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Federal-state tug of war on Constitution Day (San Francisco Chronicle) September 17, 2010

Posted by daviddavenport in Newspaper Columns/Essays.

Today marks the 223rd birthday of the signing of the U.S. Constitution,   recognized as the oldest national constitution still in operation. If I were its physician, an annual checkup would conclude that, while still alive and kicking, the health of the Constitution faces several clear vulnerabilities.

Most notably, Washington has grown federal powers well beyond those listed or even contemplated in Article I of the Constitution, while state powers preserved by the 10th Amendment are in steady decline. In medical terms, the federal government is obese, while the states are starving. Many prominent court cases today – raising questions about health care, immigration and same-sex marriage – are fundamentally asking federal judges to referee a historic federal-state tug of war.

Take health care reform, for example, which was in federal court again this week. Health and welfare have long been considered the purview of states, but the health care reform legislation moved the federal government into the driver’s seat. Constitutional challenges question Washington’s power to do this on several grounds: Can the federal government create more unfunded mandates for states? Where does the federal government get the power to require states to change their Medicaid (Medi-Cal in California) laws? And most interesting, how can the federal government mandate the individual purchase of health insurance, either as a tax (which looks more like a penalty) or as interstate commerce (when it’s really not commerce)?

The Arizona immigration law is also working its way toward the Supreme Court, raising a different federal-state question. Frustrated that the federal government wasn’t carrying out its duties to police the borders, Arizona enacted a law to step up state enforcement. The U.S. Department of Justice challenged the law primarily as a violation of federal supremacy over immigration. Yet both federal and state immigration laws recognize that complementary federal-state action is needed. Similar questions arise when states enact clean-air standards that are more stringent than federal law.

Cases on same-sex marriage are also moving from federal courts in Massachusetts and California toward higher courts. In Boston, a federal judge concluded that marriage is a question of state law, finding the federal Defense of Marriage Act unconstitutional. Is there room for 50 different definitions of marriage? And would states have to give “full faith and credit” to a marriage performed under a different state law? Similar questions arise in elections this fall about medical marijuana: If California wants to allow it and other states do not, should the federal government mandate uniformity and, if so, by what Constitutional power?

One reason so many of these federal-state questions are in court just now is that we have a president and Congress from the same political party, who took office with some electoral mandate to address a crisis. So the federal agenda grows: health care, education reform, stimulus bills and the like. But ultimately our Constitution asks: By what right does the federal government take the lead on these matters? President Franklin Roosevelt faced a similar challenge when the Supreme Court blocked much of his early New Deal legislation as an unconstitutional expansion of federal power, leading him to propose his controversial and unsuccessful court-packing plan.

Ultimately the courts and the Constitution are the check against federal power grabs by Congress and the president. If states are no longer really in charge of education, health and welfare, or social questions such as the family, why have states at all? I will venture a guess that in at least one of these cases, the federal courts will tell Congress and the president that we aren’t ready to turn everything over to Washington just yet.

David Davenport is a research fellow at the Hoover Institution.

This article appeared on page A – 12 of the San Francisco Chronicle

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/09/16/EDG61FENQF.DTL#ixzz0znsNKHYE

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