Commentary

On Restoring an Effective Federalism

By James Buckley | September 25, 2019 | 12:54pm EDT
James L. Buckley (Screen capture)

If anything remotely represents a political consensus these days, it is that our federal government is in disarray. Congress's constitutional job is to enact laws in support of its objectives while it is the president's job to execute them. Today, however, congressional members of the president's party look to the White House for their marching orders while their colleagues consider it their partisan obligation to oppose the president's initiatives whatever their merits. And when the resulting congressional stalemates preclude any action, frustrated presidents will reach for pen or phone to issue orders that may or may not survive judicial scrutiny.

That, of course, is an exaggeration; but it is close enough to the truth to suggest something has gone radically wrong with how we have come to govern ourselves. I believe that our abandonment of federalism--the Constitution's division of governmental labors between the federal government and the states--is a major contributor to our current dysfunction; and I further believe that a relatively simple reform can bring about a major restoration of this essential safeguard.

But first, my credentials, such as they are: As I have served in each branch of our federal government, I have been engaged in writing, administering, and interpreting federal laws for much of my working life. Accordingly, I think it fair to say that I have had more than the average citizen's opportunity to observe their impact on our lives and the radical changes they have brought about in how we are governed.

James L. Buckley on Nov. 4, 1970, when he was elected to the U.S. Senate from New York. (Getty Images/Bettmann/Contributor)

To illustrate the speed with which those changes have taken place, shortly after my election to the Senate in 1970, I was handed a recent study of Congress that had concluded that the workload of the average congressional office had doubled every five years since 1935. Given the fact that, in simpler times, Congress worked at a leisurely pace and was in session for only five or six months a year, its members could take the initial increases in stride simply by devoting more hours per day and more months per year to their work. Over time, however, the available hours and months had been exhausted and the doubling could only be accommodated by squeezing deliberation out of the legislative process.

This pressure cooker existence has been the consequence of Congress's compulsion, beginning in the 1930s, to scratch every itch on the body politic whether it was its constitutional business or not. The result has been an explosion of federal laws and regulations. In 1934, the United States Code consisted of a single volume of federal statutes, the work product of our Congress's first 137 years. But just 36 years later, when I was elected to the Senate, it had grown to eleven volumes. The current edition now contains thirty-four. But those are just the tip of the governmental iceberg because they are supplemented by an ever-expanding number of small-print regulations that have the force of law and fill an additional 242 volumes. Those federal laws and regulations now reach into every corner of our lives and those affected by them must turn to their representatives in Washington for help with matters that were once handled at the state or municipal levels.

All of these legislative and constituent pressures have converted Congress from an institution that could once think problems through to responsible conclusions into one that largely substitutes political reflex for reflection. And to compound the injury, a harried Congress now finds it so hard to focus on the messy details of new legislation that it increasingly abdicates its constitutional responsibilities by delegating essentially legislative authority to executive agencies, thereby spawning a largely unaccountable administrative state; an administrative state that issues letters instructing schools on who may use which bathroom without bothering with the pesky procedures that require the scrutiny of new rules before they can take effect.

John Adams, Roger Sherman, Robert Livingston, Thomas Jefferson and Benjamin Franklin present the draft of the Declaration of Independence in John Trumbull's painting, Declaration of Independence.

In my view, the serious problems we face these days are in major part the result of our abandonment of the Constitution's limits on federal authority. American independence was won and the Republic created by a remarkable generation of men who turned a rebellion against the British crown into a transforming moment in human history, one based on the revolutionary proposition that all men are created equal and are endowed by their Creator with fundamental rights that no government has the moral authority to set aside. But with the gaining of independence, the Founders faced the formidable task of creating a government that could operate effectively while respecting and protecting the liberties for which the Revolution had been fought.

The architects of the American Republic had no illusions about human nature, which is the one constant in human affairs. From their study of the history of free societies reaching back to ancient Greece, they understood that the drive to accumulate power, whether by an individual despot or a parliamentary majority, was the historic enemy of individual freedom. They therefore incorporated two safeguards into the Constitution: its system of separation of powers with its checks and balances and the principle of federalism. In describing the latter, James Madison explained:

“The powers delegated by the proposed Constitution to the federal government are few and defined ... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the States.”

