The new federalism

Posted: Mar 22, 2006 12:51 PM

The recent court decision voiding the efforts of the Bush administration to allow utilities to upgrade their plants — partially, rather than fully, as the law requires — signals the start of a redefinition of federal-state relations.

The plaintiff in this litigation was not an aggrieved individual or company but a dozen states acting in concert to battle the Bush rules.

On the merits of the lawsuit, I agree with the administration. The all-or-nothing requirement on upgrading utility plants has served to freeze the current dirty technologies in place and prevent any improvements at all. Half a loaf, in this case, is better and cleaner than none. But apart from the merits of the case, its true significance is that the states had acted together to challenge federal action.

The last three years of the Bush administration will be marked increasingly by just this sort of united state action, designed to fill the void left by a federal government that either refuses to act or doesn’t believe that action is necessary. The initiative will pass increasingly to the states on issues like consumer protection, global climate change, energy alternatives and conservation, fuel-efficiency standards, and environmental regulation. The large states led by activist governors will act where Washington won’t tread.

This pattern represents a total change from the traditional concept of states’ rights, a doctrine usually used to justify inaction or a conservative bent. But now states’ rights will be redesigned as a rubric for bold action by states acting in concert to do the things that Washington should do but won’t.

The early pattern was set when the nation’s attorneys general banded together to sue the tobacco companies, even as Congress, in the grip of tobacco lobbyists, failed to pass legislation to protect children from ads for smoking. By acting together, the states had the same force and effect as if Washington itself had acted. And so it will go in other areas as well.

As the nation moves away from its oil dependency, look to states to develop hydrogen and ethanol plants and to require certain percentages of vehicles sold within their borders to be powered by these new fuels.

The national consensus around advances on stem-cell research and the rejection by public opinion of the religious right’s concern for the fate of discarded embryos will lead to other states’ replicating the funding for stem-cell research that California voted for.

While Washington won’t move to tighten fuel-efficiency requirements for automakers, the states will probably band together to enact more draconian requirements for vehicles sold within their borders.

Even as the federal government moves to foreclose lawsuits by aggrieved by nursing homes and other corporations, look to more enlightened states preserving the right of action under their own laws.

Washington won’t raise the minimum wage while the Republicans run the government, but states will act in concert to do so, helping their poor and stopping any state from gaining a competitive advantage over another by failing to raise the wage requirement.

In each of these cases, and in many more, the state will be the tail wagging the dog. With the liberal state governments in the Northeast combining with California, the activist states would constitute such a large percentage of the national population that their actions would have the same market-making effect as a federal law.

The Compact Clause of the United States Constitution requires that agreements among states be submitted to the Congress for approval. Thus, for example, when New York and New Jersey set up the Port Authority, the deal had to be sealed with congressional action.

But these multistate agreements will not need to go to Congress because they will not be legally enforceable by one state against another. If New York reneges on its commitments for joint action, for example, California would have no basis to sue to demand that the relevant law be enacted.

In a sense, leading activist governors will come to the fore in the next three years to become domestic-policy presidents, replacing the inactive Bush administration with a proactive agenda of state action. The resulting shift of the scene of action from Washington to Sacramento, Albany, Harrisburg, Springfield, Columbus, Boston and Trenton will be welcome to most Americans who see the Bush domestic policy as passive and far too limited.