Posts tagged with: federalism

Blog author: copperman
posted by on Thursday, August 26, 2010

The escalating legal battle over the recent health care legislation has spilled out of the federal judiciary into state governments. An August 14 story from the New York Times reports:

Faced with the need to review insurance rates and enforce a panoply of new rights granted to consumers, states are scrambling to make sure they have the necessary legal authority to carry out the responsibilities being placed on them by President Obama’s health care law.

Insurance commissioners in about half the states say they do not have clear authority to enforce consumer protection standards that take effect next month.

Federal and state officials are searching for ways to plug the gap. Otherwise, they say, the ability of consumers to secure the benefits of the new law could vary widely, depending on where they live.

But Arizona, meanwhile, has adopted a course of action that comes rather close to employing some kind of state nullification:

Arizona said it was unlikely to pass legislation authorizing any state agency to enforce federal insurance standards, in view of its participation in a lawsuit challenging the federal law. Moreover, it said, Gov. Jan Brewer has “instituted an indefinite rule-making moratorium, so we have no plans to adopt rules related to enforcement” of the law.

Gov. Brewer, despite causing controversy on the national scene due to Arizona’s immigration law, nevertheless enjoys very promising poll numbers. In the likely event that she wins reelection, Arizona will most certainly become a key state worth watching in the states’ struggle against the federal government.

Blog author: copperman
posted by on Wednesday, August 4, 2010

A recent New York Times story reports that the new British government plans to “decentralize” the National Health Care system as part of its new austerity measures.

Practical details of the plan are still sketchy. But its aim is clear: to shift control of England’s $160 billion annual health budget from a centralized bureaucracy to doctors at the local level. Under the plan, $100 billion to $125 billion a year would be meted out to general practitioners, who would use the money to buy services from hospitals and other health care providers.

The plan would also shrink the bureaucratic apparatus, in keeping with the government’s goal to effect $30 billion in “efficiency savings” in the health budget by 2014 and to reduce administrative costs by 45 percent. Tens of thousands of jobs would be lost because layers of bureaucracy would be abolished.

[N.B. Note that the plan applies only to England; the other constituent countries of the UK will have to make their own policies]

Though I’m not by any means an expert on British politics, the move strikes me as bold for two reasons: (1) The Conservatives have reversed their original position on not touching the National Health Service, instead opting for a plan that seeks to make unprecedented changes to the system; and (2) according to the NYT”s reporting, the plan is predictably facing intense opposition from government employees that stand to lose their jobs, as $30 billion are saved and 45% of administrative costs are phased out by 2014. In fact, some union members are trying to derail the plan by portraying it as a stepping stone towards privatization.

But what is most pleasant about this whole affair is the precise appeal made to an idea very similar to the Catholic understanding of subsidiarity:

“One of the great attractions of this is that it will be able to focus on what local people need,” said Prof. Steve Field, chairman of the Royal College of General Practitioners, which represents about 40,000 of the 50,000 general practitioners in the country. “This is about clinicians taking responsibility for making these decisions.”

Dr. Richard Vautrey, deputy chairman of the general practitioner committee at the British Medical Association, said general practitioners had long felt there were “far too many bureaucratic hurdles to leap” in the system, impeding communication. “In many places, the communication between G.P.’s and consultants in hospitals has become fragmented and distant,” he said.

Here we once again have the understanding that society should deal with problems on the lowest possible level.

But the winning side in this plan is not just that of the proponents of subsidiarity. Economic theory also suggests that policies guided by sentiments similar to subsidiarity tend to increase prosperity: the $30 billion that the government plans to cut from the budget will now exist in the private sector, where it can be put to more productive uses, in accordance with consumer demand. The civil employees released from their positions in the government do not have to mire in unemployment; instead the money from their state salaries will be used by the private sector to create positions which they can fill.

