By Sean Lengell
States enraged by an Obamacare provision denying them subsidies unless they created insurance exchanges shouldn’t have been surprised. Congress routinely uses the power of the purse to twist states’ arms until they submit.
It’s worked for decades. When states wanted federal highway funds in the 1970s, they first had to lower their speed limits to 55 mph. A decade later, states were prodded into raising the drinking age to 21. In the 2000s, federal education grants were made contingent on states adopting standards included in such programs as No Child Left Behind and Common Core.
Now, however, states increasingly are complaining and pushing back or ignoring federal laws and mandates they say are out of touch, excessively burdensome, or unconstitutional.
And with Washington immobilized by partisan gridlock, states find themselves in the best position in decades to redress the balance of power and remind the feds that there is a 10th Amendment. The amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Merrill Matthews of the Institute for Policy Innovation, a Texas public policy think tank, said, “This is the biggest push back that I’ve seen in my lifetime, even more so than, I think, you had in the Civil Rights era. There’s this growing sense out there, that there are areas that are the purview of states, and the states ought to be allowed to do that.”
The catalyst for resurgent states-rights pressure is Obamacare. Thirty-six mostly Republican-controlled states refused to set up health insurance exchanges and told President Obama he should do it himself.
At least 20 states also have refused to expand their roles in Medicaid within Obamacare. This forfeits more than $8 billion in federal cash, the Rand Corp. estimates. But states say it would cost them even more in the long run; they would have to fork out 10 percent of coverage costs from 2020 onward.
Widespread rejection of key Obamacare provisions reflects a growing unwillingness among several states to accept one-size-fits-all mandates.
“They rightly see this as sucker money,” said Randy Barnett, a constitutional law professor at Georgetown University Law School. “There’s no absolute that the federal money … will continue, given the huge fiscal problems we have at the national level. States would almost be idiots to take this federal money.”
Michael Greve, of the conservative American Enterprise Institute, called the Obamacare pushback a “watershed” moment that has prompted states to rediscover their proper roles in governance.
They “are supposed to be here as a check and balance on the federal government,” he said, adding that the widely excoriated healthcare reforms “brought back the form of a real constitutional argument that had long been forgotten.”
Obamacare also taught states that when they take on the feds, they need to stick together.
“States have more leverage ... than they think they do. … They bow to the stick more quickly than I think is necessary at times,” said Mike Maharrey of the 10th Amendment Center.
“There is a lot of disaffection from across the political spectrum, left to right, in feeling that Congress is not going to get anything done, the president is not going to get anything done, so we need to figure out some other mechanism to get things done. And if there’s more success at the state level, then I think that momentum will grow.”
Obamacare is the latest and biggest fomenter of state resistance, but it is far from being the only one.
Common Core academic standards in public schools are being fought tooth and nail. Republican governors and congressional conservatives say the program is a straitjacket and an improper takeover of local schools.
Gov. Bobby Jindal of Louisiana, a Republican, sued the administration in August, accusing the Education Department of illegally dangling $4.3 billion in grants and policy waivers in front of the states to bait them into adopting the program’s uniform testing standards.
Jindal said, “The federal government has hijacked and destroyed the Common Core initiative. [It] is the latest effort by big government disciples to strip away state rights and put Washington … in control of everything.”
The Supreme Court turbo-charged state resistance to federal intrusion. Justices last year struck down a provision in the 1965 Voting Rights Act, throwing out a requirement that states with histories of discrimination against minority voters secure prior federal permission for proposed changes to their election laws.
Many of the states affected immediately proposed or passed voter identification laws and other election changes that likely would have been blocked before the court’s ruling.
Washington vowed to fight back. Congress introduced legislation in January to update the Voting Rights Act, and the *Justice Department last year sued North Carolina and Texas over their voter ID laws.
But when the federal government flexes its muscles, it underscores states’ rationale for resistance.
“The more the federal government takes things upon itself, the more … citizens and states … try to push back and carve out exceptions,” Barnett said. “The only way to deal with this is to get the federal government out of the business of all these things it’s getting itself into.”
States are, however, partly to blame for their diminished powers, Barnett says, because they whetted Washington’s appetite for increased power by agreeing to sell their authority in exchange for federal largesse.
“I don’t see states as the heroes in this,” he said. “There ought to be push back. But I don’t agree that states are noble creatures, and I don’t buy the idea that they’re closer to the people and therefore are somehow more enlightened than the federal government is.”
