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Are the States too "sedentary"…or worse? (Cartoon by Leigh Rubin)

This is Part 5 in an ongoing series about the concept of nullification by states; the idea that individual states can declare a federal law or regulation unconstitutional, and therefore, refuse to implement it. See FOOTNOTE section for links to Parts 1 – 4 and additional supporting information.¹ (See the far right sidebar for making effective use of our footnotes feature.)

Part 4 and this article explore the second reason why I no longer believe nullification is a good idea; it requires accepting a number of false ideas. In Part 4, I listed three such myths; the states are defenseless against an onslaught of laws and regulations coming from Washington, D.C., our problem is not in Nebraska, but at the federal level, and state level officials and bureaucrats are opposed to federal government encroachment.

Those myths are disproved by examining the ample evidence available. States have largely given away state sovereignty because politicians and bureaucrats want federal dollars.  Elected officials benefit politically, bureaucrats justify their existence, and difficult budget cuts are avoided. Many decades of policies driven by the entitlement mentality and treating too many bloated programs like “sacred cows” have led to escalating federal aid to states that parallels the alarming rise in federal debt.

Pointing out the obvious potential relationship between the dramatic rise in federal aid to states and the federal deficit and the political benefits does not satisfy skeptics, I’m well aware. I used to believe the states have no role in determining whether or not decisions or funds are foisted upon them. That’s why it’s critical to address the myths outlined below.

Myths…

• States have historically taken every opportunity available to draw a line in the sand.

• The entire court system, including the U.S. Supreme Court, consistently rules against state sovereignty.

Reality…

• The infamous unfunded mandate

While it may seem unrelated, examining this supposed-bane-of-state-politicians’ existence is key. By definition, an unfunded mandate is a requirement on states to comply with or implement a federal law or regulation that costs a state money, yet the legislation passed or regulation issued includes no appropriation of funds. To comply with the law, the state must find the money somewhere.

I will repeat what I stated in Part 4; there have been too many unfunded mandates coming from the federal government and the problem has increased over time. I have realized, however, their number and extent have been vastly overstated. If I had to assign a percentage, I would say its myth by 80% – 90%.

• In truth, many “unfunded mandates” are actually programs that a state entered into voluntarily. The importance of this fact is difficult to overstate.

Here’s how the majority of federal programs actually work and the states KNOW it when they agree to enter into them…

• Funding is included, but it is often limited in time or requires an even match from the states

• So states (and even local governments) have to maintain the program for certain periods once that initial funding runs out

• Besides funding terms, states have to agree to other terms, conditions, and requirements

• The federal government can change the terms of a program at any time

WHO in state government understands the realities of federal programs?

Legislators, Executives Ignorant?

In a statement above, I said “the states know it”. That’s obviously vague and begs the question: WHO in state government knows that how these programs work? In theory, it’s possible that elected officials, particularly those who are term-limited, might not fully understand. Career bureaucrats, quite obviously, would have an advantage.

While I accept that the explosion of government bureaucracy in the last century ensures this bureaucratic advantage, as a constituent and taxpayer, this is a very convenient excuse for politicians. If an executive (i.e. a governor) or legislator finds themselves surrounded by a morass of bureaucracy so complex they cannot understand how things work, it’s their duty to work at shrinking it and to use their “soapbox” to educate the public.

Legislators, Executives Complicit?

The facts tell me our state level elected officials understand these programs in a way that doesn’t match their rhetoric about “unfunded mandates”. Linda and I attended a meeting at the Capitol in June of 2010 about the then-projected $680 million budget shortfall (revised recently…it’s closer to $1 billion). I highly recommend a read of the analysis article, “NE Budget: Senators Hope Feds Will Bail Us Out“. It’s particularly interesting some nine months after the fact for many reasons, but here, I will focus solely on my opinion as to our Nebraska legislators’ attitude regarding federal funds:

“Do our Senators realize that federal money does not fall out of the sky?”

“All evidence points to the very unfortunate fact that our Nebraska Senators are eagerly looking forward to any additional federal dollars that will come Nebraska’s way.”

It seemed to me our legislators understand that accepting federal funds has consequences, at least enough to provide them with excuses about making cuts:

“A phrase repeated by too many of the Senators present was this program or that program could not be cut because it is a federal program, it is a program that receives federal matching funds, or is ‘mandatory’.”

