Policy Today magazine cover
November 2, 2005

Along with much of the Gulf Coast, Hurricane Katrina may have blown away long-standing orthodoxies of state's rights and state sovereignty

Its popularity in judicial opinions and campaign oratory aside, "sovereignty" is a medieval concept expressing "the absolute power to make laws without the consent of the governed." It was designed for kings and caliphs, not a democracy dedicated to individuals' inalienable rights and political structures built on separation of powers and federalism.

The Constitutional Convention delegates never articulated a theory that would have justified the states' role in the republic. Nor did they resolve whether the federal union resulted from the states surrendering part of their authority, or from the will of the people who split political authority between local and national governments. The Constitution itself never mentions the word "sovereignty."

Arguably, judges and politicians have used "state sovereignty" as shorthand for the importance of local issues in the national union. The operative danger of this concept has been highlighted in the controversy surrounding No Child Left Behind—the federal educational reform bill—and the response to Hurricane Katrina.

No Child Left Behind, but who pays the bills?

In the federal partnership, education has long been the special but not exclusive province of state and local governments. Given the central role of a well-educated citizenry to the success of "an extended republic," Congress has not hesitated to act when it thought necessary—the land-grant system dating to 1862 being among the most notable and successful instances.

With America's K-12 public school system under fire for low test scores and teaching standards, Congress—prodded by the Bush Administration—took a bold step in seeking to establish minimum levels of scholastic achievement. Unlike previous interventions, No Child Left Behind went beyond deeding land for colleges and universities or pursuing social goals such as integration and affordable school lunches.

During the bill's committee hearing in March of 2001, U.S. Congressman Saxby Chambliss (R-GA) stated that "this plan promotes accountability by asking states and local schools to develop annual assessments, funded by federal dollars, to implement annual math and reading tests for students in grades three through eight."

But state administrators have been resistant, viewing the legislation as an unneeded invasion of their traditional authority. "No Child Left Behind ignored states like California that were already down the road to accountability," says Debbie Rury, an educational consultant with the California Board of Education. While Rury believes that No Child Left Behind was honorable in intent, she points out that it is ultimately frustrated by its own design. "The state of California already passed an educational accountability act in 1999," she explains, "and it has one of the most rigorous teacher credentialing systems in the nation."

Indeed, California's laws already required the state to regulate content standards, required schools to be improving at all times, and insisted schools focus on student achievement. Under these circumstances the act actually burdened the state, requiring it to realign its already-established accountability system with a federal model.

"In theory, it's a good idea to try to bring everyone up to the same level, but in practice, parents in Montana don't want the same things for their students as parents in Los Angeles," continues Rury. She notes that local school boards are elected by their communities, and the board sets the educational standards for the community. That, however, is precisely the bee in the congressional bonnet. Someone in Washington must have felt that while states like California are doing just fine, others aren't getting the job done.

But having dealt the cards, did Congress anticipate whether the locals could afford to play? Much of the resentment among state officials has more to do with the program's implementation than its intention. "No Child Left Behind places very significant mandates on states and schools, but the resources to pay for the program have not been provided," says U.S. Congressman Ted Strickland (D-OH). "No Child Left Behind is a huge, unfunded mandate."

From education to evacuation: the question of federal intervention

While many state officials characterize No Child Left Behind as over-reaching, the federal response to hurricane Katrina was expected, demanded and ultimately insufficient. When the need of the recipient citizen is more clearly defined (i.e., food, water, shelter), and where the federal government is better equipped to meet these needs, state and local governments overwhelmingly welcome—and in fact expect—federal intervention, 200-year-old political doctrine notwithstanding.

"The responsibility of planning for, and responding to, natural disasters is shared by all levels of government," says Senator George Voinovich (R-OH). As a former mayor and governor, Voinovich should know about the disparate levels of government and coordinated response. Even so, he says, "it is too early to prejudge the overall successes and failures of each level of government during this disaster," such is the complexity of the problem.

U.S. Senator Susan Collins (R-ME) was more critical of the federal response in a letter to Senate leadership. Collins wrote that "it has become increasingly evident that federal efforts to respond to the effects of Hurricane Katrina are vulnerable to widespread abuse and waste. Reports abound of questionable contracting, unused and wasted resources, misallocated assets and confusion."

In the end, it has become apparent that a swift federal response to Hurricane Katrina was the only cure for the besieged city and its citizens. The states blamed the federal government for its inadequate response, and the federal government blamed the states for not requesting relief sooner. The question on everyone's mind was "What would have been the perfect response to Hurricane Katrina?" But below this, there is a deeper question: How should power be divided in our modern union?

Today's federalism shifts course

Dr. Alice M. Rivlin, senior fellow at the Brookings Institution and author of Reviving the American Dream, brings it all together. "Federal issues always need to be re-examined," she explains. "The federal government has a complex relationship with the states, and it gets more complex every year." She asserts that government would function better if the division of responsibility placed the states in charge of education, housing, public safety, and issues of a geographical, place-specific character; the federal government, on the other hand, should concern itself with foreign policy, Social Security and Medicare.

This sorting of responsibilities doesn't happen, however, "because the public is most concerned about what is happening in their local area and the federal government is not well-equipped to influence what happens there." In a sense, part of the problem is the public call for action combined with its inability to understand the necessary division of responsibilities. This creates a vacuum that is often filled by the wrong level of government, or occasionally left void. "No Child Left Behind had a good objective to raise educational standards, but the federal government faces a difficulty in writing rules for different conditions and school districts across the country," says Rivlin. She agrees that No Child Left Behind is over-reaching, but she is quick to add that the legislation had very ambitious goals and strict guidelines.

As for the federal response to hurricane Katrina, Rivlin frames the issue in common sense, straight-talk. In her estimation, the "Katrina question" doesn't involve our model of federalism; it's an issue of federal failure. "The states have no choice," she argues. "They don't have the resources to respond. It's beyond the capacity of the state to deal with it, and the states must turn to the federal government."

About Joy Matthews

Joy Matthews is a Case Law graduate and journalist from Cleveland, Ohio.