During the debates over the Constitution's ratification, many expressed a concern that this allocation of responsibilities was not clear enough in the document itself. As a consequence, the first Congress made it explicit in the Tenth Amendment of the Bill of Rights, which provides that "[t]he powers not delegated to the United States by this Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Tenth Amendment's allocation of powers mirrors those of the venerable Rule of Subsidiarity which assigns responsibilities to the lowest levels capable of handling them. Its effect is to decentralize political power and ensure, wherever feasible, that the decisions that most directly affect people will be made by those who are the closest to them and most familiar with both their priorities and the relevant facts.

This explicit division of governmental labors proved so effective that in a lecture on our Constitution with which he found some significant flaws, the great British historian, Lord Acton, nevertheless concluded that "by the development of the principle of federalism, [the American Constitution] has produced a community more powerful, more prosperous, more intelligent, and more free than any other which the world has seen."

President Lyndon Johnson signs Medicare into law as Vice President Hubert Humphrey and former President Harry Truman check the time, July 30, 1965. (Getty Images/Bettmann/Contributor)

During our first 140 years, Washington largely observed those limits. With the advent of the New Deal, however it began chipping away at the states' authority largely through some rather imaginative constructions of the federal government's power to regulate interstate commerce. But with the advent of Lyndon Johnson's Great Society, Congress began a wholesale assumption of the states' responsibilities. It has done so through a proliferation of programs that offer states and their subdivisions regulation-ridden grants of money for purposes that are acknowledged to be the sole responsibility of the states.

Congress found its authority to create such programs in an unfortunate Supreme Court interpretation of the Constitution's Spending Clause which empowers it to spend money "to pay the debts and provide for the common Defense and general Welfare of the United States." The mischief lies in the words "general Welfare." During much of our history, the prevailing view was that that phrase did no more than place a limit on Congress's authority to spend by requiring that federal expenditures serve national as opposed to state or local purposes.

Beginning with the 1937 case of Steward Machine Co. v. Davis, however, the Supreme Court has held that in its pursuit of the general welfare, Congress is authorized to provide states with funds with which to implement programs that Congress itself has no power to write into law. The Court recently summarized that holding as enabling Congress to use federal tax revenues to "induce the States to adopt policies that the Federal Government itself could not impose." But because grants programs deal with matters that are acknowledged to be beyond Congress's constitutional authority, the Court has ruled that the states may not be coerced into accepting the grants and their attendant regulations. Experience has demonstrated, however, that the states find it enormously difficult to decline them whatever their conditions. Thus the practical effect of the Court's decision has been to empower Congress to induce the states into adopting Washington's approach to matters that remain the states' exclusive responsibility.

These programs, which are laden with the most detailed instructions, now provide federal subsidies for virtually every activity in which states are engaged and have made a major contribution to the federal government's vast expansion. In the process, they distort state priorities, impose ponderous regulations on a myriad state and local activities, and deprive their citizens of effective control over how their own taxes are to be used. In sum, they have converted the states in too many ways into mere administrators of programs created in Washington and overseen by bureaucrats who are the furthest removed from where the money is to be spent. As one former Democratic governor put it, "I honestly wondered if I was actually elected governor or just branch manager of Nebraska for the federal government."

Senate Majority Leader Mitch McConnell, Senate Minority Leader Chuck Schumer and House Speaker Nancy Pelosi (Getty Images/Mark Wilson)

Members of Congress have become addicted to grants programs (there are now well over a thousand of them) because they deal with matters that have the most immediate impact on their constituents' lives, such as housing, schooling, job training, potholes, you name it. Therefore, their creation and the securing of grants offer them the easiest way to rub elbows with voters and generate the favorable local headlines that will assure their reelection. As a consequence, whereas those programs distributed just $24 billion when I was elected, by 2015 that figure had reached almost $641 billion, or one-sixth of total federal spending that year, and all for purposes that are none of Washington's business. This past year, those grants had increased to $697 billion. And to understand the total cost of those program to the federal government, add 10 percent to those figures to cover the estimated cost to the federal government of administering them. To compound the injury, instead of concentrating on the critical problems that only Congress can address, its members now devote major portions of their time on matters that are none of their constitutional business.

In short, these programs have effectively nullified the Tenth Amendment and, in the process, helped undermine Congress's ability to function effectively. But what can be done about it? Five years ago, I had the temerity to write a book with the title Saving Congress from Itself in which I detailed the extraordinary systemic and financial costs of those programs at both the state and federal levels and proposed a simple reform that would restore federalism; namely, their conversion into block grants free of federal directives telling the states how the money was to be spent. It is a reform that, at one stroke, would not only free the states to meet their responsibilities in their own way, it would reduce federal spending by major amounts in administrative costs alone, rid Congress of a significant distraction from its essential national responsibilities, and restore the people's ability to control their own state and local affairs. Needless to say, Congress has yet to act on my suggestion.

