- - Sunday, October 13, 2013


Well, it’s Day 14 of the government shutdown. It is getting darker. The air is getting thinner. It’s starting to get cold. So cold.

Wait. That’s just the arrival of autumn. Things are going just swell for most of America. State and local governments are still open for business. This is not to say that the 800,000 federal workers on furlough are not having personal anxiety, and that is regrettable. However, we should remember that the purpose of the federal government is not to employ people, and that most public services can and should be provided by the states.

The recent sequestration showed that the federal government could easily survive $85 billion in cuts this year. Although the initial cuts were directed at high-profile, popular programs, when agencies finally had to get serious about implementing the cutbacks, they suddenly found extra change in their couch cushions to survive. This exercise was a cinch compared to what states had to go through following the economic downturn.

The current shutdown is certainly a more momentous occasion — with almost 40 percent of the civilian federal workforce on furlough. But now that government baby boomers have seen that the flimsy barricades they erected are not going to keep the Greatest Generation from visiting their WWII memorial, we should take a moment to realize the opportunity presented by the current shutdown.

The federal government has not passed a budget in more than four years. While the sequestration has brought spending down somewhat, the government still is running a $750 billion deficit this year, and we are bumping up against a $16.7 trillion overall debt limit. Alexander Hamilton famously said that a “national debt, if it is not excessive, will be to us a national blessing,” but enablers of deficit spending frequently edit out the qualifying clause.

In contrast, almost every state operates within the confines of a balanced budget. When less money is brought in through taxation, states face the difficult but political task of cutting services or raising taxes, and rightly so. Some states, such as California, have enacted so much nondiscretionary spending that cuts to other programs during periods of declining revenue are dramatic. Congressmen are largely insulated from political accountability, thanks to gerrymandered, safe districts. In contrast, most states and their legislators are more politically accountable to their residents, and they make cuts that are appropriate for local circumstances. When they balance incorrectly, their residents can move, or the governor of Texas can come visit to encourage businesses to relocate there.

Isn’t it time to realize that in a situation where there is a do-nothing Congress and a resulting nonfunctioning federal government, governing power should devolve to the states? This was Ronald Reagan’s promise during the 1980s, and was an implicit but unfulfilled part of Newt Gingrich and Dick Armey’s 1994 Contract with America. Since 1995 (and as recently as last year in its Obamacare decision), the Supreme Court has increasingly recognized that the Commerce Clause of the Constitution does not provide unlimited authority to the federal government.

Quite simply, the federal government shutdown of 2013 presents states with a unique opportunity to fill the void. Where federal OSHA is no longer inspecting worksites for safety issues, existing state-level OSHAs can perform this function. Similarly, while 93 percent of the U.S. Environmental Protection Agency has been deemed nonessential and furloughed, the state environmental agencies can demonstrate their ability to perform these functions — many of which have been the subject of duplicative regulation heretofore. Having shown that states are capable of carrying out previously local functions, advocates of limited national government should come out of this shutdown with strengthened arguments. This would serve as a welcome step back toward the restrained role that the Framers intended for our national government.

Darin R. Bartram is a partner at BakerHostetler, where he focuses on constitutional, environmental and administrative litigation. BakerHostetler represented the states challenging Obamacare before the district court and the 11th Circuit.

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