Category Archives: Federalism

The massacre in Pa Zi Gyi, about 70 miles north of Mandalay, was only the latest bombardment of schools, medical facilities, religious buildings and administrative structures where military bureaucrats have been expelled and ground troops cannot penetrate. This emerging pattern of violence is a clear sign that suppressing the widespread development of alternative local governance has become an existential struggle for the military, which historically relied on its local officials to maintain its control of the country.

Most international observers of the conflict in Burma are aware of the various political and armed groups that arose to resist the February 2021 coup and went on to form the super-structure for an opposition government and a defensive war. Much less visible to the international community is the rise of local, opposition-linked self-governments that have replaced military-controlled administrators.

Unspeakable brutality aside, the undermanned and shrinking military is not wrong in its strategic concerns about local governance. Preventing the coup regime from consolidating administrative control of localities has been a central objective of the country's diverse popular resistance.

Historically, successive military regimes in Myanmar have relied on local administrators and police to oppress local communities and to identify and eliminate any threats to military control. The resistance, therefore, has made a priority of action at the grassroots level, seeking to:

The progress of this campaign to date has become a glaring sign of the juntas inability to crush its opponents with terror and atrocities, and an indicator that the resistance has real staying power. The failures of local-level suppression carry an additional ominous warning for the regime: The decentralized nature of the growth of alternative governance embodies the resistance goal of creating a federal democratic union that will exclude the military from politics.

More immediately, the expansion of alternative local governance has helped pushed back at least until next year sham national elections that the junta hopes will get the international community off its back. Unable to administer anything remotely as universal as previous nationwide votes, coup-master Gen. Min Aung Hlaing realizes his only option is an election with convincing optics and a farcical outcome a contest that excludes the major parties to ensure the militarys puppets will control the parliament.

The international community would be well advised to recognize that the juntas strategy of bogus elections and stand-off butchery will not produce even temporary stability. As for the future, there, will never be a legitimate place for these brutal actors in the countrys future governments.

Several studies commissioned recently by the U.S. Institute of Peace and other organizations attest to the steady growth of self-government in more than half of Myanmars rural conflict areas, zones where resistance forces and ethnic armies have the power to keep out regime ground troops. In these areas, the military increasingly relies on air power and artillery to try to cow the civilian population.

For their part, the anti-regime locals in some regions rely largely on tradition. A degree of self-administration has been in place for decades in the major ethnic minority areas, such as Kachin, Karen, and Chin States and parts of Shan State.

The center of the country by contrast, comprising the seven Bamar-majority regions, has historically been controlled from Nay Pyi Daw by the Ministry of Home Affairs Department of General Administration (GAD), largely employing retired military personnel.

With the rise of armed rebellion in majority areas, most of the GAD structures have collapsed and are being replaced by local administration under the protection of various resistance forces. In many areas, striking civil servants from the Civil Disobedience Movement, formed in the early days of the coup, along with local civil society organizations, are now providing education, medical, security and other community services, as well as administrative functions.

While the context is new, rural communities have a long history of welfare administered by local charities, self-help associations, and religious groups and sustained by a tradition of community mutuality and barter. Recent studies of Chin, Sagaing, and Rakhine States have found that this tradition, which filled in for state negligence, has intensified markedly since the coup. It is a critical factor in sustaining the resilience of local communities and supporting resistance forces and people displaced by the junta regime. The same is undoubtedly true of other major resistance areas, such as Magway, Karenni, Kachin, and Karen States.

The emerging local governance structures are unique in modern Myanmar. For most of its years as a colony or independent state, governance was highly centralized, lacking the third tier of autonomous local administration essential to a federal democratic system.

After gaining independence in 1949, the Democracy Local Administration Act was enacted in 1953 with the goal of replacing colonial-era administration with greater public participation. When the military took power in 1962, the act was repealed, and under successive military regimes local GAD officers often oversaw land confiscation and forced eviction. The GAD was the tip of the military spear to establish an exclusionary national identity that relegated religious and ethnic minorities to second- and third-class citizens.

This history motivates the strong resistance of local communities today, which fight not only to protect themselves from the juntas atrocities, but also to replace the military-dominated governance apparatus of corruption and incompetence. In this sense, the emerging local governance structures tie directly to the stated national objectives of the resistance to create a democratic, federal system governed by law.

The emergent structures of local administration originating from the grassroots vary widely in strength, capacity and the services they provide. Some, at a nascent and unstable stage, are fractured by occasional military atrocities. The more entrenched ones manage to deliver community services, such as education, medical care, assistance for internally displaced people (IDPs), and even support for judicial functions. For example, according to USIP data from December 2022, resistance education providers operating under local governance institutions in Magwe Region were serving 78,000 students in person and 2,600 online.

In most areas of central Myanmar, local administrative structures depend on resistance forces for policing and military defense. Embedded within a broader context of resistance and revolution, they coordinate with the armed opposition, encourage resignations of government officials and gather intelligence. The degree of backing they receive from the National Unity Government (NUG) tends to vary according to the effectiveness of their performance and stability.

To be sure, these local efforts face major operational challenges. A critical one is constrained resources. For example, local governance actors in Sagaing and Magwe, which suffer some of the most vicious military atrocities, have virtually no access to international assistance. Throughout 2022, food assistance to Sagaing Region, for example, only reached townships along the Indian border, amounting to just 10 percent of IDPs and 8 percent of vulnerable non-IDPs in that area.

Often, the insurgent structures must also deal with various armed and civilian resistance elements claiming authority over local governance. While the NUG has attempted to resolve these disputes, it is hampered by the need to respect the decentralized nature of the movement. In some areas overlapping jurisdiction between the NUG and the ethnic revolutionary organizations also complicate local governance, particularly where ethnic group activity is expanding beyond established state boundaries.

Three lessons stand out from the study of emerging local administration in rural communities.

First, these new structures are an important step toward the federal democracy advocated by the resistance. If their development can be channeled toward effective civilian control, they will serve as a powerful counterweight to creeping militarization at the local level.

Second, the juntas diminished grip on community administration complicates its elections scheme. Poll workers are losing unfettered access to areas no longer under military control. Furthermore, deliberate attacks on local administrative offices by both military and resistance forces have destroyed a significant portion of the records needed for voter lists. If they can be held at all, elections are more likely to create greater conflict and chaos than to bring stability.

