkin/dp/0714682314">internationally recognised statesman</a>, ANC stalwart, Zulu, Christian, family man. Just before his death <a href="https://www.dailymaverick.co.za/article/2022-03-02-high-court-judgment-clears-prince-misuzulu-for-next-amazulu-crown/">king-maker could be added</a>.</p>
<p>A man of immense talent, and contradictions, Buthelezi anticipated in his politics the variegated allegiances of power and interest that would reveal themselves, with new bids for authority and wealth, into a new era.</p><img src="https://counter.theconversation.com/content/181081/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gerhard Maré does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If Mangosuthu Buthelezi had not opposed the apartheid state’s plans for an ‘independent’ Zulu kingdom, South Africa’s history would have unfolded very differently.Gerhard Maré, Emeritus Professor of Political Sociology, University of KwaZulu-NatalLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2100442023-08-30T12:17:52Z2023-08-30T12:17:52ZGovernors may make good presidents − unless they become ‘imperial governors’ like DeSantis<figure><img src="https://images.theconversation.com/files/544785/original/file-20230825-17-4q4pb7.jpg?ixlib=rb-1.1.0&rect=0%2C2635%2C8188%2C2684&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Of the eight Republicans on stage at the party's first presidential debate, six were current or former governors.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/republican-presidential-candidates-former-arkansas-gov-asa-news-photo/1621999903">Joshua Lott/The Washington Post via Getty Images</a></span></figcaption></figure><p>Many people believe governors make good presidents. In fact, a 2016 Gallup Poll found that almost <a href="https://news.gallup.com/poll/189119/state-governor-best-experience-presidency.aspx">74% of people</a> say that governing a state provides excellent or good preparation for someone to be an effective president. As a result, many political commentators have tried to explain why Florida Gov. Ron DeSantis is stumbling in his campaign for president. </p>
<p>Some say it is because he is <a href="https://www.nytimes.com/2023/08/10/us/politics/ron-desantis-campaign-challenges.html">stiff or awkward on the campaign trail</a>, or his path to the nomination is not really to the political right of former President Donald Trump, or he needs to step up and directly confront the former president.</p>
<p>But as the former executive director of the <a href="https://www.nga.org/">National Governors Association</a> for 27 years, I have worked with well over 300 governors. During that time I have been part of many conversations with governors regarding other governors running for president. So I know that some current and former governors on both sides of the aisle would have another reason for why DeSantis is stalling. If you were to ask them, I expect they would mostly smile and say quietly, “It is because he has become an imperial governor” – one who believes he is all-powerful and that all his decisions will be just applauded and never questioned or opposed.</p>
<h2>A dominant position</h2>
<p>Unlike presidents, who are seldom able to politically dominate Washington, D.C., many governors can dominate their states – so much so that some begin to believe they can do nothing wrong. Essentially, they believe they can do anything. </p>
<p>That experience often creates a false impression that what they did in their states they can do for the nation. A recent Miami Herald opinion article called DeSantis an <a href="https://www.miamiherald.com/opinion/editorials/article277104213.html">anti-woke, anti-LGBTQ+ politician</a> who has become known for fighting drag queens, critical race theory and Disney.</p>
<p>These are not exactly issues important to citizens of most other states and thus not useful as a foundation for a presidential campaign. This is clearly reflected in a recent New York Times poll of Republicans, where <a href="https://www.nytimes.com/2023/08/06/us/politics/woke-republicans-poll.html">only 17% supported an anti-woke campaign</a>, while 65% supported a law-and-order campaign.</p>
<h2>Significant power</h2>
<p>Governors traditionally have more constitutional and legal powers than do presidents, particularly in terms of budgets and in cases of emergency.</p>
<p>In fact, former governors Ronald Reagan, Bill Clinton and George W. Bush were known to remark, when they were president, that they <a href="https://www.upi.com/Archives/1987/02/01/UPI-Spot-News-Weekender-Line-item-veto-on-Reagan-wish-list-again/1481539154000/">wished they had the budget powers</a> <a href="https://www.washingtonpost.com/wp-srv/national/longterm/supcourt/stories/wp062698.htm">they had</a> <a href="https://georgewbush-whitehouse.archives.gov/news/releases/2006/03/text/20060306-7.html">when they were governor</a>. Often, I heard these comments during discussions with governors at National Governors Association meetings.</p>
<p>To reduce federal spending, Congress and the president must agree.</p>
<p>But <a href="https://thehill.com/homenews/4082783-line-item-veto-explained/">most governors have line-item veto authority</a> over budgets, allowing them to strike funding for specific programs, subject only to the override by a super-majority of the legislature.</p>
<p>Similarly, many governors can <a href="https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2022/03/how-states-can-manage-midyear-budget-gaps">cut previously enacted state budgets by up to 5%</a> without consent from the legislature.</p>
<p>Some governors can even spend federal funds sent to the state without legislative approval. For instance, Ohio Gov. John Kasich, a Republican, unilaterally expanded Medicaid eligibility in his state in 2013 under the Affordable Care Act – <a href="https://www.nytimes.com/2013/10/22/us/medicaid-expansion-is-set-for-ohioans.html">over the objections of his fellow GOP members</a> who controlled the state General Assembly.</p>
<p>By contrast, President Joe Biden has struggled to <a href="https://www.edweek.org/policy-politics/supreme-court-rejects-student-loan-relief-plan/2023/06">reduce the burden of student loan debt</a>, and, in fact, his plan was overturned by the Supreme Court.</p>
<p>Governors also typically have more power than presidents during emergencies. During the pandemic, <a href="https://nashp.org/states-covid-19-public-health-emergency-declarations/">all 50 governors declared states of emergency</a> that allowed them to expand health care workers’ ability to provide care, reducing hospitals’ and doctors’ liability to lawsuits, and protected consumers from price gouging on necessities. They were also able to require certain groups of people to wear masks and get vaccinated, and even shut down bars and restaurants for periods of time. </p>
<p>When then-President Trump declared a <a href="https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/">federal COVID-19 emergency</a>, his powers were largely restricted to the health care programs that the federal government administers, such as Medicare and Medicaid, and efforts by the Department of Health and Human Services.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/544787/original/file-20230825-21-tmcf8s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a vest swings a baseball bat." src="https://images.theconversation.com/files/544787/original/file-20230825-21-tmcf8s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/544787/original/file-20230825-21-tmcf8s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/544787/original/file-20230825-21-tmcf8s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/544787/original/file-20230825-21-tmcf8s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/544787/original/file-20230825-21-tmcf8s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/544787/original/file-20230825-21-tmcf8s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/544787/original/file-20230825-21-tmcf8s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Florida Gov. Ron DeSantis swings a baseball bat during a presidential campaign stop in Iowa in August 2023.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024DeSantis/3e78128c336546f3b3cb79f4894e0589/photo">AP Photo/Charlie Neibergall</a></span>
</figcaption>
</figure>
<h2>Political prominence</h2>
<p>Governors often are the dominant political force in their states. They particularly tend to overshadow the legislative and judicial branches – which significantly limit the power of the president at the federal level. </p>
<p>Governors dominate the legislature, in part, because state lawmakers tend to have <a href="https://www.ncsl.org/about-state-legislatures/size-of-state-legislative-staff">very few staff</a> to help them – if any at all. By contrast, U.S. House members each have <a href="https://crsreports.congress.gov/product/pdf/R/R43947">about 18 staff members</a>,
and senators average about 40 staffers.</p>
<p>And that doesn’t include committee staff members or the support organizations of the <a href="https://www.usa.gov/agencies/congressional-research-service">Congressional Research Service</a>, the <a href="https://www.cbo.gov/">Congressional Budget Office</a> and the <a href="https://www.gao.gov/">Government Accountability Office</a>, which work for committees and members.</p>
<p>In addition, most state legislators are part time and may only be in session a few weeks per year. The commonwealth of Virginia is like many states, <a href="https://www.djj.virginia.gov/pages/about-djj/legislative-process.htm">only meeting for 60 days</a> in even years and 30 days in odd years – though those sessions are often extended by up to 15 days.</p>
<p>It is also true that many governors have legislatures with huge majorities of the same party, which often minimizes any opposition. In Florida, for instance, <a href="https://ballotpedia.org/2023_Florida_legislative_session">28 of the 40 senators are Republican</a>, and 85 of the 120 House members are as well. This adds up to a veto-proof majority for DeSantis. </p>
<p>Governors tend to dominate state supreme courts, too. Most states’ justices, who are typically appointed by the governor, have <a href="https://ballotpedia.org/Length_of_terms_of_state_supreme_court_justice">both term limits and age limits</a>, which means turnover is much more rapid. Therefore, states’ top judges are more likely to have been appointed by the current sitting governor – as opposed to the federal Supreme Court, where <a href="https://www.whitehouse.gov/about-the-white-house/our-government/the-judicial-branch/">judges have life appointments</a> and can serve through many presidencies.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/544807/original/file-20230825-15-1rmqq5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman smiles while holding a microphone." src="https://images.theconversation.com/files/544807/original/file-20230825-15-1rmqq5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/544807/original/file-20230825-15-1rmqq5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/544807/original/file-20230825-15-1rmqq5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/544807/original/file-20230825-15-1rmqq5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/544807/original/file-20230825-15-1rmqq5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/544807/original/file-20230825-15-1rmqq5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/544807/original/file-20230825-15-1rmqq5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former South Carolina Gov. Nikki Haley speaks during a presidential campaign event in Iowa in August 2023.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024AbortionCandidates/f3b2a649196d48319450820fe8556d85/photo">AP Photo/Jeff Roberson</a></span>
</figcaption>
</figure>
<h2>A matter of timing</h2>
<p>A governor most often begins to view himself as imperial during the first couple of years after a very successful reelection – and only in states with large populations.</p>
<p>The last governor that I remember who reached imperial status was <a href="https://www.nga.org/governor/scott-walker/">Scott Walker</a>, Wisconsin’s governor from 2011 to 2019. He ran for president in 2016 but <a href="https://www.politico.com/story/2015/09/scott-walker-2016-drops-out-213894">withdrew after only two months</a> because of his poor showing in the polls.</p>
<p>This year, in addition to DeSantis, five other former or current governors have declared they are running for president. And at least one is still considering doing so. But most of them are not imperial governors nor at risk of becoming one.</p>
<p>Mike Pence, the former governor of Indiana, never became imperial because he never ran for reelection. Instead, he was chosen by Donald Trump to be his vice president. In addition, many in his party believe he would have had <a href="https://www.indystar.com/story/news/politics/2016/05/27/gov-mike-pence-facing-tough-re-election-afte-social-issues-stands/85023730/">difficulty in his bid for reelection</a>.</p>
<p>Former Gov. Chris Christie of New Jersey never reached imperial status because he governed in a state where the legislature was dominated by the opposite party. Former Arkansas Gov. Asa Hutchinson served in a very small state, with only 3 million people. Former South Carolina Gov. Nikki Haley also served in a small state, of 5 million people. Any power she might have carried from the governorship into a run for the presidency has dissipated in the six years she has been out of office, including serving as U.S. ambassador to the United Nations. Gov. Doug Burgum of North Dakota serves in an even smaller state, with less than a million people. Virginia Gov. Glenn Youngkin is reportedly <a href="https://www.usatoday.com/story/news/politics/2023/08/15/virginia-voters-glenn-youngkin-2024/70549023007/">still considering a run</a>.</p>
<p>DeSantis, by contrast, is a second-term governor of a large state. Florida is the <a href="https://www.census.gov/library/stories/state-by-state/florida-population-change-between-census-decade.html">third most-populated state</a>, with <a href="https://www.census.gov/quickfacts/fact/table/FL/PST045222">22.2 million residents</a> as of July 2022. And in 2022, <a href="https://www.wuft.org/news/2022/11/08/desantis-wins-2022-florida-governors-race-by-largest-margin-in-40-years/">DeSantis won reelection in a landslide</a> with <a href="https://www.politico.com/2022-election/results/florida/statewide-offices/">59.4% of the vote</a>.</p>
<p>The state legislature is dominated by people of the same political party, and DeSantis has appointed <a href="https://www.wptv.com/news/state/desantis-appoints-fifth-justice-to-current-state-supreme-court-meredith-sasso">five of the seven justices</a> on the state supreme court.</p>
<p>There is no question that <a href="https://www.cbsnews.com/news/trump-poll-indictments-2023-08-20/">Trump’s recent indictments</a> have made him a stronger candidate for the nomination. Whether this strength will last is unclear as the court cases play out.</p>
<p>But if DeSantis continues to be an imperial governor, he will not be able to take advantage of any erosion in support for the former president and risks being just a footnote in the 2024 race – and may have to forget about 2028 as well.</p><img src="https://counter.theconversation.com/content/210044/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Raymond Scheppach does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A former executive director of the National Governors Association explains what it is about certain governors that makes them less suited for the presidency.Raymond Scheppach, Professor of Public Policy, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2106102023-08-15T03:36:15Z2023-08-15T03:36:15ZGeorgia’s indictment of Trump is a confirmation of states’ rights, a favorite cause of Republicans since Reagan<figure><img src="https://images.theconversation.com/files/542697/original/file-20230814-23-p2i3bj.jpeg?ixlib=rb-1.1.0&rect=17%2C0%2C2977%2C1994&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fulton County Sheriff officers block off a street in front of the Fulton County Courthouse on August 14, 2023 in Atlanta, Georgia. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-sheriff-officers-block-off-a-street-in-front-news-photo/1614303087?adppopup=true">Joe Raedle/Getty Images</a></span></figcaption></figure><p>For the past 50 years, Republican policymakers and judges have sought to bolster federalism in the United States. Since <a href="https://www.reaganlibrary.gov/archives/speech/inaugural-address-1981">Ronald Reagan’s first inaugural address</a> in 1981, Republicans have been calling for policymakers to rein in the federal government in favor of devolving more power to the states.</p>
<p>Contrary to what it sounds like, “<a href="https://constitution.congress.gov/browse/essay/intro.7-3/ALDE_00000032/">federalism</a>” does not mean a strong central government. Instead, it refers to a system of government in which the people may be regulated by both the federal and state governments. </p>
<p>Reagan succinctly expressed it <a href="https://www.reaganlibrary.gov/archives/speech/inaugural-address-1981">in his 1981 inaugural speech</a>: “It is my intention to curb the size and influence of the Federal establishment and to demand recognition of the distinction between the powers granted to the Federal Government and those reserved to the States or to the people.” </p>
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<p>All U.S. citizens are actually citizens of two separate governments: They are citizens of the United States as well as <a href="https://law.justia.com/constitution/us/amendment-14/02-citizens-of-the-united-states.html">citizens of the state</a> in which they live. And they are subject to two systems of law as a result. </p>
<p><a href="https://avalon.law.yale.edu/18th_century/fed47.asp">The Framers valued federalism</a> – and the division of power between different levels of government – as a bulwark against tyranny and a <a href="https://guides.loc.gov/federalist-papers/text-51-60">protector of liberty</a>.</p>
<p>But this division of power has doubled the trouble for the leading Republican in the country: former president and likely GOP presidential nominee Donald Trump, who now stands <a href="https://www.nytimes.com/interactive/2023/08/14/us/georgia-indictment-trump.html">indicted on 13 criminal counts</a> by a Fulton County, Georgia, grand jury for “knowingly and willfully” joining “a conspiracy to unlawfully change the outcome of the election.” Eighteen others were also indicted on a variety of charges related to the attempt to overturn the election. </p>
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<a href="https://images.theconversation.com/files/540277/original/file-20230731-17-j7d3r1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A dark haired woman in a dark dress, looking pensive." src="https://images.theconversation.com/files/540277/original/file-20230731-17-j7d3r1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540277/original/file-20230731-17-j7d3r1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540277/original/file-20230731-17-j7d3r1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540277/original/file-20230731-17-j7d3r1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540277/original/file-20230731-17-j7d3r1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540277/original/file-20230731-17-j7d3r1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540277/original/file-20230731-17-j7d3r1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Fulton County District Attorney Fani Willis in an April 19, 2023, portrait in Atlanta.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgiaElectionInvestigation/37c4c858f2224f3fbc242c5c808ef3d3/photo?Query=Donald%20Trump&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=186408&currentItemNo=28">AP Photo/Brynn Anderson, File</a></span>
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<h2>Prosecutions by ‘separate sovereign governments’</h2>
<p>With federalism come two sources of law – state and federal – which creates a complex web of regulations that can lead to criminal charges at both the state and federal levels, even for the same behavior. </p>
<p>While this may sound like a <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10763">violation of the constitutional ban on double jeopardy</a>, that constitutional protection only applies to repeated prosecutions by the same sovereign government. The state and federal governments are separate sovereign governments. </p>
<p>The federal government may criminalize behavior within the constraints imposed by the U.S. Constitution that limit federal power. <a href="https://www.justia.com/criminal/offenses/other-crimes/federal-crimes/">Most federal crimes</a> involve some form of interstate travel or transactions, for example. But the states’ criminal codes may often regulate the same behavior or additional behaviors with different standards and different penalties. </p>
<p>For example, when Timothy McVeigh <a href="https://www.britannica.com/event/Oklahoma-City-bombing">blew up the federal building</a> in Oklahoma City in 1995, he was subject to prosecution by both state and federal officials for violations of the laws of both governments. </p>
<p>McVeigh <a href="https://www.fbi.gov/history/famous-cases/oklahoma-city-bombing">committed federal crimes</a>, such as use of a weapon of mass destruction on federal property and the murder of federal law enforcement officers. The state of Oklahoma [could also have prosecuted him] for violating Oklahoma murder statutes, among other state criminal violations, although once McVeigh was convicted and sentenced to death in a federal trial, Oklahoma prosecutors <a href="https://www.cbsnews.com/news/judge-das-staff-can-try-nichols/">did not ultimately seek to bring</a> a case against him.</p>
<p>Donald Trump is now experiencing the full weight of a system of government in which criminal law is produced and enforced by law enforcement agencies and prosecutors across 50 states and by one powerful central government. </p>
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<a href="https://images.theconversation.com/files/542727/original/file-20230815-25-iy701k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman in a sleeveless orange dress, holding papers and walking in a wood-paneled room." src="https://images.theconversation.com/files/542727/original/file-20230815-25-iy701k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542727/original/file-20230815-25-iy701k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542727/original/file-20230815-25-iy701k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542727/original/file-20230815-25-iy701k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542727/original/file-20230815-25-iy701k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542727/original/file-20230815-25-iy701k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542727/original/file-20230815-25-iy701k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Fulton County Court Clerk Che Alexander arrives with indictments for Superior Court Judge Robert McBurney on August 14, 2023 in Atlanta, Georgia.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-county-court-clerk-che-alexander-arrives-with-news-photo/1599899190?adppopup=true">Megan Varner/Getty Images</a></span>
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<h2>The ‘very essence’ of federalism</h2>
<p>Trump’s activities in Georgia and New York may be prosecuted independently by state prosecutors – district attorneys and state attorneys general – under those states’ criminal codes. </p>
<p>At the same time, many of the facts implicated in the Georgia and New York cases could contribute to, or be relevant to, federal criminal prosecutions as well. </p>
<p>Prosecutions at both levels represent the very essence of federalism in action.</p>
<p><a href="https://theconversation.com/do-federal-or-state-prosecutors-get-to-go-first-in-trying-trump-a-law-professor-untangles-the-conflict-207402">Usually in such circumstances</a>, state and federal prosecutors must negotiate with one another about who will bring their prosecutions first, and how the state and federal trials will be managed and accommodated by each government. </p>
<p>But no matter what, neither set of officials has the power to deny the other the chance to prosecute a defendant who has violated the laws of their respective jurisdictions.</p>
<p>There is abundant irony in the fact that federalism – championed by Republicans and conservative judges for decades – now has come to haunt the <a href="https://www.nytimes.com/2023/07/31/us/politics/2024-poll-nyt-siena-trump-republicans.html">leading Republican for the U.S. presidency</a>. </p>
<p>And even more ironic is that even if he becomes president again, Donald Trump will not have the authority to pardon himself – if that is even constitutional – or anyone else for the violation of state crimes.</p>
<p>Presidential pardon authority <a href="https://www.justice.gov/pardon/frequently-asked-questions">extends to federal crimes alone</a>.</p><img src="https://counter.theconversation.com/content/210610/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Donald Trump faces ‘double the trouble’ as Georgia charges were added to federal charges brought over his alleged attempts to overturn the 2020 presidential election. And that’s thanks to federalism.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2039352023-05-24T05:47:18Z2023-05-24T05:47:18Z60 years of African unity: what’s failed and what’s succeeded<figure><img src="https://images.theconversation.com/files/528198/original/file-20230525-27-v5unbk.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ethiopian Emperor Haile Selassie (C) and Ghana's founder and first President Kwame Nkrumah (L) during the formation of the Organisation of African Unity.</span> <span class="attribution"><span class="source">STR/AFP via Getty Images</span></span></figcaption></figure><p>Africa Day this year marks 60 years since the <a href="https://www.sahistory.org.za/article/organisation-african-unity-oau">founding</a> of the Organisation of African Unity (OAU). The anniversary begs the question: How much of the vision of the OAU’s founding fathers has been realised 60 years on? What would not be there but for the efforts of the organisation and its successor the <a href="https://au.int/">African Union</a>?</p>
<p>There were two competing visions lobbying at the founding. Kwame Nkrumah, Ghana’s president, in his <a href="https://www.youtube.com/watch?v=8KKxpuxpVfc">Africa must Unite</a> speech, argued the pan-African case for continental federalism, for a Union of African States, with one continental diplomatic corps, one department of defence, and a common market.</p>
<p>He was hugely outvoted by other presidents refusing to give up their sovereignty. So the OAU, formed on 25 May 1963, was instead modelled on the Organisation of American States. It was an inter-governmental organisation whose charter pledged it to not interfere in the internal affairs of its member states – even in the event of massacres. This followed the precedents of the UN <a href="https://www.un.org/en/">United Nations</a>, the <a href="https://www.britannica.com/topic/Arab-League">Arab League</a>, and the <a href="https://usoas.usmission.gov/our-relationship/about-oas/">Organisation of American States</a>, and would soon be followed by the Association of South-East Asian Nations (ASEAN).</p>
<p>The OAU was committed to decolonisation, including the end of apartheid in South Africa and the settler regime in Southern Rhodesia (Zimbabwe). It contributed herculean diplomatic lobbying and sanctions to achieve this. Its <a href="https://www.jstor.org/stable/41394216">Liberation Committee</a>, based in Dar es Salaam (the Tanzanian commercial capital), donated weapons and funds to the insurgencies in South Africa, Zimbabwe, Namibia, Angola, and Mozambique.</p>
