One surefire way to gain the sympathy of the voters during election season is for a candidate to bemoan the fact that the evil ole federal government is brutishly suffocating the states under the heel of its boot.
Given the recent rhetoric of certain candidates and the flurry of activity by the states now is a good time to assess the status of federalism in the United States. How many times has a candidate, a conservative strategist or a conservative member of Congress invoked the notion that the 10th Amendment has been ignored long enough and that the 10th Amendment would be restored to its original meaning if only candidates from their side were elected.
The 10th Amendment states that, “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.”
Taken by itself, the amendment seems fairly clear. However, it must be considered beside its menacing Constitutional counterpart, often referred to as the “elastic clause” or the “necessary and proper clause,” which appears in Article I of the Constitution. This clause states that, “The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government….”
So the conservative assumption that anything that has yet to be dealt with by the Constitution or Congress is reserved totally to the states must compete with the notion that Congress has carte blanche to pass anything it wishes in furtherance of the well-being of the country – national healthcare legislation being an excellent example.
What is the status of this battle as we head into the heat of a Presidential campaign? At this point in time it seems that modern era “states righters” doth protest too much. The growing crescendo of conservative legislation around the country is gaining traction in the state legislatures, but not in the hopelessly deadlocked Congress.
Indeed, the state legislative efforts to put forth the conservative agenda are doing so well it almost seems to have been orchestrated to be this way. One cannot help but wonder, “Where is Haley Barbour, and what is he doing now that he doesn’t have to worry about running a state?” Former Governor Barbour admitted during his last few years in office that in his role as an officer, and ultimately as chairman, of the Republican Governors’ Association he would be heavily involved in elections in a majority of the states in the country. In fact, this has been one of the most successful periods of electoral success at the state level for Republicans in history. When the smoke cleared from the most recent round of elections there were 29 Republican Governors and 34 legislatures where at least one house was in Republican hands, and 27 of these were legislatures where the GOP was in the majority in both houses. Are we thus to believe that it is a planned strategy on the part of Republicans to hold the U.S. Congress in a deadlocked position and to vigorously push legislation at the state level?
To add some horsepower to the hard-fought Republican majority in the Governors’ mansions and legislatures the American Legislative Exchange Council (ALEC) was created as a clearing house for the assembly of conservative model legislation to be considered by their growing number of subscribing conservative members in these legislatures. What has been the result of these efforts so far?
Legislation and/or citizen initiatives related to all manner of reproductive rights have been put forth on a state-by-state basis. These have pertained to abortion restrictions, restrictions on the availability of contraceptives, and a national initiative on the definition of “personhood.” Several Republican-majority legislatures are at some stage of wrestling with immigration laws of the type clearly assumed as federal priorities until recently. Then there is a bevy of legislation