In the 16 months since Biden took office, federal encroachment on state sovereignty has become routine. Yet all too often, sovereignty is not taken; it is sold.
In the 16 months since Biden took office, federal encroachment on state sovereignty has become routine. Yet all too often, state sovereignty is not taken — it is sold.
A s Republican gubernatorial and congressional candidates seek to ride the red wave into this year’s election cycle, one issue has been conspicuously absent from the discourse: the dramatic erosion of state sovereignty under Joe Biden’s presidency. If the coronavirus pandemic has taught us anything, it is that we must fight for the basic principle of federalism so that states may continue to operate as separate and distinct laboratories of democracy. Put simply, our constitution contemplates the need for Americans to be able to flee Gavin Newsom’s oppression and seek asylum with Ron DeSantis in the free State of Florida.
But Biden’s federal government aims to cancel “voting with your feet” by imposing inescapable federal edicts on matters that the Constitution leaves to the states. Quelling red-state rebellion appears to be the president’s motive. But so far, the Republican response to an overweening executive has been underwhelming.
In the 16 months since President Biden took office, federal encroachment on state sovereignty has become routine. Yet all too often, that sovereignty is not taken — it is sold. The federal government prints money at a furious pace and dangles it before the states, knowing that state officials often ignore the fine print before accepting it. State leaders then find themselves shaking one fist at the federal government while holding the other hand out for money that comes with strings attached. As James L. Buckley wrote in 2014, “Congress is licensed to dabble in areas in which it is forbidden to act, which it does by bribing the states to adopt Congress’s approaches to problems that are the states’ exclusive responsibility.”
This phenomenon goes relatively unnoticed, until an activist administration abuses the awesome power that has been transferred from the states directly to federal agencies, thanks to the joint negligence of Congress and state leaders.
Consider the provision in the American Rescue Plan Act that purported to prohibit states from “directly or indirectly” lowering taxes for three years after accepting relief funding. While Treasury Secretary Janet Yellen could not articulate what “indirectly” even meant, each state was instructed to certify that it would comply with the mandate if it wanted the money, lest it face federal enforcement action. Joined by twelve other states, the State of Alabama sued and successfully blocked this provision of the act from being enforced. This win, though important, was overshadowed only seven months later when the Biden administration announced its vaccine mandates.
While the State of Alabama litigated successfully against three of the administration’s mandates, the health-care-worker vaccine mandate, still in effect, presents the gravest threat to state sovereignty. The federal government’s Center for Medicare and Medicaid Services threatened to defund health-care services provided by state agencies for refusal to comply with the vaccine mandate and is still attempting to commandeer state employees into policing compliance on behalf of the federal government for in-state Medicaid and Medicare providers. This is especially offensive in states such as Alabama, where state employees are now subject to a government vaccine mandate, which state law prohibits. Federal officials have even told Alabama officials to solicit proof of vaccination from health-care workers around the state, again, in violation of state law. In the wake of this unprecedented overreach, Republican leadership has been surprisingly aloof. Republicans in Congress have not picked up the mantle of Medicaid block grants, nor have state leaders meaningfully demanded it.
Now, the Justice Department has made threats against any state that passes laws to protect children from unproven and irreversible “gender affirming” medical treatments, citing various streams of federal funding that may be discontinued for those that dare to follow the science in defiance of the Biden administration. Yet again, this administration is relying on the states’ addiction to federal funding to overcome the convictions of the citizenry on a vital issue.
The United States Supreme Court has struggled to define the limits on this kind of federal coercion and has proven, as it did in the CMS case, that it cannot be consistently relied on to save “separate and independent sovereigns” from their failure to “act like it.” While Republican attorneys general will continue the fight in court, it will ultimately be left to state leaders and their respective congressional delegations to reclaim state sovereignty. Ultimately, freedom — not merely state control — is on the line. The Framers knew that our system of federalism “secure[d] to citizens the liberties that derive from the diffusion of sovereign power.” Or as Justice Scalia put it, “No matter how you write it, it won’t work if we don’t believe in federalism.”