I recognize, however, that we now live in new times. The power to move political mountains is passing from printed books to the social media. So there may be another way to force congressional attention. What I dream of is a tweet in which the president advises Congress that he will veto any bill that tells the states how to run their own affairs. Such a tweet would stir up a vigorous debate of the merits of my proposal and, I believe, encourage its adoption. It might even remind our countrymen t at our Constitution indeed places limits on what the federal government may engage in and that the enforcement of those limits might well be in their interests.

If such a debate were to arise, I believe my reform would have a good chance of being adopted. Confidence in the federal government is at an all-time low and our people still understand the virtues of the Constitution's allocation of governmental responsibilities even if they are no longer aware of its existence. According to 2013 polling data, today's Americans believe that state and local governments are best able to handle the following responsibilities by the indicated percentages: housing (by 82 percent of those polled), transportation (78 percent), education (75 percent), and welfare (69 percent). Those are precisely the kinds of responsibilities that the Constitution has reserved to the states, the kinds that federal agencies have taken over.

There is, of course, another way to restore a vigorous federalism, and that is to persuade the Supreme Court to abandon its 1937 interpretation of the Spending Clause. As I noted earlier, the Court has placed a single limit on Congress's ability to transfer money to the states for purposes that are their exclusive business: namely, the states may not be coerced into accepting the funds and their accompanying baggage.

Many decades of experience have demonstrated that what is perceived as free money from Washington is virtually impossible to resist whatever the conditions attached to it, and for a politically compelling reason. If a state does not participate in a program, its share of the money--money derived in whole or in part from its own taxpayers--will go elsewhere. I say this despite the fact that 23 states declined to participate in Obamacare's expansion of Medicaid coverage. Their refusal to do so, however, was an exception that proved the rule. Having experienced the huge collateral costs of their existing Medicaid programs, those states merely declined to compound the injury.

In light of this experience, I believe there is a chance that the Supreme Court might reverse its 1937 ruling on the basis that those grants have proven to be inherently coercive. I base this on the Supreme Court's decision in Brown v. Board of Education which declared that racial segregation is unconstitutional. In doing so it overturned its 57-year-old precedent, in Plessy v. Ferguson, that held that racially segregated facilities are permissible so long as they are equal. The Court reversed Plessy on the ground that experience had proven that segregated facilities are inherently unequal. Accordingly, I can envision the Court reversing Steward Machine Co. on a showing that the grants are indeed coercive. All that is needed to test this thesis is for a group of frustrated governors to challenge the constitutionality of a particularly aggravating category of grants, such as Medicaid.

But whether or not the Court or Congress acts to strip the grants of their mandates, we can never relax in our work to protect the Constitution, and Its Framers understood this. They understood that preserving the liberties for which the American Revolution had been fought would require more than what James Madison referred to as the Constitution's parchment barriers. They recognized that, in the last analysis, the Constitution's safeguards would be protected only as long as the public continued to understand and respect them.

Unfortunately, over the past generation and more, our educators have abdicated their responsibility to ground their students in the fundamentals of the American experience. As a result, far too many of our people are suffering from a peculiar form of historical amnesia. They remember all our past sins, such as slavery and our treatment of the Indians. But too few have a sufficient awareness of the constitutional and economic principles that, on the historical record, had made ours the most productive, prosperous, innovative, generous, and free society the world had known; principles that were responsible for the freedoms and material well-being they take so much for granted. I have had to use the past tense because our nation is no longer the world's freest.

Which underscores the seriousness of the challenge we now face. We must not only restore a healthy federalism; but in the process, we must bring the Constitution back into the center of political debate. That challenge, of course, has always been with us. But, I suggest, the challenge has never been more acute. As Benjamin Franklin reminded us at the close of the Constitutional Convention, while the Framers had given us a Republic, it would be up to us to "keep it."

James L. Buckley has served in the federal government as a senator, an undersecretary of state, and an appellate judge. Buckley delivered the above remarks on the Media Research Center’s Mediterranean cruise in September 2019. His most recent book is Saving Congress from Itself (Encounter Books 2014).

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