Third, those in the international community who seek to support vulnerable populations affected by military violence should see resistance governments as a high-leverage conduit for humanitarian aid. Local governance institutions are not only closely linked to civil society and aid organizations, but also to resistance groups. The very nature of Myanmars traditional community mutuality, sharing of resources, and hospitality to those in need guarantees that channeling cash resources into these community organizations will be put to the best use of the communities they serve.

Arkar Hein is a program specialist for USIPs Burma program.

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Amid the Fight for Myanmar, Federalism Rises from the Grass Roots - United States Institute of Peace

Regular readers know that this column extols federalism and argues that it is the bedrock on which our nation stands. The Karnataka election outcome has reaffirmed this idea and has shown yet again that the notion of one nation, one thought is fundamentally flawed. The emphatic Congress victory is an outcome of the people of Karnataka rejecting the idea of one national leader, one national political party, one national issue, one national policy and so on. The BJP under Narendra Modi is an exemplar of that one nation, one thought idea. Karnataka has given a resounding message that India is a federal union of states, not one homogeneous nation, and attempts to shove a national idea down their throats will be spat out.

While the Congress party invoked issues of corruption that impacted Kannadigas and asked to vote out the BJP, Modi said vote for the BJP because Congress abused me 91 times. Nobody really abused Modi, except to indulge in standard election campaign speeches. But that is not the point. The BJP mindset was that the perceived sin of abusing Modi should matter to Kannadigas more than their own daily struggles with corruption.

Also Read | Key takeaways from Karnataka election result 2023

This playbook stems from the notion that if a voter in UP can be wooed by crocodile tears of a national leader, so can voters in the southern state of Karnataka and the rest of India be. It is reflective of the BJPs entrenched belief that a national leaders blessing is far superior to actual state issues for voters across the nation. The Karnataka election has revealed some harsh truths for the BJP a national leader does not trump state issues, and their supposed supreme national leader is neither national nor supreme.

Another striking example of a national election playbook forced upon Karnataka was the attempt to religiously polarise voters under the alibi of Bajrang Dal and using the national media to amplify it. Again, this tactic may have worked in UP or Gujarat, but clearly it did not in Karnataka. But the BJP under Modi does not want to recognise the diversity of Indias states and reconcile with it. It does not have a playbook other than one national formula for everything from electioneering to governance to policies.

This illusion of a national party and their leader piercing through the thick walls of state boundaries is further propagated and amplified by the self-anointed national media, based in Lutyens Delhi. The cacophonic political shows on national television and political punditry in the opinion pages of national newspapers in the run-up to the Karnataka elections bellowed about how the Congress was committing suicide with the Bajrang Dal issue and how Modis rallies would overpower local issues, etc., because that is how it works in say UP or Uttarakhand or Gujarat. 43% of voters in Karnataka voted for the Congress in this election, the highest for any party in four decades. Cheekily, the Congress party can now understandably, albeit wrongly, argue that the Bajrang Dal issue helped and not hurt its cause, contrary to national media punditry. Consumption of Delhi media is perhaps the most injurious to Indias federalism.

Also Read | Congress wrests Karnataka from BJP: K'taka's map before and after elections

As I have shown using data in previous columns, Indias regional diversity and geospatial disparity across economic, cultural, political and social axes are only widening and not converging over time. The gap between, say, Bihar and Karnataka is wider today in all aspects than even two decades ago, which will manifest in its politics. The Karnataka election is a profound lesson in federal politics, not just for the BJP but also for the Congress party. The Congress cannot extrapolate its Karnataka victory to presume that national issues such as Adanis cronyism or any other, while they may have helped in Karnataka, can be replicated in other states to same result. It is important to understand that the winning formula in Karnataka is not seamlessly transferrable to other states such as Rajasthan, Telangana, Madhya Pradesh or Chhattisgarh, where elections are due later in the year.

The obvious next question is whether regional differences recede and national issues take precedence in a national election. It is a widely held belief that Indias national elections are more national after the advent of Modis BJP. There is empirical truth to this assertion, based on the 2014 and 2019 national elections. However, this is not an entrenched and established fact of Indian politics forever.

As Indias states grow further and further apart economically and socially, it has to inevitably reflect in its politics too. It is incumbent upon the Opposition to reinforce among voters in each state that the BJP represents a coerced one nation, one formula idea which renders their state worse and delivers bad outcomes. That is, it is necessary for Opposition parties to convince the tribal woman in Rajasthan bearing the brunt of inflation or the jobless youngster in UP that their woes are best addressed by political parties and leaders that are more attuned to their local circumstances, than by any messiah from Delhi with one solution for the entire nation.

The lesson from Karnataka for the Opposition is to convince voters that even in a national election, their daily livelihood interests are best served by local leaders and the seemingly abstract notion of federalism matters for the common man.

The other sobering lesson for the Opposition from Karnataka is that ideas such as Opposition unity that assume that if few parties get together nationally, their voters in each state will also come together is a fallacy. The Karnataka outcome shows that each state election is best fought locally, and the optics of all Opposition parties leaders raising hands in a show of unity for Delhi media cameras may not entice voters across state boundaries.

Read the rest here:

Lesson from Karnataka respect states and India's federalism - Deccan Herald

Dr. Paul Nolette, associate professor and chair of political science at Marquette, has been named the next director of the universitys Les Aspin Center for Government. Nolette, who joined the Political Science Department in the Klingler College of Arts and Sciences in 2011, will begin in his new role on June 1.

A nationally sought-after expert on state attorneys general and contemporary American politics, Nolette will lead the center, which provides academic and internship programming focused on the public policy making process through offerings in Washington, D.C., and Milwaukee.

The Les Aspin Center for Government is one of Marquettes premier and most unique academic programs, and Dr. Nolette is well positioned to continue its strong legacy and move it forward in new ways for the betterment of the students it serves, Provost Kimo Ah Yun said.

Dr. Nolette is a distinguished teacher-scholar with a national reputation for his expertise on state attorneys general, and his rapport with and commitment to students is outstanding, said Dr. Heidi Bostic, dean of the Klingler College of Arts and Sciences. A proven leader through his work as chair of the Department of Political Science, Dr. Nolette also has experience in Washington, D.C., and has established a strong relationship with many of our wonderful alumni and donors. He is an outstanding leader for the Aspin Center for Government as we look forward to the centers future flourishing in service to our students and Marquettes mission.