<p>The OAU was a state-centric realisation of pan-Africanism. It launched a variety of continental NGOs, which were allocated to one or other member state to host. Space allows for only one example: it supported the launch of the <a href="https://panafricanwritersassociation.com/">Pan-African Writers’ Association</a>. Ghana pledged to provide it with premises for headquarters.</p>
<p>One development not anticipated when the OAU was founded in 1963 was the subsequent establishment of regional economic communities. There are over a dozen of these. Out of the <a href="https://au.int/en/recs">eight officially recognised</a> by the AU, the most significant are the <a href="https://ecowas.int/">Economic Community of West African States</a> (ECOWAS), the <a href="https://www.sadc.int/">Southern African Development Community </a>(SADC), and the <a href="https://www.eac.int/">East African Community </a> (EAC). These three are each free trade areas and, on paper at least, the ECOWAS and EAC are custom unions. These each provide stepping-stones towards that continental common market that Nkrumah had lobbied for back in 1963.</p>
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Read more:
<a href="https://theconversation.com/the-african-union-at-20-a-lot-has-been-achieved-despite-many-flaws-175932">The African Union at 20: a lot has been achieved despite many flaws</a>
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<p>As a political scientist who has <a href="https://www.jstor.org/stable/10.14321/j.ctt9qf58g">researched</a> the OAU and AU, I argue that it has performed far better than almost all of its global counterparts, though it has also experienced several shortcomings.</p>
<h2>The hits</h2>
<p>One success of the AU is its growing prestige. After its founding in 2002, Wikipedia did not consider it merited an entry until 2011. But today 50 non-African states <a href="https://www.usau.usmission.gov/our-relationship/policy-history/">accredit ambassadors to the AU</a>. The diaspora demanded inclusion during South African president <a href="https://au.int/en/cpau">Thabo Mbeki’s leadership</a>, and is now formally recognised as the <a href="https://www.jstor.org/stable/43526692">“sixth region”</a> of the AU <a href="https://diasporadigitalnews.com/sixth-region-of-africas-official-flag-launched/#:%7E:text=In%202003%2C%20the%20African%20Union,sixth%20region'%20of%20the%20continent.">since 2003</a>. Caribbean nations, members of <a href="https://www.britannica.com/topic/Caribbean-Community">CARRICOM</a>, recently started <a href="https://au.int/fr/node/19489">formal links</a> with the AU: these are African-descendant nations, abducted out of Africa during centuries of slave trade.</p>
<p>The AU architecture for peacekeeping and peacemaking has no peer in the Organisation of American States, Arab League, or ASEAN. While most AU organs meet only twice per year, the <a href="https://au.int/en/psc">Peace and Security Council</a> has met twice per month since its founding in 2004.</p>
<p>Dozens of its ad hoc military missions help governments with the suppression of terrorism everywhere from the Sahel to northern Mozambique. Various AU and regional economic community peacekeepers have served in the Democratic Republic of Congo’s numerous civil wars for decades.</p>
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<img alt="Soldiers carry the flags of the African Union and Uganda next to a plane." src="https://images.theconversation.com/files/522798/original/file-20230425-3274-p3ifr4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/522798/original/file-20230425-3274-p3ifr4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=446&fit=crop&dpr=1 600w, https://images.theconversation.com/files/522798/original/file-20230425-3274-p3ifr4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=446&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/522798/original/file-20230425-3274-p3ifr4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=446&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/522798/original/file-20230425-3274-p3ifr4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=561&fit=crop&dpr=1 754w, https://images.theconversation.com/files/522798/original/file-20230425-3274-p3ifr4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=561&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/522798/original/file-20230425-3274-p3ifr4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=561&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Some of the first African Union peacekeepers arrive in the Somali capital, Mogadishu, in March 2007.</span>
<span class="attribution"><span class="source">Ali Musa/AFP via Getty Images</span></span>
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<p>The AU seeks a role in global governance. It tries to negotiate that Africa speaks with one voice in the halls of international organisations. Since some of the most important economic decisions about Africa are made outside the continent, the urgency of this is self-explanatory. The AU has its own embryonic diplomatic corps, with permanent diplomatic missions <a href="https://au.int/en/commission/permanent-mission-european-union-and-acp-brussels-office">in Brussels</a> (to negotiate with the EU), <a href="https://lejournaldelafrique.com/en/african-union-opens-permanent-mission-in-china/?noamp=mobile">Beijing</a>,<a href="https://au.int/en/office/permanent-delegation-league-arab-states-cairo-office"> Cairo</a> (to negotiate with the Arab League) <a href="https://www.africanunion-un.org/">in New York</a> (at the United Nations), and <a href="https://au.int/en/mission-usa">in Washington</a> (to negotiate with the World Bank and IMF).</p>
<p>Kwame Nkrumah appealed for an African common market back in 1963. The <a href="https://au.int/en/treaties/treaty-establishing-african-economic-community">1991 Treaty of Abuja</a> proposed an elaborate 34-year schedule to achieve this. The first real step towards such economic integration is the <a href="https://au-afcfta.org/">African Continental Free Trade Area</a> - headed by a South African Secretary-General, <a href="https://au-afcfta.org/secretary-general/">Wamkele Mene</a>. Clearly, this will take at least a decade to substantially achieve. But the prize of <a href="https://blogs.worldbank.org/africacan/international-trade-can-help-africa-grow">“defragmenting Africa”</a>, as the World Bank calls it, will be worth the herculean lobbying and negotiating it will take. The <a href="https://au-afcfta.org/">African Continental Free Trade Area</a> is currently negotiating “rules of origin” and dispute-settling mechanisms as its opening steps.</p>
<p>The AU tries to be norms-making. The <a href="https://au.int/en/treaties/treaty-establishing-african-economic-community">1991 Treaty of Abuja</a> must surely be the world’s most ambitious attempt to import lock, stock, and barrel the institutions and norms of the EU into another continent, which was of course only partially successful.</p>
<p>Few AU members have implemented the <a href="https://au.int/en/treaties/african-charter-democracy-elections-and-governance">Charter on Democracy, Elections, and Good Governance</a>. But a majority of countries have one by one signed up to the <a href="https://www.aprm-au.org/page-about/">African Peer Review Mechanism</a> which, like the AU, has just celebrated its 20th anniversary. This is part of the peer pressure towards constitutionalism, and against autocrats.</p>
<h2>The misses</h2>
<p>One failure of the AU is in not preventing serial <a href="https://www.idea.int/blog/new-model-coups-d%C3%A9tat-africa-younger-less-violent-more-popular">coups-de-etat</a>. There have been <a href="https://theconversation.com/why-west-africa-has-had-so-many-coups-and-how-to-prevent-more-176577">more than 200 coups</a> following the era of independence in the 1960s. The obvious reason is that the continental body never sends a military intervention to suppress the putchists, to capture them and bring them to trial for treason. It limits itself to diplomatic pressures against them, such as suspending their membership.</p>
<p>In 2016 the AU launched a campaign to <a href="http://www.peaceau.org/en/article/au-retreat-to-elaborate-a-roadmap-on-practical-steps-to-silence-the-guns-in-africa-by-2020-concludes-in-lusaka-zambia">“silence the guns by 2020”</a>. Unhappily, it <a href="https://theconversation.com/why-the-african-union-has-failed-to-silence-the-guns-and-some-solutions-139567">proved powerless to prevent</a> both coups and terrorist insurgencies from continuing, so the slogan was repackaged as <a href="https://issafrica.org/pscreport/psc-insights/staying-on-target-to-silence-the-guns-by-2030">“silence the guns by 2030”</a>. It remains to be seen if wars can be suppressed throughout the African continent by 2030.</p>
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Read more:
<a href="https://theconversation.com/the-african-unions-conflict-early-warning-system-is-no-more-what-now-183469">The African Union's conflict early warning system is no more. What now?</a>
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<p>Another failure is in getting member states to <a href="https://www.aa.com.tr/en/africa/african-union-set-to-sanction-countries-for-non-payment/1314757">pay their annual dues</a>. Clearly, the current penalties of suspension, which only fully come into effect when a state falls two years behind in payments, is not a deterrent. The AU surely needs to follow the universal practice by banks - that if a customer falls more than two months behind in repaying a mortgage bond, full sanctions are implemented.</p>
<p>The AU often dispatches election observers to countries to monitor voting, and hopefully to deter vote-rigging in its various forms. It has been <a href="https://issafrica.org/iss-today/election-observation-in-africa-put-to-the-test">criticised</a> for reluctance to censure incumbent regimes that tilt the playing field in the electoral contest for power.</p>
<h2>Cornerstone</h2>
<p>In conclusion, the AU compares well with its peers in developing countries such as ASEAN, Organisation of American States, and Arab League. The AU accomplishes more than the <a href="https://thecommonwealth.org/">Commonwealth</a>, or the <a href="https://www.francophonie.org/francophonie-brief-1763">Francophonie</a>. Only the EU is way ahead – because its budget is three orders of magnitude larger than that of the AU.</p>
<p>The AU has put cornerstones in place towards realising the goals of the founders. The end of coups and civil wars; working towards establishing an African common market; and getting Africa to speak with one voice in global governance are worthy goals to persist in pursuing.</p><img src="https://counter.theconversation.com/content/203935/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keith Gottschalk is a member of the African National Congress, but writes this article in his professional capacity as a political scientist.</span></em></p>The African Union compares well to other continental unions. It accomplishes more than the Commonwealth or the Francophonie.Keith Gottschalk, Political Scientist, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1923062022-10-19T16:57:39Z2022-10-19T16:57:39ZUnruly provinces? That’s what the Fathers of Confederation expected — and planned for<figure><img src="https://images.theconversation.com/files/489274/original/file-20221011-13-n6arms.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C748%2C342&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The oil painting The Fathers of Confederation by Rex Woods (1968).</span> <span class="attribution"><a class="source" href="https://www.ourcommons.ca/About/HistoryArtsArchitecture/fine_arts/historical/609-e.htm">(Ourcommons.ca)</a></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/unruly-provinces-that-s-what-the-fathers-of-confederation-expected-—-and-planned-for" width="100%" height="400"></iframe>
<p>Canadian federalism and provincial autonomy have entered the news cycle lately. </p>
<p><a href="https://nationalpost.com/news/politics/two-more-provinces-join-in-opposition-to-buyback-program-that-unnecessarily-targets-lawful-gun-owners">All three Prairie provinces recently announced</a> their opposition to a federal gun buyback program. </p>
<p>Québec Premier François Legault also won a landslide <a href="https://www.reuters.com/world/americas/incumbent-legaults-center-right-caq-party-projected-win-majority-quebec-cbc-news-2022-10-04/">re-election</a> on a platform of asserting more provincial control over immigration and language laws. </p>
<p>And of course, Danielle Smith, Alberta’s new premier, was recently sworn in, elected by her party <a href="https://nationalpost.com/opinion/danielle-smith-alberta-sovereignty-is-a-constitutional-right">on a promise</a> to introduce legislation called the Alberta sovereignty act.</p>
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Read more:
<a href="https://theconversation.com/how-danielle-smith-won-in-alberta-and-what-it-means-for-canada-191238">How Danielle Smith won in Alberta and what it means for Canada</a>
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<p>Critics have interpreted such moves as threats to national unity, with <a href="https://www.theglobeandmail.com/opinion/article-canada-is-about-to-undergo-an-extreme-stress-test-administered-by-the/">some predicting</a> that provincial shows of independence will create an “extreme stress test” for Canada.</p>
<p>However, these events remind us why the Fathers of Confederation designed a separation of federal and provincial powers in the first place.</p>
<h2>Preserving national unity</h2>
<p>If handled correctly, the decentralized nature of Canadian federalism should accomplish exactly what it was designed to do: preserve national unity by respecting regional differences within Canada.</p>
<p>Historians’ interpretations of Confederation have changed over time. The old notion that Confederation made the provinces subordinate to Ottawa was popular in the mid-20th century, advocated by historians like <a href="https://doi.org/10.3138/9781442676428">Donald Creighton</a> and <a href="https://www.theglobeandmail.com/canada/article-scholar-peter-waite-brought-canadian-history-to-life/">Peter Waite</a>.</p>
<p>But since the 1990s, Confederation historians like <a href="https://www.osgoodesociety.ca/book-author/paul-romney/">Paul Romney</a> and <a href="https://www.canadashistory.ca/explore/politics-law/the-foundering-fathers">Christopher Moore</a> have placed the provinces at the centre of our founding moment. As Daniel Heidt summarized in a 2018 collection called <a href="https://worldcat.org/en/title/1079928018"><em>Reconsidering Confederation</em></a>:</p>
<blockquote>
<p>“Nearly all groups, except for perhaps John A. Macdonald’s followers, demanded guarantees for local autonomy within Confederation.” </p>
</blockquote>
<p>Despite some concessions to those who wanted a centralized union, <a href="https://www.constitutionalstudies.ca/2019/07/reservation-and-disallowance/">including disallowance</a> (federal veto over provincial laws, used very rarely in the past century) and residual powers (any issue not assigned to the provinces goes to the federal level), Canada’s founders designed a decentralized union wherein strong provincial powers would help to protect various regional interests.</p>
<h2>The failed Province of Canada</h2>
<p>To understand why decentralization is an important part of the Canadian system, it’s necessary to appreciate <a href="https://www.thecanadianencyclopedia.ca/en/article/province-of-canada-1841-67">the failure of the Province of Canada (1841-1867)</a>. This merger of two colonies, Upper Canada (Ontario) and Lower Canada (Québec), created a centralized union with one shared legislature, as opposed to the federal union that would arise in 1867. </p>
<figure class="align-left ">
<img alt="A black-and-white photo of a grey-haired man." src="https://images.theconversation.com/files/490229/original/file-20221017-18600-xg96n2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/490229/original/file-20221017-18600-xg96n2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=867&fit=crop&dpr=1 600w, https://images.theconversation.com/files/490229/original/file-20221017-18600-xg96n2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=867&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/490229/original/file-20221017-18600-xg96n2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=867&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/490229/original/file-20221017-18600-xg96n2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1090&fit=crop&dpr=1 754w, https://images.theconversation.com/files/490229/original/file-20221017-18600-xg96n2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1090&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/490229/original/file-20221017-18600-xg96n2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1090&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">George Brown, one of the Fathers of Confederation, is seen in this 1860s-era photo.</span>
<span class="attribution"><span class="source">Library and Archives Canada</span></span>
</figcaption>
</figure>
<p>The united province was <a href="https://opentextbc.ca/preconfederation/chapter/14-2-considering-confederation/">known for political deadlock</a> and tenuous coalition governments that frequently collapsed over minor controversies and petty political manoeuvring. It failed because it was too centralized and left little space for regional differences. </p>
<p>To overcome these challenges, the Fathers of Confederation split the united province back into two provinces and carefully delineated federal versus provincial jurisdiction. Getting this balance right was critical to creating harmony in the new union and avoiding the problems of the united province. </p>
<p>As Liberal Leader <a href="https://www.thecanadianencyclopedia.ca/en/article/george-brown-1865-speech-in-favour-of-confederation">George Brown stated</a> in an 1865 speech: </p>
<blockquote>
<p>“The questions that used to excite the most hostile feelings among us have been taken away from the general legislature (federal), and placed under the control of the local bodies (provincial).”</p>
</blockquote>
<h2>Division of powers</h2>
<p><a href="https://www.justice.gc.ca/eng/rp-pr/csj-sjc/constitution/lawreg-loireg/p1t11.html">The British North America Act of 1867</a> encapsulated the founders’ deliberations, spelling out the division of federal and provincial powers in <a href="https://www.justice.gc.ca/eng/rp-pr/csj-sjc/constitution/lawreg-loireg/p1t13.html">Sections 91 to 95</a>. </p>
<p>Matters of shared interest across all provinces, such as military and currency, were assigned to the federal level. But issues like education, health care and immigration were placed squarely under provincial jurisdiction.</p>
<figure class="align-right ">
<img alt="A hand-written document is seen behind glass." src="https://images.theconversation.com/files/490231/original/file-20221017-11-qvvkh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/490231/original/file-20221017-11-qvvkh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=416&fit=crop&dpr=1 600w, https://images.theconversation.com/files/490231/original/file-20221017-11-qvvkh1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=416&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/490231/original/file-20221017-11-qvvkh1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=416&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/490231/original/file-20221017-11-qvvkh1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=522&fit=crop&dpr=1 754w, https://images.theconversation.com/files/490231/original/file-20221017-11-qvvkh1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=522&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/490231/original/file-20221017-11-qvvkh1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=522&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A copy of the British North America Act belonging to Sir John A. Macdonald is shown as part of the exhibit Foundations: The Words That Shaped Canada, in the Library of Parliament, June 2017.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Justin Tang</span></span>
</figcaption>
</figure>
<p>As my book <a href="https://www.mqup.ca/protestant-liberty-products-9780228010715.php"><em>Protestant Liberty</em></a> explains, these issues were singled out for provincial control because they had often been politicized along religious lines (Protestant vs. Catholic), making national consensus impossible. </p>
<p>The founders had learned from the mistakes of the 1841 legislative union and instead devolved powers to more local bodies, allowing them to keep the peace at the national level.</p>
<p>A series of controversial provincial bills in the 1880s and 1890s, such as Québec’s land grant to the Society of Jesus (Jesuits) and Manitoba’s defunding of its Catholic schools, tested the durability of Canadian federalism. </p>
<p>Although the federal government was pressured to use disallowance to veto these controversial bills, federal leaders in both major parties recognized the right of provinces to make these decisions for themselves. </p>
<h2>‘Co-equals’</h2>
<p>By 1892, Canada’s highest court of appeal at the time (<a href="https://www.thecanadianencyclopedia.ca/en/article/judicial-committee-of-the-privy-council">the Judicial Committee of the Privy Council</a>) <a href="https://www.jstor.org/stable/3228947">affirmed the principle</a> that the provinces were not subordinate to Ottawa, but were, as <a href="https://opentextbc.ca/postconfederation/chapter/2-11-the-provincial-rights-movement/">historian John Belshaw summarized</a>, “co-equal levels of government.”</p>
<figure class="align-left ">
<img alt="A dark-haired woman talks into a microphone, a framed photo of Queen Elizabeth behind her." src="https://images.theconversation.com/files/490232/original/file-20221017-15267-uqr2y3.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/490232/original/file-20221017-15267-uqr2y3.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/490232/original/file-20221017-15267-uqr2y3.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/490232/original/file-20221017-15267-uqr2y3.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/490232/original/file-20221017-15267-uqr2y3.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/490232/original/file-20221017-15267-uqr2y3.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/490232/original/file-20221017-15267-uqr2y3.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Danielle Smith speaks after being sworn in as Alberta Premier-designate in Edmonton on Oct. 11, 2022.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Jason Franson</span></span>
</figcaption>
</figure>
<p>There is room for debate about federal-provincial relations, and time will tell whether efforts like the Alberta sovereignty act will respect the delicate balance of powers upon which Canadian federalism has depended. </p>
<p>But Canadians shouldn’t be too quick to dismiss calls for provincial autonomy as a threat to national unity. </p>
<p>We are a vast country with considerable differences across regions. As the Fathers of Confederation recognized, our country can only remain united if we allow space for these regional differences to flourish, rather than trying to impose one-size-fits-all solutions.</p>
<p>With constitutional issues frequently making the news, now is the time for Canadians to refresh our understanding of the fundamental role of provincial powers, not as a threat to Confederation, but as a key ingredient that makes it work.</p><img src="https://counter.theconversation.com/content/192306/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Forbes receives funding from the Social Sciences and Humanities Research Council</span></em></p>Our country can only remain united if we allow space for regional differences to flourish rather than trying to impose one-size-fits-all solutions.James Forbes, Postdoctoral Fellow, History, University of SaskatchewanLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1907302022-10-10T12:15:54Z2022-10-10T12:15:54ZHow to steer money for drinking water and sewer upgrades to the communities that need it most<figure><img src="https://images.theconversation.com/files/488598/original/file-20221006-22-6iz8pr.jpg?ixlib=rb-1.1.0&rect=27%2C18%2C5979%2C3989&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Raw sewage bubbles up in the front yard of a home in Jackson, Mississippi, on Oct. 20, 2021.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/raw-sewage-bubbles-up-in-the-front-yard-of-a-home-in-news-photo/1236532470">Rory Doyle/The Washington Post via Getty Images</a></span></figcaption></figure><p>When storms like <a href="https://www.cnn.com/us/live-news/hurricane-ian-florida-updates-09-28-22/index.html">Hurricane Ian</a> strike, many people have to cope afterward with <a href="https://www.nytimes.com/2022/10/01/us/florida-water-hurricane-ian.html">losing water service</a>. Power outages mean that pumps can’t process and treat drinking water or sewage, and heavy stormwater flows can damage water mains. </p>
<p>Ian’s effects echoed a similar disaster in Jackson, Mississippi, where rising river water overwhelmed pumps at the main water treatment plant on Aug. 29, 2022, following record-setting rain. The city had little to no running water for a week, and more than <a href="https://www.reuters.com/legal/litigation/jackson-mississippi-water-crisis-prompts-lawsuit-city-siemens-2022-09-19/">180,000 residents</a> were forced to find bottled water for drinking and cooking. Even after water pressure returned, many Jackson residents <a href="https://www.wapt.com/article/jackson-residents-still-hesitant-days-after-boil-water-advisory-lifts/41272966#">continued to boil their water</a>, questioning whether it was really safe to drink.</p>
<p>Jackson had already been under a boil-water notice for more than a month before the crisis, which arrived like a slow-motion bullet to the city’s <a href="https://time.com/6209710/jackson-mississippi-water-crisis/">long-decaying infrastructure</a>. Now, Jackson and its contractors face lawsuits and a <a href="https://www.epa.gov/system/files/documents/2022-09/Certified_Notification%20Memo%20Jackson%20Miss-FINAL_NNMsignature.pdf">federal investigation</a>. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/NTjYhCv0zdI?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">This 2021 episode of ‘60 Minutes’ explores Jackson, Mississippi, residents’ frustration with their city’s long-running water problems.</span></figcaption>
</figure>
<p>We study <a href="https://uwm.edu/freshwater/people/scanlan-melissa/">water policy</a> with a focus on <a href="https://www.linkedin.com/in/leeandrian/">providing equitable access to clean water</a>. Our research shows that disadvantaged communities <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4128452">have suffered disproportionately</a> from underinvestment in clean and affordable water. </p>
<p>However, a historic increase in federal water infrastructure funding is coming over the next five years, thanks to the <a href="https://www.whitehouse.gov/bipartisan-infrastructure-law/">Infrastructure Investment and Jobs Act</a> that was enacted in 2021. </p>
<p>If this funding is managed smartly, we believe it can start to right these wrongs.</p>
<h2>A complex funding mix</h2>
<p>Water infrastructure has two parts. Drinking water systems bring people clean water that has been purified for drinking and other uses. Wastewater systems carry away sewage and treat it before returning it to rivers, lakes or the ocean. </p>
<p>Money to build and maintain these systems comes from a mix of federal, state and local sources. Over the past 50 years, policymakers have debated <a href="https://crsreports.congress.gov/product/pdf/RL/96-647">how much each level of government should contribute</a>, and what fraction should come from the most prized source: federal money that does not need to be repaid.</p>
