“It’s absurd. It’s impossible.”
“You’re wasting your time (and mine). States will never refuse Federal money.”
“Article 5 is in the Constitution, but the right to commit political suicide isn’t.”
All of these arguments were leveled at a member of The Coolidge Project, just last week, by someone very close to Mark Levin. This person presumed to speak on his behalf, even explicitly stating that this would be Mr. Levin’s position, as well. But we must clarify that these words were not directly from The Great One himself.
And that is a good thing. We vehemently disagree with this man’s position, of course, and would hope Mr. Levin does, too. We would not have spent nearly a year brainstorming, developing action plans, arguments, and this website, if we were not convinced of the possibility and, moreover, the necessity of The Coolidge Project’s goals.
But this eminent legal scholar (a higher-up at Levin’s legal foundation, no less), who waved off our Project, need not take our word for it. Perhaps the most prolific and persuasive Supreme Court counsel of our lifetimes can sway him?
Former Solicitor General of the United States Paul Clement pointed out very explicitly, on a FedSoc panel last November, that the Obamacare decision was remarkable in one key aspect: 7 out of 9 Supreme Court justices voted to strike down part of the law as unconstitutional, due to its intrusion on state authority.
”For the first time, there is now a Supreme Court case that holds that there is a limit on the extent to which the Federal Congress can coerce states to accept Federal money and Federal conditions.”
Mr. Clement, having personally argued this particular aspect of the law before the Supreme Court, knows this issue inside and out.
The aspect of the Obamacare law he refers to is the Medicaid expansion provision, wherein the court asserted that states could refuse to comply and the Feds couldn’t do a damn thing in retaliation.
The original group that eventually formed The Coolidge Project latched onto this under-reported aspect of the ruling late last summer, as the legal impetus for states to begin refusing all manner of “Federal money” and its requisite mandates. And, to reiterate, 7 out of 9 Supreme Court justices seem to agree with our position.
The future implications of this ruling are quite astonishing, given that level of support, even from Kagan and Sotomayor. How so? Well, the Clean Air Act holds “Federal” highway money over the heads of states that may fall short of its mandates. Might we see a challenge of this decades-old Act, in subsequent court proceedings? We would be willing to place large sums on the affirmative side, in that scenario.
Again, speaking at FedSoc, last November, Clement continued:
“The importance of having some limit there is underscored by something that Chief Judge Easterbrook pointed to, which is the 16th amendment. Because, once you have the 16th amendment, and once you have a very different understanding from the Framers, of the Federal authority to collect tax revenues, if there’s not some limit on the Federal government’s authority to say – ‘Look, states, we just taxed all of your citizens. And we’ve just taken all that tax revenue that, under the original design of the Constitution, you would’ve been able to tax, and we would not have been able to tax… Now that we’ve taken all of that money from them, we’re going to give some of it back to you if, but only if, you accept all of our conditions on how you spend it.’ – That, I think, the 16th amendment and the use of the spending power, in connection with it, if there are no limits, poses a real threat to federalism. And, I think, the fact that the court was willing to at least impose some limit on that I think could be very significant going forward. In fact, in some ways I think that could be the more significant portion of the opinion.” (Bold, underlined emphasis added. Italics were Clement’s emphasis.)
Later in the same panel discussion, he emphasized the importance of this even further, while providing an interesting bit of prognostication.
“There’s been this discussion about who is ‘principal’ and who is ‘agent’ in these various relationships in the Constitution. And I think that’s one thing I would say is why the spending power issue is so important. It’s because… I’m very intrigued by Heather (Gerken)’s point that there are ways for states to assert their authority through ‘uncooperative federalism’ (see our expose on Ms. Gerken’s “Progressive federalism” notion here) even in the context of Federal programs.
But there’s a problem with that. Which is that, the way the spending power operates, it has state agencies basically advertising to the world that they’re state agencies, implementing Federal power, and implementing Federal programs. And that… you know, if you think about federalism largely as being, among other things, about accountability, that’s a real problem.
As the discussion on the panel shows, the one thing you need, to have a ‘principal-agency’ relationship have any hope of working, is some agreement as to who is the principal and who is the agent. And, so, when the citizen gets hacked off at the state Department of Health and Human Services, because they’ve just imposed some outrageously stupid rule, it’s a problem if the basis for that rule is Federal law, but nobody knows it. They’re hacked off at the state and local official.”
Clement went on to muse that it would be an interesting thought experiment to see what would happen if Federal agencies were forced to carry out these regulations into the states themselves, without hiding behind the imprimatur of “state level” agencies.
Wouldn’t it, though?
And we can’t help but wonder what the inevitable pushback, from citizens of the several states, would look like.
The Coolidge Project can help bring about that eventuality, by (among other things) once and for all throwing into stark relief the fact that we, the people are the sole Constitutional principals, with governments at all levels being merely our agents.
Impossible? Nonsense. (And, as Adam J. Freedman points out, it’s already happening.)
But, necessary? Indubitably.
And we would hope that anyone who professes a desire to “restore federalism” would be consistent in that goal, by joining with The Coolidge Project to bring the state/Federal relationship back into the balance that true Founding federalism prescribes.