Tag: federalism

National Surveillance Programs and Their State Impediments

Having originally come to Washington to defend federalism, I am always delighted to see the division of powers among the states and the federal government have its proper effect: to protect liberty and limited government.

As with REAL ID, the E-Verify federal background check system is meeting up with state resistance. The Republican Liberty Caucus of New Hampshire reported yesterday:

This afternoon, the House passed HB 1549, which would prohibit the state’s participation in the E-Verify system, with a nearly unanimous voice vote. The House also killed HB 1492, which would require employers to verify an employee’s eligibility to work in the United States using the E-Verify System, with a 226-59 vote.

E-Verify is essentially a national identification system that requires employers to verify all job applicants’ citizenship in a national database system before they can employ them. If the state agreed to participate, all citizens would have to be listed in this national database as a U.S. citizen in order to get a job.

You want to fix immigration, feds? You do it without putting American citizens into a national ID system. Good message.

Here’s the clear language of HB 1549, which the New Hampshire House has approved to govern release of motor vehicle records. It embraces legitimate law enforcement while rejecting national identification schemes.

III. Motor vehicle records may be made available pursuant to a court order or in response to a request from a state, a political subdivision of a state, the federal government, or a law enforcement agency for use in official business. The request shall be on a case-by-case basis. Any records received pursuant to this paragraph shall not be further transferred or otherwise made available to any other person or listed entity not authorized under this paragraph. No records made available under this section shall be used, directly or indirectly, for any federal identification database. (New language in bold.)

To learn more about E-Verify and its role as a nascent national identification scheme, read my Cato Policy Analysis: “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration.”

The REAL ID Fight Continues in the States

Federal programs almost never die. Bureaucrats and their big-government allies are still trying to cobble together an American national ID.

But leaders in the states continue to fight. In this case, it’s Michigan state representative and House transportation committee chairman Paul Opsommer (R-DeWitt). In response to a recent report citing state compliance with REAL ID “benchmarks,” he’s put out a scathing report that was written up in the River Country (MI) Journal.

“The things we have done in Michigan, like making sure illegal aliens cannot get driver’s licenses, we are doing independently of REAL ID, and we are not interested in allowing the federal government to have permanent control over our licenses,” said Opsommer. “You can bet your bottom dollar that at some point if Obamacare is not repealed that the federal government will adopt new rules in the future requiring the cards’ use for access to healthcare. You can bet they will require it to buy a firearm. You can bet they ultimately want to put RFID chips into all these and share our full data with Canada, Mexico, and beyond. If we don’t repeal Title II of the REAL ID Act, all we are doing is putting off the ‘I told you so’ moment for a few years down the road.”

The tensions that the Framers of the Constitution designed into our governmental structure are doing their work through Rep. Opsommer.

“State documents should be state documents, and federal documents should be federal documents,” he says.

“If the federal government is bent on having a national ID card, they need to get their own house in order and start to make federal passports more secure and more affordable. Quit trying to outsource your own mismanagement of the federal passport system onto the states and let us get onto the business of issuing our own safe and secure sovereign driver’s licenses.”

The bureaucrats will keep at it at least until the Congress defunds REAL ID. But they’ll keep bumping into the likes or Rep. Paul Opsommer.

RTD: ‘Insurance Exchange: Just Say No’

Regarding legislation to create an ObamaCare “Exchange” in Virginia, the Richmond Times-Dispatch explains:

Republicans at the General Assembly are falling prey to the fallacy of the false alternative…

[H]ere are the real options facing Virginia: (a) federal bureaucrats determine the form of our exchange, or (b) federal bureaucrats determine the form of our exchange. There is no (c)…

Running a health-insurance exchange would cost a lot of money — money Virginia does not have. Since Washington will dictate how it will be run, Washington should pick up the tab.

‘We Are Not Deciding between Regulation and Autonomy, We Are Deciding Whether or Not We Want a Puppet Government’

That’s how Charlie Arlinghaus, president of New Hampshire’s Josiah Bartlett Center for Public Policy, describes the decision confronting states about whether to create an ObamaCare Exchange in this op-ed for the New Hampshire Union-Leader.

Obamacare’s Medicaid Expansion Violates Federalism

Today Cato filed its second Supreme Court amicus brief in the Obamacare litigation, on the issue of whether the health care law’s Medicaid expansion is a proper exercise of the Constitution’s Spending Clause.

That is, states must now accept a comprehensive reorganization of Medicaid or forfeit all federal Medicaid funding—even though the spending power is circumscribed to preserve a distinction between what is local and what is national. If Congress is allowed to attach conditions to spending that the states cannot refuse in order to achieve an objective it could not outright mandate, the local/national distinction that is so central to federalism will be erased.

