Mitt Romney has been criticized as being inconsistent for favoring, and obtaining passage of, a state health insurance plan in Massachusetts when he was governor, but opposing the similar Obamacare law foisted upon the entire Nation. Putting aside Mahatma Gandhi’s explanation that his beliefs today are inconsistent with his beliefs yesterday because he learned something in the meantime, Romney is not being inconsistent at all. I only wish he would have better explained that state and federal governments have different roles in our system. That is, states have a general police power that the federal government does not have. Practically, we’ve spent the past three-quarter century trying to change that for practical purposes, now a former Supreme Court member thinks it should be done legally.
Retired Justice John Paul Stevens believes the Constitution should be amended by adding “four little words” to the Supremacy Clause in Article VI. See Law Blog
That is the clause that provides that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby… .”
The whole point of this clause was to provide that, if a state law (statute or common law principle) were to conflict with the U.S. Constitution, or any act of Congress that is valid and Constitutional, the judges, state or federal, would be bound to decide a case or controversy by applying the federal law, not the state. Stevens complains that the clause is too restrictive, and should be applied to all state officials. He proposes to add “and other public officials” after “Judges” in the offending sentence.
The basis of the former Justice’s complaint are number of Supreme Court decisions, in which he dissented, that refuse to allow Congress to commandeer state officials to enforce federal laws or administer a federal regulatory program. Stevens laments that “a rule that prohibits the federal government from requiring state officials to take action to help locate missing children, to apprehend violent offenders, and to forestall terrorist attacks and spread of communicable diseases, cannot be wise.” Perhaps.
The states of our nation, however, are just that: states, not provinces subject to a central sovereign. They are, like the national government, subject to the Constitution in a federal union. The diffusion of political power was one of the wisest constructs of the formation of the United States, as I will demonstrate below. The federal government must be supreme in its proper sphere, which is primarily that of foreign affairs and foreign trade. It must also ensure that the nation is an economic unit for the purpose of foreign and interstate commerce, and protect what we have come to regard as fundamental individual rights.
For most state and local issues, though, the state governments are sovereign. The Tenth Amendment, though judicially moribund, makes that explicit. This has become lost on many citizens in our day. Congress has stretched what constitutes commerce well beyond its intended meaning, and used that a Constitutional basis for enacting all kinds of police power, that is, social and general welfare legislation. Congress also uses its essentially unlimited taxing and spending power to indirectly coerce states to what it cannot directly mandate.
Now, Stevens would like Congress, and by extension, the judiciary to have the direct power to require, state officials, presumably under penalty of law, to enforce federal laws, regulations, and schemes. For a number of reasons, that is not a good idea.
One issue that always comes up in state government finance is that of the unfunded federal mandates. What this means is, that as a condition for, say, receiving federal highway construction funds, states were formerly required to enact and enforce a 55 mile-an-hour speed limit, but were not provided the funds to pay for the extra police manpower to enforce it. There are other examples. The Medicaid provision in the Obamacare law that the Court struck down while upholding the individual mandate as a permissible tax is one. With these unfunded mandates, the state may opt not to participate and forgo the funds, as, I am informed, Montana did with the 55 mph speed limit. If Stevens’ proposal became part of the Constitution, no state could opt out. This would reduce the states to mere administrative units, that is, provinces.
Fortunately, such an Amendment has no chance. Recall that, even if Congress could must two-thirds of each House, there is no way that three-fourths of the states would ratify it.
Justice Antonin Scalia wrote for the majority in Printz v United States, that “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Scalia is doubtless correct with regard to Constitutional jurisprudence, but what about the needs of today? What Stevens suggests is “unwise”? Well, there is always the Law of Unintended Consequences, which I partly addressed with regard to the unfunded mandate situation above. There is more, however. Consider this: After World War II, the Western Allied Powers considered how the National Socialists came to absolute power in Germany. They noted that the Weimar Constitution that governed Germany from post World War I until the end of World War II (theoretically anyway, for Hitler never formally abrogated it) centralized power in a national government. A determined and fanatical minority was, in the time of a crisis, able to cobble together a bare majority long enough to highjack the centralized power of the state. Consequently, the Allies insisted that a reconstituted Germany be a federal republic with significant police power constitutionally placed in the states (German: Länder). Most foreigners like us do not realized that because today’s Federal Republic of Germany looks monolithic from the outside. But federalism is alive and well there, and has been since the early 1950s, and now includes the reconstituted states of the former East Germany. The possibility of dictatorship, whether of the proletariat, a Führer, a Duce, or a Caudillo in Germany and the United States, anyway is thereby reduced.
One more reason why President Andrew Jackson was right when he declared “Our federal union! It must be preserved.”