American Federalism Eclipsed by an Ideal of Democracy: Education Over Immigration as a Constitutional Problem

The U.S. Constitution includes immigration as one of the listed (i.e., enumerated) powers of the federal government. Education is not such a power; hence it resides with the States. Historically, the accumulation of power by the federal government has involved taking areas from the States even though those areas are not listed as federal powers. As a result, American federalism has shifted increasingly toward a consolidation of power at the federal level. Among other means, Congresses and U.S. presidents have used the power of the purse to gain control from the States. Education is a case in point, whether elementary, secondary, or higher education. That the U.S. Government has had trouble controlling the country's southern border with Mexico suggests that maybe adding education has come at the expense of the added attention and effort that could have been put on immigration. In business terms, an opportunity cost (i.e., the cost of foregone benefits) comes with each additional federalized area. U.S. President Obama on education presents us with a case in point. 

The full essay is at "Federalism Eclipsed by Consolidation."

Encroaching Political Consolidation: The Weakening of the U.S. Federal System

It is much easier to point out the sliver in the other person's eye than the plank in one’s own. Regarding the gradual political consolidation of power at the federal level in the U.S. at the expense of not only the member-state governments, but also the federal system itself, it is easier for a political party to dismiss its own contribution than to take a wider stance including the continued viability of the federal system, or federalism, itself. As a result, both of the major parties has contributed to the increasing political consolidation at the expense of the check-and-balance feature that a balanced federal system has.

The full essay is at "Encroaching Political Consolidation in the U.S."

On the Eclipse of Russian Federalism: Implications for the E.U. and U.S.

Dmitri Medvedev, President of the Russian Federation, fired Yuri Luzhkov in September, 2010, after Luzhkov, the mayor of Moscow (legally a governor of a region), had questioned the president’s fitness to rule. The conflict turned into a highly unusual spectacle because such defiance of the country’s leadership by a senior official rarely occurs in public. “It is difficult to imagine a situation under which a governor and a president of Russia, as the chief executive, can continue to work together when the president has lost confidence in the leader of a region,” Medvedev said at the time. The state-controlled television channels, which rarely if ever voice criticism of party leaders, suddenly went after Luzhkov, signaling the Kremlin’s displeasure with him. They broadcasted programs that suddenly questioned his performance and suggested that he was responsible for corruption in Moscow.  To be sure, he had been criticized for reigning like an autocrat, muzzling dissent and allowing blatant corruption to flourish. During his tenure, his wife, Yelena Baturina, obtained much of the construction business in Moscow, becoming one of the world’s richest women. However, it was criticism of Medvedev, rather than corruption, that costed him his job.  We can conclude more generally that the governors of Russia’s regions, who are equivalent to the prime ministers of the states in the E.U. and U.S., were not free, at least in one case, of the federal government. It bears remembering that a consolidated governmental system is not a federal system. The U.S. might take note of that, considering the amount of power the U.S. Government has taken from the state governments; in contrast, the E.U. Government, like the antebellum U.S. Government, has suffered from a lack of power relative to that of the state governments. 

The complete essay is at Essays on Two Federal Empires, which is on the E.U. and U.S.

On the Virtue of a Constitutional Moment: Reassessing the American System of Government

A constitutional moment engaging the citizenry is urgently needed with respect to the system of government in the United States. In short, the citizenry should decide, as a people, whether to revert back to a federal system or to make the political consolidation that has ensued official. If the latter, Alexander Hamilton's suggestion that the states be districts of the US Government, whose energy he thought could not directly extend to the outer reaches of the empire (i.e., into the wilderness of states distant from the seat of the U.S. Government). This was Hamilton's view in the U.S. Constitutional Convention; his writings eventually published in The Federalist Papers were meant to sell the proposed constitution rather than to give his own proposal. His own view may have come to pass, though through incremental Congressional encroachment on the turf of the governments of the several states and concurring U.S. Supreme Court assuaging (or enabling) doctrines.  I submit that this process of change over many years has eventuated in a gap between the system of governance as it is and as it is to be constitutionally.  Whereas some people argue that we must revert back to the constitution following a "strict" construction, I believe we the people, as a people, should commence a constitutional moment of heightened attention and debate concerning whether we want centralized consolidation (i.e., no states), decentralized consolidation (i.e., states as districts), or federalism (which entails dual sovereignty and a balance of power between the general government and the governments of the states).  I believe the latter is the best suited for an inherently diverse empire-scale political union, but that the people reach a decision is the important point now.  For otherwise, we will continue to live a lie--to claim to be a federal system while actually being consolidated: essentially flying with  bad instruments. 

