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Susan Estrich: The Newest Federalism
In 1981, President Ronald Reagan’s ideologists pronounced his attack on the welfare state an expression of the “new federalism.” It wasn’t that they were against helping the poor and the needy, but that the federal government was the wrong branch of government to do it. Even the president talked about it. People — myself included — wrote papers.
Later on, the new federalists acknowledged and even boasted that of course they weren’t for state welfare states, either. They were for smaller government, period, and less dependence and all the rest. But at the time, federalism was an easier pill to swallow.
That certainly was true for those who opposed civil rights legislation in the 1960s on grounds that the federal government lacked the power to regulate public accommodations, including hotels and restaurants, to prohibit private discrimination and to change the rules and procedures for voting. Each of those battles went to the Supreme Court, which upheld federal power.
It was also true, ultimately, for the opponents of the New Deal who, when they lost the fights in Congress, took them to the Supreme Court and won — until the court backed down in the face of being packed and off we went to decades of upholding federal power.
There was a bubble around Reagan’s time in the courts, as well, not so coincidentally, with the Rehnquist Court embracing its own version of federalism to impose limits on federal power. States as states were free of certain regulation, and limits were imposed on otherwise unlimited federal power in cases involving guns near schools and protests near abortion clinics. As always, there were debates as to whether the real moving forces in those cases were the hot-button issues or the federal-state issues.
So it was probably just a matter of time before opponents of health-care reform, who are as good at counting to 60 as anyone and know that the Democrats will not be counting that high again anytime soon, were bound to start talking federalism as the next step in a debate that won’t end. I almost laughed when I heard the old quotes against HillaryCare dusted off. As someone once said, there you go again.
Regulating health care is a lot easier, in commerce clause terms, than telling the owners of a hot-dog stand in a park in the middle of nowhere who they have to serve on account of the fact that the bottle of ketchup they’re using came in as interstate commerce. That was enough for the court. I don’t hear too many people arguing that the civil rights laws are unconstitutional.
Now, you can’t keep telling me that health care is the biggest economic issue — 1/6 of our economy and all that — and then turn around and say there’s not enough of a connection to interstate commerce to require 20-year-olds to have insurance. Uninsured 20-year-olds have a much greater impact on interstate commerce than hot-dog stands. I can introduce you to some. They are forces of interstate commerce, and as every parent knows, they are not immortal. They get hurt. They get sick. They should have insurance. If that’s the worst thing the nanny state ever does to all of us, I’d say a gracious thanks.
I would not for a minute say that it was unconstitutional — and neither, I believe, will the Supreme Court.
As for one state getting a better deal than the other 49, that is a political question that is precisely the sort the courts don’t have to get into, meaning that it’s the breaks of democracy, not a case of the majority unfairly discriminating.
When you get done counting to 60, you still have to count to five. I don’t see five votes to protect 20-year-olds from insurance. Too many parents and grandparents and aunts and uncles in the crowd. Not to mention decades of precedent and the Constitution itself.
— Best-selling author Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her.
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» on 01.12.10 @ 09:49 AM
Right Suzie cue. I need a damned house and a freaking car, can the federal government give me those too? What’s the point of having healthcare if I’m starving or living in the street? Why don’t we just demand the treasury provide everything we want at the wealthy’s expense (hey that’s you, Sue)? Healthcare insurance is not a right. It costs money and produces no wealth in our economy, so Suzie cue how do you pay for your 20 year olds insurance? Some of us believe you have to earn the wealth to pay for it while some of you believe it’s perfectly ok to steal it from those who have earned it. Actually since you are considered wealthy your real motivation here is not healthcare for all but control of 1/6th of the economy. Here is the rub though, that 1/6th of the economy is not producing anything and actually robs the rest of the economy of wealth. The bigger it gets the less ability we have to earn enough to pay for it. You understand that don’t you? Right, didn’t think so.
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» on 01.12.10 @ 11:59 AM
Estrich may be right. Reagan’s era seems to have been the last one where leaders of
the GOP actually took time to try to have original thoughts.
Consider the McConnell-Boehner clique, scared old men in dark, pin-striped suits,
who somberly intone that they and the entire Republican Congress are against every
thing that is coming before them.
That’s not what Reagan was about, either as CA governor, or as president.
Sure, he talked a good game. That’s why he was (with Peggy Noonan’s help) the “Great Communicator”.
But in the end, he would often compromise with factions in his own party, and folks
on the other side of the aisle to get things done.
No more.
Estrich is right. The same tired lobbyist phrase-making from the Oral Roberts
generation is still being floated out, sometimes by the very same people who coined
them 30 years ago - did you notice that one of Nixon’s original PR flacks is still the
head of Fox-TV?
I guess the GOP strategy heading into this year’s elections is, Do Nothing, and allow
No One Else to Do Anything, either.
Pathetic.
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» on 01.12.10 @ 05:28 PM
Not so fast buster, the best we can hope for is a completely locked government incapable of doing anything. When government gets stuff done it is usually to our common detriment. But hey, LTR you just keep believing in the tooth fairy. Keep believing it’s an us-versus-them sort of thing. Most of us don’t trust any government and that is the biggest difference between you and, you trust them way too much.
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