FEDERALISM WITHOUT TEARS: Why Principles Should Give Way To Pragmatism On States' Rights Issues

By BARTON ARONSON

Friday, Jan. 26, 2001

If you believe the balance between the federal government and the states has tilted too far towards Washington, you are having a very good January. George Bush was inaugurated, and nominated a raft of states' righters for his cabinet. The Republicans still control Congress. And the Supreme Court struck down an enviromental regulation on the ground that the federal government exceeded its powers. We seem engulfed in a rising tide of federalism.

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But there is still much reason to hope, and some to believe, that January 2001 will turn out to have been federalism's high water mark. The reason to hope is straightforward: a seemingly principled approach to federalism is really just a way of avoiding substantive debates about policies, and about which level of government will be better at implementing them. The reason to believe is less apparent: President Bush's own priorities will force him to confront, across a range of issues, the states' righters in his own party.

The Supreme Court's Ad Hoc Federalism: Why Bush Should Use It, Too

The Republican nominee urged the Supreme Court to referee a dispute over state law among various branches of Florida's government. The Democratic nominee urged the Supreme Court to butt out. The candidates' political views, of course, inclined each to the view opposite from the one he took before the Court. But the candidates' principles didn't enter into it: they were trying to win a lawsuit.

Now that President Bush is trying to govern a country, he should heed the real lesson of Bush v. Gore: when it comes to federalism, do whatever works. Not that the states' righters really need the exhortation. Proponents of states' rights frequently support federal interference in traditionally local matters when they think the states have strayed from the one true path.

Take marriage. For most of our history, regulating marriage was a state preserve. When the federal government needed to take account of marriage, to determine pension benefits, for example, it simply looked to the states. But when Hawaii and then Vermont proposed recognizing same-sex unions, ordinarily staunch states' righters proposed the 1996 Defense of Marriage Act. As a result, one state now has the national government's permission to refuse to recognize a marriage valid in another state, and the federal government for the first time has its own definition of marriage that excludes same-sex unions.

Either federalism is a principle, or it isn't. Either the states regulate marriage, or they don't. And if the principle doesn't stay the federal government's hand when it comes to something as traditionally local as marriage, then it can't be the basis for restraint on whatever else is before Congress. Across a range of social issues — marriage, physician-assisted suicide, drunk driving — states' righters have been willing to rule from Washington to do what they think is right.

Federalism Without Tears: Why an Ad Hoc Federalism Makes Sense

Rather than excoriate states' righters for hypocrisy, let's praise them for their pragmatism. Who cares if the states have traditionally done something? When it comes to power, we should allocate it where it can do some good.

Supreme Court Justice Louis Brandeis' oft-quoted sentiment that states can serve as "laboratories of democracy" is true: Fifty states can try more things than one federal government. But we should take Brandeis literally. In a laboratory, experiments show results, and the next experiment takes account of the last. The national government can and should ensure that states do not endlessly replicate their failures in the name of federalism.

Look, for example, at the short history of welfare reform. Throughout the 1990s, the federal government gave the states latitude in administering federal welfare dollars. Wisconsin, under the leadership of its Governor (now Secretary of Health and Human Services) Tommy Thompson, created a wildly successful program. One of its critical elements was providing childcare to new workers. The evidence is unequivocal: welfare reform requires childcare.

But not every state learned the lesson. In 1998, Mississippi received $25 million in federal money to provide childcare vouchers to former welfare recipients. The state spent precisely none of the money. Mississippi's "experiment" in welfare reform without childcare was doomed from the start, and the state knew it.

A New Look at the New Bush Agenda

President Bush will confront the proper reach of the national government at every turn. His top priority, for example, is education. The public school system is at once a sacred cow of local control, and a standing indictment of it. There is a well-supported consensus in this country that our fifty school systems have badly failed our students.

President Bush proposes to address the federal role in education by consolidating a variety of minutely regulated programs into block grants, withholding funds from schools that perform badly, and judging performance through testing. As to the first proposal, since the federal government provides less than ten percent of the money spent on education, it is hard to see how the states' chronic inability to educate children will be improved by having more say over a few more dollars.

As to the second, the federal government has a significant role to play in ensuring that states have high expectations for all students. This means, among other things, that Kansas should not be allowed to pretend that creationism is science. It also means that those who defend a state's right to expect less of its students than some other state have a case to make, a case that doesn't involve platitudes about local control. Worldwide, the most successful school systems have high national standards. Nothing in our recent experience suggests our current approach is better.

On welfare reform, the real test will come as the economy slows. The Bush administration must vigilantly oversee the states to ensure that the retooled welfare state can handle the bad times, too. On tort reform, the new administration can lead a long needed debate on whether the crazy patchwork of product liability law makes any sense in a national economy. On these and other issues, the Bush administration should pay more attention to its own approach in Bush v. Gore and less to the Rehnquist Court's usual solicitude for states' rights. When it comes to federalism, the fewer principles, the better.


Barton Aronson is currently a federal prosecutor in Washington, D.C., where he was previously in private practice. Mr. Aronson also served earlier in his career as an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own and do not necessarily reflect those of the Department of Justice or the United States' Attorney.

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