Ken Ivory, a Utah state legislator who has battled Washington over public land rights, agrees that states shamelessly surrender authority to the federal government.
“The states can’t say, ‘Oh, Washington is out of control.’ No, the states are out of control because it’s our job, it’s our duty, to protect state authority,” he said. “That’s why state legislators and leaders are bound and required to swear an oath to the U.S. Constitution — because we’re integral constitutional actors in a system of federalism.”
No unified front
State pushback began in Republican-controlled states and has spread to more liberal parts of the country, where lawmakers and voters want to push causes such as legalizing marijuana and gay marriage.
“There are a number of Democratic governors who are concerned about the federal government coming in and dictating its will,” Matthews said.
Twenty-three states and the District of Columbia have legalized medical marijuana; 18 states and D.C. have decriminalized pot; and two, Colorado and Washington, have legalized the drug for personal use.
The Justice Department reversed its position in 2013 and declared it wouldn’t stop Colorado and Washington from legalizing marijuana for recreational use. This paved the way for other states to enact pro-pot measures.
“The federal government is losing [the marijuana] battle,” Maharrey said. “This is a situation where the state governments have basically said, ‘We’re going to do this, and you do your best to prohibit it if you want to.’
“This is a model that those of us who feel very strongly [about] state push back against overreaching federal power can use, which is simply not cooperating.”
A rush by states to legalize gay marriage also accelerated in the wake of the Supreme Court’s 2013 ruling that struck down the federal Defense of Marriage Act, which defined marriage as a heterosexual union.
Maharrey noted that although the resurgence of the states-rights movement started in conservative states, the rollback of federal control inevitably would involve successes for the Left as much as for the Right.
“It requires a ‘live and let live’ approach, and a lot of people have a hard time with this,” he said. “People in the Deep South have a hard time with letting people in Colorado have marijuana, and vice versa; it bugs people in New York that people in Kentucky have guns.”
Matthews agrees that Republicans are “having to start recognizing and living by those convictions. You’re going to find Republicans increasingly say, ‘That is a state issue. I may agree with it or disagree with it, but it’s a state issue, and we at the federal level are not empowered to have a say in that issue.’”
Resistance to Washington is patchy. Many states embrace federal initiatives, from Obamacare to construction projects. Illinois and California, and cities such as Detroit and Chicago, are so deep in the red that they are prepared to fall into the arms of the feds almost whatever the price.
“It is a gross mistake to talk about the states as if they’re an ‘it,’ said Greve, “They are ‘they.’ They have different interests and are increasingly divergent. There are some states that are aggressively demanding federal intervention, for all sorts of reasons. And there are some states — red states, mostly — that push back and think that there’s nothing in it for them anymore.”
Age-old debate
The nation’s founders passionately debated the balance of power between the states and the federal government. And when the Bill of Rights was added, the 10th Amendment assured that powers not given to the federal government in the Constitution were reserved for the states or the people.
Some of those original American leaders argued that states’ rights were so evident in the federal system that the 10th Amendment was unnecessary. But John Dickinson of Pennsylvania andDelaware pushed for its inclusion, saying it was needed to remind the federal government and the states of their shared responsibilities.
“It will be their own faults,” Dickinson said, if the states allow a central power “to interfere in the things of their respective jurisdictions.”
This compact was severely tested in the mid-1800s, when Southern states argued that slave owners had the constitutional right to take their slaves into states and territories where slavery was prohibited.
Southern states also argued that the Constitution was only an agreement between the states and that states were free to leave, or secede, from the union at any time. Northern states, as well as President Buchanan, who left office weeks before the outbreak of the Civil War, and his successor,Abraham Lincoln, disagreed, saying the Founding Fathers considered the union “perpetual.”
The dispute was settled only after four years of war and the death of 620,000 Union and Confederate soldiers.
Federal-state tensions then simmered down but in the early 20th century, the debate began to rekindle because of congressional attempts to regulate workplace conditions. These were opposed by some states dependent on heavy industry. Two years after Congress passed the Keating-Owen Child Labor Act in 1916, the Supreme Court struck it down, saying it violated the Constitution’s Commerce Clause.
Eventually Congress passed the Fair Labor Standards Act in 1938, which introduced the 40-hour work week, established a national minimum wage and banned most employment of minors.
President Franklin Roosevelt’s New Deal programs expanded the federal government’s reach. But with the country hard-hit by the Great Depression, states generally were receptive to federal help.