<p>The 1972 <a href="https://www.epa.gov/laws-regulations/summary-clean-water-act">Clean Water Act</a> created a federal grant program, managed by the Environmental Protection Agency, to help states and municipalities build wastewater treatment plants. Under the program, federal subsidies initially <a href="https://www.congress.gov/92/statute/STATUTE-86/STATUTE-86-Pg816.pdf">covered 75% of project costs</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/488602/original/file-20221006-20-7tvd4t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Aerial view of water treatment tanks and gas digesters on a peninsula surrounded by ocean" src="https://images.theconversation.com/files/488602/original/file-20221006-20-7tvd4t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/488602/original/file-20221006-20-7tvd4t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=214&fit=crop&dpr=1 600w, https://images.theconversation.com/files/488602/original/file-20221006-20-7tvd4t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=214&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/488602/original/file-20221006-20-7tvd4t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=214&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/488602/original/file-20221006-20-7tvd4t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=269&fit=crop&dpr=1 754w, https://images.theconversation.com/files/488602/original/file-20221006-20-7tvd4t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=269&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/488602/original/file-20221006-20-7tvd4t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=269&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Deer Island water treatment plant in Boston began operation in 1995. It treats wastewater from towns across greater Boston and discharges cleaned effluent into the Atlantic Ocean.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Deer_Island_Waste_Water_Treatment_Plant_aerial.jpg">Doc Searls/Wikipedia</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>In the 1980s, the Reagan Administration challenged this arrangement. Conservatives argued that the grant program’s main purpose – addressing the need for more municipal wastewater treatment – had been fulfilled.</p>
<p>In 1987, Congress <a href="https://sgp.fas.org/crs/misc/96-647.pdf">replaced wastewater grants</a> with a loan program called the <a href="https://www.epa.gov/cwsrf">Clean Water State Revolving Fund</a>, which still operates today. The EPA uses the fund to provide seed money to states, which offer low-interest loans to local governments to build and maintain wastewater treatment plants. Congress created a corresponding program, the <a href="https://www.epa.gov/dwsrf">Drinking Water State Revolving Fund</a>, in 1996 to <a href="https://www.epa.gov/archive/epa/aboutepa/president-clinton-signs-legislation-ensure-americans-safe-drinking-water.html">fund drinking water infrastructure</a>. </p>
<p>As a result, U.S. water infrastructure now is funded by a mix of loans that must be repaid, principal forgiveness awards and grants that do not require repayment, and fees paid by local users. The larger the share that can be shifted into grants and principal forgiveness, the less pressure on local ratepayers to foot the bill for long-term infrastructure investments.</p>
<h2>What’s in the infrastructure law</h2>
<p>The Infrastructure Investment and Jobs Act authorizes more than <a href="https://www.epa.gov/system/files/documents/2021-11/e-ow-bid-fact-sheet-final.508.pdf">US$50 billion</a> for water infrastructure over the next five years. This won’t close the gap in funding needs, which the EPA has <a href="https://www.epa.gov/sites/default/files/2018-10/documents/corrected_sixth_drinking_water_infrastructure_needs_survey_and_assessment.pdf">estimated at $472.6 billion</a> from 2015 through 2034 just for drinking water systems. But it could support tangible improvements.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1458093058885623826"}"></div></p>
<p>When water systems that serve low-income communities borrow money from state programs, even at low interest rates, they have to pay the loans off by raising rates on customers who already struggle to pay their bills. To reduce this burden, federal law allows state programs to provide “disadvantaged communities” additional subsidies in the form of principal forgiveness and grants. However, states have broad discretion in determining who qualifies. </p>
<p>The infrastructure law requires that <a href="https://www.epa.gov/system/files/documents/2022-03/bil-srf-memo-fact-sheet-final.pdf">49% of federal funding</a> for both drinking water and wastewater infrastructure must be awarded as additional subsidies to disadvantaged communities. In other words, almost half the money that states receive in federal funds must be awarded as principal forgiveness or outright grants to disadvantaged communities.</p>
<h2>Who counts as ‘disadvantaged’?</h2>
<p>In March 2022, the EPA released a <a href="https://www.epa.gov/system/files/documents/2022-03/combined_srf-implementation-memo_final_03.2022.pdf">memorandum</a> that calls the infrastructure law a “unique opportunity” to “invest in communities that have too often been left behind – from rural towns to struggling cities.” The agency pledged to work with states, tribes and territories to ensure the promised 49% of supplemental funding reaches communities where the need is greatest. </p>
<p>This is an issue where the devil truly is in the details.</p>
<p>For example, under Mississippi’s definition of “disadvantaged community,” Jackson’s 2021 award for principal forgiveness was capped at 25% of the original principal. In its March 2022 memorandum, the EPA identified such caps as obstacles for under-resourced communities.</p>
<p>Mississippi appears to have responded by using a new standard for funds coming from the infrastructure law. Beginning this year, communities whose median household income is lower than the state median household income – including Jackson – will be awarded <a href="https://msdh.ms.gov/msdhsite/_static/resources/17153.pdf">100% principal forgiveness</a>, which makes the funding effectively a grant.</p>
<p>Additionally, the EPA discourages using population as a factor to define “disadvantaged communities.” Communities with smaller populations struggle to cover water systems’ operating costs, so that challenge is important to consider. But using population as a determining factor penalizes larger cities that may otherwise be disadvantaged. </p>
<p>For example, in 2021, when determining principal forgiveness, Wisconsin awarded a higher financial need score to communities with populations below 10,000. This penalized Milwaukee, the state’s largest city, with almost a quarter of its people experiencing poverty. </p>
<p>In September 2022, Wisconsin updated its definition to consider <a href="https://dnr.wisconsin.gov/sites/default/files/topic/Aid/loans/intendedUsePlan/SDWLP_SFY2023_IUP.pdf">additional factors</a>, such as county unemployment rate and family poverty percentage. With these changes, Milwaukee now qualifies for the maximum principal forgiveness.</p>
<p>Mississippi and Wisconsin previously relied on factors too narrow to reach many disadvantaged communities. We hope the steps they have taken to update their programs will inspire similar actions from other states. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1568310606440300544"}"></div></p>
<h2>Getting the word out</h2>
<p>In our view, the Infrastructure Investment and Jobs Act is a once-in-a-generation opportunity to correct decades of underinvestment in disadvantaged communities, especially with the EPA pushing the states to do so. </p>
<p>Historically under-resourced communities may not be aware of these state program funds, or know how to apply for them, or carry out infrastructure improvements. We believe the EPA should direct states that receive federal funds to help under-resourced communities apply for and use the money.</p>
<p>Recent events in Jackson and Florida show how <a href="https://www.washingtonpost.com/climate-environment/2022/08/31/jackson-water-crisis-mississippi-floods/">natural disasters can overwhelm water systems</a>, especially older networks that have been declining for years. As climate change <a href="https://nca2018.globalchange.gov/">amplifies storms and flooding</a>, we see investing in water systems as a priority for public health and environmental justice across the U.S.</p><img src="https://counter.theconversation.com/content/190730/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Melissa Scanlan is affiliated with Midwest Environmental Advocates, a non-profit environmental law center.</span></em></p><p class="fine-print"><em><span>Andrian Lee does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Congress has approved billions of dollars to fix water and sewer systems across the US. But getting that money to needy communities depends on how states define a key word.Andrian Lee, Water Policy Specialist, University of Wisconsin-MilwaukeeMelissa Scanlan, Professor and Director of the Center for Water Policy, School of Freshwater Sciences, University of Wisconsin-MilwaukeeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1916222022-09-30T14:14:26Z2022-09-30T14:14:26ZNigeria’s Independence Day is a time to reflect on political gains and challenges – and a way forward<figure><img src="https://images.theconversation.com/files/487475/original/file-20220930-13-gwzr37.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A woman selling Nigerian flags in preparation for Nigeria's independence anniversary in Lagos on September 30, 2020. Photo by Olukayode Jaiyeola/NurPhoto via Getty Images.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/woman-selling-nigerian-flags-reacts-as-she-display-flags-news-photo/1228808113">Olukayode Jaiyeola/NurPhoto via Getty Images.</a></span></figcaption></figure><p><em><a href="https://www.britannica.com/place/Nigeria/Independent-Nigeria">Nigeria got independence from Britain on 1 October 1960</a>. As the country celebrates its political journey in the last 62 years, political scientist Ayo Olukotun takes a look at the nation’s political development, gains and challenges. He also offers the way forward.</em></p>
<h2>How would you describe Nigeria’s political development?</h2>
<p>Well, in terms of evolution, the nation appears to be shedding the toga of unitarism and <a href="https://www.sunnewsonline.com/jackboot-democracy/">jackboot politics</a> – at least for now. However, there are residues of the long years of military rule in today’s civilian democracy. Nigeria is still quite authoritarian.</p>
<p>One example would be a report recently released by the National Human Rights Commission. Discipline was recommended against some police officers because they allegedly <a href="https://www.premiumtimesng.com/news/top-news/556400-abuja-endsars-panel-indicts-72-police-officers-for-human-rights-violations.html">brutalised civilians</a>. And, despite the <a href="https://www.thisdaylive.com/index.php/2021/10/20/what-led-to-endsars-protests/">EndSARS protests</a> against police brutality in 2020, not much has changed in terms of their behaviour.</p>
<p>There is also presidential omnipotence. <a href="https://za.opera.news/za/en/politics/829f9dd5586062ecfdf683cff27cca43">The Nigerian president is about the most powerful president in Africa</a>. This power is made possible by the <a href="http://www.nigeria-law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm">1999 constitution</a>, a unitary document masquerading as a federalist one. State governors, too, are protected by the constitution. Nobody dares challenge them: in one instance a <a href="https://saharareporters.com/2021/10/11/breaking-ebonyi-governor-umahi-orders-arrest-journalist-over-facebook-posts-about">journalist was arrested</a> for statements a governor considered uncomplimentary.</p>
<h2>What about political gains?</h2>
<p>One of the gains is the fact that we have not had a coup since 1999, although there <a href="https://authorityngr.com/2022/08/17/how-jonathan-escaped-coup-plot-ex-army-spokesman/">have been coup rumours</a>. We appear, for now, to have overcome democratic regression – unlike other countries in West Africa and other parts of Africa where you have one-man rule, coup d’etats and so on.</p>
<p>Another gain is freedom of speech. Nigerians can now express themselves, unlike during the military era. However, as evidenced by the journalist’s experience I described, this gain is being eroded by authoritarian governors and leaders. </p>
<h2>What is working against Nigeria’s development?</h2>
<p>Despite the launching of some anti-corruption agencies, there is still large scale corruption. Take the former accountant general of the federation, who has been <a href="https://www.premiumtimesng.com/news/top-news/544180-efcc-set-to-arraign-former-accountant-general-ahmed-idris-over-n109bn-fraud-charges.html">charged with stealing N109 billion</a>. And there are other cases of corruption involving former office holders. </p>
<p>Then look at how the last primaries by the major political parties <a href="https://theconversation.com/money-is-breaking-democracy-in-nigeria-184595">were monetised</a>. One contender withdrew because, <a href="https://thenationonlineng.net/updated-why-i-quit-pdp-presidential-race-by-hayatu-deen/">he said</a>, the process was “obscenely monetised”.</p>
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Read more:
<a href="https://theconversation.com/money-is-breaking-democracy-in-nigeria-184595">Money is breaking democracy in Nigeria</a>
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<p>Poverty is another challenge. The political leaders have turned poverty into a weapon against the people. Ethnicity and religious bigotry are also holding back Nigeria’s political and economic development. </p>
<h2>What should Nigeria be doing to uplift itself?</h2>
<p>We must go back to federalism or what some people call true federalism: power should be devolved to the federating units. These are the federal, state and local governments.</p>
<p>Many have called for this over time because <a href="https://www.instituteforgovernment.org.uk/our-work/devolution/english-devolution">Britain, which is a unitary nation, embraced power devolution</a>. If unitary states are reaping the benefits of devolution, why not Nigeria? The council flats that you hear about in the UK are built by local governments and that system works far better than our own councils. Also, their police are decentralised and they are effective. The same is true in several parts of Europe.</p>
<p>Before now political leaders in northern Nigeria opposed state police, but now <a href="https://guardian.ng/news/northern-governors-monarchs-meet-canvass-state-police-to-contain-insecurity/">northern governors, leaders and monarchs</a> have been calling for state police because of the high level of insecurity in those areas. </p>
<p>There must also be more focus on corruption. What we have under President Muhammadu Buhari is like a contest between anti-corruption and politics. In my opinion, politics has overtaken anti-corruption – that is why ministers who have fraud cases at the Economic and Financial Crimes Commission are still in office. The government finds it difficult to nail them because of political issues and deals.</p>
<p>There are other things that a nation that wants to move forward should do; quality education is one of them. We should invest in education. But Nigeria is not funding education at all levels. And the universe has disappeared from our nation’s university system: what makes it global has disappeared over time.</p>
<h2>Do you think Nigeria has a future?</h2>
<p>It depends on how the public office holders behave. All of them come with rosy promises. They promise heaven and earth. At the end of the day maybe they achieve only 10% of those promises. But if they can up their game there’s no reason why Nigeria can’t progress. </p>
<p>Twenty years ago, Nigeria was predicted to be similar to one of the Asian Tigers (South Korea, Malaysia, Taiwan). It was going to grow at a comparable rate to these nations. Instead it has been regressive.</p>
<p>At independence <a href="https://medium.com/@david.himbara_27884/in-1960-china-was-poorer-than-most-african-countries-but-here-is-china-bankrolling-africa-b7b0b10f41ba">in 1960, Nigeria was richer than China</a>. China is a world power today. Nigeria could be a continental power, or bigger, if the leaders and the followers can reverse the current tide of regression and corrupt politics.</p><img src="https://counter.theconversation.com/content/191622/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ayo Olukotun does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If Nigeria’s public office holders behave, there’s no reason why the country can’t progress.Ayo Olukotun, Professor and Chair of the department for Governance and Political Science, Olabisi Onabanjo UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1852812022-07-01T01:46:35Z2022-07-01T01:46:35ZThe Supreme Court has curtailed EPA’s power to regulate carbon pollution – and sent a warning to other regulators<figure><img src="https://images.theconversation.com/files/471914/original/file-20220630-18-1b6yy0.jpg?ixlib=rb-1.1.0&rect=19%2C0%2C4230%2C2822&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Smokestacks at the coal-fired Mountaineer power plant in New Haven, West Virginia.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-smoke-stacks-at-american-electric-powers-mountaineer-news-photo/609483172">Saul Loeb/AFP via Getty Images</a></span></figcaption></figure><p>In a highly anticipated but not unexpected 6-3 decision, the Supreme Court ruled on June 30, 2022, that the Obama administration’s Clean Power Plan <a href="https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf">exceeded the U.S. Environmental Protection Agency’s authority</a> under the Clean Air Act. </p>
<p>The ruling doesn’t take away the EPA’s power to regulate carbon emissions from power plants, but it makes federal action harder by requiring the agency to show that Congress has charged it to act – in an area where <a href="https://www.npr.org/2021/10/27/1047583610/once-again-the-u-s-has-failed-to-take-sweeping-climate-action-heres-why">Congress has consistently failed to act</a>.</p>
<p>The Clean Power Plan, the policy at the heart of the ruling, never took effect because the court blocked it in 2016, and the EPA now plans to develop a new policy instead. Nonetheless, the court went out of its way to strike it down in this case and reject the agency’s interpretation of what the Clean Air Act permitted. </p>
<p>Having said what the EPA cannot do, the court gave no guidance on what the agency can do about this urgent problem. Beyond climate policy, the ruling poses serious questions about how the court will view other regulatory programs. </p>
<h2>Remaking the electricity sector</h2>
<p>The Clean Power Plan would have set targets for each state to reduce carbon dioxide emissions from electric power plants. Utilities could <a href="https://archive.epa.gov/epa/cleanpowerplan/fact-sheet-overview-clean-power-plan.html">meet these targets</a> by improving efficiency at existing coal-fired power plants and by “generation shifting” – producing more power from natural gas and renewable sources like wind and solar.</p>
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<figcaption><span class="caption">In a 2014 video, President Barack Obama describes his administration’s plans to regulate carbon pollution from the energy sector.</span></figcaption>
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<p>In the EPA’s view, this sectorwide shift to cleaner sources represented the “best system of emission reduction,” a statutory term in the 1970 Clean Air Act. Coal companies and Republican-led states contended that the changes the agency envisioned exceeded its authority.</p>
<p>Chief Justice John Roberts framed the issue as a “major question,” a doctrine that the court <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10745">has invoked in only a handful of cases</a>. It holds that agencies may not regulate on questions of “vast economic or political significance” <a href="https://opencasebook.org/casebooks/1045-public-institutions-administrative-law-cases-materials/resources/4.2.4.1-major-questions-doctrine/">without clear directions from Congress</a>.</p>
<p>In the most prominent example, in 2000 the court invalidated the Food and Drug Administration’s <a href="https://www.law.cornell.edu/supct/html/98-1152.ZO.html">attempt to regulate tobacco</a>. The ruling held that this had never been part of the agency’s mission, no law gave the FDA clear authority over tobacco, and Congress had not directed the FDA to take such action. </p>
<p>The major question doctrine builds on a more established but increasingly disfavored principle of administrative law, <a href="https://www.law.cornell.edu/wex/chevron_deference">Chevron deference</a>, which requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. In my view, however, the Supreme Court is using the major question doctrine to take on authority to decide what Congress meant, without regard to the agency’s expert views or policy judgments.</p>
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<h2>A rebuke to EPA</h2>
<p>In one sense, the majority opinion is fairly narrow. As Roberts writes: “[T]he only interpretive question before us, and the only one we answer, is … whether the ‘best system of emission reduction’ identified by EPA
in the Clean Power Plan was within the authority” of section 111 (d) of the Clean Air Act. </p>
<p>The majority’s answer was no.</p>
<p>Citing its ruling in a <a href="https://www.oyez.org/cases/2013/12-1146">2014 air pollution case</a>, the court said that the EPA’s interpretation of “best system of emission reduction” amounted to a “claim to discover in a long-extant statute an unheralded power” representing a “transformative expansion in its regulatory authority.” Essentially, the majority found that the EPA had proposed a sweeping national makeover of the electric power industry.</p>
<p>Roberts characterized section 111 (d) as a “backwater” provision of the Clean Air Act that had never been used to adopt a rule as broad and with such “vast economic and political consequences” as the Clean Power Plan.</p>
<p>Although West Virginia and the others who sued argued that the EPA had no authority to regulate emissions “beyond the fenceline” of individual plants, the Court did not constrain the agency that tightly. Roberts also noted that the EPA’s authority was not limited to plant-specific technological controls. This suggests that the court is leaving the door open for some regulation beyond the fenceline.</p>
<p>In a lengthy and acerbic dissent, Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, argued that the text, context, history and purpose of the Clean Air Act, as well as common sense and the scientific imperative of dealing with climate change, supported the EPA’s position. “The Court appoints itself – instead of Congress or the expert agency – the decisionmaker on climate policy. I cannot think of many things more frightening,” Kagan concluded.</p>
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<span class="caption">President Joe Biden arrives at the United Nations Climate Summit in 2021. Biden has set a 2030 target for eliminating carbon emissions from the U.S. electric power sector.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-joe-biden-arrives-for-the-cop26-un-climate-summit-news-photo/1236271706">Adrian Dennis/Pool/AFP via Getty Images</a></span>
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<h2>Putting regulators on notice</h2>
<p>What can the EPA do now? Its options appear limited. The agency can require existing coal-fired plants to operate more efficiently, but that would extend the plants’ useful lives, with negative effects on nearby communities from <a href="https://theconversation.com/the-other-reason-to-shift-away-from-coal-air-pollution-that-kills-thousands-every-year-78874">pollutants that the plants emit</a>. </p>
<p>Theoretically, the EPA could require every coal-fired power plant to install carbon capture and storage technology. This is the kind of technological control that the agency has long required for air pollution sources. But the costs, especially for retrofitting existing plants, are prohibitive, and utilities would surely challenge the technology as not “adequately demonstrated,” as required by section 111 (d). </p>
<p>Another option would be to require retrofitting coal plants to allow <a href="https://www.rff.org/publications/issue-briefs/reducing-coal-plant-emissions-by-cofiring-with-natural-gas/">co-firing with natural gas</a> – burning a mix of these fuels, as <a href="https://www.rff.org/publications/issue-briefs/reducing-coal-plant-emissions-by-cofiring-with-natural-gas/">some plants already do</a>. But relying on natural gas brings its own problems, including <a href="https://www.science.org/content/article/major-us-cities-are-leaking-methane-twice-rate-previously-believed">methane leaks from wells and pipelines</a>. Methane is a potent greenhouse gas and a <a href="https://www.unep.org/news-and-stories/story/methane-emissions-are-driving-climate-change-heres-how-reduce-them">major driver of short-term climate warming</a>.</p>
<p>Market conditions are shifting electricity production away from coal and toward cleaner, more cost-effective sources like wind and solar. Indeed, the Clean Power Plan’s original goal of reducing the electric power sector’s carbon emissions by <a href="https://archive.epa.gov/epa/cleanpowerplan/fact-sheet-overview-clean-power-plan.html#:%7E:text=When%20the%20Clean%20Power%20Plan,other%20harmful%20air%20pollution%2C%20too.">32% below 2005 levels by 2030</a> has <a href="https://theconversation.com/the-us-electric-power-sector-is-halfway-to-zero-carbon-emissions-159190">already been exceeded</a>. But this transition is not moving as quickly as <a href="https://theconversation.com/transformational-change-is-coming-to-how-people-live-on-earth-un-climate-adaptation-report-warns-which-path-will-humanity-choose-177604">climate science suggests is necessary</a> to avoid catastrophic impacts from warming. </p>
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<h2>Broader impacts</h2>
<p>Beyond climate policy, I expect this ruling to affect how the EPA and other regulatory agencies interpret laws that have been on the books for many years. Regulators may shy away from advancing policies that the court could view as marked departures from past interpretations and actions with big economic and political consequences. </p>
<p>For example, the Securities and Exchange Commission recently proposed a new rule to require publicly traded companies to <a href="https://theconversation.com/sec-proposes-far-reaching-climate-disclosure-rules-for-companies-heres-where-the-rules-may-be-vulnerable-to-legal-challenges-179534">provide more robust disclosure</a> of the financial risks that climate change poses to their balance sheets. The agency is also moving to more vigorously <a href="https://www.forbes.com/sites/walvanlierop/2022/06/02/the-sec-is-fed-up-with-esg-greenwashing/?sh=4400f9d2774c">police greenwashing</a> by companies claiming to be committed to a net-zero carbon future.</p>
<p>In my view, it is clear that the U.S. has entered a new era of administrative law, with an activist court asserting its power to curtail what it perceives as the excesses of regulatory agencies – and not always waiting for those agencies to complete their work.</p><img src="https://counter.theconversation.com/content/185281/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Patrick Parenteau does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In a 6-3 ruling, the Supreme Court held that an Obama administration plan to regulate carbon emissions from power plants exceeded the power that Congress gave to the Environmental Protection Agency.Patrick Parenteau, Professor of Law, Vermont Law & Graduate SchoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1816372022-05-04T14:32:39Z2022-05-04T14:32:39ZWhat cattle conflicts say about identity in South Sudan<figure><img src="https://images.theconversation.com/files/459430/original/file-20220425-66366-1i3rnm.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An armed man guards cattle in a village in South Sudan.
