• A recent Sutherland Institute Congressional Series event featured Representative Celeste Maloy discussing the importance of federalism.
• Federalism has practical benefits but also promotes goods such as accountability and responsiveness.
• One policy that could help protect federalism is to require transparency in the guidance given by federal agencies.

​Federalism, the principle of dividing governing responsibilities among different levels of government, is in the news in Utah thanks to a recently filed lawsuit by the state seeking to increase the state’s ability to direct the use of lands controlled by the federal government but not designated for any specific federal purpose. Unlike national parks and similar federal lands, which would not be affected by this suit, this “unappropriated land” is increasingly unavailable to Utahns. Thus, the state has no role in managing and preserving it.

Against this backdrop, a recent Sutherland Institute Congressional Series event hosted at the Hinckley Institute of Politics at the University of Utah and sponsored by Zions Bank, addressed the topic of federalism.

Given the topic it might be surprising to some that the speaker was a member of Congress, a federal office. Representative Celeste Maloy, though, has long been interested in federalism and had some important insights about the division of power among the national, state and local governments.

Like the separation of powers among different branches of the federal government, federalism allows for specialization. The Constitution sets out a list of exclusive responsibilities of the national government and some limitations on the state governments but then leaves the other responsibilities to the states or the people.

Representative Maloy explained that there are important practical benefits to this approach, pointing to some things that states do better than the federal government. For example, permitting. She noted that states are effective at establishing a process for issuing permits that are clear and quick while the national government, distant from many of those seeking permits and lacking incentives for speed, are often ineffective.

A more familiar example is education where parents and local officials are better suited to addressing specific needs of students in a community context than distant federal officials.

Representative Maloy also addressed the Utah lands lawsuit. Here, too, proximity makes a difference, with local government officials having the advantage of close connection with public lands as well as the local community. For instance, Representative Maloy referred to the efforts of western states to conserve the Colorado River. Those whose homes and neighbors are directly affected by decisions may be more likely to exercise care in those decisions and take a long view.

One observation Representative Maloy made was particularly striking. She described how in her role as a federal representative she is constantly accountable to those she represents. The evening of the Congressional Series event, for instance, she was scheduled to speak at a public event later that night. She contrasted that with employees of federal agencies who do not have constituents to whom they are responsible to report.

This, of course, does not mean that these employees are not dedicated and capable but that the constitutional design of having certain decisions made close to those affected and by officials who are directly accountable to them is wise.

One challenge to federalism is that as more and more decisions are made by those who are distant and unaccountable, the very nature of the law can become unclear to those affected. Representative Maloy discussed this as well, noting that federal agencies often issue “guidance” to states or private individuals that are not legally binding but come to appear that way to those subject to the regulation. One important initial response to this is to begin to require transparency in federal regulatory guidance. Federal legislators can demand this of federal agencies, but states could do something towards this end by requiring state agencies to disclose the guidance they receive.

At the conclusion of the event, Representative Maloy talked about how a return to the constitutional principle of federalism could also contribute to lessening some of the polarization that comes from a concentration of power at the federal level.

The benefits of the federal system created by the Framers of the Constitution are critical to preserve. Federal and state elected officials should work to secure these for the health of our system.