Under presidents Kennedy, Johnson and Nixon, issues such as civil rights, education, theenvironment, housing and healthcare increasingly came under federal purview, even though historically they had been controlled mostly by state and local authorities.
Congress and the executive branch enticed states with grants and other handouts to carry out their programs without the need to create a federal workforce of teachers and election officials, et cetera.
The federal budget has thus grown sevenfold since President Truman’s administration, but the number of civil servants has stayed about the same, at almost 2 million.
“They did that by engaging these other actors in society to do federal work,” said Paul Posner, a former Government Accountability Office director of federal budget issues. “In some ways we’ve nationalized the agendas of state and local governments.”
Federal tactics began to change in the 1970s and 1980s, as Washington mandated state actions via such tools as Environmental Protection Agency regulations and the Americans with Disabilities Act. These forced states and local governments to pay for implementation.
Posner said that while states often grumbled about being forced to accept such mandates, “state and local governments largely were too disorganized and conflicted and not focused enough to really do anything about it.”
By the mid-1990s, resistance began stirring among states, fueled by increasing political polarization nationwide and gridlock in Washington.
Big national legislation such as Obamacare now meets with wildly different responses from state to state, with some, such as Maryland, embracing the law while others, such as Texas, thumbing their noses at it.
“Polarization in Washington led to increasingly bodacious laws that didn’t have sound bipartisan support, and as a result felt more intrusive,” said Posner, who directs George Mason University’s graduate public administration program and its Centers on the Public Service.
Whatever powers and flexibility states have gained has been largely because national government is too divided and politically distracted to legislate stronger solutions, Posner adds.
“It hasn’t been because [states] have come in with strong arguments on their behalf. It’s more by default than anything else,” he said, adding that federal-state tension could get worse because of the two sides’ increasingly strained relationship.
“We’re not deliberating about federalism, it’s just happening,” he said. “That for me is troubling. The system ought to be smarter than that and more strategic.”
With Washington gridlocked, it’s up to the states to restore the balance of power, Ivory said. “In any partnership that gets out of balance, it’s incumbent upon the other partners to say, ‘We’ve got to sit down and have a partnership meeting, and we’ve got to get this back into balance.’ You can’t simply ignore it and hope that it gets better.
“It really is the duty and responsibility of the states, for the liberty and the peace and the prosperity of our citizens, to be the actors in a federal system of pluralism that we’re supposed to be.”
What’s next?
To get increasingly reluctant states to accept federal mandates, Washington has begun to tweak its approach. To make Obamacare more palatable, states were given the choice of not taking responsibility for the healthcare exchanges. Such opt-outs aren’t available in other sweeping federal mandates such as Social Security, the Clean Water Act or the Americans With Disabilities Act.
States also have some freedom within the law because the Supreme Court ruled they don’t have to expand Medicaid under Obamacare.
“It’s kind of an acknowledgment by a fairly liberal administration that you can’t push the system too far or you’re going to have a rebellion on your hands and an even more bitter hyper-partisanship than you do already,” Posner said. “When you compare [Obamacare] with the Social Security Act or the Civil Rights Act or to the Title I Education Act or some major social policy laws, the ACA is actually fairly friendly to the states.”
Posner predicts the U.S. could evolve into what he thinks of as a European Union model, with a weak, or at least weaker, central power and strong states.
“We’re kind of evolving into that kind of union, and it’s because of the bitter partisanship and the fact that national leaders want to get stuff done but they can’t get the whole loaf, so they’ll take a loaf that applies to some states but not all,” he said.
Greve said if the push back continues, a better comparison would be with the way the United States was during the late 19th and early 20th centuries. Then, states such as Wisconsin, Minnesota and New York embraced liberal Progressive Era ideals, such as the aggressive regulation of industry, while other states did not. With no federal mandates, the states were free to chose their own paths.
“Such a setup helped block aggressive federal intervention,” Greve said, because “there were enough states at all times that said ‘no, we could not care less what the pro-federal government states say, the answer is no, we won’t play.’”
If states do successfully win back authority from the federal government, he adds, it will be because they’ve lost their fear of Washington, not because Washington decided to relinquish any control.
“Democratic administrations and presidents and, so far, a Democratic Congress have no way of breaking through this, because they have to insist that their programs be obeyed,” Greve said, “and there will be a sufficient number of states that say ‘to hell with that’ and fight back.’ "