On the other side of the ocean, the United States moves in the other direction: away from subsidiarity, and towards a “one-size-fits-all” solution to fixing our health care system. The office of Congressman Kevin Brady recently released a diagram prepared by the minority of the Joint Economic Committee. It’s a fully detailed diagram of what the new health care system in the United States will look like once all provisions of the legislation are in effect. Take a look:

Chart Outlining ObamaCare

America's New Health Care System

The current health care system already raises enough questions about whether the principle of subsidiarity is respected. But this newest remake makes the question all the more serious.

In fact, over 37 states have begun to take some form of legal action against the health care legislation on the constitutional grounds that regulations such as the individual mandate overstep the federal government’s legal bounds. As I’ve argued before, the federalism of the Constitution is a rather good embodiment of the principle of subsidiarity, since it recognizes that many issues (even urgent and pressing ones like health care) should be dealt with at the state level.

And some partial victories for advocates of subsidiarity are already making the news: Missouri voters overwhelmingly approved of a ballot initiative opposing the individual mandate (by a landslide ratio of 3 to 1), and a federal judge refused to dismiss a suit by Virginia that challenges the constitutionality of the health care law.

In addition to a national campaign to repeal the legislation at a Congressional level, supporters of subsidiarity would do well to also pay attention to the battles at the state level. I suspect this is where we will see the greatest impact.

Blog author: jballor
posted by on Thursday, September 17, 2009

Today is Constitution Day in the United States.

It seems appropriate to remember especially this day the 10th Amendment to the Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

What a wonderful expression of federalism, a component feature of which is the concept of subsidiarity, or rather, coordinated and variegated sovereignty. Lord Acton said that federalism “is the best curb on democracy. [It] assigns limited powers to the central government. Thereby all power is limited. It excludes absolute power of the majority.” He also noted that federalism is “is coordination instead of subordination; association instead of hierarchical order; independent forces curbing each other; balance, therefore, liberty.”

I’m not greatly familiar with them, but it might be worth checking out the Tenth Amendment Center today. There’s more background on the Bill of Rights at the Stand to Reason blog today.

Blog author: jballor
posted by on Tuesday, January 27, 2009

On the first half of today’s installment of The Diane Rehm Show, Jerry Taylor, a senior fellow at the Cato Institute got off a good line in the midst of a discussion concerning federal regulation of emission standards.

Concerning the performance of the American car manufacturers in comparison to that of foreign automakers, and the moral hazard involved in the various bailouts, Taylor said, “Capitalism without the threat of bankruptcy is like Christianity without the threat of hell. It doesn’t work very well.”

Other guests included Mary Nichols (Chairman of the California Air Resources Board), Phyllis Cuttino (director the Pew Environment Group’s U.S. Global Warming Campaign), and David Shepardson (Washington Bureau Chief for The Detroit News). The discussion focused in large part on the attempts by California to regulate emissions within its own borders more strictly than allowed by the federal EPA.

Arguments that California is “too large” of a state and has too big of an economy to enjoy certain rights doesn’t strike me as very convincing. That’s simply a consequentialist argument: that the nationwide effects of allowing California to do this will be bad, and therefore we shouldn’t recognize the state’s right to handle its own regulation. If it really is an issue of federalism and state’s rights, the issue shouldn’t in the first place be whether or not recognition of a right will presumably have a negative economic impact. There are a lot of assumptions wrapped up in that argument.

No state is an economic island unto itself. The mere fact that the national economy is largely integrated doesn’t by itself mean that states do not have the right to make decisions about how to regulate things within their own borders. Just what is the line between acceptable and unacceptable national economic impact? Adverse feelings to this particular action on the part of California isn’t sufficient to draw lines too hastily. How might this apply to other industries and commodities?

Indeed, we can discuss whether CO2 emissions ought to be regulated at the federal level under the commerce clause, but I don’t think the size of a state should determine what rights it does or does not have. Maybe the consequentialist line of reasoning is inherently wrapped up in the commerce clause (I’m certainly no constitutional expert). But the clause has been stretched so much (e.g. it applies to a farmer consuming what he grows on his own farm) that a little pullback seems warranted, and without the creation of a(n) (inter)national carbon market (a remarkably bad idea) the clause doesn’t seem to me to be directly relevant to emissions.

