Tag: federalism

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.

The President Can’t Increase Congress’s Power Simply by Signing a Treaty

A lost episode of Jerry Springer found its way into the Supreme Court’s 2010-11 term in the case of United States v. Bond. Mrs. Bond, upset by the pregnancy that resulted from an affair between her husband and her erstwhile best friend, decided to take revenge. A trained microbiologist working at a chemical manufacturer, Mrs. Bond tried to poison her husband’s mistress by dusting her door knobs, mailbox, and car handles with dangerous, possibly lethal chemicals.

Upon being caught by (federal) postal inspectors, Mrs. Bond was charged with violating the law Congress passed to implement an international chemical weapons treaty. (There are no generally applicable federal attempted murder statutes, so prosecutors had to get creative to remain in federal court.)

But if general criminal statutes are beyond Congress’s powers, as even the most ardent federal-power activist must acknowledge, how did Congress have the power to pass the law that ensnared Mrs. Bond? — who, whatever her character flaws, was not selling chemical weapons to terrorists (the treaty’s target). Mrs. Bond thus hoped to challenge her conviction by arguing that Congress did not have the power to pass the law in question.

The Third Circuit, however, ruled that she did not have standing — a legal doctrine defining who has the right to bring a claim — to challenge the law on federalism grounds. Cato filed a Supreme Court brief supporting Mrs. Bond’s position and arguing that it makes no sense to deny standing to someone challenging a law under which she is being prosecuted. The Court unanimously agreed and remanded the case back to the Third Circuit, to finally hear arguments over whether the statute is beyond congressional power.

Cato has now reentered the fray, in a brief authored by Georgetown law professor Nicholas Quinn Rosenkranz and joined by the Center for Constitutional Jurisprudence. We again support Mrs. Bond’s claim that the law under which she was charged is beyond Congress’s enumerated powers. The main obstacle to this argument is the 1920 case Missouri v. Holland, a short and not completely clear opinion by Justice Oliver Wendell Holmes that has been interpreted to mean that Congress can expand its enumerated powers via the Treaty Clause.

In other words, even though Congress does not have the power to pass, for example, general criminal statutes, if Congress ratifies a treaty calling for such statutes, its power increases beyond constitutional limits. We argue that this is an astounding manner in which to interpret a Constitution that creates a federal government of limited powers. Not only would this mean that the Executive has the ability to expand congressional power by signing a treaty, but it would mean that foreign governments could change congressional power by abrogating a previously valid treaty — thus removing the constitutional authority from certain laws. We also point out how the most influential argument supporting Missouri v. Holland is based on a clear misreading of constitutional history and that the ruling is in deep tension with other cases.

On the treaty power, we’re in a constitutional quagmire that can only be escaped by limiting or overturning Missouri v. Holland.  The Third Circuit can’t itself overturn a Supreme Court decision, of course, but it follows our brief, it can at least limit its damage.

Imposing National Standards

Next month, the Obama Administration will begin granting waivers to states that are not on track to meet proficiency requirements in the No Child Left Behind Act. Education Secretary Arne Duncan will be granting these waivers selectively, based mostly on states’ willingness to abide by new executive branch mandates not included in NCLB, likely including adopting national curriculum standards.

Duncan has the authority under NCLB to grant waivers, but not to compel states to jump through administration hoops in order to earn them, as Neal McCluskey has documented clearly.

As Neal notes in today’s Cato Daily Podcast, essentially imposing national standards – as well as other potential waiver demands – represents a large-scale assertion of federal executive power over local education:

We’ve broken any semblance of a Constitutional balance of power between the executive and the legislative branch. Now the President is just going to dictate to every school what they’re going to teach. And that is a giant threat to freedom and to the American education system.

A broader recognition that the Constitution grants neither Congress nor the President any role in education would go a long way toward fixing these problems. NCLB may be, to quote Arne Duncan, “a slow-motion train wreck,” but using that law to transfer power away from parents, states and Congress is easily a solution worse than the problem.

An Unprecedented Expansion of Federal Power

That’s how I describe the individual mandate in my contribution to SCOTUSblog’s online symposium on Obamacare, which Trevor Burrus has already highlighted.  Here’s an excerpt:

All the Obamacare legal challenges boil down to Congress’s authority – or lack thereof – to require people to buy private insurance.  Although unfortunately not dispositive of modern judicial decisions, the text of the Constitution demands that the Supreme Court strike down the individual mandate as an unconstitutional exercise of Congress’s power to regulate interstate commerce.  Finding the mandate constitutional would be the first interpretation of the Commerce Clause to permit the regulation of inactivity – in effect requiring an individual to engage in an economic transaction.

Moreover, upholding Obamacare would grant the federal government wide latitude to mandate that Americans engage in activities of its choosing.  An expansive holding here would fundamentally alter the relationship between the government and the people.  If the challenges fail, there will be no principled limits on federal power.

I go on to describe the current state of play at the appellate and outline what we can expect going forward, as well as providing links to useful resources on this issue.  Read the whole thing.

Mitch Daniels and the Federal Money Grab

For much of the nation’s history, policymakers recognized that the federal government’s powers were “few and defined,” as James Madison noted. Issues like education and community development were largely left to the states. Unfortunately, the separation of responsibilities between the federal government and states has been eroded to the point that federal funds now account for approximately a third of total state spending. A consequence is that federal aid to the states has fostered bigger government at all levels.

