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The Supreme Court Will Decide a Federal-State Tug of War (Forbes.com) April 24, 2012

Posted by daviddavenport in Newspaper Columns/Essays.

The U.S. Supreme Court is closing its term with a bang, having devoted several days to the historic battle over healthcare and concluding this week with the legal challenge toArizona’s immigration law.  But below the surface, these landmark cases are not just about newly enacted laws.  In fact, these lawsuits constitute major battles in a larger tug-of-war between state and federal power.

The healthcare case has brought the commerce clause into popular conversation, since the mandate for individuals to buy health insurance is defended by the federal government’s authority to regulate matters affecting interstate commerce.  Is no commerce (refusing to buy health insurance) commerce?  And if the federal government can regulate that, is there any limit left to its power under the commerce clause?  Several justices asked the government lawyers to articulate a “limiting principle,” a query that could hardly have been surprising, yet was never satisfactorily answered. 

But at least as important to states is the provision of the new healthcare law that would give them new federal money for state Medicaid programs, but with powerful strings, requirements, and additional expenses attached.  This clever deployment of federal power to regulate health and general welfare, a matter belonging to the states, is defended by resort to the Congressional spending power.  The Supreme Court has said that Congress may place conditions on the use of federal money by states, but not so heavily as to constitute “coercion.” 

You may wonder, for example, how K-12 education, a classic state and local policy matter, has become federalized through “No Child Left Behind” and “Race to the Top” reform programs.  The answer is:  through the Congressional spending power.  The feds, in effect, bribe states to follow their ideas about education reform by putting out precious grant money to cash-starved states and school districts.  As some of the justices asked in oral argument, how could states not feel “coerced” to follow federal rules at the risk of losing the largest grant program they now receive fromWashington? 

Tallying our inventory of federal challenges to state power, so far we have the most important commerce clause litigation since the New Deal, and the largest case questioning possible federal coercion of states in 25 years.  Then comes theArizonaimmigration case, in which the federal government has deployed its preemption power in an attempt to stopArizonafrom increasing enforcement against illegal immigration, an area in which the federal government has taken the lead but, by all accounts, has woefully underperformed. 

Here the federal government’s power comes from the supremacy clause, establishing that federal law is the supreme law of the land.  But states are still free to operate in those areas unless federal law “preempts” the field and states are not acting in conflict with the federal approach.  AsArizona’s attorney, Paul Clement, pointed out:  “This is another federalism case.  This is not all about immigration.  It’s really about the relationship between the federal government and state government.” 

Next up, perhaps next term, will be same sex marriage cases, which again raise fundamental questions of federal and state power.  Who decides what the law of marriage is, what marriage itself is?  Is that a question for states or for the federal government?  And surely someone will challenge the federal takeover of K-12 education through reform and testing laws such as “No Child Left Behind” and “Race to the Top” as unlawful exercises of “coercive” federal spending powers.

Beginning with the “New Deal” legislation of the 1930’s, we have witnessed a steady expansion of federal power, much of it at the expense of state sovereignty.  We may well have reached a tipping point where the Supreme Court will say “enough”, and in at least one of these cases—healthcare, immigration, same sex marriage—federal power will be pushed back. 

Do we really needWashingtonto tackle every question?  Is everything “a federal issue?”  Is there no room for variety among the states, especially on social and values questions?  DoesKansasneed to follow everythingCaliforniadoes?  And if so, will we reach a point where state governments themselves—which were an essential part of our founding and federalist system—seem like unnecessary layers of middle management?  Stay tuned for the Supreme Court’s response this summer. 

To view the article in Forbes, please click on the link:  http://www.forbes.com/sites/daviddavenport/2012/04/24/the-supreme-court-will-decide-a-federal-state-tug-of-war/

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