Susan Estrich: The newest federalism

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When he came to Washington in 1981, Ronald Reagan made much of his commitment to the “new federalism,” which in that case, like so many others, had very little to do with federalism. As later detailed by former Office of Management and Budget head David Stockman, in the name of federalism, the Reagan administration sought to dismantle federal social welfare programs that conservatives opposed, claiming it was an issue of whether state or federal government should be in charge. The problem, as soon became apparent, was that giving states new responsibilities without new funding sources meant you were shrinking government (or if you prefer, cutting help for the needy). And that, of course, was the point.

Those who opposed the civil rights acts of the 1960s didn’t say blacks belonged on the back of the bus. Actually, some of them did, but in public they claimed their allegiance to states’ rights. Ditto for the opponents of the New Deal on the United States Supreme Court, who struck down federal laws regulating the economy not on the grounds that children should work an 18-hour day, but because these were matters for the states to address.

Historically, federalism is more often a Trojan horse than an operative philosophy.

This provides some perspective on the newest federalist, Barack Obama, who has taken the unusual steps of publicly giving up on Congress and trying to take his messages to the states. Necessity is the mother of invention: Obama is a federalist because he thinks he has a better chance with at least some of the states than he does with Congress. So instead of leading the Democratic Party in a campaign against a “do-nothing” Congress, Obama is raising money for Democrats and running away from Congress.

At the height of the Burger-Rehnquist conservative court, Justice William Brennan, a Republican appointee who, along with Thurgood Marshall, was a leading dissenter, wrote an influential law review article encouraging state courts to take the leadership in protecting constitutional rights. It wasn’t so much that Brennan believed we needed the states to be “laboratories” for experimentation, as Justice Louis Brandeis famously put it. But if the federal courts weren’t protecting individual rights adequately, and in Brennan’s view they were not, at least some Americans could get protection through the states.

And so it is today.

But there is still something dispiriting about the idea that with three more years in the White House, the president has given up on the dream of “change” that was supposed to come from Barack Obama’s Washington — except, of course, for the kind of change that can be made by him alone. Beyond that, it’s time to hit the road. “Yes, we can” — get married in Massachusetts. “Yes, we can” — protect the environment, but maybe only in California. Actually, it’s “yes, you can” — the irony being that the president’s message is to act without him.

Obama wouldn’t be hitting the road if Congress were open for actual business. His embrace of state action is so transparently and undeniably motivated by weakness that even lip service to political philosophy seems silly. He’s making the best of a bad situation, of a dysfunctional system that has so thoroughly metastasized that the most powerful man in the city and in the world feels like his only hope of getting things done is to leave town.

Federalism, for this president, isn’t a strategy for change, much less victory; it’s an open admission of defeat. And it’s painful even if the last resort is better than nothing at all.

SUSAN ESTRICH’S column is distributed by Creators Syndicate Inc.


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