Blog author: jballor
posted by on Wednesday, October 29, 2008

There’s a lingering issue that continues to bother me about the so-called “global warming” Supreme Court case from 2007, Massachusetts v. EPA (05-1120), and that is a nagging concern about federalism and environmental standards.

As it stands currently, individual states are often prevented from enacting tougher legislation or regulation regarding some forms of pollution than the federal EPA standards. In order for a state EPA to partner with the federal EPA, be “authorized,” and thus receive funds, “a state must have enforcement programs and statutes that are essentially as stringent as the federal programs.”

One basic argument that the court found cogent in the Mass. v. EPA case was that individual states were prevented from creating standards that were more stringent regarding CO2 emissions than the EPA, and that since the EPA had not enacted any serious level of restriction, the states were unable to protect their environment.

This bothers me in part because one of my basic political impulses is a federalist one, an emphasis on the rights and sovereignty of individual states. The relationship between the federal and state environmental agencies seems to me to be fundamentally tyrannical, in that it overrides the ability of states to regulate themselves on these matters.

If you coopt the sovereignty of someone and then let your responsibilities lapse, then you have committed a pretty serious injustice. In 2007, the state of California sued to get the EPA to allow it to enact cleaner air standards, a right supposedly granted under the Clean Air Act. The EPA needed to agree to the tougher standards by granting a waiver, which it declined to do.

So there’s that political concern. But there’s also an economic concern, and this cuts both ways. Most often the federal government invokes the commerce clause to argue that it is within its rights and responsibilities to promote economic trade and stability by enacting nationwide standards. But in the case of environmental standards, that economic argument might not always be salient.

In a recent New York Times column, Tom Friedman calls for “a national renewable energy standard that would require every utility in the country to produce 20 percent of its power from clean, non-CO2-emitting, energy sources — wind, solar, hydro, nuclear, biomass — by 2025.” Friedman repeats the typical argument justifying national standards: “About half the states already have these in place, but they are all different. It would create a huge domestic pull for renewable energy if we had a uniform national mandate.”

John Whitehead, blogging at Environmental Economics, gives expression to the basic economic and political concern I had about the Massachusetts v. EPA decision as well as proposals for national mandates on environmental standards:

Most every environmental economics textbooks explain why uniform national standards are inefficient. Since benefits and costs are regionally different, it makes sense to adopt non-uniform standards — if standard adopting is a must.

Why not give federalism free reign on environmental issues, let states compete against each other, and see how things play out? If California wants to experiment with enacting tougher restrictions while attempting to remain economically competitive, why not see if the state is able to pull it off?

Yesterday I was a guest on “The Jesse Lee Peterson Radio Show,” a production of BOND (Brotherhood Organization of a New Destiny), to discuss the presidential election and the faith-based initiative, with a special focus on the proposals laid out by Democratic candidate Barack Obama. A streamlined version of the interview is available for download.

After the July 1 speech in Zanesville, Ohio, where Obama called his plan for a new Council for Faith-Based and Neighborhood Partnerships “a critical part” of his executive plans, he continued to campaign on this issue, saying that “faith-based” social service would be “a moral center” of his potential administration.


One of the groups that has faced the dilemma of phasing out faith after taking government money is the Silver Ring Thing, a Christian ministry dedicated to “offering a personal relationship with Jesus Christ as the best way to live a sexually pure life.” In 2006, the ACLU settled a lawsuit with the government over federal grants to the Silver Ring Thing (SRT), on the condition that appropriate safeguards would be implemented to separate out faith elements from programs that received federal dollars.

The success of groups like SRT have made in connecting human sexuality to spiritual and emotional life makes secularists cringe, who judge that the Religious Right “has warped our sexual politics and forced even the most hardened secular humanists to sing from the Christian hymnal.” You can be sure that secularists won’t hesitate to use government funds to undermine the integrity of groups that see faith-based messages like chastity being the biblical standard.