Joining the Center for Constitutional Jurisprudence, Pacific Legal Foundation, Rep. Denny Rehberg (chairman of the House Appropriations Subcommittee on Labor, Health & Human Services, Education, and Related Agencies), and Kansas Lt. Gov. Jeffrey Colyer (also a practicing physician) we argue that, in requiring states to accept onerous conditions on federal funds that it could not impose directly, the government has exceeded its enumerated powers and violated basic principles of federalism.

California is at risk of losing $25.6 billion in annual federal funding, for example, and together the states stand to lose more than a quarter trillion dollars annually. On average, states would have to increase their general revenue budgets by almost 40% in order to maintain their current level of Medicaid funding.

The 1987 case of South Dakota v. Dole, however, prohibits such a coercive use of the spending power and recognizes that “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’” Indeed, the states’ obligations, should they “choose” to accept federal funding and thus commit themselves to doing the government’s bidding, are far more substantial than those the Supreme Court invalidated in New York v. United States and Printz v. United States (which prohibit federal “commandeering” of state officials).

Moreover, the Congress that enacted the original Social Security Act, to which Medicare and Medicaid were added in the 1960s, recognized that social safety has always been the prerogative of the states and should continue to be done under state discretion. Medicaid itself was narrowly tailored to serve particularly needy groups.

In short, if Obamacare does not cross the line from valid “inducement” to unconstitutional “coercion,” nothing ever will. Just as the Commerce Clause is not an open-ended grant of power, the Spending Clause too has limits that must be enforced.

The GOP’s Legislative Malpractice

If you read Virginia Attorney General Ken Cuccinelli’s op-ed in Sunday’s Washington Post, you witnessed the too-rare spectacle of a Republican denouncing his own party’s hypocrisy on medical malpractice reform:

With Senate Bill 197 — legislation that would have the federal government dictate how state judges are to try medical malpractice cases and cap what state courts may award — several Republican senators have…take[n] an approach that implies “Washington knows best” while trampling states’ authority and the 10th Amendment. The legislation is breathtakingly broad in its assumptions about federal power, particularly the same power to regulate commerce that lies at the heart of all the lawsuits (including Virginia’s) against the individual mandate of the 2010 federal health-care law. I have little doubt that the senators who brought us S. 197 oppose the use of the commerce clause to compel individuals to buy health insurance. Yet they have no qualms about dictating to state court judges how they are to conduct trials in state lawsuits…

This legislation expands federal power, tramples the states and violates the Constitution. And if it were ever signed into law — by a Republican or Democratic president — I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010 (15 minutes later).

For more on why ObamaCare is unconstitutional see this white paper by Cato chairman Bob Levy.  For a discussion of why nearly all federal med mal reforms are unconstitutional, see this Policy Analysis by Bob Levy and Michael Krauss.  For a discussion of why mandatory caps on damages may harm patients, see this recent Policy Analysis by Cato adjunct scholar Shirley Svorny.  For an individual-rights-based approach to med mal reform, see this paper by yours truly.

Did Canada Steal Our Tenth Amendment?

Under the U.S. Constitution, the federal government was assigned specific limited powers, and most government functions were left to the states. To ensure that people understood the limits on federal power, the Framers added the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Those delegated powers are “few and defined,” noted James Madison.

But the Tenth Amendment has disappeared. No one has seen it in recent decades. But I’ve found some statistics that make me very suspicious that the Canadians stole the Tenth. Look at the pie charts below. The top pie shows that 71 percent of total government spending in the United States is federal, while 29 percent is state/local. (See BEA tables 3.1, 3.2, 3.3 for 2010 data).

Back when we still had the Tenth, that ratio was the other way around—like how the bottom chart looks for Canada today. In Canada, federal spending accounts for just 38 percent of total government spending, while provincial/local spending accounts for 62 percent. (See Canada Yearbook for 2010/11 data.)

Actually, the real culprit for the missing Tenth is not the Canadians, but the U.S. Congress. In recent decades, Congress has undertaken many activities that were traditionally reserved to state and local governments. A primary method has been through “grants-in-aid.” These are federal subsidies combined with regulatory controls that micromanage state and local affairs. In United States, federal grants are about 4.1 percent of GDP (in fiscal 2011), while in Canada they are about 3.3 percent of GDP.

Even more striking: while we’ve got a complex mess of more than 1,000 state grant programs, Canada seems to have just a handful, and they are simple block grants. As I understand it, Canada’s federal grants to lower governments mainly just include:

  • A health care block grant
  • A social services block grant
  • An “equalization” block grant to help the poor provinces.

There is a smattering of other aid, but that’s just about it. There are no federal subsidies for K-12 education in Canada, for example. There are a few large block grants and not much else.

On October 27, I’m on an Urban/Brookings panel looking at “What Can the United States Learn from Canada.” Perhaps we can learn how to get our decentralized federation back. While we’re at it, we could get some tips on how to cut government spending, as the Canadians did in the 1990s.