The Nation's Pulse

Federal Kudzu Is Strangling This Great Nation

Amid the scandals and surveillance, the federalization of American life continues unabated.

By 6.11.13

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Today, despite distractions proffered by the President and his media minions, many citizens are correctly focused on alarming scandals that serve to underscore how this administration has flouted the rule of law and abused the trust of the American people. These are very serious matters. They strike at the very core of our Constitutional system, revealing widespread corruption and the systematic politicization of federal law enforcement and regulation.

Yet a related, not so obviously ominous, phenomenon also deserves our attention: the radical over-federalization of our lives and institutions. This now manifests itself in the view, common among our ruling elites, that every conceivable “problem” must be met by a “federal government” response. Every issue, no matter how local or personal it once may have seemed, is now of national import and simply cannot be left to state and local government, much less to individuals or to an unregulated marketplace. 

The tendrils of the federal bureaucracy are spreading relentlessly, like kudzu on Southern hillsides, strangling the liberty of small businesses and individuals even when not directly stifling political dissent. The examples of this are too numerous even to summarize. To offer a flavor of our predicament, however, I provide here a small and unscientific selection of examples, all from the month of May, 2013.

Should we welcome the federalization of life in a college dorm? On May 16 the Wall Street Journal reported that the Department of Housing and Urban Development has sued the University of Nebraska. Our heroic federal government claims that a co-ed should be entitled, school rules to the contrary notwithstanding, to have her pet dog in the dormitory as an “emotional support animal” that will provide her “therapy through companionship and affection.” The student had claimed a “disability” involving “anxiety and depression.” Well, kids got homesick when I was in college too, but they persevered without federal intervention. 

In addition, the Hill reported on May 28 the introduction of yet another inspirational proposal, the “Physical Activity Guidelines for Americans Act” (H.R. 2179), to require the Department of Health and Human Services “to prescribe exercise guidelines for Americans.” The co-sponsors also introduced the “FIT Kids Act” (H.R. 2178), to “create a new grant program for physical education and nutrition programs at schools.” These bills would extend federal control over how Americans deal with common-sense concerns long handled entirely at the local and personal level. The likely result: more federal jobs, more power and wealth in Washington, so what’s not to like? People, drop and give me twenty!

As long as we’re concerned about kids, we should mention that Rep. John Lewis (D-GA) introduced a number of worthy bills last month, including H.R. 2028, the “Every Child Deserves A Family Act.” This law would “prohibit discrimination in adoption or foster care placements based on the sexual orientation, gender identity, or marital status of any prospective adoptive or foster parent, or the sexual orientation or gender identity of the child involved.”

Let us recall that, more or less forever, churches and adoption agencies have done wonderful things for childless couples and orphaned children. But now, lest all that good will and generosity go unsupervised by wise Washington overseers, adoptions will be subjected to ever more intrusive federal regulation (and inevitable litigation) over issues that are very personal and sensitive. Suppose, for example, a devout Christian couple would prefer not to adopt an openly homosexual foster son, or a boy who wants to be treated like a girl? Well, now we can bring down the federal government on these misguided people. That will teach them to cling to their religion! 

Perhaps related is S. 989, the “Strengthening Health Disparities Data Collection Act,” introduced by Democratic Senator Brian Schatz of Hawaii. The proposal’s purpose is twofold. First, the law would eliminate the requirement of direct Congressional appropriations as a prerequisite for the Department of Health and Human Services to collect patient data on “race, ethnicity, sex, primary language, and disability status.” As a result, presumably, Congress would be unable to use its “power of the purse” to impede this data collection mandated by the “Obamacare” law.

Second, S. 989 would add “sexual orientation” and “gender identity” to the laundry list of characteristics to be defined and measured. Definition is important, for the law already requires that HHS “use Office of Management and Budget standards, at a minimum, for race and ethnicity measures,” and that it “develop standards for the measurement of sex, primary language, and disability status.” Is that clear?

Well, under S. 989, HHS would also be charged with developing standards “for the measurement” of “sexual orientation” and “gender identity.” Does anyone think it possible that all of this data collection somehow has more to do with patronage and politics than with public health? Do we really need an expanded and unaccountable federal bureaucracy, by the way loosed from even the modest constraints of the Congressional appropriations process, to “measure” our “sexual orientation” and “gender identity”?

Of course, for overreach that is the envy of many an ambitious federalista, we cannot fail to mention the Environmental Protection Agency. In the past few years this bold bureaucracy has undertaken to regulate dirt roads in remote forests and spills of cow’s milk on the barn floors of Amish farmers. 

What is more, the EPA has plainly embarked upon a mission to shut down the entire coal industry. On May 24, West Virginia and Montana officials announced that their states are joining Kansas in its legal challenge to the EPA’s “anti-coal” policies. According to West Virginia’s Democratic governor Earl Ray Tomblin, “The EPA's proposed limits on greenhouse gas emissions threaten the livelihood of our coal miners to the point of killing jobs and crippling our state and national economies, while also weakening our country's efforts toward energy independence.”

A report by the well-respected economic consulting firm National Economic Research Associates found that “seven new EPA regulations are set to cost the electrical sector $16.7 billion per year, cause 887,000 job losses per year and contribute to the shutting down of 69,000 megawatts of coal-fired power.” And it’s not just hundreds of coal-fired power plants that are in the agency’s crosshairs, for as West Virginia Democrat Rep. Nick Rahall warned, the EPA’s permitting power grabs threaten to disrupt coal mining in West Virginia and “upend the traditional balance that has existed between the states and the federal government in the permitting process.”

The mostly “red state” coal industry is not the only current victim of regulatory excess. Also in May, the “blue state” of Massachusetts filed suit against the National Oceanic and Atmospheric Administration, the U.S. Commerce Department, the National Marine Fisheries Service, and assorted federal officials, claiming that new federal rules have reduced by 77 percent the size of the allowable catch of certain fish in New England. The state alleges that the regulations are “threatening the extinction of an industry” and will have a “devastating impact… on the families and small businesses that earn their living fishing… and on the communities where they reside.”

Is it a good thing that we delegate to federal regulators the power to crush a coal industry that has long provided jobs to millions of Americans and kept the lights on in the process? Or to lay waste to local economies long dependent on traditional economic activities such as fishing? I respectfully suggest that it is not.

Meanwhile, perhaps to provide perspective from the hinterlands, the Examiner publishes a column listing each week’s “10 worst layoffs.” Among the biggest in the month of May were layoffs by American Greetings, Boeing, Medtronic, Panasonic, Shaw’s Supermarkets, Caterpillar, Eli Lilly, ESPN, CA Technologies, MetLife, and EMC. Moreover, in May roughly 20 companies made “WARN” Act announcements of impending layoffs in Florida alone. Inexplicably, these layoffs occurred notwithstanding the orgy of benevolent regulatory and legislative creativity ongoing here in Washington.

My search for reports of layoffs of federal employees (White House tour guides aside) was unsuccessful. Apparently the federal government does not do layoffs. And as we learned just before the 2012 election, from reports about the “sequester,” the Obama administration does not feel bound by the WARN Act’s requirement that advance notice be given in any event.

In sum, here in The Nation’s Only Boom Town, amid a beehive of office high rise, transportation, and residential construction, one is reminded daily of the continuing concentration of power and wealth in and around the federal government. We really should do something about that.

Photo: Wikimedia Commons

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About the Author

Ray V. Hartwell, III was a Washington lawyer and a senior fellow at the Alabama Policy Institute. He died on February 7, 2014, in Anniston, Alabama.