I am excited for this opportunity to serve as the director of the Les Aspin Center for Government, Nolette said. The Aspin Center has been life-changing for students interested in public policy and public service, and I am eager to explore new opportunities for research, internships, and academic programming that build upon the centers strengths. I look forward to working with college and university leaders, students and faculty, and our over 3,000 Aspin Center alumni on plans to provide an outstanding study away experience in our nations capital for the next generation of Aspin students.

About Dr. Paul Nolette (full bio online)

Nolettes teaching and research interests focus on the dynamics of contemporary American federalism, courts and public policy, and the interplay between politics and law. His book, Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America (University Press of Kansas, 2015), examines how state litigators have used lawsuits against large corporations and the federal government to influence national policy. Nolettes research on the politics of state attorneys general has also appeared in Publius: The Journal of Federalism, Law and Social Inquiry, and Polity. He also has worked with the National Association of Attorneys General, the nonpartisan national organization for these state officials, on a variety of research projects.

Nolettes work on state attorneys general has been featured in numerous national media outlets,including National Public Radio, the New York Times, CBS Evening News, the Wall StreetJournal, the Washington Post, Los Angeles Times, the National Law Journal, the Boston Globe,Governing Magazine, BBC World Service, Politico, Law360, Time Magazine, and U.S. News &World Report and others. He is also a frequent guest on local media to discuss political developments in Wisconsin and nationally, including WDJT-TV (CBS 58), WTMJ-TV (NBC 4), WITI-TV (FOX 6), WISN-TV (ABC 12), WTMJ Radio, Wisconsin Public Radio, Wisconsin State Journal and others.

Nolette completed his Ph.D. in political science at Boston College prior to joining the Marquette faculty in fall 2011. He also received a law degree from the Georgetown University Law Center in 2004 and a Bachelor of Arts from Saint Anselm College in 2001. After law school, Nolette worked in a litigation law firm and later served as the legal counsel for the Labor and Workforce Development Committee in the Massachusetts House of Representatives.

About the Les Aspin Center for Government

The Les Aspin Center for Government provides academic and internship programming focused on the public policy making process. With offerings in Washington, D.C., and Milwaukee, the Les Aspin Center integrates theoretical and experiential approaches to generating knowledge and provides its students, faculty, and staff with the opportunity to contribute to ethical, substantive and innovative policy making work locally, domestically and internationally.

Over the past 35 years, more than 3,000 Les Aspin Center students have interned at nearly 100 congressional offices, the State Department, the Food and Drug Administration, the U.S. Secret Service, the White House, the Department of Defense, the Federal Communications Commission, nonprofit organizations, private firms, and offices for Wisconsin-based corporations.

At any given time, there are approximately 50 Les Aspin Center alumni working as professional staff members in Congress. Alumni also have tremendous opportunities to work at other levels of government throughout the country and world.

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Dr. Paul Nolette named director of Les Aspin Center for Government ... - Marquette Today

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WASHINGTON U.S. Senator Kevin Cramer (R-ND), Ranking Member of the Environment and Public Works (EPW) Subcommittee on Transportation and Infrastructure, held a hearing on the authorities available to the U.S. Army Corps of Engineers (Corps) for addressing water management issues.

He invited and introduced Ms. Jennifer Verleger, Chair of the Western States Water Council and North Dakota assistant attorney general, and Dr. Andrea Travnicek, Director of the North Dakota Department of Water Resources, to serve as witnesses. Both are knowledgeable about water resource management and Corps operationsin the state.

OPENING STATEMENT

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In his opening remarks, Senator Cramer covered cooperative federalism and states rights regarding water management, wins in the 2020 and2022 Water Resources and Development Act (WRDA), including the Western Water Cooperative Committee,and the Corps management of the Snake Creek Embankment. A transcript may be found here.

WITNESS QUESTIONING

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Senator Cramer first discussed the Corps onerous proposed Water Supply Rule, which, before its withdrawal in 2020, threatened to significantly limit states abilities to develop and administer their water resources.

Dig down on the legal objections to the [Water] Supply Rule in the first place, because history is instructive, said Senator Cramer. [Could you] give a little legal analysis as to why it was so objectionable?

By the Corps trying to usurp control over all of that water, that takes away the states ability to allocate the water in accordance with their state laws. Every state allocates their laws or their water somewhat differently, but generally, we all use the prior appropriation system in the West, responded Ms. Verleger. There are already mechanisms set up in place to allocate water between users, especially in times of shortage, and when the Corps comes in and tries to take control over the whole sink, that takes away the states ability to do any sort of regulation and that is contrary to state law and the Constitution.

Senator Cramer asked about therole and future impacts of the Western Water Cooperative Committee, which he and his colleagues established in the 2022 WRDA.

The Corps wasn't crazy about [the creation of the Western Water Cooperative Committee]. Their sense was, we can work with attorney generals, and we can work with governors in individual states. Tell me how you see the new committee working and why it might work better in getting better cooperation with the Corps, said Senator Cramer.

There's one person appointed by the governor and one person appointed by the Attorney General from each of the states, and those are supposed to be people who actually have technical expertise. These aren't meant to be political appointments, but people who are actually going to be able to dig down into the weeds with the Corps of Engineers, staffers, and discuss the problems and try to find solutions, said Ms. Verleger. They are required to report to Congress every year after we have the meeting. I expect it to be focused a lot on water supply issues, but I think we can broaden out from that and see where there's conflict.

He then questioned Dr. Travnicek about the Snake Creek Embankment, a project with which she has been highly engaged. She previously contacted Senator Cramer and North Dakota Governor Doug Burgum for access to corresponding economic data included in the Corps' draft Environmental Assessment (EA).

Thanks for your work on the Snake Creek Embankment, said Senator Cramer. [Could you] dig down on what an EA should include in terms of information?

We had requested seeing the data associated with the economic analysis and what that looked like, responded Dr. Travnicek. My team was able to dive in working with Garrison Diversion Conservancy District as well. We feel if there was an opportunity to make sure we're looking at this from a multiple purpose perspective, versus just [the Corps] dam safety, loss of life perspective, we would be above that 1.0 needed for the benefit-cost ratio to move forward with a structural fix versus an operational fix.

Finally, Senator Cramer reiterated the importance of preserving cooperative federalism as it relates to water management in western statesand ended on a note of optimism,highlighting the role of the Western Water Cooperative Committee moving forward.

