The new states’ rights? with Gordon Lloyd (San Francisco Chronicle) October 7, 2007

For decades, states have seen steady erosion in their authority while federal power has expanded. Control over everything from disaster relief to local schools has traveled a one-way superhighway from state capitals to Washington, D.C.

But just when you thought federalism was dead, and the 10th Amendment guaranteeing power to the states had been erased from the Constitution, state governments have asserted themselves on an astonishing array of issues traditionally the province of the federal government. Suddenly there are state laws on everything from global warming to same-sex marriage, and states routinely challenge Uncle Sam’s authority in court.

California Gov. Arnold Schwarzenegger has led the way, flexing his considerable muscle most recently at the United Nations. Having earlier described California as a “nation-state,” Schwarzenegger symbolically hobnobbed with global leaders and advised the world body that, on climate control, “California is moving the United States beyond debate to action . . . changing the dynamic.”

Of course, this was only the latest in a series of challenges the governor has issued to President Bush and the feds. When the president discouraged stem cell research, the governor announced bold new state initiatives. When the president declined to get on the global warming bandwagon, the governor signed a state bill limiting greenhouse gases. And California has long had its own higher minimum wage and stricter auto emissions standards.

It’s not just California that has risen up to assert state policies over federal approaches. One reason Bush is on the defensive about limiting children’s health coverage is because 28 states joined together to oppose revised federal policies on coverage and eight states have taken the matter to court. Idaho and Maine both refuse to cooperate with new federal identity card initiatives. Meanwhile, new state laws on everything from immigration to abortion and same-sex marriage are literally all over the map.

So what’s going on here? And what, if anything, should be done about it?

The balance of power between federal and state government has always swung like a pendulum. The Constitution brought together 13 states amidst concern that the federal government might not amass sufficient strength to be effective. Indeed, state influence was still so strong in the 1860s that it wasn’t clear whether the union would hold. Federal power inevitably increases in time of war or national disaster, so from 1930-1950 FDR’s New Deal and the mobilization for World War II brought widespread growth to Washington. State power further eroded in the 1960s when “states’ rights” became synonymous with the violation of civil rights.

Now we see activity that may drive the pendulum back. Perhaps former President Bill Clinton’s announcement that “the era of big government is over” was premature and states are only now stepping up to their responsibilities. Republican presidential candidates John McCain and Fred Thompson both say that some social decisions, such as same-sex marriage, ought to be left to states, suggesting that the next election might bring the role of states more clearly into focus. Such principled approaches only work if people who don’t like the outcome of state policy refrain from running off to Congress or the courts to challenge it, and if these federal entities can resist the temptation to react.

But can we really have 50 state global warming policies or 50 different definitions of marriage? We are a long way from that academic question posing any kind of real problem. One approach would be to say that we should have federal regulation of our national economy, and that states should be preempted from passing laws and regulations that inhibit interstate commerce. At the same time, why not allow for more state, regional and local differences on social issues? If Oregon wants to be more flexible about the use of medical marijuana, for example, and Kansas does not, why should that become a federal issue?

In a time when fresh approaches to public policy problems are sorely needed, perhaps a new era of “states’ rights” will lead to innovative solutions.

This article appeared on Page E5.