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state sovereignty Archive

Saturday

11

August 2012

1

COMMENTS

The Other Problem of Dependence

Written by , Posted in Big Government, Liberty & Limited Government

A lot has been said about the growing dependence of American citizens on the federal government, including in this great CF&P Economics 101 video narrated by Emily O’Neill. But there’s another kind of growing dependence about which we need to be concerned, and that’s the degree to which states are being made dependent on the federal government.

This is an issue in which I take a particular interest, considering how important our federalist and competitive system is in protecting freedom and promoting prosperity. At the time the stimulus was passed, I noted that “funneling federal dollars into the states … leads to significant waste.” I’ve also defended federalism against attack from central planners, and explained how federalism helps preserve tax competition and the ability to flee confiscatory tax rates.

Most recently, I took a rather pessimistic view of the impact of Supreme Court’s Obamacare ruling on federalism, despite it overruling the federal government’s attempted Medicaid bullying. Now Veronique de Rugy, writing in the Washington Examiner, makes a powerful case of her own:

In light of the Supreme Court’s ruling upholding the Affordable Care Act, many claim that the choice of states’ ability to opt out of Medicaid expansion requirements without losing all Medicaid funding was a big victory for federalism. That may be true, but federalism is still seriously in jeopardy.

…[T]the federal government is pouring billions of dollars each year into the states’ coffers.

…This money isn’t free. It comes with strings attached — mandates and rules dictating how the states should spend their money, what services they should provide and how they should provide it.

…These requirements weaken states’ independence, especially since the federal government can bully states into doing what it wants by threatening them with “cross-over sanctions.” The classic example was the threat to withhold highway grants for states that failed to adopt a national drinking age above 21, or adopt federal clean air requirements.

And if the funding is temporary but the requirement permanent, this “aid” becomes even more expensive. Using data from 50 states over a 13-year period, a 2010 paper by economists Russell Sobel and George Crowley shows that temporary grants from the federal government to state and local governments cause the latter to increase their own future taxes by between 33 and 42 cents for every dollar in federal grants received.

Limiting the combined state and federal size of government will require returning to a strong federalist model, where states are again autonomous bodies responsible for the bulk of governance, and more importantly thus constrained by the forces of tax competition. The current trend toward greater and greater state reliance on the federal gravy train to administer federally mandated programs is politically, fiscally and economically untenable.

Monday

25

June 2012

1

COMMENTS

Scalia on State Sovereignty

Written by , Posted in The Courts, Criminal Justice & Tort

Today’s immigration decision in Arizona v. United States amounted to another nail in the coffin of federalism. Scalia, in his dissent, explained how the decision has abrogated state sovereignty (citations removed for readability):

The United States is an indivisible “Union of sovereign States.” … Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.

As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty…

…There is no doubt that “before the adoption of the constitution of the United States” each State had the authority to “prevent [itself] from being burdened by an influx of persons.” … And the Constitution did not strip the States of that authority. To the contrary, two of the Constitution’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” …The Articles of Confederation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.”… This meant that  an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution’s Privileges and  Immunities Clause provided that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” … But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was  solved “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” … In other words, the naturalization power was given to Congress not to abrogate States’ power to exclude those they did not want, but to vindicate it.

Scalia goes on to explain how opposition to the Sedition Act demonstrated doubt on the federal government’s role, but none whatever regarding the State power to control immigration, before offering:

In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration—and to over look their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.

Possibility (1) need not be considered here: there is no federal law prohibiting the States’ sovereign power to exclude (assuming federal authority to enact such a law). The mere existence of federal action in the immigration area—and the so-called field preemption arising from that action, upon which the Court’s opinion so heavily relies, ante, at 9–11—cannot be regarded as such a prohibition.We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude. Like elimination of the States’ other inherent sovereign power, immunity from suit, elimination of the States’ sovereign power to exclude requires that “Congress . . . unequivocally expres[s] its intent to abrogate,” …Implicit “field preemption” will not do.

…And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed “violates the principle that the removal process is entrusted to the discretion of the Federal Government,” … The State’s detention does not represent commencement of the removal process unless the Federal Government makes it so.

But that is not the most important point. The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” … It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona.

…The State’s whole complaint—the reason this law was passed and this case has arisen—is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition.

He  then concludes powerfully (emphasis mine):

…The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s
proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.

…As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem,and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.

Friday

4

May 2012

2

COMMENTS

Nancy Pelosi Blows the Whistle

Written by , Posted in Liberty & Limited Government

The dog whistle, that is:

House Minority Leader Nancy Pelosi wants President Barack Obama to lay off the weed.

Reacting to an ongoing crackdown on medical marijuana facilities in California, Pelosi said in a Wednesday statement, “I have strong concerns about the recent actions by the federal government that threaten the safe access of medicinal marijuana to alleviate the suffering of patients in California.”

The California Democrat said that medical marijuana is “both a medical and a states’ rights issue.

States’ rights? States’ rights? Doesn’t Nancy know that invoking states’ rights is dog-whistle racism? Or so the left tells us anytime someone on the right points at that, no, the federal government cannot just do whatever it wants and, yes, states do have sovereignty over some areas in which the federal government has no authority.

Nancy Pelosi is actually right for once; the federal government is grossly overstepping its bounds in pursuit of the “drug war.” And I should point out that “states’ rights” is actually a misnomer, as only people have rights. States have sovereignty. Regardless, since she is using the language of the racist small-government types, I am eagerly awaiting* the usual leftist uproar directed at the former Speaker.

*And by eagerly awaiting, I mean not holding my breath.

Saturday

6

March 2010

1

COMMENTS

State Legislators Standing Up For Federalism

Written by , Posted in Health Care, Welfare & Entitlements

The president of the Utah Senate and the speaker of the Utah House of Representatives recently took to the pages of the Washington Post to lay out a “modest proposal.” While their ideas are modest in a historical context, the sad irony is that what they propose is quite radical for the modern era. Simply put, they want the federal government to butt out and let Utah take care of Utah.

The two Utah legislators, Michael G. Waddoups and David Clark, propose to have the state take over completely several programs, such as education and Medicaid, which are currently influenced by both state and federal policy.  They argue that the strings which come with federal dollars for these programs are onerous and promote inefficiency.  They’d rather those dollars be kept in the state to begin with, instead of first being funneled through federal bureaucracies, only to return with strings that threaten state sovereignty.

Hear, hear.

I’ve written in the past about the destructive consequences of allowing the federal government to abuse its tax and spending power in order to cajole states into adopting its preferred policies. Such a system wastes money, distances tax payers from their local governments, and undermines the federalist system which has served us so well.

Utah isn’t the only state talking about restoring federalism. Alabama Governor Bob Riley recently signed a resolution reaffirming the long-ignored Tenth Amendment. While not legally binding, the resolution ought to serve notice that the states are not longer rolling over to federal demands.  Other states have similar measures at various stages of the legislative process.

It’s about time that state lawmakers stand up and say that they’d rather not take federal dollars at all. They deserve support, because this is not an easy position to take. Too often the states are complicit in the erosion of their own authority as they run hat-in-hand to the federal government for more money. Perhaps now they are realizing that sacrificing long-term governing authority for immediate political expediency is a bad bargain.