This is where hope lies in my view: the Western Water Cooperative Committee, said Senator Cramer. The West together, while we aren't identical, we have similar concerns. That's why we created this committee that will answer to the Court and then to Congress. We will be able to be kept up-to-date on how they're responding, so we can hopefully make it crystal clear they're either meeting or not meeting [needs].

He posed a question to the two witnesses regarding whether they are hopeful about the Corps leadership. They confirmed they are.

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Sen. Cramer Welcomes ND Witnesses, Discusses Water ... - Kevin Cramer

Ari Peskoe currently serves as the Director of the Electricity Law Initiative at the Harvard Law School Environmental and Energy Law Program. His work has primarily engaged with questions pertaining to electricity regulation at the federal and state levels. Peskoe has also litigated before the Federal Energy Regulatory Commission on landmark issues in electricity regulation such as the Western Energy Crisis.

Charlie Adams: In your paper, Is the Utility Transmission Syndicate Forever? you describe the unsavory extent to which investor-owned utilities wield monopolistic and anticompetitive power. How did we get to this point?

Ari Peskoe: Well, electric utilities are monopolists, and they were granted monopoly privileges by states about 100 years ago. When states allowed these monopolies, they were primarily concerned about local consumers access to reliable and affordable electricity. The monopoly model was designed to electrify America. You can think of it as a financing model that matches the private interests of utilities in terms of profiting from providing service with the public interests of reliable and expanding electricity. State regulators set rates that reimburse utilities for the costs of providing service and provide a profit margin on their infrastructure investments. This model de-risks investments and incentivizes the utility to build more infrastructure. As the physical electricity system expanded in the first half of the 20th century, it made sense for electric utility companies to connect to each other to provide more efficient and reliable service to consumers. But, the effect of those connections was the regionalization of companies dominance and control over the industry because you had local monopolists linking up with each other and controlling the operations and expansion of this essential infrastructure. This model might have made sense when investor-owned electric utilities were the primary players in the industry, but today, through a series of reforms by state governments and the federal government, we now have competition for the sale of power and the development of power plants and transmission infrastructure. These local monopolists can act anti-competitively in ways that harm consumers particularly, when we have companies that, if given a fair chance, can provide service that is just as reliable and is cheaper and cleaner for consumers.

CA: What role does federalism have in preventing or enabling progress on transmission?

AP: Right now, permitting transmission is done at a state-by-state level. There are some exceptions. For example, when the federal government owns land that your project is going to traverse, you need federal permission. So, transmission is already built around federalism because, for large-scale projects, the Federal Energy Regulatory Commission (FERC) regulates rates and planning processes that determine how utility rates are spent on transmission, but ultimately developers need state permission. So the question is, whats the right role for the states in these federally regulated processes?

FERC has put out a proposal that would give state regulators a greater role in the process of selecting projects and figuring out how those projects are going to be paid for. The idea is if you involve states earlier in the process, it will basically ensure that those projects are later permitted when they go before state permitting authorities. I think that the short history of the successful regional transmission development processes shows that states can play important roles in facilitating the development of major projects. At the same time, when we have large-scale projects with a clear national interest, such as those designed to move renewable energy across state lines from where it can be produced cheaply to where theres a higher energy demand, theres a good argument that maybe the federal government should be the only permitting authority. So, I dont think anyone has figured out what the optimal role is here for state regulators and for the federal government, but I think what is clear is that its very hard to change federal law in this area.

CA: If you were to design a new electric grid and regulatory scheme, taking influences from other countries, states, or existing elements in our system, what differences would you prioritize? What did we get right the first time?

AP: One of the differences between the United States and other parts of the world is disparate ownership. In the United States, there used to be hundreds of privately owned utilities that have since consolidated into what really amounts to a few dozen. We also have public power entities in which municipalities own their local utilities, and then there are rural cooperatives. In many other parts of the world, electricity was a government provided service controlled by the central government. Many countries have since liberalized through various free-market reforms and sold off the assets to various different types of companies. But our disparate ownership makes large-scale transmission development challenging because entities naturally look out for their own interests, and large-scale development may harm the parochial interests of utilities that still own power plants, which is the case in 35 states, for whom the transmission may harm their local generation monopolies.

If I were going to design something new but accept the fact that we have this diverse ownership mix, I think there has to be somebody with real authority at either the regional or the federal level to plan projects that meet 21st century clean energy and reliability challenges; there has to be somebody to figure out whos going to pay for those projects; and there has to be somebody to permit their construction. All three of those things must happen without having to worry about the political influence of the incumbent utilitiesthats really the key. Also, right now we dont have clean energy goals in this country. A lot of states have clean energy goals, but Congress has never enacted similar goals for carbon dioxide or renewable energy. So, I think my solution would be having a national goal to match the evolving energy mix, and creating new institutions at the regional or national level to develop transmission.

CA: Are you optimistic about FERCs appetite and ability to institute these reforms that might create something that looks closer than what youre imagining?

AP: What Id like to see FERC do is regulate utilities. A lot of the issues involving Regional Transmission Organizations (RTOs) grab most of the attention these days, but FERC has pretty expansive authority, as do state utility commissions, to investigate utility practices and ensure that rates are just and reasonable. This is a pretty broad standard. One of the reasons that I think utilities are not investing enough in large-scale regional projects is because its easier and faster for them to make money by rebuilding last centurys transmission system. Theres just a lot less oversight over small scale projects as compared to large-scale projectsthat limited oversight is both on the state permitting side and on the FERC-regulated side of things. Its just so much simpler for utilities to wreck and rebuild an existing line, and they can often justify doing so because a lot of the existing infrastructure across the country is very old and theres just no oversight over these decisions. Thats simply not how you regulate a utility: by just trusting their judgment, not reviewing their rates, and then not requiring a permit for their projects.

Theres an open proceeding right now at FERC overseeing more of these local projects, and Ive had the theory that if local projects were scrutinized in a way that utility projects have traditionally been scrutinized, then maybe that would remove this attractive nuisance of rebuilding last centurys grid and induce more development at the regional and interregional levels. So Im hopeful that FERC will take that issue seriously. Im also hopeful that FERC can push utilities to do more to consider all the benefits of larger scale transmission development. I think in some regions of the country, theres momentum for doing more on large-scale transmission development. In New England, states have been calling for more. In the middle of the country, in a region called the Midcontinent Independent System Operator (MISO), theres been some real progress on building large-scale transmission. A new FERC rule that requires utilities to consider the full range of benefits transmission offers to consumers can have some really positive effects in some parts of the country.

