Republicans and their bogus notion of federalism

The Thinker by Rodin

Texas Governor Rick Perry is one of the latest entrants into the 2012 Republican presidential primary race. In fact, in barely a week he has managed to displace former Governor Mitt Romney in polls as Republicans’ favorite choice. Clearly, Republicans are more enamored with his record than voters overall will be, once they get the facts on his “Texas miracle”. One thing Perry is very adamant about, aside from the usual whines about cutting taxes, is federalism.

I’m betting some of you don’t know what federalism is. Just incase you don’t know, federalism is not the philosophy that the federal government should do more and states less. What federalism really means is that sovereignty is split between the national government and state governments. In the usual dopey Republican thinking, federalism means that the federal government should do almost nothing and the states should do almost everything else. “Republican federalism” generally means they choose to ignore the constitutional provision that the federal government is empowered to “promote the general welfare”. Moreover, they would also be happy to ignore, if not outright repeal the Supremacy Clause of the U.S. Constitution that says U.S. federal laws are the supreme law of the land. In short, they believe states are more than peers to the federal government; states are superior to the federal government. States are the masters, and the federal government is a little yappy dog that they occasionally throw dog biscuits at to keep happy. The federal government is a servile little puppy that amuses the states and is good at growling at strangers that come near its borders.

Rick Perry’s latest personal beef is that he thinks “Obamacare” is unconstitutional and thus should be repealed. He believes states have the authority to create statewide health insurance plans, or not, but definitely not the federal government. The states should be incubators of laws to see what works in the real world. At the same time, Perry is being a typically schizophrenic Republican by castigating Mitt Romney for the Massachusetts’s health care law, because it requires citizens to have health insurance, except in some limited cases.  Massachusetts’s law, of course, was something of a model for “Obamacare”, known by its proper name as the Affordable Care Act. If this dichotomy bothers you then congratulations: you are a rational person. If you a Republican, it should not bother you at all. Of course you can be for states’ rights while at the same time being selectively against state laws that you believe impinge on personal freedom, even if you don’t live in the state. In fact, you can be for federal laws requiring that all states prohibit gay marriage or abortion, while still believing in states’ rights and ignoring the Supremacy Clause. It’s crazily confusing to those Americans who retain their sanity, but wholly sensible to Republicans.

Anyhow, Perry wants to repeal “Obamacare” natch, and let states be laboratories for health care reform, unless it looks anything like Massachusetts’s health care law. In that case, at best he will hold his nose and accept it as the price of federalism. At worst, he will argue that the original intent of the constitution does not allow states to encroach in this area because it impinges on personal freedom. In general though he believes the federal government’s authority should be much more limited than it is, probably limited to providing for the common defense and controlling immigration, and not much else. Why? Because he thinks this was the founding fathers’ original intent, in spite of the words in the constitution ratified by the many states saying otherwise!

In Rick Perry’s ideal world, agencies like the Food and Drug Administration would be abolished and the money saved on these wasteful agencies returned to taxpayers. States would choose whether or not to regulate drugs. In fact, states already can regulate drugs. Here in Virginia, for example, I cannot buy Sudafed over the counter without giving them my driver’s license, which is scanned. A record of the purchase is put into a database that tracks how many times I bought Sudafed. Basically, Virginia wants to know if I might be running a meth lab. Virginia can extend federal law, but cannot selectively override federal law. This is perfectly clear to most of us who have read the Supremacy Clause.

I do hope that Rick Perry’s idea of federalism at least extends to allowing the federal government to regulate the airwaves and airline traffic. Because otherwise, goodness, it would be a hell of a mess trying to fly anywhere or keeping deviant radio waves from illegally crossing a state’s boundaries. However, neither of these is directly mentioned in the U.S. constitution so maybe they are not allowed. After all, original intent triumphs everything.

The Supremacy Clause exists specifically to answer the question that Rick Perry and so many other Republicans raise. You would think that they might, like, actually read it. The Supremacy Clause also has the side effect of allowing activities that affect the country as a whole to be done nationally once, instead of replicating it inefficiently and piecemeal up to fifty times across the fifty states. Do we really want to take federalism to the extreme where the New York State health department says that heroin is an addictive drug and hence illegal, while California judges it is a matter of individual liberty and should thus not be regulated? Do we really want one state to allow shoddy Chinese drywall while another state prohibits it?

It all sounds so dreadfully confusing and, worse, incredibly inefficient. Granted the federal government has lots of bad laws, but at least if it is repealed it is gone nationally. If federalism existed the way Rick Perry envisions it, most of us would find it too risky to ever leave our state, simply because there are too many ways you can get in trouble with the law moving to another state. You couldn’t count on any law being consistent. We’d probably want an opinion from our lawyers before we moved to another state. Our lifestyle, say living with our gay spouse, could be criminal in a neighboring state. One state may be okay with Miranda rights, another prohibit them.

My wan hope is that as Americans learn more about Perry and other Republicans’ bizarre idea of federalism that they will come to my conclusion: it’s crazy and wrong. But it’s more than that: it’s unconstitutional. Let’s just hope if someone like Perry does get elected president and tries out this notion of federalism, our federal judges will apply the U.S. constitution as it was actually written in judging the cases. This includes those inconvenient clauses like the Supremacy Clause that plainly say what they plainly say.

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