Tag: federalism

The AG’s Position on Marijuana Legalization a Welcome Contrast to That of His Predecessor

Lost in all of the media frenzy over the Mueller Report, redactions, and alleged improprieties within the Department of Justice and FBI, was Attorney General William Barr telling the Senate Appropriations Committee yesterday that he favors a more federalist approach to marijuana laws.

In response to a question from Senator Lisa Murkowski (R-AK), Barr said that allowing the states to set their own marijuana policy and removing the federal government from the matter would be an improvement over the present situation, which he called an “intolerable” conflict between state and federal laws. Senator Murkowski is a sponsor of the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, which would give immunity from federal action against business and people engaged in the manufacture, sale, purchase, or consumption of marijuana in states where it has been legalized. President Trump has signaled in the past that he would sign the bill if it was passed and sent to his desk.

Unfortunately, Barr still opposes federal legalization, but his approach to the issue is a stark and welcome contrast to that of his predecessor Jeff Sessions, and would amount to de facto federal decriminalization—at least in the states that have decided to legalize marijuana. 

It also signals a realization that the march toward state-by-state legalization continues to gather momentum. It may be just a matter of a few years before federal decriminalization of marijuana becomes a reality and, as is the case with alcohol, it will be a matter left up to each of the states and the District of Columbia.

Decriminalization should be a welcome change for all who are concerned with the growing rate of opioid-related overdose deaths. There is growing evidence that marijuana reduces the need for opioids to relieve pain and numerous studies have shown lower opioid-related overdose death rates in states where access to marijuana is legal. Furthermore, marijuana has great potential as a harm reduction strategy. At the recent conference on harm reduction held at the Cato Institute, Dr. Adrianne Wilson-Poe, a nationally recognized cannabis clinical researcher at Washington University School of Medicine, gave a detailed and enlightening presentation on the potential role for cannabis in Medication Assisted Treatment (MAT) as well as opioid withdrawal management. You can see that presentation here. Dr. Wilson-Poe was also interviewed on a Cato Daily Podcast here.

Vermont Creates Its Own Individual Mandate (Penalties to Be Set Later by Bureaucrats)

From the St. Johnsbury, Vermont Caledonian Record:

On May 28 Gov. Phil Scott signed a bill to impose an individual mandate on all Vermonters to have state-approved health insurance. The mandate takes effect in 2020. A working group will recommend the necessary penalties for non-compliance by November.

The United States Congress eliminated the penalty tax for not having government–approved ObamaCare health insurance. So the governor and legislative leaders believe they must impose some kind of state penalty to prevent healthy people from departing the individual market insurance pool.

Who are the healthy? Primarily our young people.

And why must they be forced, on pain of penalties, to buy what for them is seriously overpriced health insurance? Because our state government doesn’t want to have to raise tax dollars to subsidize the far higher premiums of older and sicker people.

After all, why raise taxes to make a state insurance scheme work, when the government can simply force young healthy people to pay for the subsidies for their grandparents?

It’s not as if twenty-somethings are richer than sixty-somethings. They aren’t. Most of them are starting out in their working life at the lower end of the pay scale, often paying off college debts, maybe starting a family and trying to buy a home.

No matter. Our government will cheerfully hammer them to hold down the premiums for people who are near the top of their earning careers, have already raised their kids, and paid off their mortgages…

A Democratic legislature passed a sweeping Individual Health Effort Tax mandate in 2005. Republican Gov. Jim Douglas vetoed it. Here’s what the penalty menu was: “Individuals who are not otherwise covered, and who refuse to participate in the Plan, will be sanctioned by some combination of denial of motor vehicle registration, drivers’ license, homestead property tax exemption, hunting and fishing licenses, and enrollment in any school or college in the state.”

We can’t wait to see a legislator – or a Governor – try to explain this to a room full of young voters.

HT: Ethan Allan Institute founder and vice president John McClaughry.