*This interview has been edited for length and clarity.

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Utilities, Transmission, and the Grid: An Interview with Ari Peskoe - Brown Political Review

Six months following the last major polls, the provincial governments are yet to get a full shape.

In Lumbini, two ministers without portfolios have yet to be assigned ministries. Chief Minister Dilli Chaudhary of Nepali Congress has been trying to complete the government but to no avail. The Congress is yet to finalise its ministerial nominees, resulting in the delay.

On Monday, Chief Minister of Sudurpaschim Province Kamal Bahadur Shah flew to Kathmandu seeking the help of top leaders from parties including his Nepali Congress in expanding the provincial government. A week ago too, he was in the national capital to meet Prime Minister Pushpa Kamal Dahal and Congress chief Sher Bahadur Deuba. Four ministries are yet to be appointed in Sudurpaschim, even as the Maoist Centre has claimed three, Nagarik Unmukti Party two, and the Congress one ministry.

In Madhesh, the ruling partners see chances of forming a provincial government under a new leadership. Three coalition partnersthe Congress, the CPN (Unified Socialist) and the Loktantrik Samajbadi Partyare yet to join the government led by Chief Minister Saroj Kumar Yadav of Janata Samajbadi. Nonetheless, everyone is eying the chief ministerial position, further complicating government expansion.

The Bagmati government has only six of the 11 ministers. Chief Minister Shalikram Jammakattel has taken charge of three ministries. The provincial government remains incomplete due to the claim of the Congress to four more ministries and of the Unified Socialist to two.

The federal government is unveiling its policies and programmes on Friday. The budget for the new fiscal year will also be unveiled shortly. Nepals provincial politics is affected by the change of power equation at the centre. Provincial administrations that were destabilised by the break-down of the Maoist-UML alliance are yet to stabilise. Its been around three months since the Congress joined the coalition and the UML quit the Cabinet in Kathmandu.

Such a delay and inefficiency of provincial leaders to form governments on their own has weakened the federal system as all tiers of government should be autonomous and well-governed, say observers.

It is already too late. The focus should have been on making proper plans and policies, on improving revenue collection and budget spending, all of which the provincial governments have failed to do, said Krishna Prasad Sapkota, a local governance expert. Yet, the sole focus of our political parties continues to be making and breaking governments.

In the meantime, the provincial assemblies have not been getting business as the parties continue wrangling for power. Crucial tasks, such as budget implementation, remain unfinished.

Experts say the failure of provincial structures invites questions and suspicions over federalism, which would be in jeopardy if the provinces cannot function effectively.

According to Rudra Sharma, an expert on federalism, Nepal has to allow the provinces to perform effectively by amending and formulating laws in order to devolve power. The federal set-up outlined in the constitution is only skeletal, and for the federal structure to be successful, laws such as Civil Law should be enacted besides other legal amendments, said Sharma. Federalism and its implementation so far should deserve a thorough review.

The Gandaki and Karnali governments have taken full shape. Gandaki got all the ministers last Friday after Chief Minister Surendra Raj Pandey inducted four new onesthree from the Congress and one from the Maoist Centre.

In Karnali, the provincial government too took full shape after four ministers assumed offices last month. Three ministers from the Congress joined the provincial government, and one state minister from the Maoist Centre was promoted to minister.

There is a tie in Koshi between the UML-Rastriya Prajatantra Party alliance and the ruling alliance, at 46 assembly members each. The UML has 40 provincial lawmakers, Rastriya Prajatantra Party six, Nepali Congress 29, Maoist Centre 13, and Unified Socialist four. This has made the new government formation trickier.

Observers say provincial governments have been treated like satellites of the central government.

This is happening because of our election system. Like local governments, the provincial governments should also be elected for a fixed term of five years to prevent frequent government changes, said Sapkota, a local governance expert. If that happens, the disturbance and change at the centre will not impact provincial governments.

Coalition leaders agree that it is already too late to make provincial governments complete. Yet they are failing to seal power-sharing deals.

Keshav Jha, a Loktantrik Samajbadi Party leader, said the provincial governments should be given full shape at the earliest to keep the ruling coalition strong. More delays will lead to a serious problem, he said, expressing fears that the next year might likewise be spent discussing power-sharing.

The delays in appointing provincial ministers will have a direct impact on budget implementation and delivery.

See the article here:

Six months after elections, provincial governments are still incomplete - The Kathmandu Post

Politics of Federalism in PakistanBy Mehrunnisa AliRoyal Book Company, KarachiISBN: 978-9694075273205pp.

Politics of Federalism in Pakistan by Mehrunnisa Ali is a critical study of the difficulties this country had to face in the making of the three constitutions of 1956, 1962 and 1973 we have had.

Yet, as the author points out, one reason why federalism triumphed in each case is because of a unique asset Pakistan has: its federal society. No wonder then that, despite the ethnic, regional and geographical challenges involved in drafting the basic law, the constitution-makers retained federalism in all three documents.

Unbelievable as it sounds, federalism had its opponents as late as the last century, with a scholar such as English political theorist and economist Harold Laski saying that federalism was unable to cope with the tempo of life developed by modern capitalism. Similarly, British lawyer Ivor Jennings opined that nobody would have a federal constitution if it could be avoided, while academic and historian James Bryce said federalism was a transitory step toward governmental unity.

Peculiar is the comment by scholar of politics Anthony H. Birch, whose books include The British System of Government and Nationalism and National Integration. Federalism, he says, is a concept which has no fixed meaning; its meaning in any particular study is defined by the student in a manner [that] is determined by the approach which he wishes to make to his material.

A revised and enlarged second edition of a book looks at the reasons why federalism has been a feature of each of the countrys three constitutions and what can be done to smooth out its problems

Yet, contrary to the opinion by the scholars, federalism works successfully in countries such as the United States and Canada, and many Afro-Asian countries Comoros, Ethiopia, India, Malaysia, Nigeria, Sudan and Tanzania have chosen to go federal. In Pakistan, as early as 1949, Liaquat Ali Khan, the countrys first prime minister, declared that a federal form of government was a dictate of Pakistans geography.

A federal polity involves, among other things, a division of powers between the federal government and the constituent units and, in Pakistans case, it was not an easy task for the politicians to develop a consensus.

