Fair-Weather Federalism

These haven't been the best few weeks for those who believe in state prerogatives and a balanced federal system. President Bush's comment that post-disaster management would better be handled by generals than governors was an insult to state officials--as illustrated by the fact that his own brother, the governor of Florida, went out of his way to criticize it publicly. Then the Supreme Court took up the U.S. Justice Department's case against the assisted-suicide law in Oregon. The Washington Post editorialized that the case represents "one of the most aggressive federal assaults on state policymaking authority in recent history."

Events like those rekindle the resentment that states have felt against Washington for most of the Bush years, as the feds have intruded on state and local authority across an endless list of policy areas, from homeland security to education to driver's licenses. But here's a question: Do states really care about federalism themselves?

It's a question raised in a fascinating paper presented recently by Michael Greve at the American Enterprise Institute. Greve, the director of AEI's Federalism Project, posits that all levels of government cheat at the federalism game, with state and local officials invading Washington's turf just about as much as Washington invades theirs.

His prime example is the multistate lawsuits against tobacco companies during the late 1990s, which resulted in a $246 billion settlement between the companies and the states--a quarter-trillion dollars' worth of new taxes, as Greve fashions them--as well as the imposition of a tough new, nationwide regulatory scheme that national legislators never weighed in on. "Never before in American history," Greve argues, "have the states wielded comparable power over the commerce of the United States."

In his view, American government is heading toward a free-for-all in which any level of government is willing to take on any sort of issue- -the feds becoming the lead players in education standards, states driving new environmental regulations--and interest groups simply root around for any legislative or legal venue that's likely to prove friendly. This, he says, is not a federalist balance of competing powers but an "inversion" that gives too much leverage to those seeking special favor from governments--wherever they can find them. It's "a federalism for politicians and interest groups, rather than citizens."

Is Greve right? Is there "no outer limit anymore as to what the national government can do in local affairs and what state governments can do nationally"? That may be taking the argument a bit far. Still, Greve's point is worth considering. In the real world, practically any policy issue is a bigger concern than federalism for someone, whether the subject is banking or gay marriage.

That's why it really does seem at times that any government is willing to lay claim to any and all causes, even if the proper venue is across some jurisdictional line.