Syndicated columnist Neal Pierce has been writing about state and local affairs since at lease the 1970s. In a recent column, he asks, “Are State Governments Obsolete?” It might have been more appropriate to ask whether state governments actually exist — at least in the traditional constitutional sense. Blessed by the Supreme Court and other judicial rulings, state governments have become administrative appendages of the federal government.
In one area after another in the twentieth century — matters of transportation, public health, land use control, education, wildlife management, etc. — the federal government assumed powers that had traditionally been reserved to the states. States might still have an administrative role, but they are now working under a very tight federal leash.
The sweeping environmental laws of the 1970s shifted control over clean air and water to the federal government. The states were, to be sure, left to administer air and water pollution laws day to day but under federally approved programs, leaving real control in federal hands. The Endangered Species Act not only federalized significant parts of wildlife management but also asserted federal authority over large areas of state and local land use. No Child Left Behind moved a large step towards the full federalization of education in the United States.
The federal government has not limited its takeovers to economic and environmental areas, where spillover effects do sometimes create difficulties for states whose boundaries are awkwardly configured. As the Supreme Court declared in 2005 in the Raich case (with Justice Scalia surprisingly abandoning his previous federalism principles to support the decision), federal marijuana laws trump state and local laws. Federal power over the states now even extends bizarrely to the minimum drinking age for alcoholic beverages, an area explicitly reserved constitutionally to the states. (Like many others, the Supreme Court justified this federal undermining of state authority on the grounds that the states “voluntarily” accepted it — in order to protect their federal transportation funding.)
It is not the states but the U.S. Senate that is obsolete. When the United States was founded, the ratio of the largest state in population to the smallest (Virginia to Delaware) was 13 to 1. Now it is 71 to 1 (California to Wyoming). The U.S. Congress makes most of its decisions by forging compromises that bring together large enough coalitions of winners to pass a bill. Senators from Wyoming and other sparsely populated states sell their disproportionately large voting rights for disproportionately large federal moneys (relative to population). That is a main reason farm subsidies have been impossible to curb: states like North Dakota and South Dakota trade Senate votes for this abundant source of federal money.
In many cases small states actually want the federal government taking responsibility because then federal money pays. This dynamic is apparent in the Rocky Mountain states where 50 percent of the land is federal — and, even if it were offered to them, states would refuse to take financial and administrative responsibility.
We may be coming to a point where we should revisit the whole U.S. constitutional scheme. The usurpation of state authority is only one of many examples of current federal dysfunction. The U.S. fiscal situation seems dangerously close to veering out of control (see this recent Robert Samuelson column). Many of these problems have to do with the structure of Congress, starting with the Senate.
Another major problem is the assumption of far ranging policy making responsibility in the courts (the reason Supreme Court nominations now consume so much of the nation’s attention). Big changes are needed in both areas.
It is a very large subject. Obviously, nothing radical is likely to happen any time soon. But just to put out some ideas for discussion, I recently speculated on a brand new constitutional arrangement for the United States.
Recommendation No. 1 – abolish the U.S. Senate.