What is federalism?

Federalism is about respecting the division of power between state and federal governments.  The federal government should not regulate in areas reserved for the states by the Constitution, and the states should not regulate interstate activities, activities outside their own borders, or activities regulated by federal law.

 Is it all about “States’ Rights”?

No.  That is only a small part of it.  Federalism is designed to protect not only the states from federal overreaching, but also to protect federal and national interests from state encroachment, and states from aggression at the hands of sister states.  By doing so, the Founding Fathers believed that they would keep any unit of government, and any government official, becoming so powerful as to endanger civil liberties and individual rights.

 The belief that federalism is all about states’ rights versus the national government is  Dixeeism, not federalism.

 Letting state governments regulate at will, even in areas where federal law already regulates, would subject citizens to being crushed between the twin stones of federal and state regulation, destroying the economic benefits of both federalism and the national common market that the founding fathers intended to create.

 The founding fathers intended to create a common market within the entire United States and to protect it against state interference with interstate commerce and movement.  Many of them, such as James Madison, were deeply suspicious of state parochialism and bias against citizens of other states.  That is why the Constitution they crafted banned state protectionism aimed at sister states, prohibited state impairment of contractual rights and obligations, required that state courts comply with out-of-state court judgments enforcing those rights, banned certain kinds of state laws, and required Congressional consent for various kinds of state laws and regulations in Article I, Section 10 of the Constitution. 

 What protections exist for federalism?

Under the Constitution, the federal government is one of enumerated powers.  The Founding Fathers intended that the federal government only have the power to regulate conduct in a few areas, such as interstate commerce and activities closely linked to it, and activities occurring in federal enclaves or territories.  This understanding is buttressed by the Ninth and Tenth Amendments.

 Conversely, state governments cannot regulate interstate commerce, or activities governed by federal law.  Nor can they regulate conduct occurring outside their borders in other states.  Their regulatory power is limited by the Due Process and Commerce Clauses of the Constitution.

 Their ability to engage in concerted action with other states is also limited by principles of federalism, to avoid the possibility that states will encroach on federal interests or the interests of sister states.  Such actions are limited by constitutional provisions such as Article I, Section 10 of the Constitution.  In it are provisions such as the Compacts Clause, which forbids agreements among states without Congressional consent.

 What is CEI doing to safeguard federalism?

 CEI is challenging the 1998 multistate tobacco settlement, known as the Master Settlement, a corrupt backroom deal between state attorneys general, big tobacco companies, and trial lawyers.  In the MSA, the big tobacco companies agreed to pay $246 billion  Trial lawyers hired by state attorneys general received $15 billionof millions of dollars to politically-connected lawyers who did little more than bring copycat lawsuits. over 25 years, plus more in perpetuity, in exchange for statutory protections against competition by their littler competitors. (not million, billion), including hundreds

CEI’s court documents challenging the MSA can be found here.

 n its court complaint, CEI explains that the MSA violates the Compact Clause, Due Process and Commerce Clauses, and Tenth Amendment of the Constitution.  It also argues that the MSA is preempted by federal law, since it regulates interstate commerce, over which Congress has jurisdiction, and regulates activity that the federal cigarette labeling laws subject to exclusive federal jurisdiction.