President Bush's resulting thought that post-disaster management would better be handled by generals than governors is anathema to state officials--as illustrated by the fact that his brother went out of his way to criticize it.
But there have been plenty of other things for fans of federalism to complain about. The U.S. Supreme Court on Wednesday heard oral arguments in the federal Justice Department's case against Oregon's assisted-suicide law. The Washington Post today editorialized that the case represents "one of the most aggressive federal assaults on state policy-making authority in recent history."
In most federalism discussions, the federal government is cast as the bad guy, intruding on traditional state and local authority across an endless list of policy areas, from education to driver's licenses. But do states really care about federalism themselves?
That's a question raised by a fascinating paper presented last week by Michael Greve at the American Enterprise Institute. Greve, the author of Real Federalism and director of AEI's Federalism Project, posits that all levels of government cheat at the federalism game, with state and local officials intruding on what truly are national affairs.
His prime example, perhaps predictably, is the multistate lawsuits against the tobacco companies during the late 1990s, which resulted in a $246 billion settlement--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 had nothing to do with.
"Never before in American history have the states wielded comparable power over the commerce of the United States," Greve writes in his paper.
Why does this matter? With any level of government willing to take on any sort of issue--the feds becoming the lead players in education standards, states driving new environmental regulations -- interest groups will shop around for any legislative or legal venue that prove friendly. That's why states' rights--once the clarion call of conservatives--have been so ardently embraced by liberals who are shut out of power in Washington.
This, says Greve, is not a federalist balancing of competing powers. He calls it instead an "inversion" that gives too much power not just to government but to those seeking special favor from governments--wherever they can find favor. It's "a federalism for politicians and interest groups, rather than citizens."
Is Greve right? Is there truly "no outer limit any more as to what the national government can do in local affairs and what state governments can do nationally"? Surely the negative response to Bush's notion of the military supplanting states in disaster relief shows that there is still competition among governments.
But clearly the line has blurred. Greve rightly acknowledges that relatively arcane concerns about federalism take a back seat to more pressing concerns. No one would any longer argue that states' rights should be a shield against national standards of racial equality.
The problem is that practically any policy issue is a bigger concern than federalism for someone, whether you're talking about banking or gay marriage. That's why it seems at times that there are no limits to governmental ambition to address pressing issues, even if the proper venue is across some jurisdictional line.