In the course of the interview I refer to a paper produced by the Acton Institute about the service areas that faith-based initiatives tend to focus on, “Faith Makes a Difference: A Study of the Influence of Faith in Human Service Programs.” I also borrow (with attribution) Joe Knippenberg’s witticism, referring to the Obama plan as the “faith-erased” initiative.

I also discuss what I have called “the fungibility phenomenon” and the way in which the White House office sets the tone for the rest of the country. But the coup de grâce of my argument, I think, comes when I liken the faith-based initiative to the sin of simony.

Simony is commonly defined as “a deliberate intention of buying or selling for a temporal price such things as are spiritual of annexed unto spirituals.” Think about this a moment. If what the government’s faith-based initiative boils down to is the appropriation of the vigor and vitality of a uniquely spiritual ministry by means of offering federal money so that this ministry can be controlled and absorbed by the temporal power, that sounds very much like a form of simony to me.

Here’s part of the story of Simon Magus from Acts 8: “When Simon saw that the Spirit was given at the laying on of the apostles’ hands, he offered them money and said, ‘Give me also this ability so that everyone on whom I lay my hands may receive the Holy Spirit.’” Peter answered: ‘May your money perish with you, because you thought you could buy the gift of God with money!’”

Weigh in on what you think ought to be done with the faith-based initiative in our blog poll question on the right side of the page, and share your thoughts in the comment section below.

And, honestly, I can’t say it enough. Visit the Samaritan Guide and find a charity that needs your support and give it to them.

One aspect of the recent discussion over the faith-based initiative, focused anew because of Barack Obama’s pledge to expand the executive effort, is the importance of the White House office as a model and catalyst for similar efforts at the state and local levels.

In the Spring 2006 issue of the Journal of Markets & Morality, we published a Symposium with papers based on a discussion titled, “The Ethics of Faith-Based Policy,” sponsored by the Center for Political Studies at Cedarville University on April 12, 2005. All of the papers are worth perusing:

The piece by Rush-Sisterhen, who was then director of the State of Ohio’s Office of Faith-Based and Community Initiatives, and Stalker connect the phenomenon that I raised at the beginning of this post: “In 2001, the White House Office of Faith-Based and Community Initiatives was created by executive order. Shortly after this event, offices of the same type began to appear within individual states, most notably in Ohio.”

They conclude the piece by observing,

Another topic that demands continued research is that of the effectiveness of faith-based initiatives in various states. Although the Ohio office was created with biartisan legislation, many of the other offices throughout the nation were created by executive order, giving them varying amounts of power and restriction. Each state’s program should be studied individually and compared to other states to continually improve the system. When one state is found to be successful, their methods should be shared and reviewed for conceivability in other states. This will help to keep the system fresh and adjusting to our changing society.

By 2007, a mere six years after the formation of the White House office, 33 governors and more than 100 mayors had established Faith-Based and Community Initiative offices or liaisons (the numbers cited by the White House for last month’s national conference are a bit different: “35 governors – 19 Democrats and 16 Republicans – have their own faith-based and community initiatives. Additionally, more than 70 mayors of both parties have similar programs at the municipal level.”).

The long-term trickle-down effect of the formation and orientation of the federal office on the initiatives at various other levels of government will be just as important as, if not more than, the direct impact of the White House office itself. As any expert on effective compassion can tell you, the more locally affiliated the effort, the more likely it is to be successful and effective.

Blog author: jballor
posted by on Thursday, August 2, 2007

In his review of Sanford Levinson’s Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) in the Claremont Review of Books, Randy Barnett highlights some of the same features of the US political structure as particularly unique that Lord Acton emphasized. In conclusion Barnett writes of our Constitution:

It is counter-majoritarian by design. Precisely because the founders feared majoritarian fecklessness and abuse, they inserted the veto points to which Levinson objects. Most people today—whether left, right, or libertarian—still fear majoritarian rule. They believe they have more to fear from their political opponents gaining power than they have to gain from putting their friends in office. Indeed, many Americans revere the Constitution precisely because of its counter-majoritarianism—the checks and balances adopted by the founders.

