Magazine | May 18, 2015, Issue

A Constitutionalist Agenda

Five priorities for the GOP

For Republicans, defending the Constitution is like the weather: They all talk about it, but nobody ever does anything. Or, at least, does anything practical.

Conservatives think that modern government has drifted far from the constitutional design, to the country’s detriment. Too often, though, the remedies they offer are either fanciful or plainly inadequate. In the former category are proposals for constitutional amendments to provide more structural protection for constitutional principles that have fallen by the wayside: supermajority requirements for tax increases, for example, as a means of restoring limits on the federal government. Whatever the merits of these ideas, the very high bar the Constitution erects for formal amendment limits their utility. In the latter category are pledges to appoint only originalist judges. That goal is certainly an important one, but it sometimes causes conservatives to neglect the duties of the other branches of the government, and of citizens, in preserving the constitutional order.

A practical constitutionalist agenda for the Congress would attempt both to strengthen constitutional principles such as federalism and the separation of powers and to habituate legislators to the idea that they have a role to play on these questions. The agenda would also illustrate how these principles would make for better government. Here are a few ideas that conservative congressmen, and presidential candidates, should be considering.

1) Medicaid reform: Medicaid is usually, and understandably, discussed in terms of the budget and health care. It is the second-largest item in most state budgets, and overall spending on it totaled $449 billion in 2013. Most of the expansion of insurance coverage that has taken place under Obamacare has come in the form of larger Medicaid rolls. The program has repeatedly caused state-budget crises, but for all its cost it does not appear to have done a lot to improve the health of its low-income beneficiaries: Mostly it seems to provide them with financial security and its attendant psychological benefits.

The program’s joint federal–state structure has abetted its growth while making it immune to reform. State governments have been able to increase benefits and expand eligibility while the federal government has picked up more than half the tab. That is a formula for spending more money on the program than either the federal government or the states would spend if it were either a purely federal or a purely state responsibility. It is also the set-up for all kinds of squalid behavior. (States, for example, enact “hospital taxes” to spend on Medicaid, get matching money from the feds, and then give the tax money back to the hospitals.)

As Michael Greve has argued in The Upside-Down Constitution, the Founders envisioned a sharper division between state and federal responsibilities, a division that enabled competition and accountability. The best way to move back in that direction would be for the federal government to cash out most of its spending on Medicaid and give it to the beneficiaries to help them buy insurance in the private market. The federal government should simultaneously make it easier for states to do the same thing with most of their Medicaid spending. And the federal contributions should no longer reward states for higher spending.

People with low incomes would have better insurance that still provided them financial security, and the individual-insurance market would be strengthened by their participation in it. At the same time, we would have no more federally induced state-budget crises, the program would no longer grow on autopilot, and its design would be simpler and more transparent for voters.

2) The REINS Act: Many Republicans have, to their credit, advocated legislation requiring a congressional vote before major regulations can take effect, and it was one of the first bills House Republicans passed when they took Congress in 2011. Republicans have mostly described the legislation as a way of safeguarding economic growth and economic liberty, but it too has a constitutional dimension: It is a means of countering the tendency of modern government to vest legislative power in unelected agencies.

Congressmen might well shrink from having to vote on major regulations: Over the last few decades they have increasingly preferred to enact statutes with vague goals and leave agencies to develop the controversial implementing regulations. The congressmen can then support, oppose, or keep quiet about those regulations without having to take responsibility for them. The REINS Act would make it harder for Congress to dodge its duties, and a more accountable regulatory state would probably be at least a modestly less intrusive one.

3) Bring agency spending under congressional control: Another step toward reining in agencies would be to make their funding depend on Congress. Congressional power over spending — a powerful protection for self-government that predates the Constitution — has been eroded as government agencies have been given independent funding streams. The immigration bureaucracy gets its funding from customs fees and the like; the Consumer Financial Protection Bureau has a statutory right to funding from the Federal Reserve, which makes it an independent agency within an independent agency, self-government buried under several layers of bureaucracy.

It’s fine for specific fees to be dedicated to specific government programs, but how the money is spent has to be subject to ongoing congressional review. Changing the law to that effect would not guarantee that Congress would get its way every time it fought the president over the conduct of an agency. Still less would it guarantee that Congress would use its spending authority wisely. It would, however, bring Congress closer to having the leverage it should have.

4) Eliminate the deduction for state and local taxes: Believers in federalism should loathe the state- and local-tax deduction, which in effect transfers resources from taxpayers living in low-tax states to those living in high-tax states and, worse, raises the average state tax rate. Getting rid of it entirely would have a number of beneficial effects. In 2015, the deduction will reduce federal revenues by $80.6 billion, a price tag substantially higher than that of the much-maligned mortgage-interest deduction. This revenue could be used to finance a large tax cut that would benefit all taxpayers, not just those in high-tax states. Alternatively, it could be used to reduce deficits. Eliminating the deduction would also make voters in states such as New York, New Jersey, and California more tax-sensitive, as they would no longer be shielded from the full impact of their tax bills.

5) Allow states to go their own way on marijuana: Public opinion on marijuana is changing rapidly. A narrow majority of Americans now favors marijuana legalization, and a number of states are experimenting with creating their own legal marijuana markets. The problem is that while there are a number of new marijuana businesses that are legal under state law, they remain illegal under federal law. This has led to a great deal of uncertainty and confusion, yet it also creates an opportunity for conservatives.

The current marijuana debate highlights the important but much-neglected constitutional distinction between interstate commerce and in-state commerce. In Gonzales v. Raich, the Supreme Court ruled that Congress had the power to criminalize the local cultivation and use of marijuana under the commerce clause even if state law authorized it. In his concurring opinion, Justice Antonin Scalia observed that Congress has the power to regulate in-state activities that do not have an impact on interstate commerce when doing so is “necessary to make a regulation of interstate commerce effective.” But what if regulating in-state activities is not necessary to achieve this goal? Recently, William Baude, a law professor at the University of Chicago, has argued that constitutional doctrine should recognize that though Congress has the right to regulate interstate commerce, it can regulate in-state commerce only insofar as doing so is essential to achieving a legitimate constitutional purpose. One could argue that the failure to regulate in-state commerce in marijuana will lead to negative spillover effects that cross state borders. If a state can demonstrate that it is capable of regulating its in-state marijuana market effectively, however, the justification for federal interference is greatly weakened.

With this principle in mind, Congress could pass a law formally declaring that the federal government would recognize the legal status of marijuana businesses under state law as long as in-state marijuana markets met certain requirements. The same principle could extend to other policy questions as well, such as the federal role in establishing a minimum drinking age. If a state moves to lower its drinking age while pursuing various other steps that would reduce the harms associated with alcohol consumption, should the federal government try to make states keep their minimum drinking age at 21? By limiting federal interference in the regulation of in-state markets to what is strictly necessary to achieve legitimate constitutional purposes, we will foster more creativity and experimentation at the state level.

These ideas, and others like them, cannot of course be the entirety of Republicans’ legislative agenda over the next few years or their campaign platform in 2016. They do not need to be the first items on which Republicans act in 2017 should they have control of the government then. But they ought to be part of the party’s agenda. Shoring up the constitutional architecture is a unifying theme for conservatives, and the past few years have given conservatives increasing reason to be concerned about government lawlessness. What Republicans have so far lacked is an agenda that demonstrates that they take seriously the concerns they voice and won’t just drop their rhetoric as soon as they take power. That’s something they can change.

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