It’s a vicious circle now; States have gotten themselves addicted to federal funding and they take on new obligations to get more money which in turn have strings which once again sends them looking for more federal money and so on, back around the circle.

The only way out of all the obligations is to slash a number of sacred cows and make what some would assuredly call “radical cuts” to the state budget so as to no longer need the federal funds.

Definitively disproving the first myth I listed, that states have consistently taken every available opportunity to resist what people call imposition of federal programs, would require a massive research project. It would entail examining a comprehensive investigation of all court challenges filed by states and actions taken by state legislatures and governors. That is a formidable task I cannot undertake at this time. I believe it is possible, based on much other evidence, however, to state the following:

Recognizing the desire for federal funds by those in state government, it is difficult to imagine there has been anything like consistent assertion of State Sovereignty.

• State Sovereignty and the Supreme Court

Prevailing wisdom among those wishing to see truly limited government restored is that the courts threw away the concept of state sovereignty decades ago. It is a fact that there is a long list of court rulings that have expanded the authority of several key clauses in the Constitution² in ways that violate common sense and the concept of original meaning.

BUT…

An examination of Supreme Court rulings reveals there have been a steady stream of cases, most particularly throughout the the thirty year period 1970 – 2000, during which the Court consistently ruled to uphold the core principle of dual sovereignty.

See Printz v. United States, New York v. United States, Lopez v. United States, and Gregory v. Ashcroft. While Printz includes links to all of the cases listed here, there are other cases listed within each that are cited as precedent and supporting basis for the Court’s decisions. They are well worth the read; these cases all refute the prevailing dialogue that state sovereignty is dead and that the Court never rules to uphold this fundamental Constitutional principle.

• It is actually an accepted premise that there are dual spheres of authority (federal and state) and therefore federal regulatory programs and schemes cannot be imposed – even temporarily – on the States (see Printz).

• Therefore, the overwhelming majority of federal programs carried out by States are written legislatively so as to be VOLUNTARY.

I’m spending less time in this article detailing and explaining the truth about dual sovereignty and how it has been upheld by the Supreme Court because I have written about it several times in the past³. One article in particular (note how similar the titles) explains more about the history of Supreme Court rulings, primarily focusing on Printz:

Click to read the article

Attorneys General Court Case Challenging the Health Care Law – Further Evidence, Relevant, Urgent

As noted above, most federal programs are VOLUNTARY for the states. That includes the Medicaid program.

A study of the way the health care law was written, particularly as pertains to the mechanisms and timetables for implementation, is cause for a whole new list of concerns, most of which are little known⁴. One of them relates to the voluntary nature of the Medicaid program.

Federal Judge Roger Vinson rejected one of the arguments presented by the States in his January 31, 2011, decision:

“…there is simply no support for the state plaintiffs’ coercion argument in existing case law.”

The Judge rejected the argument that the States are being coerced to participate in implementing the health care law because participation in Medicaid is voluntary:

“…I noted that state participation in the Medicaid program under the Act is — as it always has been — voluntary. This is a fundamental binary element: it either is voluntary, or it is not. While the state plaintiffs insist that their participation is involuntary, and that they cannot exit the program, the claim is contrary to the judicial findings in numerous other Medicaid cases.

Worth reading twice…

For states to argue they are being coerced into implementing the health care law in their respective states, there must be some voluntary element within the health care law itself. That is indeed the case; the health care law provides an OPT-OUT.

The opt-out, however, requires a state to get out of the Medicaid program. While a simple solution, it is by no means easy. This is a huge political problem in fact. Judge Vinson addresses this political aspect – which rightfully has no place in such legal questions – by citing precedent:

“See, e.g., Schweiker, supra, 655 F.2d at 414 (‘The courts are not suited to evaluating whether the states are faced here with an offer they cannot refuse or merely a hard choice.’);”

Questions about the health care debate:

Does the fact that the states have an option to opt-out of the health care law come as surprise?

If so, should it?

Does this match the political dialogue that has prevailed since the health care law was passed?

Why are not politicians talking about it?

Thoughts about nullification…

Are states sitting ducks? That’s a very difficult case to make.

The truth strikes me as a game of kick the can and the rhetoric about unfunded mandates, too often, convenient political cover.

Are states willing accomplices? That seems more accurate.

To quote Shakespeare:

“Men at some time are masters of their fates:

The fault, dear Brutus, is not in our stars,
But in ourselves, that we are underlings.”

___________________

FOOTNOTES: