Strengthening Federalism

From The American Spectator:

Strengthening Federalism


By James M. Thunder on 11.16.10 @ 6:08AM



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



Under this heading, here's the problem in a nutshell for which I offer a solution. Currently, agents for governors and other state officials lobby federal agencies by submitting written comments on proposed rules or by serving as members of the agencies' "advisory committees." I do not believe that we the people should allow our states to treat themselves, or our federal government to treat our states, as mere lobbyists, as mere special interests among other special interests. Our states are sovereign powers. They are constitutive elements of our republic and they must be treated with the dignity they are owed under our Federal Constitution.




There are, as we all know, dozens of federal agencies. Congress authorizes them to promulgate rules having the binding effect of law. (This procedure is known as "rulemaking.") Congress rarely intervenes to revoke an agency rule. Thus, from the time administrative rulemaking began early in the 20th century, there has been a large transfer of legislative powers from the Congress to the agencies of the Executive Branch. The agencies are required to estimate the cost imposed on citizens (and aliens) by each rule, designating those bearing a cost over $100 million per year as "major." The number of such rules grew from 137 in 2005 to 184 in 2009.



So, not infrequently, state officials hire agents to lobby for or against particular rules by submitting written comments on them. The methods by which these lobbyists are selected vary. Some are people hired by the governor (who answer to the governor). Some lobbyists are national organizations like an association of governors or an association of secretaries of state. Like anyone who submits comments to the agencies, these agents of state officials describe their interests in the pending rulemaking. Typically, the interest is limited to the effect of a proposed rule on state government.



In addition to the submission of comments, there is a second way to lobby on a proposed rule. A Federal agency may invite a limited number of people to join what is called an "advisory committee." Since 1972, a federal statute called the Federal Advisory Committee Act (FACA) has governed such committees.



-- The committees are advisory only; a committee's approval of a proposed rule is not required for the promulgation of a rule into law.



-- These committees are specific to a single proposed rule or subject matter.



-- The committees are temporary.



-- A single federal agency may have dozens of advisory committees in existence at any one time.



-- Since an advisory committee is required to reflect a diversity of viewpoints, an advisory committee may have one or two representatives of state officials, but under this scheme no advisory committee would have agents for each of 50 state officials.



I believe that the dignity owed under the U.S. Constitution to the states requires that the states be represented in all federal lawmaking. Thus, I believe that the Congress should, by statute, accord states a constitutional role in administrative agency rulemaking. I would not make their role advisory. Just as the Senate must pass a bill before it can become federal law, then so too, representatives of the states must approve each and every federal rule prior to its promulgation.



Congress should mandate that every federal agency establish a Committee of the States.



-- These would be standing, that is, permanent, bodies.



-- Each Committee would review all rules proposed by its agency.



-- Analogous to the Constitution before its amendment by the 1913 Seventeenth Amendment, the statute would provide that the individual states may legislate the method by which representatives to these committees would be chosen. Thus, a state legislature may decline representation on a particular federal agency's Committee of the States. (For example, a heavily urbanized state may decline to send a representative to the Department of Agriculture's Committee of the States.) A state legislature may choose different methods for the selection of representatives depending on the identity of the federal agency. Thus, a state legislature may choose to have its governor appoint a representative to the Department of Interior's Committee of the States while itself electing the state's representative to the Department of Justice's Committee of the States. Moreover, a state legislature may retain (or allow the governor to retain) a single individual to serve as the state's representative to multiple federal agencies, or indeed to all federal agencies. That person could be a partner of a law firm or a lobbying firm.



-- The members of the Committees of the States would not simply represent the Office of Governor or state government but, like a U.S. Senator, all the people of the state. To be sure, they would serve at the pleasure of the entity (e.g., the governor or the state legislature) that selected them.



Allow me to anticipate the objection that the establishment of these Committees would create another layer of bureaucracy and, since the Committees would have veto power, it could create gridlock. My response is democracy is messy and federalism is messy. Furthermore, if a federal agency cannot promulgate a rule because it cannot obtain approval from its Committee of the States, then Congress can intervene and pass a law. I anticipate that one consequence of the establishment of these Committees will be that Congress will pass more legislation rather than passing the buck to federal agencies. I welcome a development where Congress assumes more responsibility.



There you have it -- three suggestions for enhancing our federal form of government by altering the structures or processes by which our representatives enact laws.



Letter to the Editor

James M. Thunder is a Washington, D.C. lawyer who has spoken and published on what he calls "faith-based land use planning."