ICE Deputizes More Cops for Immigration Enforcement

Yesterday Immigration and Customs Enforcement (ICE) announced that eighteen counties in Texas are taking part in the 287(g) program. The program allows police departments to enter into agreements with ICE, thereby permitting their officers to carry out certain federal immigration enforcement functions. The news from Texas is the latest evidence that President Trump’s campaign pledge to “expand and revitalize” 287(g) was a serious commitment, not political bluster. The expansion of 287(g) is a worrying development. The program has been widely criticized for harming police-community relationships and prompting racial profiling. It also grows the power of the federal government, which traditionally has not played a major role in state and local law enforcement.

287(g) was, until a few years ago, a program that had three models: Jail, Task Force, and a Jail/Task Force hybrid model. The Jail agreements allow participating officers to check an individual’s status in a detention facility and issue detainers. Using detainers, officers can hold individuals 48 hours longer than they usually would so that ICE can pick them up. The Task Force model allowed officers to carry out immigration enforcement in the field such as questioning and arresting people suspected of violating immigration law. At the end of 2012 the Obama administration announced that the Task Force 287(g) model would be scrapped, with ICE declaring that other programs “are a more efficient use of resources for focusing on priority cases.”

The Department of Homeland Security (DHS) Office of Inspector General (OIG) raised concerns related to 287(g) in a 2010 report, which stated:

NGOs critical of the 287(g) program have charged that ICE entered into agreements with LEAs that have checkered civil rights records, and that by doing so, ICE has increased the likelihood of racial profiling and other civil rights violations.

Claims of civil rights violations have surfaced in connection with several LEAs participating in the program. Two LEAs currently enrolled in the program were defendants in past racial profiling lawsuits that they settled by agreeing to collect extensive data on their officers’ contacts with the public during traffic stops, and adopt policies to protect the community against future racial profiling. Another jurisdiction is the subject of (1) an ongoing racial profiling lawsuit related to 287(g) program activities; (2) a lawsuit alleging physical abuse of a detained alien; and (3) a DOJ investigation into alleged discriminatory police practices, unconstitutional searches and seizures, and national origin discrimination.

The DHS OIG report was correct to point out the criticism leveled at 287(g). As I’ve noted before, the American Immigration Council found that “287(g) agreements have resulted in widespread racial profiling.” According to the ACLU of Georgia, “The 287(g) program in Cobb and Gwinnett has encouraged and served as a justification for racial profiling and civil and human rights violations by some police officers acting as immigration agents.”

Jeff Sessions Pulls Back on Bullying Sanctuary Cities

Throughout his presidential campaign Donald Trump pledged to defund so-called “Sanctuary Cities.” Since his election the president and his administration have had to backpedal on this commitment thanks to serious constitutional issues with such a proposal. Recent news that Attorney General Jeff Sessions has narrowed the category of funds that can be withheld from sanctuary cities as well as the definition of sanctuary jurisdictions is good news for constitutionalists and federalists who oppose the federal government bullying cities and states.

Before unpacking Sessions’ recent memo it’s worth taking a look at the Trump administration’s actions against “Sanctuary Cities,” a term that has no legal meaning but is usually used to describe cities and localities where local officials have decided not to assist with federal immigration enforcement.

On January 25, President Trump signed Executive Order 13768: Enhancing Public Safety in the Interior of the United States. Section 9 of this executive order is the “sanctuary” section and reads, in part (emphasis mine):

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

There is a good argument that 8 U.S.C. 1373 is unconstitutional. 8 U.S.C. 1373 is a prohibition on a prohibition, banning local governments from preventing police departments from sending or receiving immigration status information to or from federal immigration authorities. This law potentially runs afoul of the 10th Amendment’s “anti-commandeering” doctrine, which bans the federal government from compelling local officials into enforcing federal law.

Finding Victims for Trump Budget Cuts

A Washington Post story today about one of President Trump’s budget cuts reflects what can be called victim journalism. The story focuses on the proposed ending of federal funding for the Appalachian Regional Commission (ARC), which provides subsidies for economic development in selected states. The reporter presents an interesting narrative about some ARC beneficiaries, but does not provide the balance needed to judge the overall value of the program.

The story presents individuals in Appalachia as victims, and federal money as the only savior. It does not focus on personal responsibility, local government policies, or federal program failures. The reporter does not mention any studies examining the ARC’s overall effectiveness, or whether auditors have done a benefit-cost analysis to see whether the program’s benefits outweigh the costs.

