The problem(s) in Federalism


President Rodrigo Duterte’s campaign promise of Federalism may have hit a snag, but that is only because elections are now under way with the candidates’ filing of their respective certificates of candidacy and the eventual political terrain post-2019 is clearer with those running now identified. In the meantime, Filipinos must keep learning and understanding this complex concept of Federalism, since it shall remain as the President’s priority until his term ends in 2022.

This writer is now undergoing a program on “US Federalism and Democracy” as the Philippines’ delegate to the International Visitor Leadership Program (IVLP), of the US State Department. We are halfway through the first week of the IVLP and the multitude and diversity of topics discussed are enough writing material for a book. The meetings started with former Gov. Parris Glendening, now a professor and an advocate of smart growth in cities. When I introduced myself as Filipino, he said around 80,000 of our countrymen reside in Maryland, specifically in Prince George’s County where he also served as mayor and he does not know why there are so many Filipinos there.

Glendening gave us an overview on how the US government works, and how the different unique states interact with each other, highlighting how complicated Federalism has turned out since it was first implemented in the US sometime in the late 1700s. What was definitely clear is that no one state is the same as the other. Each state crafted its own constitution, and is free to enact laws and decide on judicial issues within its jurisdiction. As written by US Supreme Court Justice Louis Brandeis, in the case of New State Ice Co. v. Liebmann, states are “laboratories of democracy” in which different laws, rules and regulations are tested. If found to be effective, then other states may adopt and recognize these local laws.

Federalism, in the US, has led to hyper-partisanship and there have been divisive issues between states that have been settled out in different ways, most of them involving a lawsuit. It is not uncommon for a case to be filed against a state for issues that may have political ramifications.

The governor cited several cases from his experience: The issue of fracking (or the process of forcing out oil from the earth by drilling into the ground and then exerting liquid to induce the release of the oil) has always been an issue between Maryland (anti-fracking) and West Virginia (pro-fracking) and has brought about a lawsuit filed by Maryland, through its lawyers, against West Virginia. Another would be the issue on mining when West Virginia cut off a mountain top for the purpose of mining what is inside the mountain. However, when it rains, the run-off water led to fill the river connecting both states, making the waters in Maryland dirtier and less energy was produced by thermal plants located therein. The list of lawsuits filed by each state surely beyond be lengthy.

Other critical and current issues would be the legalization of marijuana, federal travel ban, city sanctuaries, same-sex marriage, sin taxes, ride-sharing (i.e., Uber, Lyft), house/room leasing (i.e., AirBNB), etc. These issues are of national concern, and, if proven to have paramount importance, then Supreme Court may take cognizance of, and resolve, the case. Glendening mentioned that, currently, the issue on marijuana is such a huge concern since, one-by-one, it is being legalized by a growing number of states in the US.

All in all, lawyers play an integral role in Federalism due to the complexity of the legal process.
Although, it has been a joke in the US that the American Judicial System should be known as the Lawyers’ Full Employment Act, due to the number of ways to bring a case all the way to the Supreme Court. Thus, Americans are said to have to respect the law but not so the legal system.

As much as Federalism is exciting, it entails a lot of hard work for the proponents and all those who will be directly affected by it. Mind you, each state has to write its own constitution, and lawyers would have to step up in crafting it. And once Federalism is implemented, lawyers may be required to file cases against specific states, to be resolved by the judges or a multi-state commission, should there be one. In the end, more work for the lawyers.

Glendening wrapped up his lecture by asking why should we even consider Federalism when it appears that it is a crazy system. He said while Federalism guarantees controversy, it a good driver for innovation and creativity, since states are encouraged to keep up with each other.

In bad times, Federalism can be the worst thing ever, but in good times, there is no stopping the possibilities that may be brought about by the federalist structure of government.

After his lecture, this writer approached the governor and told him that the reason why there are so many Filipinos that immigrate abroad, is poverty, and it was the President’s campaign promise that Federalism would (hopefully) reduce poverty, most particularly those in the poorer regions. I told him that the US model of Federalism may not be appropriate to the Philippines, and he agreed. Glendening then said the Philippines may adopt a semi-Federalist country. He reminded me of what Alexander Pope said, “For forms of government let fools contest; whatever is best administered is best.”


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