The makers of the 1956 constitution had to put up with a harsh reality: the most populous province, East Pakistan, had a small area, whereas the other four provinces situated a thousand kilometres away had a much larger territory. This meant East Pakistan would always have a majority in parliament something the four other provinces conjoined territorially resented because of their larger territory, greater natural resources and higher contributions to revenue.

Yet, the politicians, many of whom were Quaid-i-Azam Mohammad Ali Jinnahs comrades during the Pakistan movement and were well versed with law and constitution, came up with a workable solution. The country would be a federation of two provinces: East Pakistan and the four provinces in the west merged into one, and both would have equal representation in parliament. This came to be known as the parity principle, which defined the relationship between the two wings. In the consolidated West Pakistan, Punjab had 57 percent of the population. This created pressures within West Pakistan.

Full of compromises, the constitution was adopted in 1956 after what Professor Ali, author of the book under review, calls much wrangling among the provinces. This led to political instability, which finally ended when the country had its first martial law regime in 1958.

The constitution was abrogated, and the strongman, Gen (later Field Marshal) Ayub Khan not only preferred a presidential form of government, but also went for indirect elections to parliament and the presidency. Yet, despite the phenomenal economic development and the stability provided by the Ayub regime, popular agitation led to his ouster. This was followed by elections in 1970, the results of which emphasised the ethnic character of the divide between the two provinces.

Avoiding the details of the 1971 tragedy, let us focus instead on the constitution enacted in 1973. It is federal in character and, despite two military interventions, has shown resilience, flexibility and workability.

With the prime minister as chief executive, the constitution is parliamentary in character and has a bicameral legislature, with the upper house giving equal representation to the four provinces. More significantly, an irritant in any federal scheme the division of powers has been adequately dealt with and several amendments by the parliament have served to address the constituent units grievances.

For instance, the 18th amendment, adopted in 2010, widened the quantum of provincial autonomy by abolishing the concurrent list, thus giving the provinces greater autonomy in financial matters. This served to enhance the provinces extremely limited taxation sources, though there has been criticism that the provinces had failed to fully utilise the concessions given by the 18th amendment.

However, as Professor Ali says, even though the three constitutions were federal in character, they proved to be non-federal in practice, because of all federal governments tendency to centralise the state by administrative means, which gave Islamabad greater powers in matters of law and order, especially where Islamabad felt centrifugal forces were gaining strength.

The growth of centrifugal forces a euphemism for separatist tendencies is a subject to which the author keeps returning. Because of the growing development gap between the federating units, the author believes the unifying force of religion and fear of [a] common enemy (India) became weaker. Thus, federalism has been the only feasible device for maintaining equilibrium between the centripetal and centrifugal forces.

There were unhealthy traditions from the very beginning. For instance, in 1954, then governor general Ghulam Mohammad dismissed Khawaja Nazimuddins government without recourse to the constituent assembly, which too he dissolved early the following year.

Similarly, even when generals such as Ziaul Haq and Pervez Musharraf didnt abrogate the constitution, they made amendments with the help of rubber-stamp parliaments. For instance, Gen Zia added a new clause 58 2(b) which authorised the president to dissolve the assembly and order fresh elections, even if the prime minister enjoyed a parliamentary majority. This clause was abolished by a subsequent democratic government, but Gen Musharraf restored it.

That a subsequent democratic government abolished this clause again and the constitution today is parliamentary and democratic in character, is a tribute to the resilience shown by the 1973 document, which was framed by Zulfikar Ali Bhuttos government under most difficult post-1971 circumstances.

Two chapters Measures Ensuring Federal-Regional Equation and Federalism and Cultural Pluralism summarise the authors views on the constant tussle between the federal and provincial governments and suggest a solution. According to her, the tradition of a powerful centre, established in Pakistans formative years, continued during the operation of the 1956 constitution and remained a basic feature of the 1962 and 1973 documents.

The growing regionalism, Ali notes, could be contained, first, by creating conditions conducive to the operation of the federal polity and second, by controlling those forces which have increased provincialism in the country.

Ali believes officers of the elite Central Superior Services (CSS) are a major source of power in federal hands because they occupy key positions and are responsible to the federal government. One solution she has in mind is to have more provincial government officers on committees involved in development plans.

Ali is the author of a number of books, including the monumental Jinnah on World Affairs: Selected Documents, 1908-1948 and Facets of Jinnah: Personality and Leadership. The book under review here, a revised and enlarged second edition, deals in detail with the challenges Pakistan had to face in finally enacting a constitution that is parliamentary and federal. It is a quotable book.

The reviewer is Dawns External Ombudsman and an author

Published in Dawn, Books & Authors, April 30th, 2023

Read more here:

NON-FICTION: WHY FEDERALISM ENDURES IN PAKISTAN ... - DAWN.com

Justice Antonin Scalia.

In my last post, I summarized what I learned from Justice John Paul Stevens' papers on Kelo v. City of New London, the controversial 5-4 decision in which the Supreme Court ruled that the condemnation of homes for "private economic development" is permissible under the Takings Clause of the Fifth Amendment, which only allows takings that are for a "public use." The papers were opened to the public earlier this week.

As noted in my previous post, one of the most interesting revelations in Stevens' files is that Justice Antonin Scalia wrote a dissent in the case, which he eventually chose not to publish. In this post, I reprint Scalia's dissent in its entirely (it's short!), and then offer some comments. Here's the dissent:

As JUSTICE O'CONNOR well explains, ante, at 1-2, 7-8 (dissenting opinion), the Court's decision today goes far beyond the holdings of our prior cases, and renders part of the Takings Clause a virtual nullity. Under the precedent set today, the Public Use requirement is effectively nonjusticiable. The political branches in the Federal Government and each State are left to administer it on the honor system.

It is hard to endure the Court's hymn of praise to "the best tradition of our federalist system," which permits "different communities" to use "political processes" to "strike the balance of costs and benefits in different ways." Ante, at 19. Why is it appropriate to sing that song in a case involving a real-live constitutional text clearly designed to constrain "political processes"; but to leave it unsung in the many cases involving phantom rights that the Court has summoned up from nowhere? The same Court that could fashion an enforceable constitutional entitlement out of every individual's "'right to define"' his or her '"own concept of existence, of meaning, of the universe, and of the mystery of human life,"' Lawrence v. Texas, 539 U.S. 558, 574 (2003) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992) (plurality opinion)), today proclaims that the deeply felt "limits of [its] authority," ante, at 19, preclude it from enforcing a right that has been in the text of the Bill of Rights for more than two hundred years. The Court erects citadels in ultima Thule while leaving the Vandals unattended in Rome itself. This foolish disparity should not go unnoticed, nor (in the long run) uncorrected.

