Federalism 240 years after the Constitutional Convention: Federalist 32
Does the federal government have the power to regulate an animal species that lives exclusively in one state? According to the U.S. Fish and Wildlife Service, it does. Somehow, what is otherwise Congress’s limited power to regulate interstate commerce can be applied to anything that could potentially move across state lines and potentially impact commerce, without any evidence that it currently does either.
Pacific Legal Foundation’s client Mike Colosi was confronted with this puzzling conundrum. All he wanted to do was build on his Florida property. When he sought a permit, the County hit him with a nearly $120,000 development fee. The reason? A Florida scrub jay—a threatened bird species—could nest on his land one day.
Underlying the County’s action is the federal government’s regulation of this bird. Colosi is stuck between a rock and a hard place: He can pay an unconstitutional, six-figure fee to the County or go through an arduous permitting process with the federal government that will cost more, take longer, and further erode his property rights. It’s a federal-county partnership that traps Colosi in an inescapable web of regulation, no matter where he turns.
The federal government’s involvement in activities it has no business regulating in the first place flies in the face of our constitutional system as designed by the Framers and explained in the Federalist Papers.
One fear about the Constitution was that establishing a stronger national government would greatly diminish the sovereignty of the states. Alexander Hamilton addresses this directly in several of the Federalist Papers, including Federalist 32—published 238 years ago today.
Hamilton addressed these fears by declaring, “But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.” As it relates to raising revenue, specifically, he describes the power to tax as “manifestly a concurrent and coequal authority in the United States and in the individual States,” except taxing imports and exports.
Importantly, the Constitution treats the federal and state governments differently. It lists what the federal government is allowed to do and what the states are not. As such, it creates a federal government limited to its enumerated powers, leaving the states with much greater room to operate. As it relates to taxation, not only would the states “retain that authority in the most absolute and unqualified sense,” but “an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution.”
This can be applied to other powers retained by the states, too.
That was the Framers’ mindset, even before the Tenth Amendment explicitly reserved to the states the powers not granted to the federal government.
As Hamilton noted, the Framers clearly envisioned a strong role for the states. Sadly, however, we’ve deviated far from that vision.
In his autobiography, President Theodore Roosevelt said, “My belief was that it was not only [the president’s] right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.” This fundamental misunderstanding—that the federal government is limited only by what the Constitution forbids rather than what it explicitly authorizes—has largely guided federal policy since.
If the federal government can do whatever it wants, so long as the action isn’t expressly forbidden, it will assume powers traditionally left to the states. And that’s precisely what’s happened. This 180-degree turn from Hamilton’s arguments about the proper scope of federal power under the Constitution has given the federal government license to encroach upon state sovereignty in myriad ways.
As in the Colosi case, the federal government claims the authority to regulate all endangered and threatened animal species, even if they live solely within one state. These intrastate species account for over half of all animals covered by the Endangered Species Act, according to PLF’s research. You would think these animals, residing only in one state, would be the proper province of that state and that state alone. Not if the federal government has anything to say about it.
Federal regulatory accumulation has swarmed the states and localities with hundreds of requirements. Congress has delegated increasing authority to federal agencies. According to PLF’s Nondelegation Project, 37% of these delegations across the Code of Federal Regulations are broad and potentially problematic grants of authority. The Congressional Budget Office reported that 190 laws were passed between 2006 and 2019 that imposed 420 mandates on state and local governments. According to the Competitive Enterprise Institute’s 2025 Ten Thousand Commandments report, there were an expected 725 federal rules affecting state and local governments on the way earlier this year.
What’s more, the federal government owns, and therefore controls, more than a quarter of all U.S. land, including most of Nevada, Utah, Idaho, Alaska, and Oregon. What could be more central to a state’s sovereignty than the land within its borders?
This isn’t to say that the states are perfect. Any government—national, state, or local—can abuse power, and there are plenty of examples, including cases that are currently being litigated in Texas, Arizona, Nevada, and Florida. But Hamilton took great pains to stress that the states would retain their traditional authority under the new Constitution for a reason: “…because I am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the State governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power” by the federal government.
The states were willing to give up some of their sovereignty to create a stronger, more effective national government than what existed under the Articles of Confederation. But they likely would not have ratified the Constitution if they thought it would mean sacrificing vast authority to a federal government limited only by what the Constitution forbids.
We would do ourselves a service by heeding the spirit of Federalist 32.