</span> <span class="attribution"><span class="source">Simon Maina/AFP via Getty Images</span></span></figcaption></figure><p>In March 2022, <a href="https://www.eyeradio.org/makuei-appeals-for-calm-as-govt-promises-to-remove-cattle-from-magwi/">violent clashes</a> between farming communities and cattle herders broke out in Eastern Equatoria State, South Sudan. It was the latest incident in months of cattle-related violence in the area, which is in the country’s southern region. </p>
<p>Dinka Bor herders from the neighbouring Jonglei State were pushed south into Eastern Equatoria’s Magwi County after floods submerged grazing lands. In just days, however, farmer-herder conflict <a href="https://peacekeeping.un.org/en/following-conflict-between-farmers-and-herders-magwi-unmiss-steps-patrols">displaced</a> more than 14,000 people. </p>
<p>The Equatoria region hosts South Sudan’s capital, Juba. It is inhabited by more than 30 different ethnic groups, most of them farmers. It was the birthplace of the <a href="https://www.bbc.com/news/world-africa-14019208">southern rebellion</a> against Sudan’s Khartoum. Economically, it is the strongest region of South Sudan, with immense agricultural potential. </p>
<p>However, the <a href="https://jhumanitarianaction.springeropen.com/articles/10.1186/s41018-018-0030-y">militarisation</a> of cattle raiding since the 1990s has led to frequent eruptions of violence. These raids were originally regulated by cultural authorities. But political <a href="https://reliefweb.int/report/south-sudan/popular-struggles-and-elite-co-optation-nuer-white-army-south-sudan-s-civil-war">elites</a> have armed ethnic groups to advance their interests, leading to a proliferation of guns in the region.</p>
<p>Today, the presence of Dinka herders in Equatoria is used to project historical and ideological disagreements about state structure and identities in South Sudan. </p>
<p>As a result, what looked like local, inter-communal violence between farming host communities and displaced herders in March led to heated national debate. The Equatoria caucus in South Sudan’s Transitional National Legislative Assembly held a joint press conference to condemn the Magwi attacks. </p>
<p>The importance given to the Magwi conflict can be seen as the result of irreconcilable visions of the state by Equatorian and Dinka elites in South Sudan. My PhD <a href="https://www.politics.ox.ac.uk/person/francois-sennesael">research</a> into Equatorian political identity traces how these visions emerged. </p>
<h2>Equatoria as a resistance identity</h2>
<p>More than an administrative territory, Equatoria is a context-dependent idea. It is, first, a fragile, unfinished <a href="https://www.crisisgroup.org/africa/horn-africa/south-sudan/b169-south-sudans-other-war-resolving-insurgency-equatoria">political identity</a>. It is used as an umbrella term to attempt to unify heterogeneous political elites coming from the colonial-era Equatoria province. </p>
<p>Equatorian leaders have been asking for more <a href="https://www.crisisgroup.org/africa/horn-africa/south-sudan/b169-south-sudans-other-war-resolving-insurgency-equatoria">autonomy</a> to run their own affairs. Its leaders feel marginalised at the national level, which is heavily tilted towards the predominant <a href="https://africanarguments.org/2013/12/what-is-tribalism-and-why-does-is-matter-in-south-sudan-by-andreas-hirblinger-and-sara-de-simone/">Dinka and Nuer</a> ethnic groups.</p>
<p>Unlike the creation of a <a href="https://press.uchicago.edu/ucp/books/book/chicago/I/bo11913256.html">Kalenjin political identity</a> in Kenya, the Equatorian political identity has struggled to become a reality. It has a weak popular base and no political party. Its more prominent leaders have been <a href="https://www.bbc.com/news/world-africa-23816191">co-opted</a> into government.</p>
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Read more:
<a href="https://theconversation.com/why-south-sudans-attempts-at-peace-continue-to-fail-126846">Why South Sudan's attempts at peace continue to fail</a>
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<p>Second, for many regional elites in Juba, the term Equatoria represents a political project: federalism. These elites want to create political space for their region in the power-sharing agreement between Dinka and Nuer elites. </p>
<p>This was not always a priority for them. </p>
<p>Equatoria as a political identity emerged in the 1970s as a consequence of the perceived <a href="https://www.researchgate.net/publication/328639494_Why_Equatoria_Region_in_South_Sudan_may_opt_to_secede">political marginalisation</a> of its elites. Members of this group had previously defined themselves first as South Sudanese. They defended unity as long as they were in power. </p>
<p>However, they began to warn of a growing Dinka nationalism when Abel Aleir was appointed head of the autonomous region of Southern Sudan <a href="https://www.ohioswallow.com/book/South+Sudan">in 1972</a>. </p>
<p>Equatoria as an identity of resistance gained momentum alongside the <a href="https://www.ajol.info/index.php/huria/article/view/198498">ethnicisation of politics</a> in the 1970s. The presence of Dinka cattle herders in the predominantly farming region became the proxy through which political grievances were expressed. </p>
<p>The <a href="https://paxforpeace.nl/what-we-do/publications/the-legacy-of-kokora-in-south-sudan">Kokora system</a> – the redivision of Southern Sudan into three provinces at the request of Equatorian elites in 1983 – was primarily a way to expel the Dinka and their cattle from Equatoria. </p>
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<strong>
Read more:
<a href="https://theconversation.com/sudans-deep-state-still-poses-a-threat-to-the-democratic-process-130243">Sudan's deep state still poses a threat to the democratic process</a>
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<p>My interviews in Juba found that the <a href="https://www.bbc.com/news/world-africa-14019208">war against Khartoum</a> – which was started by the Sudan People’s Liberation Movement in 1983 – is still perceived primarily as an anti-Equatoria movement led by Dinkas, rather than as a liberation movement. As a result, for Equatorian elites, the history of liberation and the roots of South Sudanese identity are contested. </p>
<h2>Challenging central rule</h2>
<p>Following power-sharing agreements in 2015 and 2018 <a href="https://www.crisisgroup.org/africa/horn-africa/south-sudan/270-salvaging-south-sudans-fragile-peace-deal">after years of war</a>, Dinka and Nuer politicians divided major political positions largely among themselves. </p>
<p>The Sudan People’s Liberation Movement has emphasised the importance of ‘South Sudan-ness’ to foster a sense of national unity. Claims for institutional and political autonomy from the central state are viewed as <a href="https://sudantribune.com/article50197/">threats</a> to the young state. </p>
<p>While Equatorians have been speaking of regionalism, the liberation movement has labelled it “localism” to emphasise how contrary to the idea of nation it is. </p>
<p>Yet Equatorians have <a href="https://www.crisisgroup.org/africa/horn-africa/south-sudan/b169-south-sudans-other-war-resolving-insurgency-equatoria">long felt marginalised</a> within the South Sudanese political system. They have also been blamed for trying to <a href="https://sudantribune.com/article50197/">divide the country</a>. </p>
<p>Additionally, an unsuccessful attempt to <a href="https://www.usip.org/sites/default/files/2021-04/sr_493-conflict_and_crisis_in_south_sudans_equatoria.pdf">form an alliance</a> with the Nuer in 2016 and implement a federal system gave birth to radical Equatorian factions calling for secession. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/peace-in-south-sudan-hinges-on-forging-a-unified-military-force-but-its-proving-hard-181547">Peace in South Sudan hinges on forging a unified military force: but it's proving hard</a>
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<p>This discussion is somewhat performative in the sense that Equatorians’ ultimate ambition is not to create their own state, but rather to be included within existing structures. Yet, demands for federalism are high. Equatorian elites portray it as the only system that could liberate them from what they see as Dinka domination. </p>
<p>As a result, Equatorian elites have used cross-border cattle-related violence to call for a hardening of internal boundaries. It has also been used to challenge centralised power. </p>
<p>The defence of Equatorian farmers represents a much-needed unifying cause for a grouping divided by internal disagreements on whether to cooperate with the government or not. </p>
<p>The government has also been accused of <a href="https://www.thenewhumanitarian.org/analysis/2022/1/5/why-return-displaced-people-thorny-issue-South-Sudan">arming herders</a> to target populations that are not inclined to support its actions. This is becoming more prevalent as politicians get ready for <a href="https://sudantribune.com/article256604/">potential elections</a> in 2023. </p>
<p>The Equatorian political identity draws on existing fault lines of culture and historical memory. If the feeling of marginalisation persists, however, a strong movement could establish a community with separatist aspirations. This could endanger efforts to stabilise the world’s youngest nation.</p><img src="https://counter.theconversation.com/content/181637/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Francois Sennesael receives funding from the Richard Stapley Educational Trust and a Santander Academic Travel Award (University of Oxford) for this research. </span></em></p>The idea of what it means to be South Sudanese is not universally accepted in the young nation.Francois Sennesael, DPhil Candidate, Department of Politics and International Relations, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1714752022-02-17T13:20:29Z2022-02-17T13:20:29ZThe Supreme Court could hamstring federal agencies’ regulatory power in a high-profile air pollution case<figure><img src="https://images.theconversation.com/files/446362/original/file-20220214-21-129d4ri.jpg?ixlib=rb-1.1.0&rect=15%2C0%2C5277%2C3396&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Coal piles outside of PacifiCorp's Hunter power plant in Castle Dale, Utah.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pacificorps-hunter-coal-fired-power-pant-releases-steam-as-news-photo/1182367634">George Frey, AFP, via Getty Images</a></span></figcaption></figure><p>On Feb. 28, 2022, the U.S. Supreme Court will hear oral arguments in <a href="https://www.scotusblog.com/case-files/cases/west-virginia-v-environmental-protection-agency/">West Virginia v. EPA</a>, a case that centers on the U.S. Environmental Protection Agency’s authority to regulate greenhouse gas emissions that drive climate change. How the court decides the case could have broad ramifications, not just for climate change but for federal regulation in many areas.</p>
<p>This case stems from actions over the past decade to reduce greenhouse gas emissions from power plants, a centerpiece of U.S. climate change policy. In 2016, the Supreme Court blocked the Obama administration’s <a href="https://www.scientificamerican.com/article/u-s-supreme-court-blocks-obama-s-clean-power-plan/">Clean Power Plan</a>, which was designed to reduce these emissions. The Trump administration repealed the Clean Power Plan and replaced it with the far less stringent <a href="https://www.epa.gov/stationary-sources-air-pollution/proposal-affordable-clean-energy-ace-rule">Affordable Clean Energy Rule</a>. Various parties challenged that measure, and a <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/6356486C5963F49185258662005677F6/$file/19-1140.correctedopinion.pdf">federal court invalidated it</a> a day before Trump left office. </p>
<p>The EPA now says that it has no intention to proceed with either of these rules, and plans to issue an <a href="https://www.eenews.net/articles/epa-forges-ahead-on-power-plant-rule-amid-legal-showdown/">entirely new set of regulations</a>. Under such circumstances, courts usually wait for agencies to finalize their position before stepping in. This allows agencies to evaluate the evidence, apply their expertise and exercise their policymaking discretion. It also allows courts to consider a concrete rule with practical consequences.</p>
<p>From my work as an <a href="https://scholar.google.com/citations?hl=en&user=njpqfiQAAAAJ">environmental law scholar</a>, the Supreme Court’s decision to hear this case is surprising, since it addresses regulations the Biden administration doesn’t plan to implement. It reflects a <a href="https://www.politico.com/news/2020/09/25/supreme-court-regulations-biden-421934">keen interest on the part of the court’s conservative majority</a> in the government’s power to regulate – an issue with impacts that extend far beyond air pollution. </p>
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<figcaption><span class="caption">On Oct. 14, 2020, then-Sen. Kamala Harris questions Supreme Court nominee Amy Coney Barrett about her views on climate change.</span></figcaption>
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<h2>How much latitude does the EPA have?</h2>
<p>The court granted petitions from coal companies and Republican-led states to consider four issues. First, under Section 111 of the Clean Air Act, can the EPA control pollution only by considering direct changes to a polluting facility? Or can it also employ “beyond the fenceline” approaches that involve broader policies? </p>
<p><a href="https://www.law.cornell.edu/uscode/text/42/7411">Section 111</a> directs the EPA to identify and regulate categories of air pollution sources, such as oil refineries and power plants. The agency must determine the “best system of emission reduction” for each category and issue guidelines quantifying the reductions that are achievable under this system. States then submit plans to cut emissions, either by adopting the best system identified by the EPA or choosing alternative ways to achieve equivalent reductions.</p>
<p>In determining how to cut emissions, the Trump administration considered only changes that could be made directly to coal-fired power plants. The Obama administration, in contrast, also considered replacing those plants with electricity from lower-carbon sources, such as natural gas and renewable fuels. </p>
<p>The question of EPA’s latitude under Section 111 implicates a landmark decision of administrative law, <a href="https://supreme.justia.com/cases/federal/us/467/837/">Chevron v. Natural Resources Defense Council</a>. That 1984 ruling instructs courts to follow a two-step procedure when reviewing an agency’s interpretation of a statute. </p>
<p>If Congress has given clear direction on the question at issue, courts and agencies must follow Congress’ expressed intent. However, if the statute is “silent or ambiguous with respect to the specific issue,” then courts should defer to the agency’s interpretation of the statute as long as it is reasonable. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Supreme Court Associate Justice Neil Gorsuch speaks at a Federalist Society Convention in Washington, D.C., Nov. 16, 2017." src="https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/446377/original/file-20220214-19-66vb53.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">As an appeals court judge, Supreme Court Justice Neil Gorsuch sharply criticized the idea that courts should generally defer to agencies’ interpretations of federal law.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpJudicialNominations/d0b45c1138dd4e968d5a83a66c6d4dc6/photo">AP Photo/Sait Serkan Gurbuz</a></span>
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<p>In recent years, conservative Supreme Court justices have <a href="https://dlj.law.duke.edu/article/the-future-of-chevron-deference-hickman-vol70-iss5/">criticized the Chevron decision as too deferential</a> to federal agencies. This approach, they suggest, allows unelected regulators to exercise too much power. </p>
<p>Could this case enable the court’s conservatives to curb agencies’ authority by eliminating Chevron deference? Perhaps not. This case presents a less-than-ideal vehicle for revisiting Chevron’s second step. </p>
<p>The Trump EPA argued that the “beyond the fenceline” issue should be resolved under the first step of Chevron. Section 111, the administration contended, flatly forbids the EPA from considering shifting to natural gas or renewable power sources. The lower court accordingly resolved the case under Chevron’s first step – rejecting the Trump EPA argument – and did not decide whether EPA’s view merited deference under Chevron’s second step. </p>
<p>Chevron deference aside, a restrictive interpretation of Section 111 could have serious implications for EPA’s regulatory authority. A narrow reading of Section 111 could rule out important and proven regulatory tools for reducing carbon pollution, including <a href="https://theconversation.com/george-h-w-bush-understood-that-markets-and-the-environment-werent-enemies-108011">emissions trading</a> and <a href="https://theconversation.com/trump-may-dismantle-the-epa-clean-power-plan-but-its-targets-look-resilient-68460">shifting to cleaner fuels</a>.</p>
<h2>Do climate change regulations infringe on state authority?</h2>
<p>The second question focuses on Section 111’s allocation of authority between the states and the federal government. The Clean Air Act requires the EPA to issue emission reduction guidelines that states must follow in establishing pollution standards. </p>
<p>In repealing the Clean Power Plan, the Trump administration argued that the plan coerced states to apply EPA’s standards, violating the federal-state balance reflected in Section 111. Republican-led states are now making <a href="https://www.supremecourt.gov/DocketPDF/20/20-1530/204918/20211213175459245_Merits%20Brief%20of%20Petitioner%20the%20State%20of%20North%20Dakota%2020-1530.pdf">this same argument</a>.</p>
<p>However, the matter before the court is the Trump administration’s Affordable Clean Energy Rule, which does not present the same federalism issue. The question of whether the now-abandoned Clean Power Plan left the states sufficient flexibility is moot. </p>
<p>In my view, the court’s willingness to nonetheless consider federalism aspects of Section 111 could bode poorly for the EPA’s ability to issue meaningful emission reduction guidelines in the future.</p>
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<h2>Is carbon pollution from power plants a ‘major question’?</h2>
<p>The third issue that the court will consider is whether regulation of power plant carbon emissions constitutes a “major question.” The <a href="https://opencasebook.org/casebooks/1045-public-institutions-administrative-law-cases-materials/resources/4.2.4.1-major-questions-doctrine">major questions doctrine</a> provides that an agency may not regulate without clear direction from Congress on issues that have vast economic or political impacts. </p>
<p>The Supreme Court has never defined a major question, and it <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3927233">has applied the doctrine on only five occasions</a>. In the most prominent instance, in 2000, it <a href="https://www.law.cornell.edu/supct/html/98-1152.ZO.html">invalidated the Food and Drug Administration’s attempt to regulate tobacco</a>. The court noted that the agency had never regulated tobacco before, its statutory authority over tobacco was unclear, and Congress had consistently assumed that the FDA lacked such authority. </p>
<p>By comparison, the Supreme Court has <a href="https://www.supremecourt.gov/opinions/06pdf/05-1120.pdf">affirmed</a> and <a href="https://www.supremecourt.gov/opinions/13pdf/12-1146_4g18.pdf">reaffirmed</a> the EPA’s authority to regulate greenhouse gases under the Clean Air Act, and the agency’s authority to regulate power plant pollution under Section 111 is not in doubt. </p>
<p>However, when the Supreme Court struck down the workplace COVID-19 vaccine-or-test mandate on Jan. 13, 2022, Justice Neil Gorsuch penned a concurrence touting the major questions doctrine’s potential to <a href="https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf">check the power of federal agencies</a>. An expansive interpretation of the major questions doctrine here could cripple EPA’s ability to respond to climate change under the Clean Air Act. </p>
<p>If the court demands more specific statutory authorization, Congress may not be up to the task. Indeed, many observers fear a broad interpretation of the doctrine might have <a href="https://www.newyorker.com/news/daily-comment/the-supreme-court-case-that-could-upend-efforts-to-protect-the-environment">repercussions far beyond climate change</a>, radically curbing federal agencies’ power to protect human health and the environment, in response to both new threats such as the COVID-19 pandemic and familiar problems such as food safety. </p>
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<h2>Has Congress delegated too much power to the EPA?</h2>
<p>Finally, the court will consider whether Section 111 delegates too much lawmaking authority to EPA – a further opportunity for conservative justices to curb the power of federal agencies. The <a href="https://www.law.cornell.edu/wex/nondelegation_doctrine">nondelegation doctrine</a> bars Congress from delegating its core lawmaking powers to regulatory agencies. When Congress authorizes agencies to regulate, it must give them an “intelligible principle” to guide their rulemaking discretion. </p>
<p>For decades, the court has reviewed statutory delegations of power deferentially. In fact, it has not invalidated a statute for violating the nondelegation doctrine since the 1930s. </p>
<p>In my view, Section 111 should easily satisfy the “intelligible principle” test. The statute sets out specific factors for the EPA to consider in determining the best system of emission reduction: costs, health and environmental impacts, and energy requirements. </p>
<p>Still, the case presents an opportunity for the court’s conservatives to invigorate the nondelegation doctrine. <a href="https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf">A 2019 dissenting opinion by Justice Gorsuch</a>, joined by Chief Justice John Roberts and Justice Clarence Thomas, advocated a more stringent approach in which agencies would be limited to making necessary factual findings and “filling up the details” in a federal statutory scheme. Whether Section 111 – or many other federal laws – would survive this approach is unclear. </p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-youresmart">You can read us daily by subscribing to our newsletter</a>.]</p><img src="https://counter.theconversation.com/content/171475/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Professor Lin was a trial attorney for the Environment and Natural Resources Division of the U.S. Department of Justice from 1998 to 2003. He served as a law clerk to the Honorable Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit and to the Honorable James Browning of the U.S. Court of Appeals for the Ninth Circuit.</span></em></p>West Virginia v. EPA could be the opportunity that conservative justices have been seeking to curb federal power.Albert C. Lin, Professor of Law, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1728962022-01-10T15:51:52Z2022-01-10T15:51:52ZHow Ghana lost its federalism – and lessons for others<figure><img src="https://images.theconversation.com/files/435261/original/file-20211202-15-1mrlmp2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Kwame Nkrumah favoured continental federalism but worked against its practice in Ghana</span> <span class="attribution"><span class="source">Wikimedia Commons</span></span></figcaption></figure><p>Most of the 54 countries in Africa are unitary – the power to govern them resides mostly in a centralised government. </p>
<p>Only Ethiopia and Nigeria are fully federal while others like South Africa, the Comoros, Sudan, South Sudan, the Democratic Republic of Congo, and Somalia have some features of federalism.</p>
<p>Federalism <a href="http://imej.wfu.edu/Articles/1999/1/02/demo/Glossary/glossaryhtml/federalism.html">involves</a> the division of power between a central government and regional governments. Each level has specified political power over different areas and regional governments have power to determine local policies and raise their own revenue. </p>
<p>Ghana is not known as one of the federations in Africa. However, it’s life as an independent state in 1957 began as a loosely formed federation with fairly high levels of regional autonomy included in the constitution. </p>
<p>The rules set down for changing that arrangement were very strict because the proponents of federalism wanted guarantees against unilateral changes by the government.</p>
<p>Yet, more than six decades later regional government officials have no direct powers to determine their own policies. The regional ministers are appointed by the president, regional policy is controlled by a central government ministry, and regions are funded directly from central government administered funds.</p>
