America owes President Barack Obama an enormous debt of gratitude for showing how truly dangerous the federal government can be when our Constitution’s checks and balances start failing. With the active collusion of congressional Democrats, President Obama’s presidency has been one long series of body blows to the separation of powers that has protected our democracy since the Founding.
The results have been stark. Never has a president trampled so much on the prerogatives of Congress. Obama’s executive orders, suspending parts of our immigration laws and even his own prized Obamacare, have been sheer usurpations, going far beyond even the breathtaking delegations of legislative authority granted by the brief Democratic supermajority in Congress in 2009–10.
Sad to say, Obama’s trampling on the prerogatives of state governments has been even more unprecedented, and potentially far more damaging. His agencies’ “Dear Colleague” letters, addressing such sensitive issues as local school districts’ bathroom policies and the standards by which institutions of higher education review claims of sexual assault, have wrested away the core functions of state leaders, local boards, and even administrators.
The separation of state and federal authority is one of the most essential principles of our Constitution. It explains the Constitution’s structural allocation of powers as much as the division between legislative, executive, and judicial functions. If we lose the separate and independent existence of state governments, we will lose our Constitution.
Hence the potentially historic importance of the initiative just announced by Governor Scott Walker, under the heading “Wisconsin, Not Washington.” This morning Governor Walker sent a letter to President-elect Trump, asking for Trump’s help in restoring the federal structure of the Constitution.
Governor Walker’s letter opens (after congratulating Trump) with a paragraph framing the issue in a way similar to how the Founders might have done it:
The question is not what functions the federal government should give back to the states, but what functions should the federal government have in the first place. The federal government was originally created to be a small, central government of limited powers, with everything else left to the states. Through years of federal overreach, this model has been turned on its head, and now is the time to right the ship. Power flows from the people to the government, not the other way around.
With an eye toward “aggressively expand[ing] opportunities for those seeking family supporting jobs,” the letter calls on the incoming Trump administration to provide various block grants and waivers to state governments. Among other suggestions, the letter calls for an executive order “directing all federal agencies to consult and coordinate federal activities with their state counterparts and to truly delegate oversight of functions and activities without mandates or strings.” It suggests that federal agencies should be required to make permitting decisions in a timely manner, just as most state agencies are required to do. The letter specifically calls for flexibility in the administration of nutritional-assistance programs, Medicaid, and the management of the state’s gray-wolf population. It highlights the need for revisions to the Clean Air Act’s National Ambient Air Quality Standards. And it calls for giving Wisconsin more ability to manage federal timberland for the benefit of the resources, wildlife, and economy of Wisconsin, not the federal government.
The Supreme Court has many times insisted that states must remain “free and independent within their proper sphere of authority.” But the Court has given the federal government almost free rein to put coercive conditions on the funds it sends the states, and to require federal-agency “permission” for states to implement federal law.
These twin levers of “coercive federalism” have resulted in a situation where federal and state governments are more integrated with each other than many independent federal agencies are with the rest of the executive branch. Today the president has more control over how states run their Medicaid programs than he has over the Federal Communications Commission. There’s definitely something wrong with that.
Democrats who fear the exercise of unbridled power by a Republican president have as much reason to want state governments kept free from federal control as Republicans do for not wanting a repeat of Obama’s constitutional abuses. We can disagree about policy issues, but we should agree on the basic meaning of our Constitution.
It is urgent to return the states’ reserved powers and responsibilities to them, as the Tenth Amendment requires.
It is urgent to return the states’ reserved powers and responsibilities to them, as the Tenth Amendment requires. But as we do so, it’s equally important to resist the temptation of letting states take over federal functions. One of the most invidious forms of federal control is “cooperative federalism,” whereby states assume responsibility for implementing federal programs.
Instead, the federal government should be forced to implement all federal regulations itself. Constituents who fear the EPA may prefer State Implementation Plans to Federal Implementation Plans under the Clean Air Act, but either way, it’s a shakedown.
If federal bureaucrats want to regulate everything, let’s make them do it all by themselves. If they want us to do it at the state level, then they should let us do it all by ourselves.
#related#Governor Walker’s letter closes by noting that the suggested recalibration between the federal and state governments “should only be the beginning of our efforts to return authority closer to the people.” He is absolutely right that this conversion will not happen overnight, but it is a challenge that must be tackled immediately. The separation of powers between the federal government and state governments is as important as the separation of powers between the branches of the federal government. Restoring those checks and balances is a task for all the states, and all generations of Americans. The task before us is monumental, but with any luck, Governor Walker’s letter to the incoming president can serve as a rallying call.
— Mario Loyola is the director of the Wisconsin Institute for Law & Liberty’s Center for Competitive Federalism. Jake Curtis serves as an associate counsel at the Center.