Federalism

This term the Supreme Court has taken two cases from California involving arbitration clauses. One has been decided, the other will be decided later this term. Both cases are of interest to states as they involve preemption of state law by the Federal Arbitration Act.

NOW, THEREFORE BE IT RESOLVED, The Council of State Governments supports efforts by Congress to regulate e-commerce through legislation that allows States to enforce their existing sales and use tax laws, regardless of the method of transaction, and to collect taxes under state law.

Civics education stands at the core of what it takes to equip citizens with the knowledge and willingness to become community, state, national and international leaders. Without such civic fundamentals, the youth of today may not vote or run for public office tomorrow, and the future participation of citizens in America’s grand democratic experiment is called into question. As part of CSG’s ongoing work to explore the challenges of federalism, this session featured experts and policymakers to discuss how states are teaching future generations about the role of state and federal governments and civic engagement.

During a recent CSG eCademy webcast, two judicial experts described how the U.S. state and federal court systems work and how court decisions impact state governments. “Federalism and the U.S. Judicial Branch” was the third and final presentation in a series of webcasts about federalism’s impact across the branches.

The American judicial system is complicated. How does a case get to the United States Supreme Court? Why are some cases heard in federal court and others in state court? Why do courts refuse to decide some issues? This free CSG eCademy webcast features Lisa Soronen, executive director of the State and Local Legal Center, and Paul Clement, partner at Bancroft PLLC and former U.S. solicitor general who has argued more than 75 cases before the U.S. Supreme Court. The presenters explain the basics of how our court system works and how the decisions of this complex judicial system impact state governments.

The State and Local Legal Center (SLLC) has filed an amicus brief in the Ohio Supreme Court urging it to rule that Ohio’s commercial activity tax (CAT) applies to online vendors who sell in the state. The SLLC argues the holding of Quill Corp. v. North Dakota (1992), that states cannot require retailers with no in-state physical presence to collect use tax, should not be extended to a privilege-of-doing-business tax.  

Since the Supreme Court’s term began in early October it has agreed to hear 15 cases—13 at its “long” conference before the term began and two subsequently. Many will have an impact on the states. And a number will only impact specific states (and a territory!).   

While the same-sex marriage and Affordable Care Act cases are the most significant of the U.S. Supreme Court’s 2014–15 term in general and specifically affecting states, other cases will significantly impact states too. The court decided three tax cases, a Medicaid reimbursement case, two redistricting cases and a Fair Housing Act disparate impact case.

The 2014 mid-term elections magnified the polarization between the political parties in Washington, D.C., and between blue and red states. In that respect, the elections signaled continuity in American federalism. Despite their congressional victories, lacking the presidency,  Republicans are not in a position to effect major intergovernmental change. Increased Republican strength in the states will heighten state-federal conflicts over core Republican issues, while predominantly Democratic states generally will support federal policies endorsed by President Barack Obama. Whether one regards this state of affairs as obstructive or constructive federalism depends on one’s point of view.

Chapter 2 of the 2015 Book of the States contains the following articles and tables:

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