GOP Sheds Federalism Favored by Forefathers

by WES ALLISON

St. Petersburg Times, April 18, 2005

It's a bedrock principle of Republican conservatism: Whenever possible, the federal government should let the states manage their own affairs.

But as Republicans exercise their growing power in Washington, they increasingly are ignoring that fundamental belief, with a host of legislation aimed at trumping state authority.

The trend is becoming a source of squeamishness among many conservative intellectuals, who warn that Republicans' frequent disregard for the limiting principle of federalism won't come without a price.

Last week, House Republicans pushed an energy bill that would limit the ability of coastal states to challenge offshore oil and natural gas projects. And states couldn't require more energy-efficient ceiling fans.

An immigration proposal, called Real ID, would strictly dictate how states could issue drivers' licenses, and to whom. And the recent Terri Schiavo case set a new level of congressional involvement in an issue that historically has been handled by the states.

"There is a level of hypocrisy here that is breathtaking," said Norman Ornstein, an expert in Congress at the American Enterprise Institute, who echoed the sentiments of scholars at other conservative think-tanks in Washington. "You've got conservatives who have just absolutely wrapped themselves in the cloak of the 10th Amendment who miss no opportunity to talk about how government closer to the people is better, and how the federal government should be curbed. Then they go to these incredible lengths because they don't like the decisions that states are making."

The 10th Amendment decrees that all powers not specifically granted the federal government lie with the states, and it forms the notion for what's now called federalism. The Republican Party has carried the flag of states' rights since Barry Goldwater, the father of modern American conservatism, made it the centerpiece of his presidential campaign in 1964.

Although states' rights was a euphemism for segregationist laws in the South at the time, the late President Ronald Reagan, a Goldwater disciple, broadened the notion of limiting federal government after two decades of liberal activism on matters such as civil rights, environmental protection and workplace safety.

"Now you're seeing Republicans embrace that idea" of federal intervention, said Stephen Moore, president of the Free Enterprise Fund, a conservative lobbying group in Washington.

The trend is most apparent on two fronts: undercutting the regulatory authority of states, particularly on environmental matters; and advancing a conservative social agenda, such as with the Schiavo case and the proposed constitutional amendment to ban gay marriage.

Matthew Spalding, director of the Center for American Studies at the Heritage Foundation, the nation's largest conservative think-tank, suggests looking at the problem from a different angle: Name a recent case where Republicans in Congress chose not to act because they felt constrained by the Constitution. "It's extremely difficult to point to an example of that," Spalding said.

Already this year, the president has signed a law that moves most class-action suits from state courts to the federal courts, a measure designed to make it harder for such suits to succeed. Republicans say they're also determined to pass a bill that would cap damages from medical malpractice suits, though those cases are decided by state courts.

And this fall, the U.S. Supreme Court will hear an appeal from the Bush administration that seeks to stop physician-assisted suicide for terminally ill patients in Oregon.

Last week, Rep. Jim Davis, D-Tampa, tried to remove a provision of the new energy bill that would severely limit the ability of states like Florida to challenge natural gas and oil projects, including drilling, under the Coastal Zone Management Act.

Davis' amendment, which was backed by Republican Florida Gov. Jeb Bush, failed in committee, but Davis plans to keep fighting the measure as it moves through the House. Another provision would limit the ability of states or environmentalists to challenge federal licenses for hydroelectric projects.

"This is about who knows best: whether people in a federal agency have the best judgment of what is appropriate for Florida, or whether people closer to Florida, like the governor, have better knowledge," said Davis, who is running for governor.

A third element of the energy bill, as passed by the energy committee, would nullify state laws in California and Maryland and pending in a half-dozen others that require ceiling fans and lights to use less power.

And last year, thanks to an administrative change, state consumer protection laws no longer apply to nationally regulated banks, which include most major chains.

Cheye Calvo, who directs financial services issues for the National Conference of State Legislatures, said House Republicans are expected to introduce a bill that would replace state insurance regulations with a federal standard.

While such federal measures offer businesses the convenience of regulatory consistency, states that want tougher rules can't levy them. During the 1960s and '70s, liberals often justified their actions by citing the constitutional clause allowing federal authority over matters of interstate commerce.

Moore, of the Free Enterprise Fund, said Republicans use the same argument for deregulation.

He and other conservative activists often applaud less regulation, and they said usurping states' rights isn't necessarily the way to do it. They recommend reducing federal regulations, then allowing the states to compete for industry, capital and jobs.

"Those are legitimate concerns, and I think the Congress needs to be careful," said Richard Lessner, executive director of the American Conservative Union. "Because even in a Republican Congress, there's still the tendency of politicians to want to be seen doing things."

Experts say the trend toward federal intervention does come with a price: The one-size-fits-all approach from Washington is more inflexible, even when it seeks to limit government. It can stifle innovation, which has typically been led by the states. And regardless of who's in charge, federal laws are harder to change when they don't work out, or have unintended consequences.

"The more you assert under your watch an expanded federal role, the more you're setting precedent for expanding it more in the future," Ornstein said. "Only in the future it will be done by people who are doing things you don't like. You lose the moral high ground."

Spalding considers this a time of transition, as conservatives learn how to return to the limiting powers of the Constitution after 70 years of federal activism.

At the same time, the energy industry wants an easier time drilling for gas. The insurance industry wants predictable regulations. Evangelicals, key to last fall's Republican electoral victories, wanted action on Terri Schiavo and gay marriage.

"The hard, hard, hard question here is," Spalding said, "for someone who wants to revive constitutionalism, how do you get there in a way that's politically successful?"
 
SITUATIONAL PRINCIPLES

Republicans have long invoked the principles of states' rights and local control. But now that they control the federal government, they are proving less likely to abide by them.
 
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"Republicans define government's role where needed at many, many levels, preferably through the one closest to the people involved.

"Our towns and our cities, then our counties, then our states, then our regional contacts - and only then, the national government. That, let me remind you, is the ladder of liberty, built by decentralized power."

- Barry Goldwater, accepting the nomination for president at the 1964 Republican National Convention. Considered the father of modern conservatism, Goldwater made states' rights a key tenet of Republican philosophy.
 
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"The longer I had been governor, the more I realized the biggest problems we had regarding big government had to be solved in Washington, which was gradually but inexorably taking power from the states."

- From An American Life, by the late President Ronald Reagan, a former governor of California and the spiritual leader of the Republican Party. A Goldwater disciple, Reagan also espoused states' rights.
 
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"When the history of this administration is written, it will be said the nation's governors had a faithful friend in the White House. I've sat where you're sitting, and I know what it's like to have a good idea, and then to wait on the federal government to tell you whether you can try it or not.

"The framers of the Constitution did not believe in an all-knowing, all-powerful federal government.  . . . That is why they limited and enumerated the federal government's powers, and reserved the remaining functions of government to the states."

- President George W. Bush, to the National Governors Association, Feb. 26, 2001

After his inauguration in 2001, Bush quickly established a task force on federalism, designed to find ways to turn more control over to states and localities. But his administration has since backed a series of administrative changes and federal laws aimed at reducing the ability of states to regulate industry. His educational initiative, No Child Left Behind, irked conservatives by replacing local standards with federal ones.