I respectfully dissent.

The Stevens files show that Scalia circulated this dissent on June 15, 2005, eight days before the Kelo decision was issued. He then withdrew it on June 21, after Justice Stevens removed the passages in his majority opinion that most incensed Scalia. Most notably, Stevens cut the references to "the best tradition of our federalist system" and allowing "different communities" to use "political processes" to "strike the balance of costs and benefits in different ways."

For the most part, Justice Scalia's dissent echoes themes from Justice Sandra Day O'Connor's lead dissent, which he had already agreed to join. For example, both emphasize that the majority essentially gutted public use restrictions on takings.

The main distinctive point Scalia makes is the contrast between the majority's unwillingness to enforce an explicit enumerated constitutional right (the Public Use Clause of the Fifth Amendment) and its far greater solicitude for unenumerated "substantive due process" constitutional rights such as those enforced in Lawrence v. Texas (striking down laws banning same-sex sexual relations), and Planned Parenthood v. Casey (abortion). The latter was a longtime major concern of Scalia's (who forcefully dissented in both Lawrence and Casey).

It is interesting that Scalia withdrew the dissent after Stevens made changes to the wording of the majority. Although Stevens removed the specific phrases Scalia complained about, the substance of the opinion did not meaningfully change. It still treats the Public Use Clause much less favorably than various unenumerated rights. And it still cites federalism and diverse local needs as a justification for deferring to local authorities on public use issues:

Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the "great respect" that we owe to state legislatures and state courts in discerning local public needs.

Ironically, just 17 days before Kelo was issued, and nine days before Scalia circulated his dissent, the Supreme Court issued its decision in Gonzales v. Raich, which held that Congress' power to regulate interstate commerce was so broad that it allowed it to ban the possession of medical marijuana that had never crossed state lines or been sold in any market, even within a state. Justice Stevens was the author of the majority opinion in Raich, just like in Kelo. Raich was a deeply flawed ruling that expanded federal power further than any previous Supreme Court decisions, and ran roughshod over state diversity and autonomy. There is an obvious tension between Stevens' paeans to state and local autonomy in Kelo and his endorsement of extraordinarily broad federal power in Raich.

Scalia could and should have called out Stevens and the four other justices who were in the majority in both Raich and Kelo on this contradiction. But he was ill-positioned to do so, because he himself had also voted for the federal government in Raich, albeit in a concurring opinion that used different reasoning than the majority. In my view, this was one of Scalia's worst opinions.

In sum, Scalia was right to highlight the flaws in Stevens' appeal to federalism and local diversity. But his own role in the Raich case prevented him from pointing out the full extent of the contradiction in the majority's position.

There are two interesting unanswered questions surrounding Scalia's unpublished dissent. First, it is not clear why Scalia withdrew the dissent in response to what were largely rhetorical revisions to the majority opinion that failed to address his substantive concerns. Second, as noted in my last post, it is hard to explain why Scaliathe Court's leading champion of originalismsaid virtually nothing about the original meaning of "public use" in his opinion, and chose not to join Justice Clarence Thomas' strong originalist dissent.

Despite withdrawing this dissent, Scalia still joined Justice O'Connor's forceful dissenting opinion. In later years, he continued to denounce the Kelo decision and predicted that it would one day be overruled (a prospect he welcomed). I hope he turns out to be the right on that last point.

Read the rest here:

Justice Scalia's Unpublished Dissent in Kelo v. City of New London - Reason

In the run up, those final five days before polling on May 10, efforts by citizens and civil society over past months and week are interesting to note. Without an active citizenry taking part in the election process can the electoral process be held accountable? Can issues of social justice significance be brought centre stage to politics? Karnataka shows us the way

Over 5,000 gritty citizens volunteers are slogging it off in the heat and dust of the ongoing May elections in the southern state of Karnataka. While political sloganeering of the opposition has centered on the 40 % commission corruption alleged to be the way of the ruling Bharatiya Janata Party (BJP) government, and a slew of welfare schemes thrown in as positive measure, what is the present Karnataka governments report card on education, literacy, job and human indices index?

One such citizens collective, Bahutva Karnataka, has released a set of Report Cards holding government and governance to account. In the words of the collective, These report cards are intended to enable the public to not just hold the government to account, but also to make an informed choice as they choose the next government.

Information is power and the correct information and perspective can help you choose your government wisely. The reports are available in English and Kannada here:

On standards of Democracy Denying Peoples Participation, Violating the Peoples mandate, Transparency and Corruption, Free and Fair Elections, no Uniform Application of the Rule of Law, Stifling Dissent, Derailing Associated Living.

The state government fairs poorly, its a Grade F!

On Governance

On Federalism too, the state government has faired badly with a Grade F! Criterea and categories ae Karnatakas decreasing share of tax revenue, Imposition of Hindi, Maha Dayi Water Sharing Dispute Resolution, Delay in Natural Calamity Relief Funds, Encroachment on State Subjects, State Government Remote Controlled from Delhi, Decline of Cooperative Federalism

On Womens Rights the categories are judged are Violence against Women, Women in the Informal sector, Moral Policing, the Bogey of Love Jihad, Patriarchial Attitudes and the Success and Reach of the Beti Bachao Beti Padhao scheme of the union government. The BJP government gets Grade G!

On Religious Minorities: Targeting of Muslims, Hate Crimes against Christians, Vigilantism, Anti Conversion Laws, Cow Slauhter laws an assessment of this together gives the state a poor grade F!

Economy & Fiscal Management

Slum Residents Rights

Rural Development

Education

Healthcare

Key Laws Passed

Nutrition: the grade is D with categories being poor Quality of Mid Day meals, Disruption in Dry Ration supplied to Children and Women, Limited Supply of Eggs, No Post Pandemic Surveys on Malnutrition, Covid Mismangamenent, Disruption on Milk Supply to Children, Restriction on Meat, Push for Satvic Food. The tick mark is a welcome move on Poultry farming.

