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.

In This Issue


Politics & Policy

Drowning in Propaganda

In February, a rusty, decrepit freighter named the East Sea ran aground on the Côte d’Azur near Saint-Tropez. Its captain and crew fled, and when police and medical teams arrived ...
Politics & Policy

Sci-Fi’s Sad Puppies

It turns out that pop culture doesn’t inexorably drift toward political correctness. The forces of “social justice” are not invincible, and conservative artists do have cultural power. Just ask the ...


Books, Arts & Manners

Politics & Policy

It’s the Parents

Almost all Americans agree that our society ought to strive for equality of opportunity — that no child’s prospects should be limited by the circumstances of his or her birth. ...
Politics & Policy

I, Ava

Perhaps the most surprising thing about Ex Machina, a claustrophobic science-fiction movie in which two very different men orbit the female artificial intelligence one of them created, is that the ...
City Desk

Horns of Plenty

The ground floor of our apartment building in the city presents a row of storefronts to the avenue: a pizzeria, a nail salon, a walk-in medical clinic, a supermarket, and ...


Politics & Policy


The Germ of Corruption In his review of my book A Republic No More: Big Government and the Rise of American Political Corruption (April 20), Matthew Spalding states that I offer ...
Politics & Policy

The Week

‐ When Clinton became secretary of state and said she would build stronger relations with foreign countries, she really meant it. ‐ On the morning of April 12, Freddie Gray was ...

The More You Know

News Brief: Kraft Foods, after a prolonged campaign by a “healthy food” blogger, announced it would remove the chemicals that give mac & cheese its distinctive hue. For a long ...
The Long View

Pool Report

March 22, 2017 POOL REPORT WHITE HOUSE PRESS CORPS 06:30 President Jenner enters the White House gym for her usual calisthenics ritual. Your pool reporter witnessed a strenuous treadmill workout followed by a ...
Politics & Policy


CATHEDRAL The inner light grandeur of the cathedral, muted but still present, even on cloudy days; its immensity, its echoes, silence, its music, shifting uplift of daylight, its faithful, its tourists, clergy, its pattern of life; ...
Happy Warrior

From Reason to Treason

‘Our age,” Julien Benda wrote in The Treason of the Intellectuals, “is indeed the age of the intellectual organization of political hatreds.” That came to mind recently when I saw the ...

Most Popular


Angela Rye Knows You’re Racist

The political philosopher Michael Oakeshott said that the “rationalist” is hopelessly lost in ideology, captivated by the world of self-contained coherence he has woven from strands of human experience. He concocts a narrative about narratives, a story about stories, and adheres to the “large outline which ... Read More

What the Viral Border-Patrol Video Leaves Out

In an attempt to justify Alexandria Ocasio-Cortez’s absurd comparison of American detention facilities to Holocaust-era concentration camps, many figures within the media have shared a viral video clip of a legal hearing in which a Department of Justice attorney debates a panel of judges as to what constitutes ... Read More
Politics & Policy

Pro-Abortion Nonsense from John Irving

The novelist has put up a lot of easy targets in his New York Times op-ed. I am going to take aim at six of his points, starting with his strongest one. First: Irving asserts that abortion was legal in our country from Puritan times until the 1840s, at least before “quickening.” That’s an overstatement. ... Read More
Film & TV

Murder Mystery: An Old Comedy Genre Gets Polished Up

I  like Adam Sandler, and yet you may share the sense of trepidation I get when I see that another of his movies is out. He made some very funny manboy comedies (Billy Madison, Happy Gilmore, The Waterboy) followed by some not-so-funny manboy comedies, and when he went dark, in Reign over Me and Funny People, ... Read More