<p>How did this come about? In Africa, the conventional expectation is that drastic shifts like this only happen when a government is overthrown – and the country’s constitution abandoned - through coup d’états. </p>
<p>But my <a href="https://academic.oup.com/publius/advance-article/doi/10.1093/publius/pjab035/6415420?searchresult=1#311960291">research </a> shows that gradual changes contributed to this outcome in Ghana. </p>
<p>I traced Ghana’s journey over the past 60 years (1957 - 2018) as it moved from a federal to an entrenched unitary arrangement. I found that during this period, there has been a steady erosion of regional autonomy. </p>
<p>This happened through several changes to the constitution – most notably those drawn up in 1960 when Ghana became a republic, and 1969 after the country’s first president <a href="https://theconversation.com/kwame-nkrumah-why-every-now-and-then-his-legacy-is-questioned-120790">Kwame Nkrumah was overthrown</a> .</p>
<p>I conclude from my findings that constitutional guarantees should not be taken for granted. They are subject to change, but the way they change depends on the decisions that stakeholders make. </p>
<p>These findings – and the realities of politics – suggest that other federations in Africa might well be at similar risk.</p>
<h2>Ghana’s federal beginnings</h2>
<p>The territory known as Ghana was <a href="https://www.jstor.org/stable/20204242?seq=1#metadata_info_tab_contents">formed in 1957</a> by a union of four regions: the British colony of the Gold Coast, Ashanti, Trans-Volta Togoland and the British Protectorate Northern Territories. This composition implied that federalism was the most practical way forward.</p>
<p>But the federal idea was a <a href="https://www.jstor.org/stable/182768?seq=2#metadata_info_tab_contents">key bone of contention</a> in the run-up to independence from British colonial rule. </p>
<p>On one side of the dispute was the the Convention People’s Party led by Kwame Nkrumah, who wanted full unitarism. On the other side was the opposition alliance led by the Asantes and their political wing, the <a href="https://www.eaumf.org/ejm-blog/2017/9/19/54recoyhe1930dp3kbvbq4hx5vy58q">National Liberation Movement</a> together with the <a href="https://www.eaumf.org/ejm-blog/2017/10/13/ta2pvuzhvi4mwdh1xfird4ybiqjnh1">United Party</a> led by <a href="https://www.britannica.com/biography/Kofi-Busia">K.A Busia</a>, who wanted full federalism. </p>
<p>This contest was settled by a compromise in the <a href="https://vlex.co.uk/vid/ghana-constitution-order-in-812280049">1957 constitution</a>, giving regions autonomy. Headed by the native chiefs, regions had their own regional assemblies. These were responsible for directing financial expenditure, by-laws, and other government services in their regions. Referendums were required to alter the boundaries of a region. Any changes to this constitutional arrangement needed to be approved by two-thirds of the regional assemblies themselves. </p>
<p>However, in the <a href="https://www.artsrn.ualberta.ca/amcdouga/Hist247/winter_2017/resources/ghana_constitution_1960.pdf">1960 constitution</a>, these regional assemblies and the referendum requirements were abolished and replaced with national parliamentary approval. </p>
<p>Moreover, chiefs were demoted as heads of regions and replaced with centrally appointed regional commissioners. The referendum requirement reappeared in less-stringent forms in the 1969 and <a href="https://www.studocu.com/row/document/ghana-institute-of-management-and-public-administration/law/1979-constitution-of-ghana/8132339">1979</a> constitutions but neither the regional assemblies nor chiefs as their heads were re-instated. </p>
<p>The current <a href="https://www.constituteproject.org/constitution/Ghana_1996.pdf">1992 constitution</a> maintains the referendum thresholds contained in the 1979 constitution but still does not reinstate the regional assemblies or chiefs to regional headship. Nor do regional administrations have the executive, legislative, and financial autonomies they had at independence. </p>
<p>In view of this lost regional autonomy, a constitutional review commission in 2011 <a href="http://constitutionnet.org/sites/default/files/crc_research_report.pdf">recommended</a> that the regional government “should be designated as part of central government” (page 504).</p>
<h2>The why and the how</h2>
<p>Based on my research, I conclude that Ghana lost its federalism as a result of a mistaken political choice and missed opportunity by supporters of federalism.</p>
<p>First, politicians who supported federalism failed to take steps to stop the introduction of a unitary state.</p>
<p>This started shortly after independence in 1958 when the main opposition boycotted national polls to elect members of the regional and national assemblies. As a result, the ruling party won a huge majority in the assemblies. </p>
<p>This meant that the ruling party had sufficient numbers to vote to abolish regional assemblies when a bill was introduced to this effect in the national assembly in 1959.</p>
<p>The constitution adopted in 1960 declared, for the first time, that Ghana was a unitary state. Other changes included the removal of chiefs as the head of the regions and their replacement by regional commissioners appointed by the president. </p>
<p>A critical opportunity presented itself to reverse this trajectory between 1966 and 1969.</p>
<p>Some of those behind the coup that ousted Nkrumah in 1966 were supporters of the pre-independence notion of autonomous regions. Hence, a new constitution-drafting process was led by those who had called for federalism. Yet, instead of reversing the trajectory, the new leaders maintained the status quo. </p>
<p>The new constitution proposed and adopted in 1969 still maintained that “Ghana is a unitary republic” and made no specific naming of regions. It failed to re-instate the original mandate of the regional assemblies or the chiefs as regional heads.</p>
<p>All subsequent constitutions have consolidated Ghana’s unitary status.</p>
<h2>Lessons</h2>
<p>There are lessons for other countries that have federal structures, or any form of power-sharing arrangements. </p>
<p>The discussions around federalism in <a href="https://theconversation.com/nigerias-federal-system-still-isnt-working-what-should-change-149284">Nigeria</a> or <a href="https://theconversation.com/explainer-why-ethiopias-federal-system-is-deeply-flawed-119313">Ethiopia</a> are enough to show that when (federal) rules are made, they do not stay the same. Stakeholders are always looking for opportunities to change, keep or improve them.</p>
<p>If the changes reflect the interests of opposing political actors, as seen in Ghana’s case, then the change process is smoother with less violent outcomes. For instance, in Ghana today both the political parties that evolved from the opposing ‘Nkrumaist’ (mainly the National Democratic Congress ) and ‘Busiaist’ (mainly the New Patriotic Party) political traditions at independence have united around unitarism. Without such shared political interests, the campaign for change becomes a violent and protracted struggle, as seen in the <a href="https://www.aljazeera.com/opinions/2019/4/5/should-ethiopia-stick-with-ethnic-federalism">reform-related conflicts</a> in Ethiopia. </p>
<p>Another case in reference is Burundi where in 2014, <a href="https://www.reuters.com/article/us-burundi-crisis-idUSBREA1B0US20140212">news</a> emerged that the power-sharing arrangements were under threat of being dismantled through well-calculated steps by the ruling government. </p>
<p>So, can such power-sharing arrangements stand the test of time? </p>
<p>My central argument is that changes are inevitable. However, the lesson from Ghana is that perhaps when proposed changes reflect the common political interests for key stakeholder groups in the arena of governance, the outcomes are less problematic.</p><img src="https://counter.theconversation.com/content/172896/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dennis Penu is also affiliated with the University of Cape Coast</span></em></p>Ghana lost its federalism due to mistaken political choices and missed opportunities, suggesting that other federations in Africa might well be at similar risk.Dennis Penu, PhD Research Fellow, International Institute of Social StudiesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1700172021-10-19T19:14:16Z2021-10-19T19:14:16ZCOVID exposed our fractured national identity, but state-based loyalties were rising long before<figure><img src="https://images.theconversation.com/files/427165/original/file-20211019-13-23qh9v.png?ixlib=rb-1.1.0&rect=125%2C0%2C3868%2C1994&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Wes Mountain/The Conversation</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span></figcaption></figure><p>The formation of Australia’s federation in 1901 was both practical and sentimental. Pressing policy matters in the areas of immigration, trade and defence required the coordination of a federal government. As important was the growing nationalist feeling that the people in the different colonies were defined by the challenges and opportunities of the great south land. They were Australians, as well as Tasmanians, Queenslanders, Victorians and so on.</p>
<p>Nationalism is a modernising project, building identities and moral communities which transcend regional and parochial identifications. Compared with the regional identities of the old world, the colonial identities of Australia’s 19th century European settlers were weak, but they existed nonetheless.</p>
<p>The enthusiastic young men of the <a href="https://www.nma.gov.au/defining-moments/resources/australian-natives-association">Australian Natives’ Association</a>, which pushed hard for federation in the late 19th century, may have thought of themselves first and foremost as Australians, but colonial identities persisted after federation, due to their roots in the different histories, economies and social worlds of the six colonies. Time and again during the first decade of the new Commonwealth, Alfred Deakin, the country’s second prime minister, would conjure up the map of Australia and tell people they needed to think of themselves as Australians first and to approach political problems from a national perspective. </p>
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<img alt="Alfred Deakin" src="https://images.theconversation.com/files/427092/original/file-20211018-13-10cnyam.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/427092/original/file-20211018-13-10cnyam.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=829&fit=crop&dpr=1 600w, https://images.theconversation.com/files/427092/original/file-20211018-13-10cnyam.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=829&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/427092/original/file-20211018-13-10cnyam.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=829&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/427092/original/file-20211018-13-10cnyam.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1041&fit=crop&dpr=1 754w, https://images.theconversation.com/files/427092/original/file-20211018-13-10cnyam.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1041&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/427092/original/file-20211018-13-10cnyam.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1041&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Alfred Deakin, one of the founding fathers of federation.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span></span>
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<p>An intriguing historical question is when people’s identities as Australians transcended their state-based identities. I have always thought it was during the second world war. Prior to the war, the decisions and policies of state governments had greater effect on people’s day-to-day lives than those of the federal government. Health, education, transport, law and order, land management, local government, roads, sewerage, water and power were all state responsibilities. As yet, Commonwealth welfare responsibilities were limited and there was no federal income tax. </p>
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<p>When Australia was threatened by Japan, the federal government assumed primacy. In addition to responsibility for defence, the Commonwealth assumed the power to re-allocate resources, including labour, to support the war effort, as well as taxing people’s incomes.</p>
<p>The different experiences of the states and territories with the COVID pandemic and the closure of state borders raise the question of whether state-based identities are stronger now than they were, say, 20 years ago. I’d suggest three reasons this might be the case, based on historical observations, rather than hard quantitative data.</p>
<p>The first is that much of the colonies’ individual differences in political culture survived federation. <a href="https://www.theguardian.com/australia-news/2021/feb/27/a-state-apart-mark-mcgowans-pandemic-performance-taps-into-was-separatist-past">Separatist sentiments have survived</a> in Western Australia. Queensland, which is less dominated by its capital city than the other states, still has a <a href="https://theconversation.com/queensland-to-all-those-quexiteers-dont-judge-try-to-understand-us-117502">strong strain of rural populism</a>. </p>
<p>Sydney and Melbourne have also maintained their inherent political differences. In <a href="https://www.goodreads.com/book/show/5581755-the-sydney-melbourne-book">The Sydney Melbourne Book</a>, political scientist James Jupp contrasts the reformist, Protestant, middle-class political culture of Melbourne with the hard-nosed materialism of Sydney. Melbourne was patrician, idealistic and internationalist; Sydney proletarian, masculinist and cynical. </p>
<p>For much of the 20th century, this made Victoria the natural home of the Liberal Party, until the early 1970s when Gough Whitlam lured a section of the moral middle class over to a social democratic Labor Party. </p>
<p>Victoria’s political culture is still more progressive than that of New South Wales, but this now tilts it towards Labor and the Greens rather than the Liberals. The Liberals’ centre of gravity, meanwhile, has shifted to the more proletarian and anti-intellectual culture of Sydney.</p>
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Read more:
<a href="https://theconversation.com/queensland-to-all-those-quexiteers-dont-judge-try-to-understand-us-117502">Queensland to all those #Quexiteers: don't judge, try to understand us</a>
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<p>The second reason state-based identities might be strengthening is the differing impact of neoliberalism on our two levels of government. After the second world war, Australia had three decades of confident, government-led nation-building: the postwar immigration and <a href="https://www.snowyhydro.com.au/generation/the-snowy-scheme/">Snowy Mountains schemes</a>, the development of manufacturing, and the expansion of the nation’s universities and scientific capacities. The effort culminated in the cultural nationalism of the Whitlam government.</p>
<p>This nation-building momentum was stalled by the onset of <a href="https://www.smh.com.au/national/how-stagflation-killed-golden-age-20061118-gdouxp.html#:%7E:text=Stagflation%20persisted%20for%20about%20a,to%20a%20high%20unemployment%20one.">stagflation</a> in the mid-1970s, and it gradually petered out as governments turned to neoliberal remedies to restore economic growth.</p>
<p>A major casualty of neoliberalism has been the capacity of the federal government to deliver services, as it privatised and outsourced many of its responsibilities. Steering not rowing was the mantra. Government would pay the bills for the private sector to do the work. </p>
<p>In the September issue of The Monthly, John Quiggin <a href="https://www.themonthly.com.au/issue/2021/september/1630418400/john-quiggin/dismembering-government">ponders</a> how the Commonwealth government of 50 years ago would have handled the pandemic. Back then, it operated quarantine facilities, had a Department of Works that was able to expand them as needed, owned an airline that could have flown Australians home, ran a network of repatriation hospitals and owned the Commonwealth Serum Laboratories. </p>
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<p>Above all, mid-century federal governments had the confidence and capacity to lead. They were, writes Quiggin, far better equipped to deal with the pandemic and would have seen themselves as having the obvious responsibility to do so. Quarantine management would not have been handballed to the states, and the vaccine rollout would have been less shambolic.</p>
<p>Pretty well the entire political class subscribed to the neoliberalism of the 1970s and ‘80s, but state governments have been far less successful than the federal government in offloading their core responsibilities, such as health, education, policing and emergency services. Hence, state governments have retained more capacity. As they have become more effective in these regards, and the federal government less so, people have been drawn back into their orbit. Differences between the states in people’s political experiences have been enhanced, along with people’s sense of the distinctiveness of their state.</p>
<p>The third reason Australians’ state-based identifications may have strengthened is the development of the two-speed economy since the 1980s. The reduction of tariffs since the 1980s damaged the economies of the manufacturing states, especially Victoria and South Australia, which turned to services such as education and tourism. At the same time, mining boomed in Queensland, Western Australia and parts of NSW. People in the different states have experienced very different economies. <a href="https://www.cgc.gov.au/about-us/fiscal-equalisation">Horizontal fiscal equalisation</a>, the transfer of resources between jurisdictions, softened the impact of this on the service delivery capacities of the states, but we were not all in the same economic boat.</p>
<p>The political impact of this has played out most obviously and destructively in the inability of our federal governments since 2000 to develop a coherent response to climate change. Coal has been weaponised, with effective policy held to ransom by mining electorates, especially in Queensland. </p>
<p>At the 2019 election, the number of Australians voting for Labor and the Greens was <a href="https://www.abc.net.au/news/elections/federal/2019/results/party-totals">marginally higher</a> than the number voting for the Coalition, although this did not translate into a majority of seats. In Queensland, for example, the Coalition <a href="https://www.aec.gov.au/Elections/federal_elections/2019/files/maps/2019-aec-A3-QLD-maps.pdf">won 23 of the 30 seats</a>. In the winner-takes-all commentary, election victories are interpreted as telling us something about all Australians, the country at large. But they don’t. </p>
<p>Perhaps I am speaking as a Victorian here, but for the past decade or so I have been feeling more strongly identified with Victoria and its progressive politics, as Labor loses federal elections in Queensland and Western Australia. COVID has simply strengthened a pre-existing feeling.</p>
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Read more:
<a href="https://theconversation.com/australias-devotion-to-coal-has-come-at-a-huge-cost-we-need-the-government-to-change-course-urgently-140841">Australia's devotion to coal has come at a huge cost. We need the government to change course, urgently</a>
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<p><em>The author will be appearing on a panel to discuss federalism in the time of COVID on Friday, October 22, as part of Australian Catholic University’s <a href="https://www.acu.edu.au/research/our-research-institutes/institute-for-humanities-and-social-sciences/ihss-seminars/friday-forums">Friday Forum series</a>. Please email IHSS@acu.edu.au for more information.</em></p><img src="https://counter.theconversation.com/content/170017/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Judith Brett does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australians coalesced around a strong federal government during the second world war. In recent decades, however, the states have taken primacy in people’s lives.Judith Brett, Emeritus Professor of Politics, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1670262021-09-01T12:09:50Z2021-09-01T12:09:50ZState efforts to ban mask mandates in schools mirror resistance to integration<figure><img src="https://images.theconversation.com/files/418730/original/file-20210831-23-368k3d.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C5637%2C3487&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Southern states' bans on mask mandates in schools may violate the rights of disabled students. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-attend-a-special-board-of-education-meeting-on-mask-news-photo/1234838553?adppopup=true">Matthew Hatcher/Getty Images</a></span></figcaption></figure><p>When the U.S. Supreme Court issued its 1954 <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown vs. Board of Education decision</a> that struck down segregated public schooling, white Southern politicians responded to the decision with ferocity.</p>
<p>Although preservation of states’ rights was at the heart of their resistance claims, it was the racist practice of segregation that they sought to uphold.</p>
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<a href="https://images.theconversation.com/files/418741/original/file-20210831-15-1t18rwo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man speaks on stage next to two Black children and a group of other men." src="https://images.theconversation.com/files/418741/original/file-20210831-15-1t18rwo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/418741/original/file-20210831-15-1t18rwo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=438&fit=crop&dpr=1 600w, https://images.theconversation.com/files/418741/original/file-20210831-15-1t18rwo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=438&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/418741/original/file-20210831-15-1t18rwo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=438&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/418741/original/file-20210831-15-1t18rwo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=550&fit=crop&dpr=1 754w, https://images.theconversation.com/files/418741/original/file-20210831-15-1t18rwo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=550&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/418741/original/file-20210831-15-1t18rwo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=550&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Former Sen. Harry Byrd (D. Va.) was deeply opposed to school integration.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/sen-harry-f-byrd-d-va-at-telethon-1952-n-news-photo/644004948?adppopup=true">CQ Roll Call via Getty Image</a></span>
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<p>U.S. Senator <a href="https://encyclopediavirginia.org/entries/byrd-harry-f-1887-1966/">Harry Byrd</a> of Virginia declared the ruling “<a href="http://www2.vcdh.virginia.edu/civilrightstv/documents/byrd_001.html">the most serious blow that has yet been struck against the rights of the states</a>.” Thomas P. Brady, Mississippi circuit judge and future state supreme court justice, called the day of the ruling “<a href="https://egrove.olemiss.edu/citizens_pamph/3/">Black Monday</a>.” Brady also claimed that racial integration was a communist plot to unify the country around one common culture. </p>
<p>Over 100 Southern House and Senate members signed a <a href="https://history.house.gov/Historical-Highlights/1951-2000/The-Southern-Manifesto-of-1956/">Southern Manifesto</a>, vowing to stop school integration in what Byrd called a “massive resistance.” The governor of Virginia, Thomas Manley, appointed a commission to explore legal options in the wake of the Brown vs. Board of Education decision. <a href="http://www2.vcdh.virginia.edu/civilrightstv/glossary/topic-009.html#:%7E:text=The%20Gray%20Commission's%20emphasis%20on,position%20to%20accomplish%20most%20effectively">The Gray Commission</a>, as it was known, recommended that no child in Virginia “be required to attend a school wherein both white and colored children are taught.”</p>
<p>I don’t bring up this Southern resistance to federal mandates that affect U.S. schools merely to recount history. As a researcher who <a href="https://scholar.google.com/citations?user=vK7qfnkAAAAJ&hl=en&oi=ao">focuses on the role of federalism in U.S. education</a>, I believe this resistance helps shine light on why several Southern states today are <a href="https://www.flgov.com/2021/07/30/governor-desantis-issues-an-executive-order-ensuring-parents-freedom-to-choose/">pushing back</a> against federal guidance for teachers and students to wear masks in schools to lessen the risks of contracting the <a href="https://asm.org/Articles/2021/July/How-Dangerous-is-the-Delta-Variant-B-1-617-2">more dangerous</a> delta variant of COVID-19.</p>
<h2>Defiance in spite of risks</h2>
