Management & Labor

Devolution's Double Standard

Somewhere in America, I suppose, there is a public official who believes unreservedly in devolution--believes that power, autonomy and flexibility should reside as far down in the governmental system as practically possible--and is willing to act on the basis of those beliefs, even at the expense of his own political authority.
by | April 2003

Somewhere in America, I suppose, there is a public official who believes unreservedly in devolution--believes that power, autonomy and flexibility should reside as far down in the governmental system as practically possible--and is willing to act on the basis of those beliefs, even at the expense of his own political authority.

I have a pretty clear sense of how such a politician would behave; I just never seem to come across one, no matter where in the hierarchy of government I happen to look.

An honest devolutionist would be a president who refused to impose billion-dollar burdens on the states without offering any money to pay for them. Or a governor who didn't find it clever policy to avoid a tax increase at the state level by forcing one on localities. Or a Supreme Court justice who made it a consistent practice to let legislatures enact pretty much any statute they wanted, as long as it didn't involve a blatant violation of the U.S. Constitution. We have no shortage of politicians in America who profess to believe in devolution, and invoke it regularly. What we don't have are public figures willing to follow the concept wherever it might lead.

When it's just a matter of theory, devolution commands virtually unanimous acceptance, all across the ideological spectrum. Devolution has a rich intellectual history in the Roman Catholic Church, where it goes by the name of "subsidiarity"--the principle that, as Pope John Paul II once put it, "a community of a higher order should not interfere with the life of a community of a lower order." There is language endorsing subsidiarity in virtually every document and treaty drawn up to create the current European Union.

On the American left, devolution was an article of faith in the 1960s for the radical Students for a Democratic Society, who saw it as a route to a new kind of participatory democracy through which "our monster cities...might now be humanized, broken into smaller communities...arranged according to community decision."

Much more familiarly, the Reagan administration in the 1980s, and most conservative Republicans in the years since, have taken it as a similarly self-evident truth that the best government is government close to the people, that the states are closer to the people than Washington is and the localities closer still. The 2000 Republican Party platform vows to restore the force of the 10th Amendment to the U.S. Constitution--the amendment that says any powers not specifically granted to the federal government belong to the states. The platform calls that amendment "the best protection the American people have against federal intrusion and bullying."

The Republicans made this vow just a few months after their House and Senate majorities passed a bill forbidding states to collect sales tax on Internet transactions, without a fig-leaf of an explanation why this was any of the federal government's business. It was a devolution-professing Democratic president, a former governor himself, who signed this measure into law.

One might have expected something different from George W. Bush, a conservative governor of Texas who spent six years in Austin bristling at federal intrusion into his state's affairs. But no such outburst of intellectual consistency was forthcoming.

The Bush administration's No Child Left Behind Act, passed with bipartisan support in 2001, imposes on state and local school systems the burden of administering millions of standardized tests whose cost may eventually be as high as $8 billion. A true believer in devolution might wonder what the federal government is doing in the pupil-testing business. Even an innocent reader of the Republican platform would be entitled to ask why, if the feds think such a burdensome mandate upon the states is really in the national interest, they don't at least have the courtesy to pay for it.

Those arguments didn't gain much headway when the nation's governors showed up in Washington earlier this year to plead for help with their own state deficits, caused to a significant degree by a long list of federal mandates and by the soaring expense of Medicaid, which is a joint state-federal responsibility. "We've got an issue with our own budget," the president told the governors. In other words: You're on your own. Deal with it. But keep those multiple-choice tests coming.

It's enough to make you feel genuinely sorry for the states--until you see them treating their own cities and counties the same way. Last year, North Carolina Governor Mike Easley closed a hole in the state budget by seizing more than $200 million in tax money that had been legally earmarked for local health care, education and criminal justice needs. Wisconsin Governor Jim Doyle proposed last month to cut state aid to localities by nearly $100 million, arguing that cities and counties should find a way to provide police and fire services at lower cost.

Doyle claimed credit for avoiding the humiliation of a state tax increase and warned the localities not to try any tax increases of their own. But the likelihood is that the locals will have to increase property taxes this year just to pay for the services they are required to deliver. They have no choice.

This doesn't just apply to fiscal issues. In Colorado, one of the states most fiercely protective of individual rights and state prerogatives, pro-gun legislators have been trying for the past four years to pass a law requiring local communities to legalize the carrying of concealed weapons, whether the local governments want it legalized or not. What right does the state have to preempt local gun laws? None of the proponents of this change have developed much skill at answering this question. Sam Mamet, a lobbyist for the Colorado Municipal League, has it just about right: "When Congress preempts the states," he says, "these state lawmakers squeal like stuck pigs. And in many cases they're right. And now they're doing it to us."

Nobody is innocent here. The feds stiff the states. The states stiff the cities and counties. Whenever one layer of government can push an unpleasant or costly responsibility down to the level below, it nearly always does so. The cities and counties would do it too, except they are on the bottom rung. They can't cut taxes and services and then pin the responsibility on the Salvation Army. Or at least they haven't thought of that yet.

I suppose if there is one public official in America who deserves to be taken seriously as a consistent devolutionist, it is William Rehnquist, the chief justice of the U.S. Supreme Court. Rehnquist has been a vocal advocate of states' rights since his days as a law clerk in the early 1950s, when he argued that the court's decision in Brown v. Board of Education went too far in imposing federal power in defiance of the 10th Amendment.

Nobody can accuse Rehnquist of forgetting about devolution once he acquired a robe of his own. In the past decade, he has ruled against a whole series of congressional statutes, in areas as diverse as gun regulation and sexual abuse of women, on the grounds that the "interstate commerce" language used to justify them provided insufficient reason to constrict state authority.

I'm willing to take Rehnquist seriously as a man who believes in devolution and wants to implement it. Still, when he steps down as chief justice, what will he be best known for: his narrow construction of federal regulatory power, or his court's vague, partisan and dubious use of the federal Equal Protection Clause to overrule the Florida Supreme Court and award the 2000 presidential election to the popular-vote loser, George W. Bush?

It is easy to portray all of these ironies as yet another example of the strong picking on the weak. But there's a dirty little secret here: In a federal system, unreasonable demands from above aren't a sign of strength. They're a sign of weakness.

When the system actually works, as it occasionally does, the leaders at the top of the pyramid do one of two things. They take up a problem, conceive a solution and figure out a way to pay for it--as the feds did with Social Security in the 1930s. Or they withdraw completely and allow lower-level governments to launch the experiments and make the rules. This is essentially what happened with welfare reform, arguably the most successful public policy initiative of the past decade.

When neither of these things happens--when one level of government simply dumps a problem on the level below, it's usually because underneath the bluster, those at the top are clueless about what to do. If the feds had any clear idea how to improve the performance of American education, they'd be promoting it. They wouldn't be telling state and local school systems to spend billions of dollars on standardized tests and then to punish the slackers.

If the U.S. Department of Homeland Security had a coherent vision of what a secure homeland actually was, it would be issuing precise directives to local responders and letting them know how much the work would cost. It wouldn't be barking out useless warnings and issuing color-coded alerts and promising that a check would be in the mail sometime in the future.

And when governors and legislatures boast about holding the line on taxes--when the truth is they are merely forcing higher taxes on those below--that's a form of weakness as well. It's a failure of the political will that democratic governments are supposed to have.

Any mandate from above, unaccompanied by the resources to help comply with it, is a scary experience for those on the receiving end. But it can also be an opportunity: to experiment, innovate and discover that there might be a way to get the job done more efficiently after all. Sometimes it turns out that the forces at the top aren't as powerful as they pretend to be.

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