State policymakers are addicted to federal money. The appeal is obvious: they get to take credit for all the wonderful things they do with money that they didn’t have to tax out of their state’s voters. Thus, it has been interesting to observe Republican governors who willfully fed at the federal trough now pontificate on the dangers of Washington’s spending addiction as potential or declared candidates for president.

Although he ultimately decided against running for president, Indiana Gov. Mitch Daniels has carefully crafted a public image as a voice of reason when it comes to addressing the federal government’s budget problems. When he was flirting with a run for president, Daniels received fawning coverage from various observers for labeling the federal government’s debt the “new red menace.”

One problem with this image is the fact that Gov. Daniels has been a “just another politician” when it comes to grabbing federal dollars. Indeed, Daniels signed an executive order on his first day in office creating a state agency devoted to increasing Indiana’s take from the federal honey pot. As an official with the Indiana state Office of Management and Budget, I can attest that it was the Daniels administration’s policy to find ways to use federal dollars instead of state dollars where possible.

Last week, a local Indianapolis television channel ran an investigation of the state’s Office of Federal Grants and Procurement. Although the agency has cost Indiana taxpayers almost a half-million dollars, the investigation team couldn’t figure out what it has been doing with the money. State legislators that were interviewed didn’t know much about the agency even though they continue to fund it. I admit that I can’t remember dealing with it (other than to be completely disgusted by its existence).

Daniels declined to be interviewed for the story, and instead sent out his deputy chief of staff, Cris Johnston, to take the heat. Johnston’s best defense was that Indiana has improved its ranking when it comes to bringing in federal taxpayer dollars. I suppose that means Daniels’s red menace isn’t such a menace when the federal spigot’s flow is being directed toward his state’s coffers.

I’ll wrap this up by making a suggestion to the journalists out there covering the presidential candidates with a background in state government: did they eschew federal handouts or did they have their hands out? It’s an important question because the next president is going to be facing an epic fiscal mess and we really can’t afford another politician who talks the talk but didn’t walk the walk.

See this Cato essay for more on the importance of fiscal federalism and why the flow of federal funds to the states needs to be shut off.

Interstate Compacts and Do-It-Yourself Federalism

With the federal government’s growing assertion of power over the states – Obamacare is just the highest-profile example –  state legislators regularly contact me for advice on how to push back while remaining constitutionally faithful.  What can they do in areas like health care, immigration, drug decriminalization, and firearm regulation?

One innovative solution is interstate compacts: states can actually create binding federal law by joining together in a sort of multi-state contract.  Typically they need Congress’s (but not the president’s) consent, but the Supreme Court has held that when the compacts don’t implicate challenges to federal power, they don’t even need that.

For example, Texas is now considering joining a Medicaid/Medicare compact established by Georgia and Oklahoma.  Many states are considering a Health Care Freedom Act compact, which use preexisting congressional consent for criminal-justice-cooperation compacts to mutually enforce state laws prohibiting the forced purchase of health insurance.

I discussed these innovative policy solutions – on which the law is untested – in a recent podcast.  More broadly, however, there are plenty of things states (and of course their citizens!) ought to be considering if they want to reestablish the dual – actually tripartite, adding individuals – sovereignty at the heart of Constitution’s structural protections of liberty.  (For more on that point, see part IV of Cato’s most recent Obamacare brief and part III of Justice Kennedy’s opinion in Bond v. United States.)

To that end, our friends at the Goldwater Institute recently released a major new report called “Federalism-Do-It-Yourself: 10 Ways for States to Check and Balance Washington.” The report outlines 10 legal tools that  states can use to stand up to federal overreach, without resorting to so-called nullification (states can’t simply declare federal law void). The report includes a number of examples of how these tools have been used in isolated cases and recommends that states embrace them in a clear strategy to start holding the federal government to its constitutional role. From Goldwater’s press release, some of the tools include:

Reinvigorate the Reserved Powers of the States

Remember the REAL ID Act, the federal government’s attempt to create a national identification card through state driver’s licenses? REAL ID never was carried out because 14 states refused to comply. The Supreme Court has ruled the 10th Amendment prevents the federal government from “commandeering” or forcing state officials to implement federal policies. In “Federalism DIY,” author Nick Dranias writes there are many other areas where the federal government has fooled states into helping to carry out federal mandates when they don’t have to.

Strategic Legislation Plus Litigation

The U.S. Supreme Court has recognized that states can grant more freedom and civil rights to their residents than what’s protected in the Constitution. And states can use this power to thwart federal efforts to impose new mandates on people. For example, 28 states are challenging President Obama’s health care law in two lawsuits out of Virginia and Florida. Both lawsuits won the first round before U.S. district judges and now are on appeal. Both judges ruled the states could challenge the federal law only because many states have adopted the Health Care Freedom Act, which protects a person’s right to choose his own doctors and not buy government-controlled health insurance. To date, no lawsuit against Obamacare without a state government as a plaintiff has a single victory.

Coordination with Local Governments

Laws creating many federal agencies, such as the Bureau of Land Management, include a standard but little-known provision requiring these agencies to “coordinate” proposed new rules with local governments. This means the agency must sit down with a local government and honestly attempt to craft a rule that doesn’t conflict with existing local policies. If the federal agency fails to do so, a court can block the new rule. Three counties in Utah used the right to coordination to stop the BLM from releasing diseased wild horses onto public ranch lands.

There’s a lot of good stuff in there, so kudos to Nick Dranias and Goldwater for creating this federalism toolkit.