<p>In late July 2021, the <a href="https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html">Centers for Disease Control and Prevention</a> and <a href="https://www.reuters.com/world/us/biden-says-cdc-will-advise-unvaccinated-kids-mask-up-school-this-fall-2021-07-22/">President Joe Biden</a> recommended students wear masks in schools to protect themselves and others from COVID-19. </p>
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<span class="caption">Florida Gov. Ron DeSantis has refused to impose statewide mask mandates.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/florida-governor-ron-desantis-speaks-during-a-press-news-photo/1227675767?adppopup=true">Paul Hennessy/SOPA Images/LightRocket via Getty Images</a></span>
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<p>Subsequently, Florida Gov. Ron DeSantis issued an <a href="https://www.flgov.com/2021/07/30/governor-desantis-issues-an-executive-order-ensuring-parents-freedom-to-choose/">executive order</a> that banned schools in the state from requiring masks, claiming that the masks are unproven to be effective and might cause harm to children. The governors of <a href="https://gov.texas.gov/uploads/files/press/EO-GA-38_continued_response_to_the_COVID-19_disaster_IMAGE_07-29-2021.pdf">Texas</a> and <a href="https://apnews.com/article/health-arizona-coronavirus-pandemic-f4c807150376d4a1dc1ea88b3aecce7c">Arizona</a> took similar measures, leaving schools, concerned parents, teachers and vulnerable students few options and with little time before the school year began to decide how to respond. The Texas legislature is <a href="https://www.houstonchronicle.com/politics/texas/article/Texas-Democrats-say-GOP-bill-blocking-future-mask-16398646.php">considering legislation</a> that would make public mask requirements illegal.</p>
<h2>A history of resistance</h2>
<p>Southern states ignoring federal educational guidance is not new. </p>
<p>For instance, rather than integrate schools, Virginia <a href="https://www.odu.edu/library/special-collections/dove/timeline">elected to close many school districts</a> and instead offer white students vouchers to attend private schools. The state legislature enabled this in 1956, when it <a href="https://www.vqronline.org/essay/massive-resistance-virginia%E2%80%99s-great-leap-backward">passed laws that stripped local school boards</a> of their power and put it in the hands of committees appointed by the governor. </p>
<p>When Lindsey Almond took over as governor of Virginia in 1957, he warned that integrated schools would lead to the “<a href="https://www.commentary.org/articles/erwin-knoll/desegregations-tortuous-course-washington-showcase-of-integration/">livid stench of sadism, sex, immorality, and juvenile pregnancy</a>” that he claimed existed in nearby Washington’s integrated school system.</p>
<h2>Other acts of resistance</h2>
<p>In Mississippi, things were little different than in Virginia. <a href="https://www.jstor.org/stable/40578897">Gov. Hugh White</a> thought that he might avoid integration by convincing Black residents to voluntarily agree to continue segregation. He promised more money for schools. He met with 90 Black leaders and asked for voluntary segregation. The plan failed when only one person at the meeting agreed to the proposal. As a result, the governor called a special session of the state legislature.</p>
<p>The legislature <a href="https://www.jacksonfreepress.com/news/2004/may/12/black-monday/">passed a bill that led to the closure of public schools in the state</a>. Public schools would be mostly private and segregated. It took 16 years for Mississippi schools to comply with the Brown decision and fully integrate.</p>
<p>Other states <a href="https://www.jstor.org/stable/40578897">resisted integration in similar ways</a>, with various policies that privatized public schools, <a href="https://www.naacpldf.org/case-issue/landmark-brown-v-board-education/#:%7E:text=The%20legal%20victory%20in%20Brown,and%20institutions%20of%20higher%20education.">leading to the modern civil rights movement</a>. The civil rights movement opened the door for a <a href="https://www.justice.gov/crt/types-educational-opportunities-discrimination#:%7E:text=The%20Civil%20Rights%20Division%2C%20Educational,and%20institutions%20of%20higher%20education.">larger federal government role</a> in educational policy. The Justice Department has the authority to investigate and prosecute schools under the <a href="https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html#:%7E:text=Title%20IX%20states%3A,activity%20receiving%20Federal%20financial%20assistance.">Title IX provision</a> of the Civil Rights Act of 1964 that mandates civil rights protection for students.</p>
<h2>Fight against federal government continues</h2>
<p>Fast forward to 2021 and governors and lawmakers in states such as <a href="https://apnews.com/article/joe-biden-business-health-education-coronavirus-pandemic-1aba40b697a210a65356269c916780d4">Florida, Texas and Arizona are clamoring</a> with a similar states’ rights argument as their predecessors. </p>
<p>Like Virginia and Mississippi in the 1950s, these states are attempting to undermine federal intervention in schools. The U.S. Constitution creates a federal system where the national government shares power with states. Any power not explicitly listed in the Constitution is left to the states, <a href="https://www.law.cornell.edu/constitution/tenth_amendment">per the 10th Amendment</a>. As a result, educational policy is largely left to the states, so long as civil rights are protected. </p>
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<a href="https://theconversation.com/federal-role-in-education-has-a-long-history-74807">Federal role in education has a long history</a>
</strong>
</em>
</p>
<hr>
<p>Within states, power is shared with local governments in whatever way state constitutions and law decide. Florida Gov. DeSantis has <a href="https://www.tallahassee.com/story/news/local/state/2021/08/09/florida-gov-desantis-threatens-salaries-school-superintendents-school-board-members-mask-mandates/5544903001/">threatened retaliation against schools who defy his order</a> by cutting superintendent salaries. Yet, a <a href="https://apnews.com/article/lifestyle-health-education-florida-coronavirus-pandemic-1908088a0b5c5b02d89fd7e007822408">state judge stopped</a> his order. DeSantis <a href="https://www.clickorlando.com/news/local/2021/08/30/well-end-up-getting-it-back-desantis-confident-in-appeal-of-mask-mandate-ruling/">claims that he will win on appeal</a>.</p>
<p>Texas and Arizona officials have <a href="https://www.edweek.org/policy-politics/can-governors-really-take-money-from-schools-over-masks/2021/08">threatened consequences</a>, such as loss of funding and lawsuits, to school districts that mandate masks. Threatening localities with retaliation did not prevent the eventual integration of schools in the South. Considering that local school districts are following federal health guidance, threats from governors to browbeat localities into submission have stirred <a href="https://www.nationalgeographic.com/science/article/as-kids-head-back-to-school-battles-over-masks-are-pitting-parents-against-governors">community outrage</a> from parents and lawsuits from concerned citizens. </p>
<p>Nevertheless, federalism makes power-sharing between the states and federal government complicated. The Constitution gives states the power to create their own educational and health policies, but the federal government can enforce civil rights laws in schools, making educational policy political whether people like it or not.</p>
<p>[<em>Over 100,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>This is why, on Aug. 30, 2021, the U.S. Department of Education announced <a href="https://www.ed.gov/news/press-releases/department-educations-office-civil-rights-opens-investigations-five-states-regarding-prohibitions-universal-indoor-masking">that it would investigate</a> whether statewide mask bans deny civil rights to students with disabilities.</p>
<p>Like school integration in the past, policies that require or encourage masks have become the new arena for the ongoing American argument about Southern states’ rights.</p><img src="https://counter.theconversation.com/content/167026/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dustin Hornbeck does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Fighting against federal authority is a political tradition in the South – and resisting federal guidance to wear masks in schools is just the latest example, an education policy expert writes.Dustin Hornbeck, Postdoctoral Research Fellow of Educational Leadership and Policy, University of Texas at ArlingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1661282021-08-19T12:09:11Z2021-08-19T12:09:11ZWho has the power to say kids do or don’t have to wear masks in school – the governor or the school district? It’s not clear<figure><img src="https://images.theconversation.com/files/416614/original/file-20210817-24-hxnkds.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C4602%2C3213&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Richardson Independent School District in Texas is among the many districts across the state defying the governor's mask mandate ban to require masks for students. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/VirusOutbreakTexasSchools/dae14cf6d3c54a07865e12455e9a693e/photo?Query=school%20mask%20mandate&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=89&currentItemNo=4">AP Photo/LM Otero</a></span></figcaption></figure><p>Legal battles over masks in schools are being fought across the country, including in <a href="https://www.usnews.com/news/best-states/arkansas/articles/2021-08-13/most-arkansas-public-school-students-under-mask-mandate">Arkansas</a>, <a href="https://www.newsweek.com/gavin-newsom-sued-over-school-mask-mandate-covid-spikes-california-1612411">California</a>, <a href="https://www.tampabay.com/news/health/2021/08/13/tampa-bay-families-join-lawsuits-over-desantis-school-mask-order/">Florida</a>, <a href="https://www.kentucky.com/news/coronavirus/article253414600.html">Kentucky</a>, <a href="https://www.reuters.com/legal/government/michigan-catholic-school-seeks-broad-exception-mask-mandate-2021-07-22/">Michigan</a>, <a href="https://thehill.com/homenews/state-watch/567684-oklahoma-faces-lawsuit-over-ban-on-mask-mandates-for-schools?rl=1">Oklahoma</a>, <a href="https://www.reviewjournal.com/local/education/parents-sue-sisolak-ccsd-over-mask-order-in-schools-2418790/">Nevada</a> and <a href="https://www.dallasnews.com/news/education/2021/08/16/flurry-of-conflicting-legal-battles-against-texas-mask-mandate-ban-complicates-schools-start/">Texas</a>. </p>
<p>Rather than clarifying policy, these legal challenges have led to more confusion.</p>
<p>As a new school year begins and COVID-19 hospitalizations rise across the country, the <a href="https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html">Centers for Disease Control and Prevention</a> and the <a href="https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/clinical-guidance/covid-19-planning-considerations-return-to-in-person-education-in-schools/">American Academy of Pediatrics</a> recommend that students wear masks in school to help slow the spread of the coronavirus. </p>
<p>This guidance, and schools’ responses to it, has resulted in an intense debate. Some parents argue that they should be able to decide when and where their children wear masks, whereas others argue collective health and safety concerns take priority over individual choices. These arguments fall <a href="https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-vaccine-monitor-parents-and-the-pandemic/">sharply along partisan lines</a>, with 88% of Democrats supporting mask mandates and 69% of Republicans against the requirements. </p>
<p>State rules reflect this division. In <a href="https://www.latimes.com/world-nation/story/2021-08-15/schools-battle-states-covid">eight states</a>, as of Aug. 16, 2021, laws were enacted or governors issued orders banning public schools from requiring students to wear masks. On the opposite side of the debate, <a href="https://www.bloomberg.com/news/articles/2021-08-13/school-mask-rule-clash-puts-heat-on-state-courts-to-steer-policy">12 states and the District of Columbia</a> are requiring students to wear masks indoors.</p>
<p>Further complicating matters, some school districts have acted in <a href="https://www.forbes.com/sites/alisondurkee/2021/08/09/more-schools-defying-state-governments-to-impose-mask-mandates---heres-what-could-happen-next/?sh=4601bdb6449e">outright defiance</a> of their states’ regulations. These conflicts pose one key question: Who has the power to control the health and safety measures schools take – state leaders or local officials?</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/KT-qW5sNrwg?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">On Aug. 11, 2021, anti-mask demonstrators gathered outside a school board meeting in Williamson County, Tenn., after a vote passed requiring masks in elementary classrooms.</span></figcaption>
</figure>
<h2>Competing policies</h2>
<p>Texas provides a good example of this conflict. Even after Texas Gov. Greg Abbott issued an <a href="https://gov.texas.gov/news/post/governor-abbott-issues-executive-order-prohibiting-government-entities-from-mandating-masks">executive order</a> banning school mask mandates, <a href="https://www.texastribune.org/2021/08/09/texas-mask-order-schools/">local officials</a> in several school districts adopted policies that required students to wear masks.</p>
<p><a href="https://www.texastribune.org/2021/08/11/texas-mask-mandates-covid-19/">Simultaneous legal battles</a> across multiple state court districts ensued and resulted in inconsistent rulings on whether banning masks in schools is constitutional.</p>
<p>On Aug. 15, the Texas Supreme Court <a href="https://www.tpr.org/government-politics/2021-08-15/texas-supreme-court-sides-with-governor-abbott-on-his-mask-mandate-ban-for-now">weighed in</a>, siding with the governor and saying that schools cannot require masks. Yet some schools still do, defying both the governor and the state’s highest court.</p>
<p>With all of the partisan rhetoric, lawsuits and conflict, many parents are <a href="https://www.nytimes.com/2021/08/15/us/covid-school-reopening-anxiety.html">left bewildered</a> about how to proceed with the school year.</p>
<p>This is not the first time legal battles have erupted in the wake of a public health emergency. During the influenza pandemic of 1918, state and local governments enacted a <a href="https://www.theatlantic.com/ideas/archive/2020/03/how-fragmented-country-fights-pandemic/608284/">variety of restrictions</a> to combat the spread of the virus. As they must now, officials had to make hard decisions about <a href="https://theconversation.com/3-lessons-from-how-schools-responded-to-the-1918-pandemic-worth-heeding-today-138403">whether to close schools</a> or prevent public gatherings. <a href="https://www.acslaw.org/expertforum/face-covering-requirements-and-the-constitution/">Mask mandates</a> even existed <a href="https://theconversation.com/mask-resistance-during-a-pandemic-isnt-new-in-1918-many-americans-were-slackers-141687">in some areas</a>. State and local judges routinely upheld these measures.</p>
<p>Many of the same <a href="https://constitutioncenter.org/blog/the-constitutional-issues-related-to-covid-19-mask-mandates">constitutional questions</a> <a href="https://theconversation.com/people-gave-up-on-flu-pandemic-measures-a-century-ago-when-they-tired-of-them-and-paid-a-price-156551">debated over 100 years ago</a> arise today about mask mandates and other pandemic-related regulations. </p>
<h2>Civil liberties vs. public health</h2>
<p>Long-standing <a href="https://supreme.justia.com/cases/federal/us/197/11/">U.S. Supreme Court precedent</a> recognizes that states have broad powers to regulate the health and safety of their citizens during a public health crisis. </p>
<p>But no right is absolute. When evaluating a state’s actions in a pandemic, courts weigh the government’s interest in protecting the health and safety of its citizens against an individual’s civil liberties. </p>
<p><a href="https://theconversation.com/the-constitution-doesnt-have-a-problem-with-mask-mandates-142335">Common challenges</a> against COVID-19-related regulations argue that some requirements violate the First Amendment or an individual’s right to liberty, including the right to make choices about one’s own health.</p>
<p>Over the past year, the challenges that have been most successful in the courts argued that certain COVID-19 rules violated the First Amendment right to freely exercise one’s religion. </p>
<p>For example, the U.S. Supreme Court recently <a href="https://supreme.justia.com/cases/federal/us/2021/20A151/">blocked</a> the state of California from enforcing COVID-19 restrictions on an at-home Bible study group and <a href="https://supreme.justia.com/cases/federal/us/592/20a87/">prevented</a> New York state from enforcing occupancy limits on religious services.</p>
<p>But with respect to mask mandates, legal precedent supporting similar challenges is not as strong. </p>
<p>For example, in Maryland, a federal district court recently <a href="https://casetext.com/case/antietam-battlefield-koa-v-hogan">suggested in a decision</a> that litigants were unlikely to succeed with claims that challenged mask mandates as unconstitutional violations of the First Amendment. </p>
<p>Arguments that mask mandates violate an individual’s constitutional right to liberty – <a href="https://www.law.cornell.edu/wex/liberty#:%7E:text=The%20term%20%E2%80%9Cliberty%E2%80%9D%20appears%20in,unreasonable%20restraint%20upon%20an%20individual.">defined by a leading legal resource</a> as “freedom from arbitrary and unreasonable restraint upon an individual” – face an even greater uphill battle. Courts have interpreted the Constitution as <a href="https://supreme.justia.com/cases/federal/us/360/310/">giving elected officials leeway</a> when it comes to social policy, particularly in areas “fraught with medical and scientific uncertainties.”</p>
<p>This does not bode well for challenges like one <a href="https://abcnews.go.com/Health/wireStory/federal-lawsuit-filed-las-vegas-school-mask-mandate-79435468">recently filed</a> in Nevada, which claims mask mandates infringe upon the fundamental right of parents to make child-rearing decisions.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/416616/original/file-20210817-28-138t3gz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Florida Gov. Ron DeSantis in a black jacket with a mask pushed below his mouth." src="https://images.theconversation.com/files/416616/original/file-20210817-28-138t3gz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/416616/original/file-20210817-28-138t3gz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/416616/original/file-20210817-28-138t3gz.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/416616/original/file-20210817-28-138t3gz.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/416616/original/file-20210817-28-138t3gz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/416616/original/file-20210817-28-138t3gz.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/416616/original/file-20210817-28-138t3gz.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In Florida, lawsuits are challenging the executive order banning school mask mandates issued by Gov. Ron DeSantis, above.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/florida-gov-ron-desantis-looks-on-during-the-third-round-of-news-photo/1311810391?adppopup=true">Mike Ehrmann/Getty Images</a></span>
</figcaption>
</figure>
<h2>More mandates, please</h2>
<p>On the other side of the debate, in some states litigants have gone to court to advocate for more stringent COVID-19 regulations. </p>
<p>In Florida, <a href="https://www.cnn.com/2021/08/06/us/florida-desantis-executive-order-school-masks-first-legal-challenge-constitutionality/index.html">two different lawsuits</a> seek to overturn the governor’s ban on school mask requirements. They claim that the Florida Constitution guarantees a safe school environment and grants local governments the authority to govern schools.</p>
<p>Some of the more successful lawsuits have focused on the fact that, by law, most states can regulate mask wearing in only public schools. This means that state laws and orders that ban mask requirements do not extend to private schools. In <a href="https://azednews.com/what-would-it-take-to-rescind-law-prohibiting-school-mask-mandates/">Arizona</a>, <a href="https://apnews.com/article/health-arkansas-coronavirus-pandemic-d79a14a84f0c7ba3bd6d8b3cf4039404">Arkansas</a> and <a href="https://www.oklahoman.com/story/news/2021/08/12/oklahoma-lawsuit-alleges-school-mask-mandate-ban-unconstitutional/8114783002/">Oklahoma</a>, lawsuits claim that this creates unconstitutional distinctions between public and private students’ rights to a safe educational environment – and therefore, they say, the state cannot ban mask mandates in schools at all.</p>
<h2>Unanswered questions</h2>
<p>All of this fighting within and among the states led the Biden administration to step into the fray. While the federal government <a href="https://supreme.justia.com/cases/federal/us/584/16-476/">cannot constitutionally command</a> the states to do something, it can create incentives for them with money. </p>
<p>In response to the governors’ orders in <a href="https://www.flgov.com/2021/07/30/governor-desantis-issues-an-executive-order-ensuring-parents-freedom-to-choose/">Florida</a> and <a href="https://gov.texas.gov/news/post/governor-abbott-issues-executive-order-prohibiting-government-entities-from-mandating-masks">Texas</a> that prohibit mask mandates in schools, U.S. Secretary of Education Miguel Cardona reminded <a href="https://oese.ed.gov/files/2021/08/Letter-from-Secretary-Cardona-FL-08-13-21.pdf">both states’</a> <a href="https://oese.ed.gov/files/2021/08/Letter-from-Secretary-Cardona-TX-08-13-21.pdf">governors</a> that federal CDC guidance recommends students wear masks. Cardona also suggested that the Biden administration would <a href="https://www.nytimes.com/2021/08/13/health/cardona-biden-abbott-desantis-mask-mandate.html">closely monitor</a> whether the states were meeting <a href="https://oese.ed.gov/offices/american-rescue-plan/american-rescue-plan-elementary-and-secondary-school-emergency-relief/">requirements</a> for federal relief funding under the American Rescue Plan Act of 2021. <a href="https://www.dallasnews.com/news/education/2021/08/13/us-education-secretary-texas-mask-mandate-ban-may-infringe-on-school-district-authority/">That law requires states to adhere to CDC guidance</a>, including implementing mitigation strategies such as contact tracing or mask requirements, in order to receive the federal money the act provides.</p>
<p>President Joe Biden <a href="https://www.seattletimes.com/nation-world/mounting-lawsuits-federal-government-challenge-desantis-abbott-bans-on-mask-mandates/">followed up</a> Cardona’s letters to the governors with a phone call of support to one of the superintendents who adopted mask mandates in violation of his governor’s executive order.</p>
<p>If it all sounds confusing and as if the law is all over the place regarding school mask mandates, that’s because it is. The nation’s schools are subject to a complex web of local, state and federal laws that make it difficult to impose uniform standards.</p>
<p>Add in an <a href="https://www.cnn.com/2021/08/08/politics/republican-governors-mask-vaccines-mandates-schools/index.html">intense political battle</a> over the appropriate policies to adopt in the wake of the delta variant and you have precisely the kind of situation that may well end up at the U.S. Supreme Court.</p><img src="https://counter.theconversation.com/content/166128/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Selin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If it sounds like the law is all over the place on school mask mandates, that’s because it is. The nation’s schools are subject to a complex web of local, state and federal laws.Jennifer Selin, Kinder Institute Assistant Professor of Constitutional Democracy, University of Missouri-ColumbiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1601552021-07-23T12:12:41Z2021-07-23T12:12:41ZThe Trump administration feuded with state and local leaders over pandemic response – now the Biden administration is trying to turn back a page in history<figure><img src="https://images.theconversation.com/files/412521/original/file-20210721-19-1bo2ds5.jpeg?ixlib=rb-1.1.0&rect=0%2C5%2C3681%2C2445&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Biden and Vice President Harris met on Feb. 12, 2021, with governors and mayors to discuss supporting them in the fight against COVID-19. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-joe-biden-and-vice-president-kamala-harris-meet-news-photo/1301799167?adppopup=true">Pete Marovich-Pool/Getty Images</a></span></figcaption></figure><p>As the U.S. recovers from the pandemic, the Biden administration is working to rebuild relationships across levels of government, from the top to the bottom, that were strained during the presidency of Donald Trump. </p>
