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The time is right for serious action on this fundamental constitutional matter.
Periodically, the issue of federalism, that is, the role of the Federal Government vis-à-vis the role of the states, is the subject of attention across the country. So it is again.
Forty years ago, President Nixon tried to rebalance the authority between the Federal Government and the states with his “New Federalism.” Under this “New Federalism,” the Federal Government continued to take our money, but some of it was sent by the Feds to the states through “block grants.”
Thirty years ago, President Reagan appointed the members of a Presidential Advisory Committee on Federalism and the Coordinating Task Force on Federalism. There was talk of reallocating programs between the Feds and the states. For example, the Feds would assume all responsibility for Medicaid while the states assumed all responsibility for welfare and food stamps. There was talk of sending Federal revenues in block form to the states for these purposes.
Federalism isn’t all about money — as illustrated currently by the number of states contesting ObamaCare and by the Feds’ attack on Arizona’s law dealing with illegal immigration. Twenty years ago, the National Governors Association promulgated a six-page policy statement on federalism that is as relevant today as it was then. (Reprinted as Appendix A (Aug. 1988) to Hearings on Constitutional Reform of Federalism: Statements by State and Local Government Association Representatives (Jan. 1989).) It included a recommendation for a constitutional amendment that would allow the states to initiate constitutional amendments.
My purpose here is not to talk about money. And it is not to talk about specific subject matters, like healthcare or immigration. Rather, I want to suggest ideas for what we might do to strengthen federalism in the way of structures or processes. And I solicit your ideas.
I submit three ways in which we could strengthen federalism:
(1) Every Federal Bill Will Contain a Statement on Its Constitutionality
Congress should enact a law like the “Enumerated Powers Act” introduced by Congressman John Shadegg (R-AZ) that would require that every bill introduced in Congress contain a statement on the constitutionality of the multiple parts of the bill. No member of Congress, much less a Speaker of the House, should be allowed to dismiss a question as to a law’s constitutionality with “Are you serious?” as Speaker Pelosi did in October 2009 with respect to ObamaCare.
I suggest that the statement on constitutionality in every bill begin with language that every member of Congress and every citizen will see:
Under the United States Constitution — that every member of Congress has taken an oath to support, Congress may enact laws only if they fall within the subject matters enumerated under Article I, Section 8, as interpreted by the United States Supreme Court. These “enumerated powers” are few. The power to legislate on all other subjects resides with the states, as implied in Article I, Section 8 of the original 1789 Constitution, and made explicit in the Tenth Amendment, part of the Bill of Rights ratified in 1791.
(2) Encourage States to Develop and Adopt Multi-State Laws
We should encourage state legislatures to develop and adopt multi-state laws. State legislatures enact laws having analogues in other states through a variety of processes of varying formality.
The most informal process is simply word-of-mouth among legislators of the various states. Also, state and national organizations may bring to the attention of legislators in one state the legislation pending or passed in another state. There are, of course, associations of state legislators, such as the National Conference of State Legislatures and the American Legislative Exchange Council. These actively trade model legislation. And there are the associations of governors, such as the National Governors Association and those organized by party (e.g., Democratic Governors Association) and by region (e.g., Southern Governors Association), that do the same.
Another process by which a state legislature may consider laws passed by sister states is by way of the National Conference of Commissioners on Uniform State Laws (NCCUSL), a private organization consisting of appointees by the state governors. Over the past 60 years, the NCCUSL has proposed to the states some 150 model and uniform laws covering a variety of topics, available on its website and in a three-volume work called Uniform Laws Annotated. One such uniform state law is the Uniform Commercial Code (UCC). Every state has adopted it, some with a few minor changes. In the world of business, the UCC is pervasive. It governs sales, secured transactions, letters of credit, and more. It is difficult to conceive of modern business being transacted in America without it. Congress could have passed such a law under the Constitution’s Commerce Clause. Instead, the NCCUSL and the American Law Institute drafted the document over a ten-year period and then proposed it in 1952 to the states for their adoption. Still another process by which state legislatures may work in concert is the development of interstate compacts. They are formally submitted to Congress as required by Article I, Section 10. Many such compacts create intergovernmental agencies such as the Port Authority of New York and New Jersey (owner of the World Trade Center), the Tahoe Regional Planning Agency (California and Nevada), and the Colorado River Compact (Colorado, New Mexico, Utah, Wyoming, Nevada, Arizona, and California). The Council of State Government lists 195 compacts that it believes are currently in force and do not deal with state boundaries. I believe Congress should review its procedures to ensure that it encourages multi-state cooperation in resolving regional or national problems.
(3) Create Committees of the States to Approve Federal Agency Rules
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