Or in the words of Lord Acton, “Americans dreaded democracy and contrived their constitution against it.”

Here are some other relevant observations from Lord Acton on democracy, federalism, and the Constitution:

For it is a most striking thing that the views of pure democracy…were almost entirely unrepresented in [the American] convention.

Democracy generally monopolizes and concentrates power.

Federalism is the best curb on democracy. [It] assigns limited powers to the central government. Thereby all power is limited. It excludes absolute power of the majority.

Federalism: The only barrier to Democracy.

Federalism: It is coordination instead of subordination; association instead of hierarchical order; independent forces curbing each other; balance, therefore, liberty.

The great novelty of the American Constitution was that it imposed checks on the representatives of the people.

The true natural check on absolute democracy is the federal system, which limits the central government by the powers reserved, and the state governments by the powers they have ceded.

Barnett notes too the resistance to advocating the American form of federalist democracy for other nations.

“While most Americans prefer the safety of our counter-majoritarian Constitution, our constitutional ‘experts’ are happy to urge others to live the truly majoritarian ideal. Now Sandy Levinson is urging Americans as well to adopt a more majoritarian constitution. But maybe the time has come instead to let the rest of the world in on our little secret,” he writes.

Blog author: jballor
posted by on Monday, June 19, 2006

There’s a new e-version of The Federalist Papers produced by Edward O’Connor. The innovation with this edition compared to all the other various electronic iterations of the papers is the ability to link to an exact paragraph within a particular paper. O’Connor says of the impetus for the endeavor, “I haven’t been able find one that was simultaneously nice-looking and useful (useful insofar as pinpoint linkability is concerned, at least).”

James Madison (1751–1836)

The URL is based on the number of the paper, followed by the number sign #, followed by the paragraph number (preceded by the marker “p”). So that, for example, a link to Federalist No. 37, paragraph 3, would take the following form: http://federali.st/37#p3, which begins:

It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it.

“The true natural check on absolute democracy is the federal system, which limits the central government by the powers reserved, and the state governments by the powers they have ceded,” wrote Lord Acton.

Acton called federalism “the best curb on democracy,” because it “assigns limited powers to the central government. Thereby all power is limited. It excludes absolute power of the majority.” He also described federalism as “the only barrier to Democracy,” which “generally monopolizes and concentrates power.”

“The common vice of democracy is disregard for morality,” he said, and observed that “Americans dreaded democracy and contrived their constitution against it.”

Acton defined federalism as “coordination instead of subordination; association instead of hierarchical order; independent forces curbing each other; balance, therefore, liberty.”

For more, see Acton’s James Madison entry In the Liberal Tradition.

HT: The Volokh Conspiracy via The Remedy

Blog author: kschmiesing
posted by on Thursday, April 13, 2006

Silla Brush penned an interesting little piece in the latest U.S. News and World Report, using the Massachusetts health care bill as a springboard to a wider observation of policy innovation at the level of state government. Leaving aside what any of us may think about any of the initiatives mentioned (they mostly represent bigger government), the observation is a good one.

But then this:

When the feds stall, leave it to the states. The result may be a hodgepodge. But maybe, just maybe, some of the best ideas will find their way to Washington.

This is a manifestation of just the wrong sort of mentality. Brush views the states as laboratories where legislator-scientists impatient with the pace of change at the federal level experiment with policy ideas. Once the states, with their hodgepodge laws, have worked out the best one, the feds can take it and make it universal.

No, our end-goal should be the hodgepodge, not national uniformity. Various states have various sorts of industry, resources, populations, and cultures. Their different needs and values can be expressed through differing policy approaches to questions such as health care, wages, and the environment (with, of course, certain responsibilities reserved to the national government, per the Constitution). That’s the genius of the federal system. Let’s not view the states as launching pads for national policy; let’s allow the states to make policy and leave it at that.