<p>In November 2020, <a href="https://thehill.com/homenews/campaign/527241-biden-pledges-to-work-with-mayors">Biden</a> offered urban leaders a seat at the table in coronavirus recovery efforts, promising to avoid partisanship. Addressing the National League of Cities in March 2021, <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/03/08/remarks-by-vice-president-harris-at-national-league-of-cities-conference/">Harris praised</a> urban leadership on COVID-19 – <a href="https://www.newyorker.com/magazine/2020/05/04/seattles-leaders-let-scientists-take-the-lead-new-yorks-did-not">cities like Seattle</a> and <a href="https://www.brookings.edu/blog/future-development/2020/04/07/coronavirus-lessons-from-new-york-and-san-francisco/">New York</a> were among the first to respond to the pandemic, developing testing protocols, tracking new infections and supplying equipment for hospitals – and highlighted the administration’s plans to help pay for improvements to local infrastructure. </p>
<p>The <a href="https://www.cnbc.com/2020/04/09/why-states-and-the-federal-government-are-bidding-on-ppe.html">COVID-19 crisis highlighted</a> the importance of government leaders working together. </p>
<p><a href="https://wwnorton.com/college/polisci/american-government12/brief/ch/03/outline.aspx">The U.S. government system, called federalism</a>, shares power among the national, state and local governments. This system allows local control over most day-to-day government decisions. Local control means that policies can be tailored to the needs and limitations of each community. </p>
<p>But with the onset of COVID-19 in early 2020, tensions in this shared system <a href="https://doi.org/10.5055/jem.0549">boiled over</a>. Instead of collaborating, the federal government <a href="https://doi.org/10.1177/0275074020942060">rebuffed state and local governments</a> desperate for critical information and lifesaving supplies. </p>
<p>States and cities competed over medical equipment, testing capacity and supplies and other needs. Densely populated cities, many feuding with the federal government, were hardest hit. </p>
<p><a href="https://doi.org/10.1111/puar.13243">Federalism seemed to fail</a>, slowing the response and leading to deaths. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/412555/original/file-20210722-15-15sk4ec.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Washington, D.C. Mayor Muriel Bowser" src="https://images.theconversation.com/files/412555/original/file-20210722-15-15sk4ec.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/412555/original/file-20210722-15-15sk4ec.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=379&fit=crop&dpr=1 600w, https://images.theconversation.com/files/412555/original/file-20210722-15-15sk4ec.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=379&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/412555/original/file-20210722-15-15sk4ec.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=379&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/412555/original/file-20210722-15-15sk4ec.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=476&fit=crop&dpr=1 754w, https://images.theconversation.com/files/412555/original/file-20210722-15-15sk4ec.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=476&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/412555/original/file-20210722-15-15sk4ec.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=476&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Washington, D.C., Mayor Muriel Bowser called successfully in 2016 for raising the district’s minimum wage to $15, stepping in where the federal government had failed to act.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MayorDistrictofColumbia/03d2c2263ee44f9da7a342153771c682/photo?Query=Muriel%20AND%20Bowser&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=649&currentItemNo=5">AP Photo/Manuel Balce Ceneta</a></span>
</figcaption>
</figure>
<h2>Change in approach</h2>
<p>In contrast to the previous administration, the Biden administration is treating local governments as key partners in a variety of areas, including public health. </p>
<p>It has taken steps to give local policymakers more <a href="https://www.nbcnews.com/politics/white-house/white-house-shift-how-vaccines-are-allocated-states-biden-sets-n1266299">control over the allocation</a> and <a href="https://www.nytimes.com/2021/05/04/us/politics/biden-vaccination-strategy.html">distribution</a> of COVID-19 vaccinations, while <a href="https://www.statnews.com/pharmalot/2021/05/05/biden-covid19-vaccine-patent-rights/">setting national policies</a> to hasten the availability of vaccines. </p>
<p>Reasserting closer relationships between the federal government and state and local partners may signal a shift toward more collaboration in general.</p>
<p>The federal government can use its power and position to drive change at the local level. A more collaborative relationship can help the federal government <a href="https://doi.org/10.1111/puar.13257">understand communities’ needs</a>, leading to new policies and priorities. Close partnership may also increase awareness of federal resources that are available, helping state and local governments identify programs to <a href="https://doi.org/10.1177/1078087414530545">better support their residents</a>. </p>
<p><a href="https://doi.org/10.5055/jem.0549">But as our research</a> shows, federal dominance can also be counterproductive. </p>
<h2>How federalism does – and doesn’t – work</h2>
<p>Federal and state governments are responsible for national or regional priorities, such as defense, diplomacy and the raising and redistribution of tax revenues.</p>
<p>But local governments deliver the most-used public services, including schools, transportation, parks and public health. As a result, local governments are perhaps the most important in people’s daily lives. </p>
<p>Local governments both make and implement policy. In areas where the federal and state governments are silent or inactive, local governments often innovate to address community needs. That freedom to innovate helps local governments generate policies that can work their way up and across the federal system. </p>
<p>For example, despite backlash from state and national leaders, <a href="https://doi.org/10.1093/publius/pjx026">various cities</a> – like Austin, Los Angeles, Virginia Beach and Washington, D.C. – have led the way on social and environmental policies, adopting and advocating for <a href="https://www.journals.uchicago.edu/doi/10.1086/708940">higher minimum wages</a>, <a href="https://doi.org/10.1016/j.ecolecon.2015.06.012">fracking limitations</a>, <a href="https://www.acslaw.org/wp-content/uploads/2021/03/The-Rise-of-Second-Amendment-Sanctuaries.pdf">sanctuaries for Second Amendment rights</a> and <a href="https://doi.org/10.1108/PIJPSM-06-2012-0052">reducing law enforcement violence</a>. </p>
<p><a href="https://journals.sagepub.com/doi/abs/10.1177/0160323X0003200202">Scholars have noted changes</a> in the dynamics of these relationships throughout history. During some eras, the federal government has more power over policymaking. At other times, state and local governments exert greater influence. </p>
<p>For example, President Lyndon B. Johnson’s Great Society welfare programs – Medicare, Medicaid and food stamps – <a href="https://millercenter.org/president/lbjohnson/domestic-affairs">increased the federal government’s influence</a> on state and local governments. New federal requirements <a href="https://doi.org/10.1080/07343469.2016.1263979">mandated spending</a> on social programs, often requiring matching funds from state and local governments. And new state and local agencies had to be established to implement federal priorities. </p>
<p>Federal dollars shared with local governments to fight poverty came with <a href="https://fas.org/sgp/crs/misc/R40638.pdf">strings attached</a>. Examples include requirements to meet environmental standards and adopt nondiscrimination policies. </p>
<p>With the advent of welfare reform in the mid-1990s, the <a href="http://webarchive.urban.org/publications/306620.html">federal government relaxed some of these requirements</a>. As a result, state and local governments were given more flexibility over policy and spending decisions.</p>
<p>Our recent research indicates the balance of power in the federal system <a href="https://doi.org/10.5055/jem.0549">affects government performance and the safety of Americans</a>. During the COVID-19 response, the federal government failed to partner with state and local governments. As a result, there were problems finding and delivering crucial supplies like masks and ventilators, leading to needless deaths. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/412539/original/file-20210721-17-5nvegn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="President Lyndon Johnson, sitting at his desk in a suit, tie and white shirt." src="https://images.theconversation.com/files/412539/original/file-20210721-17-5nvegn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/412539/original/file-20210721-17-5nvegn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/412539/original/file-20210721-17-5nvegn.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/412539/original/file-20210721-17-5nvegn.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/412539/original/file-20210721-17-5nvegn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/412539/original/file-20210721-17-5nvegn.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/412539/original/file-20210721-17-5nvegn.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Lyndon Johnson, shown here, expanded the authority of the federal government with his Great Society programs.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/LyndonJohnson/5beacfeddec6446d871b5b0f747dfb6f/photo?Query=Lyndon%20AND%20Johnson&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=1984&currentItemNo=17">AP Photo</a></span>
</figcaption>
</figure>
<h2>Critical work</h2>
<p>Historically, presidents have taken a range of approaches to managing the federal system. </p>
<p><a href="https://millercenter.org/president/lbjohnson/domestic-affairs">Johnson’s Great Society programs</a> expanded the authority of the federal government. Federal agencies gained the power to create and manage the details of the effort to eradicate poverty, hunger and discrimination.</p>
<p>President Richard Nixon’s “<a href="https://www.doi.org/10.1111/j.1541-0072.1980.tb01181.x">new federalism</a>” sent money in so-called “<a href="http://webarchive.urban.org/publications/310991.html">block grants</a>” to state and local governments to carry out different federal initiatives. This allowed local governments some power over policy design and implementation.</p>
<p>President Ronald Reagan’s “<a href="https://doi.org/10.1093/oxfordjournals.pubjof.a037757">pragmatic federalism</a>” emphasized privatization – using private-sector organizations to deliver services – and <a href="https://journals.sagepub.com/doi/abs/10.1177/0160323X0003200202">decentralization</a>. Reagan used markets to deliver government services through competitive contracts and grants. </p>
<p>In more recent years, scholars have accused Presidents <a href="https://doi.org/10.1093/publius/pjm014">George W. Bush</a> and <a href="https://doi.org/10.1093/publius/pjr020">Barack Obama</a> of returning to the more coercive federalism of Johnson’s Great Society. To encourage state and local governments to adopt federal priorities, federal funds under these presidents again included strings, <a href="https://doi.org/10.1177/0160323X17741723">increasing tensions</a> between these levels of government.</p>
<p>[<em>Understand what’s going on in Washington.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-most">Sign up for The Conversation’s Politics Weekly</a>.]</p>
<p>Under President Trump, <a href="https://doi.org/10.1093/publius/pjaa021">these tensions reached an apex</a>. Cities clashed with the federal government over immigration policy, law enforcement violence and health care – and, ultimately, over how to handle the pandemic. </p>
<h2>Biden’s approach</h2>
<p>Much of Biden’s proposed sweeping infrastructure plan addresses problems of rural and urban areas, such as caregiving, clean energy and health care. Other parts confront regional issues, such as transportation, where states play an important role. </p>
<p>With the understanding that coordination among all levels of government helps address problems more effectively, one step Biden might take is to revive the <a href="https://doi.org/10.1093/oxfordjournals.pubjof.a029901">U.S. Advisory Commission on Intergovernmental Relations</a>. This commission operated from 1959 to 1996, offering presidents and federal agencies guidance on issues that spanned the federal system’s layers. The <a href="https://doi.org/10.1111/j.1540-6210.2011.02325.x">commission helped address abuses of power</a> in the federal system and strengthened partnerships between governments. </p>
<p>As scholars, we know that policy issues are rarely independent. Global climate change affects local transportation policies, while health care issues are often closely linked to education and agriculture. </p>
<p>Local governments are important players in the federal system. Over the next year, they will be critical in continued efforts to vaccinate the American public and prepare for disasters like hurricanes and wildfires. </p>
<p>Given the complexity of modern policy problems, renewed consideration of how all levels of government can approach such big issues could help solve them.</p><img src="https://counter.theconversation.com/content/160155/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>People can die when the federal government doesn’t work well with state and local governments – the COVID-19 crisis showed that. But the Biden administration has signaled an openness to collaboration.Ana Maria Dimand, Assistant Professor of Public Policy and Administration, Boise State UniversityBenjamin M. Brunjes, Assistant Professor of Public Policy, University of WashingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1578472021-04-12T12:27:47Z2021-04-12T12:27:47ZHow many states and provinces are in the world?<figure><img src="https://images.theconversation.com/files/391534/original/file-20210324-17-1y77u3i.png?ixlib=rb-1.1.0&rect=16%2C13%2C997%2C611&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There are so many different states – and provinces, districts, regions and lander!</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/photos/state-welcome-signs?agreements=pa:91269&family=creative">Getty Images</a></span></figcaption></figure><figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=293&fit=crop&dpr=1 600w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=293&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=293&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=368&fit=crop&dpr=1 754w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=368&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=368&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><em><a href="https://theconversation.com/us/topics/curious-kids-us-74795">Curious Kids</a> is a series for children of all ages. If you have a question you’d like an expert to answer, send it to <a href="mailto:curiouskidsus@theconversation.com">curiouskidsus@theconversation.com</a>.</em></p>
<hr>
<blockquote>
<p><strong>How many states, or provinces or other divisions, are there in the world? – Noé, 8, Minneapolis</strong></p>
</blockquote>
<hr>
<p>The exact answer is hard to come by – for now. Your question has actually sparked scholars to start talking about compiling an official, authoritative database.</p>
<p>Right now the best estimates land somewhere between 3,600 and 5,200, across the world’s roughly 200 nations. It depends on whether you collect <a href="https://en.wikipedia.org/wiki/List_of_administrative_divisions_by_country">data from specific nations’ own information</a>, the <a href="https://www.cia.gov/the-world-factbook/field/administrative-divisions/">CIA World Factbook</a> or the <a href="https://en.wikipedia.org/wiki/ISO_3166-2">International Standards Organization</a>.</p>
<p>There are <a href="https://www.un.org/en/about-us/growth-in-un-membership">195 national governments recognized by the United Nations</a>, but there are as many as <a href="https://www.cia.gov/the-world-factbook/field/administrative-divisions/">nine other places</a> with nationlike governments, including Taiwan and Kosovo, though they are not recognized by the U.N.</p>
<p>Most of these countries are divided into smaller sections, the way the U.S. is broken up into 50 states along with territories, like Puerto Rico and Guam, and a federal district, Washington, D.C. </p>
<p>They are not all called “states,” though: Switzerland has cantons, Bangladesh has divisions, Cameroon has regions, Germany has lander, Jordan has governorates, Montserrat has parishes, Zambia has provinces, and Japan has prefectures – among many other names.</p>
<p><iframe id="lnmnT" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/lnmnT/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>Most countries have some type of major subdivision – even tiny Andorra, tucked in the Pyrenees Mountains between France and Spain, has seven parishes. <a href="https://www.cia.gov/the-world-factbook/field/administrative-divisions/">Slovenia has the most, with 212</a>: 201 municipalities, called “obcine” in Slovenian, and 11 urban municipalities, called “mestne obcine.” </p>
<p>Singapore, Monaco and Vatican City, all small city-states, are the three nations that have what are called “unitary” governments that are not divided into smaller sections.</p>
<p>Dividing governing power between national and subnational levels is called “<a href="http://www.forumfed.org">federalism</a>.” It lets countries organize large areas of land and large numbers of people, handling different interests of diverse groups, often with different languages, religions and ethnic identities. </p>
<p>National governments still control international relations, military power and money and banking systems – things that affect everyone in a country equally. But states, provinces, cantons and the like let more local government groups have some amount of say over health care, education, policing and other issues where needs can vary substantially from one area to another.</p>
<p>Variations in laws and regulations benefit people in a couple of different ways. First, people can leave one area and move to another that has laws or policies that are <a href="https://doi.org/10.1086/257839">more to their liking</a>. In addition, different regions can <a href="https://www.gsb.stanford.edu/insights/steven-callander-how-make-states-laboratories-democracy">try different approaches</a> to solving particular problems – like educating all children or providing health care in rural areas, perhaps identifying which methods are more effective.</p>
<p>Federal systems also make it easier for citizens to join government by running for office, including challenging the current officeholders. It is <a href="https://ftw.fraserinstitute.org/studies/the-new-federalist">much cheaper and less complicated</a> to seek support from voters in a smaller area. Smaller government agencies can also <a href="https://ftw.fraserinstitute.org/studies/the-new-federalist">make better use of local knowledge</a> about geography or historical traditions to govern people in ways that fit their needs.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/391537/original/file-20210324-17-8zekx2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People gathered in a village in India" src="https://images.theconversation.com/files/391537/original/file-20210324-17-8zekx2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/391537/original/file-20210324-17-8zekx2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/391537/original/file-20210324-17-8zekx2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/391537/original/file-20210324-17-8zekx2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/391537/original/file-20210324-17-8zekx2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/391537/original/file-20210324-17-8zekx2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/391537/original/file-20210324-17-8zekx2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A village council meeting in India.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:A_Gramsabha_in_a_rural_village_of_Madhyapradesh.jpg">Shagil Kannur via Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
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<p>There are some drawbacks, too: Some regions may have laws and rules that expand business opportunities or protect the environment – while other regions may have fewer business regulations or more damaged landscapes. Problems like that can mean people who live near one another – but in different states – have <a href="https://doi.org/10.2307/2669275">unequal qualities of life</a>.</p>
<p>And sometimes provincial governments can <a href="https://repository.upenn.edu/wharton_research_scholars/50/">slow the progress of major national initiatives</a> meant to benefit everyone.</p>
<p>But most countries seem to have decided that the positives outweigh the negatives. And in fact, they’ve gone even deeper into federalism. Beyond states and provinces, there are many even smaller units of government. </p>
<p>In the U.S., states are made up of counties, which are in turn made up of towns, cities or other municipal governments. There are many more thousands of these – the <a href="https://gadm.org/data.html">Database of Global Administrative Areas tallies 386,735</a>. Brazil alone has <a href="https://www.paho.org/salud-en-las-americas-2017/?page_id=97">5,570 municipalities</a>. <a href="http://search.oecd.org/regional/regional-policy/profile-India.pdf">India has 250,671 village councils</a>, called “gram panchayats.” But even those are <a href="https://www.pria.org/panchayathub/panchayat_text_view.php">divided into smaller districts</a> called “wards,” each of which votes for its own council member. </p>
<p>If you want some more fun, try <a href="https://www.crwflags.com/fotw/flags/">looking for the flags</a> of each of these subnational governments!</p>
<hr>
<p><em>Hello, curious kids! Do you have a question you’d like an expert to answer? Ask an adult to send your question to <a href="mailto:curiouskidsus@theconversation.com">CuriousKidsUS@theconversation.com</a>. Please tell us your name, age and the city where you live.</em></p>
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<p class="fine-print"><em><span>Vasabjit Banerjee does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The U.S. is broken up into 50 states, plus territories like Puerto Rico and Guam, and a federal district, Washington, D.C. Most other countries have smaller parts too.Vasabjit Banerjee, Assistant Professor of Political Science, Mississippi State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1492842020-11-16T14:58:46Z2020-11-16T14:58:46ZNigeria’s federal system still isn’t working: what should change<figure><img src="https://images.theconversation.com/files/369036/original/file-20201112-15-kixhhw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/image-nigeria-flag-painted-on-brick-94201426">Shutterstock </a></span></figcaption></figure><p>Nigeria is a troubled federation. Its federal character has been a subject of debate since the return to democratic rule in 1999. Various groups have claimed to be marginalised and not sufficiently represented in the central offices of the national government. Some <a href="https://guardian.ng/opinion/nigerias-unitary-federalism/">say</a> it’s not even a federation so much as a unitary state, created by the military. </p>
<p>The oil-producing communities of the Niger Delta are among the groups that have militated for change. They feel neglected in development and dissatisfied with environmental degradation. Their call is for <a href="https://www.jstor.org/stable/40175053?seq=1">control</a> of the wealth from resources in their region. </p>
<p><a href="https://www.thisdaylive.com/index.php/2017/10/24/southern-governors-unite-insist-on-true-federalism-devolution-of-powers/">Some state governors</a> who felt shortchanged by the federal structure have also called for ‘true federalism’. These states, largely from the southern part of the country, argue that the federation favours parts of the country that produced key actors in the military regimes. Even President Muhammadu Buhari has made <a href="https://businessday.ng/politics/article/president-buhari-calls-for-return-to-true-federalism/">this call</a>. </p>
<p>Other groups, like the <a href="http://saharareporters.com/2020/10/01/acf-demands-referendum-one-nigeria-dismisses-call-restructuring">Arewa Consultative Forum</a> (Hausa-Fulani), <a href="https://www.youtube.com/watch?v=BmhhQVkQ1Sw">Afenifere</a> (Yoruba) and <a href="https://guardian.ng/news/ohanaeze-ndigbo-insists-on-restructuring-of-nigeria/">Ohaneze </a>(Igbo), also insist on federal restructuring. Some have called for a return to the <a href="https://allafrica.com/stories/202001070262.html">regions</a> of the 1950s, others for <a href="https://www.nytimes.com/2017/10/08/world/africa/nigeria-cameroon-secession-separatists.html">secession</a> and the establishment of <a href="https://www.chathamhouse.org/2017/11/calls-biafran-independence-return-south-east-nigeria">Biafra</a> or Oduduwa republics. </p>
