Saturday, January 3, 2004

President Bush and allies in Congress, traditionally champions of small government and states’ rights, have pursued policies that expand the powers of Washington in the schoolroom, the courthouse, the home and the doctor’s office.

Some conservative critics fault Republicans for passing or promoting legislation and regulations that make Washington the final arbiter on environmental standards, class-action lawsuits, medical-malpractice cases and Internet taxes.

These efforts sometimes have come over the objections of states and often at the urging of business.

The extent to which the Bush administration has subordinated states’ rights is “somewhat breathtaking,” said Michael Greve, who heads the Federalism Project at the conservative American Enterprise Institute.

Increased federal power traditionally has been associated with Democrats, creators of the New Deal and supporters of the 1937 Supreme Court decision that gave Congress, with its authority to regulate interstate commerce, wide berth in entering areas that were the prerogative of states.

When Rep. Newt Gingrich led Republicans to a majority in the House in 1995, he stressed that “we are committed to getting power back to the states; we are committed to breaking out of the logjam of federal bureaucrats controlling how we try to help the poor.”

But Mr. Gingrich’s commitments often required states to fall in line with federal policy: Some money available under the massive 1996 welfare-reform law, for instance, was tied to states starting abstinence-only education programs. States seeking money for new prisons under a big crime bill were required to show that criminals were serving 85 percent of their sentences.

Mr. Bush, the former governor of Texas, ran as a strong states’ rights advocate. During the Florida election dispute, however, it was Al Gore who was forced to argue before the U.S. Supreme Court that the Florida state Supreme Court should have the final say on a recount. Mr. Bush insisted that the highest federal court step in.

As president, Mr. Bush has significantly increased the federal government’s reach with two of his biggest legislative achievements.

The “No Child Left Behind” education act inserts federal testing requirements and progress reports in an area that has been under state and local control. The “Patriot Act,” a result of the September 11 terror attacks, gave federal law enforcement greater authority to supersede states where necessary in investigations and prosecutions of criminal activity.

The education act, Mr. Greve argues, was “really a big, big marker in many ways, and a big, big turnaround.”

Republicans recognize the dilemma of being both proactive legislators and pro-states’ righters.

“I am essentially a states’ rights person. … I believe the federal government often usurps a lot of states’ rights,” Rep. Tom Tancredo, Colorado Republican, said last year in explaining why his proposal to limit federal highway money to states that provide illegal aliens with drivers’ licenses is a federal rather than a state issue.

David Boaz, executive vice president of the libertarian Cato Institute, which advocates limited government and individual liberties, said there are inevitable tensions when conservatives try to use federal power to override the actions of more liberal state governments.

But he also contends there has been a “hubristic” streak in the Bush administration, “an attitude that we know what the policy should be, for instance, for accountability in schools.”

Republicans in Congress this year again will push bills to move class-action lawsuits from state courts to federal courts, where damage awards to plaintiffs are less generous, and put federal ceilings on what state juries can award in medical-malpractice cases.

Republican lawmakers, with support from some Democrats, also are trying, over the objections of some states, to impose a permanent moratorium on Internet-access taxes after succeeding at supplanting some tougher state laws with antispam legislation last year.

In addition, Republicans are trying to give the Securities and Exchange Commission and federal banking regulators ultimate authority over banking fraud and investor rights, angering state officials who say it will undercut their antifraud campaigns.

The National Association of Attorneys General, in a letter to the Office of the Comptroller of the Currency, said the OCC’s proposed rule that might exempt national banks from state consumer-protection laws was “a radical restructuring of federal-state relationships in the area of banking.”

Mr. Bush signed a bill that, while increasing protections for individuals’ financial information, was criticized by consumer groups for pre-empting tougher state privacy laws.

Congress has used federal controls over highway money to compel states to adopt a national standard for drunken driving. The interstate commerce clause also was the basis of a new law restricting private ownership of lions and tigers.

Fourteen states filed suit to stop the Environmental Protection Agency from implementing new rules allowing coal-burning electric plants to make upgrades without installing more pollution controls.

Republicans also have extended the federal reach in areas important to social conservatives: Mr. Bush in 2001 restricted federal funding for embryonic stem-cell research and this year signed a bill that makes it a federal crime to perform partial-birth abortions. Federal officials are taking legal action against medicinal-marijuana laws in California and Oregon’s assisted-suicide law.

Cato’s Mr. Boaz said the next big fight will be over Republican attempts to stop state moves to sanction homosexual “marriages.”

“Some conservatives are saying we need one national policy, but that would be an unprecedented federal intrusion into marriage law that has always been controlled by the states,” he said.

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