Environment

Agriculture

Labour

Go here to see the original:

Citizens, civil society hold the ruling party, BJP to account ... - SabrangIndia

On April 13, 2023, the Department of Education (ED) issued a notice of proposed rulemaking (NPRM) titled Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams. This Athletics NPRM would establish a new regulatory standard under Title IX that would govern sex-related criteria as it relates to gender identity for participation on sex-specific athletics teams at federally funded educational institutions. The 32-day public comment period closes on Monday, May 15.

In July 2022, when ED issued a proposed Title IX rule that would expand Title IXs sex discrimination prohibition to prohibit discrimination based on gender identity (among other things), the Department promised it would issue a separate NPRM to address whether and how ED should amend its current athletics regulation and the question of what criteria, if any, recipients should be permitted to use to establish students eligibility to participate on a particular male or female athletics team.

Proposed Regulatory Standard

Under the current athletics regulation, originally promulgated in 1980, educational institutions may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.

According to ED, the current athletics regulation isnt sufficiently clear to ensure Title IXs nondiscrimination requirement is satisfied. The proposed regulatory standard would provide needed clarity and would not affect a recipients discretion to offer sex-specific teams based on competitive skill or for contact sports.

Citing to Bostock v. Clayton County, Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, Executive Order 14021 on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, the Department proposes the following regulatory text:

If a recipient adopts or applies sex- related criteria that would limit or deny a students eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) Be substantially related to the achievement of an important educational objective; and (ii) Minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.

In crafting its proposal, ED conducted an extensive review of Title IXs implementing regulations, statutory text, and legislative history; federal and state case law (including Hecox v. Little, A.M. v. Indianapolis Public Schools, and B.P.J. v. West Virginia State Board of Education); relevant state laws; current athletic policies; public comments received during a June 2021 nationwide virtual public hearing on Title IX; and other information provided by stakeholders.

According to the NPRM, the proposed standard was informed by the current Title IX regulation governing single-sex classes and Equal Protection Clause caselaw, and is consistent with Title IXs nondiscrimination prohibition and the framework of the current athletics regulations.

Criteria for Each Sport, Level of Competition, and Grade or Education Level

Under the proposed regulatory standard, any sex-specific policy that does not permit participation based on gender identity would have to be evaluated based on (a) sport, (b) level of competition, and (c) the grade or education level. Indeed, the NPRM states that criteria that categorically exclude all transgender girls and women from participating on any female athletic teams would not satisfy the proposed standard because they would take a one-size-fits-all approach and rely on overbroad generalizations that are not specific to the sport, level of competition, and grade or education level to which they apply.

Without elaboration, the Department declares that it currently believes there are few, if any, sex-related eligibility criteria applicable to students in elementary school that would comply with the proposed standard. ED further believes it would also be particularly difficult for a policy that excludes students immediately following elementary school from participating on sex-specific teams consistent with their gender identity to comply with the standard. If adopted, this view would likely undermine any sex-specific distinctions for athletics in elementary schools.

Even in high schools and colleges, the level of evaluation required under the NPRM places an onerous burden on recipients seeking to adopt any sex-specific policy based on biology and provides a large incentive to adopt a blanket policy allowing participation based on gender identity for all sex-specific athletic teams.

Nevertheless, ED anticipates that some uses of sex-related eligibility criteria would satisfy the proposed standard in some sports, grade and education levels, and levels of competition (emphasis added).

Substantially Related to the Achievement of an Important Educational Objective

Under the proposed regulatory standard, any sex-specific policy must be based on a direct, substantial relationship between a recipients objective and the means used to achieve that objective.

ED acknowledges that ensuring fairness in competition and prevention of sports-related injury are possible important educational objectives, but is quick to point that that those interests do not necessarily require schools to adopt or apply sex-related criteria that would limit or deny a students eligibility to participate on a male or female team consistent with their gender identity. The NPRM points to alternative strategies and mitigating measures that could be taken instead, such as appropriate coaching and training, requiring use of protective equipment, and specifying rules of play.

According to the Department, the following would not qualify as an important educational objective:

Communicating or codifying disapproval of a student or a students gender identity;

Adoption solely for the purpose of excluding transgender students from sports;

Requiring adherence to sex stereotypes;

Adoption solely for the purpose of administrative convenience; or

As a pretext for an impermissible interest in singling out transgender students for disapproval or harm.

The NPRM emphasizes that any criteria must not rely on overly broad generalizations about male and female students talents, capacities, or preferences, noting that very few female student-athletes are transgender and transgender students do not necessarily have greater physical or athletic ability than cisgender students that would affect cisgender students equal opportunity to participate. As such, criteria that assume all transgender girls and women possess an unfair physical advantage over cisgender girls and women in every sport, level of competition, and grade or education level would rely on an impermissible generalization.

Benefits, Harms, and Costs

ED identifies two benefits of its proposal: (i) providing a standard to clarify Title IX obligations for recipients that adopt or apply sex-related eligibility criteria, and (ii) protecting students equal opportunity to participate on male and female teams consistent with Title IX.

Without the proposed regulation, ED claims some students may suffer harm as a result of being unable to gain the benefits associated with equal opportunity to participate on athletic teams at school because participation on a team inconsistent with a students gender identity is not a viable option for many students. No mention is made of any harm to other students, especially female athletes who could be denied equal opportunity to participate under the Departments proposal.

ED estimates that the cost to recipients over 10 years would be in the range of $23.4 million to $24.4 million, which seems low considering the number of schools that receive federal funding, the time needed to evaluate existing athletic policies for compliance, and the regular trainings on the policies.

Nevertheless, ED concludes that the benefits far outweigh the costs.

Federalism Concerns

As recognized in the NPRM, at least twenty states have passed laws that prevent biological males, regardless of how they identify, from joining female-specific athletic teams.

The Department acknowledges (without elaboration) that its proposal may have federalism implications or substantial direct effects on the states or the relationship between stated and the federal government. It is clear that the proposed regulation conflicts with state laws, setting up a legal battle between ED and those states if and when the proposed rule is finalized.

Opportunity for Public Comment

ED is accepting public comments on the Athletics NPRM until Monday, May 15, which can be submitted here. To learn more about public comments on agency rulemaking, see the Ethics and Public Policy Centers one-page explainer.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us atinfo@fedsoc.org.

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ED Proposes Title IX Athletics Rule Requiring Participation Based ... - The Federalist Society