<p>Calls for federal restructuring have become a way of expressing dissatisfaction with <a href="https://theconversation.com/economic-inequality-lies-behind-growing-calls-for-secession-in-nigeria-84620">poor economic performance</a> and misgovernance in Nigeria. On the other hand, even elite groups, who mobilise as ethnic factions and compete for power and resources, point to the country’s poor performance as evidence that the federal structure is not working. </p>
<p>Misgovernance and poor economic development are visible in <a href="https://www.ft.com/content/3d304f0a-e446-11e9-b112-9624ec9edc59">deplorable infrastructure</a>, <a href="https://nairametrics.com/2020/08/14/13-9-million-nigerian-youth-are-unemployed-as-at-q2-2020-nbs/">high youth unemployment</a>, widespread poverty and conflicts. In 2018, <a href="https://edition.cnn.com/2018/06/26/africa/nigeria-overtakes-india-extreme-poverty-intl/index.html#:%7E:text=Lagos%2C%20Nigeria%20(CNN)%20Nigeria,less%20than%20%241.90%20a%20day">Nigeria overtook India</a> as the country with the highest number of poor people. <a href="https://www.bbc.com/news/world-africa-53009704">Banditry</a>, <a href="https://www.accord.org.za/ajcr-issues/boko-haram-insurgency-in-nigeria/">insurgency</a> and religious extremism have multiplied. </p>
<p>Nigerians may agree that the federal system hinders the country’s progress. But they haven’t agreed on how to change it. No structural changes have been made since the return to democratic rule in 1999. </p>
<h2>The problems with Nigeria’s federal structure</h2>
<p>Complaints about the federation structure date back to the pre-independence period, when <a href="https://books.openedition.org/ifra/759?lang=en">minority groups felt dominated</a> by majority groups. </p>
<p>The <a href="https://nigerianscholars.com/tutorials/nigerian-federalism/sir-henry-willink-commission/">Willink Commission</a>, which looked into the matter, recommended the inclusion of a bill of rights in the Independence Constitution, rather than creating states for minority groups. But by 1963 the carving up of the country had begun, and eventually by <a href="https://www.pulse.ng/news/local/nigerian-states-this-is-how-the-36-states-were-created/mdtnq3e">1 October 1996</a> there were 36 states. </p>
<p>The creation of states grants access to public offices and infrastructure for local elites. It also creates new majority and minority groups in the new states. Unviable states have proliferated, dependent on the common pool revenues and unable to fund their bureaucracies. </p>
<p><a href="https://www.researchgate.net/publication/249743486_The_Political_Economy_of_Fiscal_Federalism_and_the_Dilemma_of_Constructing_a_Developmental_State_in_Nigeria">Scholars</a> have emphasised that the fiscal arrangement, <a href="https://www.ssoar.info/ssoar/bitstream/handle/document/34277/ssoar-fedgov-2010-1-ojo-The_politics_of_revenue_allocation.pdf?sequence=1&isAllowed=y&lnkname=ssoar-fedgov-2010-1-ojo-The_politics_of_revenue_allocation.pdf">especially the formula</a> for sharing the common pool account, is not <a href="https://www.tandfonline.com/doi/full/10.1080/02589001.2010.512741?src=recsys">an incentive</a> for states to produce revenue. States angle to get more revenue share from the central pool rather than generate revenue within their territories. </p>
<p>State governors complain that the share of revenue that goes to the national government is too large, making competition for offices at the centre too intense. They call for revision to grant more revenue to the states. Some of the governors also <a href="https://allafrica.com/stories/200912080305.htm">call</a> for more responsibilities, to get access to ways of generating revenue. Some governors believe that decentralisation, when <a href="https://leadership.ng/fayemi-reiterates-call-for-creation-of-state-police/">extended to policing</a>, would also improve security. </p>
<h2>Attempts at solving the problem</h2>
<p>In 1995, six geopolitical zones were created and the <a href="https://www.oxfordreference.com/view/10.1093/acref/9780191828836.001.0001/acref-9780191828836-e-367">zoning and rotation principle</a> was introduced. The idea was that key political offices would be rotated among the six zones in the country, among the districts in the case of the states and so on.</p>
<p>A number of talk shops on the restructuring of the country have been held over the years, but the outputs were never implemented. These included the <a href="https://www.worldcat.org/title/national-political-reform-conference-abuja-2005/oclc/743060040">National Political Reform Conference (2005)</a>, <a href="https://www.premiumtimesng.com/national-conference/time-to-get-tough-with-north-korea-and-iran-as-imminent-nuclear-bomb-test-looms/">the National Conference (2014)</a> and the All Progress Congress Party <a href="https://pgfnigeria.org/wp-content/uploads/2019/09/Volume-1-Main-report-summary-of-findings-and-arecommendations.pdf">Committee Report on True Federalism</a> (2018). </p>
<p>I argued in <a href="https://www.eisa.org/pdf/JAE11.1Aiyede2.pdf">a paper</a> that Nigeria’s preoccupation with federal restructuring has been driven by desperate competition for power and the perks and preferment that come with it. It is not based on the objectives of the constitution:</p>
<blockquote>
<p>good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people.</p>
</blockquote>
<p>Instructively, the recent <a href="https://www.aljazeera.com/news/2020/10/22/timeline-on-nigeria-unrest">#EndSARS protest</a> by Nigerian youths has been focused on ending police brutality and bad governance. Apart from these demands, they have emphasised the high cost of governance, the excessively high remuneration for political office holders, widespread corruption and lack of compassion of the political leadership. Federal restructuring has not been high on the agenda of the youths because of these more concrete issues they confront in their daily lives. </p>
<p>The present federal structure is not fit for the 21st century because it is the product of political competition among elite groups that rely on state power for affluence and influence. It is also a competition devoid of commitment to empower ordinary citizens, reduce inequality, advance economic competitiveness or improve state performance in service delivery. As long as elites aren’t expected to carry out these commitments, the political structure will not easily yield to constitutional innovations. </p>
<h2>What should be done</h2>
<p>Nigeria’s federal system needs to be rejigged to promote economic prosperity and accommodate its diverse peoples. Economic performance and the reduction of poverty must be the prime basis for reviewing the structure of the federation. </p>
<p>This means that additional decentralisation measures must be carried out to promote innovation and healthy competition among the states for productive activities. The leadership needs to practise and uphold fairness and responsibility in governance. Government bureaucracies must be nimble and oriented to getting results.</p><img src="https://counter.theconversation.com/content/149284/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Emmanuel Remi Aiyede does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many things have to change for Nigeria’s federal system to work and accommodate its diverse citizens’ interestsEmmanuel Remi Aiyede, Professor of Political Institutions, Governance and Public Policy, University of IbadanLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1450312020-09-01T06:09:19Z2020-09-01T06:09:19ZCoronavirus restrictions in your state<figure><img src="https://images.theconversation.com/files/355714/original/file-20200901-20-1cior9q.jpg?ixlib=rb-1.1.0&rect=411%2C521%2C4581%2C3026&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>While COVID-19 restrictions were initially announced by the federal government and implemented <a href="https://www.pm.gov.au/media/update-coronavirus-measures-24-March-2020">across Australia in March</a>, since then the states and territories have devised their own strategies to manage the virus. This approach acknowledges different areas will be affected in different ways and at varying times.</p>
<p>But as a result, it can be hard to keep track of the mass of information around changing restrictions, particularly with different rules scattered around lengthy government website pages.</p>
<p>So we’ve compiled some of the key restrictions in each state and territory.</p>
<p><iframe id="tc-infographic-519" class="tc-infographic" height="400px" src="https://cdn.theconversation.com/infographics/519/5c5445107beddffe6f62f8a713500470dd450075/site/index.html" width="100%" style="border: none" frameborder="0"></iframe></p>
<hr>
<p><em>These restrictions are correct at the time of publication and are subject to change.</em></p><img src="https://counter.theconversation.com/content/145031/count.gif" alt="The Conversation" width="1" height="1" />
We’ve compiled the key COVID-19 restrictions in place across the states and territories.Sunanda Creagh, Senior EditorWes Mountain, Social Media + Visual Storytelling EditorLiam Petterson, Deputy Politics Editor, The Conversation AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1433312020-07-27T12:16:03Z2020-07-27T12:16:03Z4 lawsuits that challenge Trump’s federal agents in Portland test issues other cities will likely face<figure><img src="https://images.theconversation.com/files/349259/original/file-20200723-17-1ldm10v.jpg?ixlib=rb-1.1.0&rect=64%2C51%2C8569%2C5548&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Federal officers using large amounts of tear gas against protesters in Portland, Oregon on July 21.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/federal-officers-deploy-huge-quantities-of-cs-tear-gas-in-news-photo/1227734754?adppopup=true">John Rudoff/Anadolu Agency via Getty Images</a></span></figcaption></figure><p>President Donald Trump has <a href="https://www.whitehouse.gov/briefings-statements/remarks-president-trump-operation-legend-combatting-violent-crime-american-cities/">announced</a> that the U.S. Department of Justice will send a “surge of federal law enforcement” into American cities run by “extreme politicians” who are on an “anti-police crusade,” including Chicago, Kansas City, Albuquerque, Cleveland, Detroit and Milwaukee.</p>
<p>Those cities may soon see legal battles like the ones in Portland, Oregon, where four notable lawsuits challenge the actions of federal agents who, under the auspices of the Department of Homeland Security, were purportedly sent to <a href="https://www.whitehouse.gov/presidential-actions/executive-order-protecting-american-monuments-memorials-statues-combating-recent-criminal-violence/">protect federal property</a> on the July 4th weekend and still remain.</p>
<p>As a <a href="https://law.uoregon.edu/people/directory/saschoen">state and local government law scholar</a>, I believe a surge of hundreds of federal officers into <a href="https://www.santafenewmexican.com/news/local_news/trump-announces-deployment-of-federal-agents-to-albuquerque/article_e80a12d6-cc34-11ea-9ab0-5b1cd8827f75.html">cities throughout the United States</a> would represent an unprecedented expansion of the role of the federal government into local police matters. </p>
<p>Together, the Portland lawsuits ask the court to delineate, and enforce, constitutional limits on the federal government’s ability to override state and local law enforcement and use police tactics that violate protesters’ constitutional rights.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/349260/original/file-20200723-17-1nng480.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person holds a banner saying 'GET OUT NOW! NO FEDS!' at the Mom's March near the Justice Center in Portland, Oregon, on July 21, 2020." src="https://images.theconversation.com/files/349260/original/file-20200723-17-1nng480.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/349260/original/file-20200723-17-1nng480.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/349260/original/file-20200723-17-1nng480.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/349260/original/file-20200723-17-1nng480.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/349260/original/file-20200723-17-1nng480.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/349260/original/file-20200723-17-1nng480.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/349260/original/file-20200723-17-1nng480.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A person holds a banner protesting federal agents at the Portland Mom’s March on July 21, 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/person-holds-a-banner-at-the-portland-moms-march-near-the-news-photo/1227734723?adppopup=true">John Rudoff/Anadolu Agency via Getty Images</a></span>
</figcaption>
</figure>
<h2>Extended protests and multiple incidents</h2>
<p>Since <a href="https://www.kgw.com/article/news/local/protests/protests-in-portland/283-21d67e10-4b33-46d4-a81e-7d3b437a7519">May 29</a>, Portlanders have marched, sung, chanted and stood together in Portland to demand racial justice and condemn police violence against Black Americans. </p>
<p>Local officials and observers describe a fringe minority of protesters <a href="https://www.oregonlive.com/crime/2020/07/feds-conduct-surveillance-from-downtown-courthouse-analyze-social-media-videos-post-undercover-agents-in-crowds-records-show.html">pointing laser pointers at officers</a>, throwing cans, breaking windows and setting dumpsters and bags of garbage on fire, and <a href="https://www.newsweek.com/portland-protesters-throw-fireworks-federal-courthouse-1519881">shooting fireworks at the federal courthouse</a>. One person was arrested for <a href="https://ktvz.com/news/crime-courts/2020/07/14/texas-man-charged-with-hammer-attack-on-federal-officer-at-portland-protest/">allegedly attacking a federal officer</a> with a hammer.</p>
<p>In response to some of these actions, the Department of Homeland Security has sent paramilitary-style units to Portland. The <a href="https://www.whitehouse.gov/briefings-statements/remarks-president-trump-operation-legend-combatting-violent-crime-american-cities/">president</a> has characterized the operation as limited to protection of federal property and personnel and enforcement of federal laws – but also as restoring public safety after liberal politicians “have put the interests of criminals above the rights of law-abiding citizens.” </p>
<p>State and local officials and observers say those federal agents are <a href="https://www.snopes.com/fact-check/feds-unmarked-vans-portland/">detaining and arresting innocent protesters</a>. They also say federal officers have fired non-lethal rounds, pepper balls and <a href="https://www.nytimes.com/2020/07/23/us/portland-protest-tear-gas-mayor.html">tear-gas canisters</a> at peaceful protesters, journalists, medics and legal-rights observers. </p>
<p>In a court filing, the <a href="https://www.courtlistener.com/recap/gov.uscourts.ord.153126/gov.uscourts.ord.153126.70.0.pdf">city says</a> the presence of heavily armed federal agents is not keeping order, but rather “escalating violence, inflaming tensions in our City, and harming Portlanders.” The city also says, “Serious and credible allegations have been made that the federal government has effectively kidnapped people off Portland streets, among other abuses of power.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/349482/original/file-20200726-17-1o3cbmc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Federal Police clash with protesters in front of downtown Portland's Mark O. Hatfield federal courthouse." src="https://images.theconversation.com/files/349482/original/file-20200726-17-1o3cbmc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/349482/original/file-20200726-17-1o3cbmc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/349482/original/file-20200726-17-1o3cbmc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/349482/original/file-20200726-17-1o3cbmc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/349482/original/file-20200726-17-1o3cbmc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/349482/original/file-20200726-17-1o3cbmc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/349482/original/file-20200726-17-1o3cbmc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Federal Police clash with protesters in front of downtown Portland’s Mark O. Hatfield federal courthouse.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/federal-police-clash-with-protesters-in-front-of-the-mark-o-news-photo/1258782490?adppopup=true">Spencer Platt/Getty Images</a></span>
</figcaption>
</figure>
<h2>Independent monitors sue to protect themselves</h2>
<p>The first case, <a href="https://www.courtlistener.com/docket/17301670/index-newspapers-llc-v-city-of-portland/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc">Index Newspapers, Inc. v. City of Portland</a>, began as a lawsuit by six journalists and legal observers seeking to stop Portland police from assaulting news reporters, photojournalists and legal observers documenting the police’s violent response to protests. After the arrival of federal agents in Portland, the lawsuit expanded to include the U.S. Department of Homeland Security and the U.S. Marshals Service. </p>
<p>On July 23, U.S. District Court Judge Michael Simon rejected federal claims that “the force used on Plaintiffs [was] ‘unintended consequences’ of crowd control.” He issued <a href="https://assets.documentcloud.org/documents/7001472/Oregon-TRO-Federal-2020-07-23.pdf">a temporary restraining order</a> barring federal agents from “arresting, threatening to arrest, or using physical force directed against any person whom they know or reasonably should know is a Journalist or Legal Observer.” </p>
<p>The judge also barred federal agents from “seizing any photographic equipment, audio- or videorecording equipment, or press passes … or ordering such person to stop photographing, recording, or observing a protest.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/349268/original/file-20200723-37-rqonr3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A federal officer in a heavy camouflage uniform fires into a cloud of smoke" src="https://images.theconversation.com/files/349268/original/file-20200723-37-rqonr3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/349268/original/file-20200723-37-rqonr3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/349268/original/file-20200723-37-rqonr3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/349268/original/file-20200723-37-rqonr3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/349268/original/file-20200723-37-rqonr3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/349268/original/file-20200723-37-rqonr3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/349268/original/file-20200723-37-rqonr3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A federal officer fires at protesters in Portland, Oregon, on July 21, 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/federal-officer-fires-into-the-crowd-of-protesters-in-news-photo/1227734743?adppopup=true">John Rudoff/Anadolu Agency via Getty Images</a></span>
</figcaption>
</figure>
<h2>State sues to block baseless arrests</h2>
<p>In <a href="https://www.courtlistener.com/docket/17361877/rosenblum-v-john-does-1-10/">the second lawsuit</a>, Oregon’s Attorney General Ellen Rosenblum is suing on behalf of the state of Oregon to stop federal agents from detaining or arresting people without probable cause or a warrant, and to require the federal agents to identify themselves and their reason for an arrest or detention.</p>
<p>The suit says citizens rightly fear “being thrown into a van by anonymous agents,” which infringes on their First Amendment rights to protest. It also says citizens have Fourth and Fifth Amendment rights not to be snatched “off of the streets without probable cause” by unidentified officers in unmarked cars.</p>
<p>On Friday, Judge Mosman denied Rosenblum’s request to immediately bar such behavior by federal agents, saying that Rosenblum had not provided enough evidence to show federal agents were engaging in a pattern of unlawful detentions and finding the state did not have standing to seek the temporary order. </p>
<p>As the parties prepare their next moves in this case, governors throughout the country will likely be watching to see whether Judge Mosman recognizes a state’s interest in local police matters and its standing to sue federal agencies to protect the constitutional rights of its citizens.</p>
<h2>Citizens sue to protect their own rights</h2>
<p>The <a href="https://www.courtlistener.com/docket/17367081/western-states-center-inc-v-united-states-department-of-homeland/">third case</a> focuses on the <a href="https://constitution.congress.gov/constitution/amendment-10/">10th Amendment</a>, which says that, except specific federal powers spelled out in the Constitution, all other powers are reserved to the states and its citizens.</p>
<p>Those bringing the suit, which include the First Unitarian Church of Portland, say federal law enforcement agencies are infringing on Oregon’s sovereign powers to police Oregon streets. They say the deployment of federal law enforcement officers in Portland infringes on the power of Oregon citizens to hold state and local police accountable.</p>
<p>The lawsuit also argues that the federal response violates the First Amendment rights of <a href="https://www.firstunitarianportland.org/">the First Unitarian Church of Portland</a>, whose religious practice includes activism and protest in the face of injustice. </p>
<p>[<em>You’re too busy to read everything. We get it. That’s why we’ve got a weekly newsletter.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybusy">Sign up for good Sunday reading.</a> ]</p>
<p>While the lawsuit acknowledges that the federal government has a right to protect its property and personnel, it claims that “defendants have far exceeded these constitutional limitations” while policing in Portland.</p>
<p>What happens next in this case depends in part on whether the plaintiffs ask for an immediate order requiring the federal agencies to leave local policing to state and local law enforcement. </p>
<h2>Medics sue to stop ‘targeting and attacking’</h2>
<p>Several street medics who tended to injured protesters <a href="https://www.courtlistener.com/recap/gov.uscourts.ord.153706/gov.uscourts.ord.153706.1.0.pdf">sued the Department of Homeland Security, U.S. Marshals Service and the city of Portland</a>, saying that “police and federal agents brutally attacked volunteer medics with rubber bullets, tear gas, pepper spray, batons and flash-bangs.” </p>
<p>The suit claims the attacks violate the medics’ First and Fourth Amendment rights and seeks damages for injuries to the medics. On Friday, <a href="https://www.courtlistener.com/recap/gov.uscourts.ord.153706/gov.uscourts.ord.153706.4.0.pdf">the medics also asked the court for an order</a> stopping law enforcement from further targeting and attacking medics. The court will likely rule on this request in the coming week. </p>
<h2>Federal overreach threatens police accountability</h2>
<p>The theme of urban violence used by Trump <a href="https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1747&context=faculty">plays on white fears of Black people</a> and those living in extreme poverty.</p>
<p>Trump uses coded racist language to <a href="https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-protecting-suburbs-preserving-american-dream-americans/">paint a picture</a> of cities “<a href="https://www.reuters.com/article/us-global-race-protests-trump/trump-says-sending-federal-agents-to-more-u-s-cities-to-fight-violent-crime-idUSKCN24N2GT">plagued by violent crime</a>,” “heinous crimes” and “bloodshed.” He claims that local leaders <a href="https://www.whitehouse.gov/presidential-actions/executive-order-protecting-american-monuments-memorials-statues-combating-recent-criminal-violence/">have abdicated their duty to protect citizens</a>, requiring the federal government to step in. </p>
<p>The nation was founded on the principle that <a href="https://supreme.justia.com/cases/federal/us/564/211/">freedom is safeguarded by two governments</a>, a federal government with specific, limited powers, and state governments with all other powers. </p>
<p>The Constitution reserves to the states an expansive power to police because that allows for law enforcement policies that reflect local circumstances and customs, and are responsive to the concerns of local citizens – which is exactly what Black Lives Matter and other protesters are now demanding in Portland and throughout the country.</p><img src="https://counter.theconversation.com/content/143331/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sarah J. Adams-Schoen does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The lawsuits filed in Portland sparked by the presence of federal law enforcement agents sent there by President Trump are a preview of the legal battles to come in cities across the US.Sarah J. Adams-Schoen, Assistant Professor of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.