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States hoping to restore order

by Phil Burgess, Unabridged from the Rocky Mountain News, October 24, 1995

The concept of federalism is one of the major and original contributions of Americans — both to political theory and to the practice of government. But federalism is not working in America. State and local governments are increasingly viewed as administrative agents of an overreaching federal government. As Nebraska Gov. Ben Nelson said this week, “The more I learned about my job, the more the job of governor appeared to be the job of a branch plant manager.”

Frustration with the expansionist and interventionist policies and regulations of Congress, the executive branch and the anti-federal decisions of the Supreme Court are coming to a head. The most recent example is this week¹s meeting of the nation’s five major state government “leaders’ organizations,” which convened in Cincinnati for “The Federalism Summit.”

The bipartisan confab has attracted more than 300 leaders from 50 states, including the elected leaders of the National Governors’ Association, the Council of State Governments, the National Conference of State Legislatures, American Legislative Exchange Council and the State Legislative Leaders Foundation. Purpose: to assess the current operation of the federal system and to review options to fix it.

The problems are clear. The Framers attempted to create a central government whose power would be greatly limited — by “checks and balances” and the “separation of powers”; by giving the central government strictly defined or “delegated” powers in Article I, Section 8; by reserving all residual powers to the states and the people, as stated in the 10th Amendment; and, believe it or not, by money constraints, because federal access to revenues was originally Limited primarily to trade revenues and excise taxes. Finally, the states could exercise a final “check” through their Article V power to initiate a constitutional convention if they felt the interests of the states or the people required it.

Over the last 200 years, these constitutional and practical Limits on federal power have eroded — not a little, but a lot. Examples: Because of the 17th Amendment, U.S. senators are now directly elected and have no accountability to state government; the fear of a runaway convention has mooted the ability of states to call a constitutional convention; federal courts have essentially negated both the concept of enumerated powers and the protections of the 10th Amendment which “reserves” power to the states and the people.

Perhaps most significantly, with the passage of the 16th Amendment and the increased use of the income tax, the federal government has become the nation’s biggest tax collector with the largest treasury — contrary to the intent of the Framers.

This greatly enhanced taxing authority — combined with the “necessary and proper” clause and a federal Supreme Court generally sympathetic to expanding federal power — has given Congress all the tools it needs to dominate policy development and administration at every level of government in the U.S. The result: State and local elected leaders are, as Gov. Nelson says, increasingly administrative agents or “branch plant” managers of a federal establishment that has seemingly insatiable proclivities for taxing, spending and micromanaging the lives of people and communities in addition to the activities of state and local governments in America.

The revolt is beginning to take shape. Remedial actions — some statutory and some calling for amendments to the Constitution — are being prepared. New coalitions are being formed. The days of the old order may be numbered.

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