However, the main problem with the Post story is a lack of appreciation for the federal structure of American government. Statements like this bewilder me: “The federal funding [for ARC] often goes toward repairing essential services rural towns cannot afford on their own, such as fixing broken sewer systems…”

Sewer systems are indeed an essential local service. As such, they should receive a high priority in state and local budgets. If sewers in Appalachia are not being fixed, then state and local governments are failing at a core responsibility. Reporters should ask why that is.

The ARC sprinkles about $150 million a year across 13 states, from New York to Mississippi. Combined state and local spending in those states (excluding federally funded spending) is more than $800 billion a year. So the supposedly crucial ARC spending represents less than 0.02 percent of the region’s own government spending. If the ARC were eliminated, those governments could easily fill the small void with their own money.


Addendum

Let’s drill down on Kentucky, which was the focus of the Post story and is in the center of the ARC region. If all the ARC money were spent just in Kentucky, it would still be only 0.5 percent of the roughly $30 billion in state/local spending in that state.

The Post story claims “so much of the Appalachian commission’s budget — $146 million in 2016 — goes toward infrastructure projects…” Assuming that is true, why doesn’t Kentucky have room in its own budget for infrastructure such as sewers? Looking at Census data for state and local governments in Kentucky suggests why. Total capital spending on sewers and solid waste was $234 million in 2014, but spending on “public welfare” was $8 billion and spending on government worker salaries was $10 billion.

The States Have No Business Creating Their Own Retirement Accounts

People have lots of ways to save for retirement. Most employers offer some sort of retirement plan, of course, and people whose employers don’t can set up their own retirement account and get the same tax benefits, albeit without any employer contribution.  Low-income workers at a job without a benefit plan can now participate in Treasury’s new MyRA program, which creates a retirement account for the worker and provides a match for their contributions.

And Social Security, which totals to 15.3% of the first $118,500 of a worker’s income, constitutes a big chunk of most people’s retirement income.

Kasich Aims to Revive Federalism

The Republican congressional leadership has failed to articulate strong themes to counter the big-government policies of President Obama and the Democrats. People don’t know what the Republican Party stands for, partly because they rarely, if ever, see leaders such as John Boehner and Mitch McConnell on television presenting a coherent vision or a specific program of cuts.

Republicans have particularly dropped the ball on federalism, or the devolving of power back to the states and the people. Reviving federalism was a central theme of the Reagan administration, and it was also a focus of Republican reform efforts in the 1990s.

So I was pleased to see Ohio governor and presidential candidate John Kasich focus on federalism in his new fiscal reform plan. In the Washington Post today, he said:

Let’s start with infrastructure. The interstate system is long finished, and states already oversee their own highway design and construction. Americans don’t need a costly federal highway bureaucracy. I will return the federal gas taxes to the states, leaving only a sliver with the federal government for truly national needs. Then, I will downsize the Transportation Department and reassign it a smaller role, supporting states with research and safety standards. Federal spending would go down, resources available for highways and transit could go up, and states could work faster.

The Education Department will receive a similar approach. Washington isn’t America’s principal or its teacher. Education is a local issue, and decisions should be made by parents, our communities and our local educators. We need high standards, but they are not Washington’s business. I will bundle the department’s funds and send them back to the states with fewer strings attached. The department will be a research center and a local school booster, not a micromanager.

I’d go further than Kasich on many of his proposals, but the important thing is that he is articulating a clear approach to spending reform and reduction. By contrast, House Republicans just introduced a 543-page transportation bill that would increase federal highway and transit spending. The House GOP probably imagines they are being conservative because their spending on transportation would grow more slowly than Senate GOP spending. But the proper amount of federal spending on transit, for example, is not $9.6 billion or $10.6 billion, but zero.

Reviving federalism is a powerful idea for policy reform because it cuts across a vast swath of activities in just about every federal department. And it is a winning theme with the general public, as Emily Ekins and I discuss in this article.

Republican leaders ought to follow Kasich’s lead and explore federalism reforms. If they want to bone up on the advantages of decentralization, they can start with this essay at Downsizing Government. I’d also highly recommend A Less Perfect Union by Adam Freedman for an overview of the history, economics, and constitutional aspects of federal-state relations.

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