The full essay is at "Reassessing American Government."

Eleven Time Zones in Russia: A Problem of Consolidated Empire

As of 2011, Russia had 11 time zones, from the Polish border to near Alaska, a system so vast that a traveller could get a walloping case of jet lag from a domestic flight.  In 2009, Russia was considering shedding some of its time zones.  People running businesses in the far east were complaining because the regulators were typically in Moscow, which could be several hours behind.    The issue blossomed at the end of 2009 into an intense debate across the Russian Federation about how Russians saw themselves, about how the regions should relate to the center, and about how to address the age-old problem of creating a sense of unity in a diverse federation that had been consolidated politically.  In short, the issue concerned the challenges involved in a consolidated empire. 

The full essay is at "Russia as a Consolidated Empire."

Consolidation in Russia: Federalism and Democracy at Risk

United Russia, the party led by Prime Minister Putin, decided in August, 2010 not to submit the name of the governor of Kaliningrad, Georgy V. Boos, for reappointment. The decision appeared to put pressure on governors to do more to ensure the satisfaction of those they govern, or to at least keep a lid on dissent. Governors had been popularly elected in Russia until a 2004 decree by Mr. Putin, then Russia’s president, that gave the president responsibility for appointing them. In that decree, the president is to select governors from a list of candidates drawn up by the governing party. Critics have said that the practice has made governors beholden to the Kremlin and insensitive to the popular sentiments. This can be problematic on two grounds.

The full essay is at "Consolidation in Russia."

Federalizing the Criminal Code: Racial Opportunity Costs

On December 13, 2011, a bipartisan group of legal experts told a panel of lawmakers in the U.S. House of Representatives that the federal criminal code had grown so large that U.S. citizens could not possibly keep up with it. “We ought to get rid of the old myth that you’re presumed to know the law,” Rep. John Conyers (D-Mich.) said. About 4,500 criminal statutes exist, according to Ed Meese, a former U.S. Attorney General under President Reagan. “This is in addition to over 300,000 other regulations that don’t appear in the federal code but nevertheless carry essentially criminal penalties including prison,” he said. “So the vast array of traps for the unwary that lurks out there in federal criminal law is more extensive than most people realize.” The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year.

The full essay is at "Federalizing Everything."

Van Rompuy as the European Council's First Extended-Term President

“In a sense, Europe seemed to be living down to expectations. Earlier, the foreign minister of Sweden, Carl Bildt, warned against a 'minimalist solution' that would reduce the European Union’s 'opportunity to have a clear voice in the world.'"  Olivier Ferrand, president of Terra Nova, a center-left research institute in France, said, “It is quite astounding. . . . It is jaw-dropping. It is the end of ambition for the E.U. — really disappointing.”

The full essay is at "Van Rompuy as the First President."

Source:

Stephen Castle and Steven Erlanger, "Low-Profile Leaders Chosen for Top European Posts," The New York Times, November 19, 2009.

The Checks and Balances of Federalism: Hungary vs. the European Parliament

One of the benefits of federalism is the checks and balances between the two systems of government existing in a federal system—that of the states and that of the federal government. That is to say, federalism can be thought of as a governmental system that contains two systems of government—that of the states and that of the federation. Either of these systems can go too far, and the other system should have the wherewithal to pull the other back without compromising its viability. This is why the consolidation of power in one system (e.g., the U.S. Federal Government) compromises the viability of a federal system at least with respect to its checks and balances. One other point: the two systems in a federal system are on the same level; that is, one is not “above” the other. Hence, the supremacy clauses in the E.U. and U.S. refer only to competencies or domains assigned to the federal government.

The full essay is at "Essays on the E.U. Political Economy," available at Amazon.

Is a Stronger Euro in Europe’s Interest? In America’s?

Speaking at the European Parliament in early February 2013, Francois Hollande of France castigated the floating exchange rate of the euro. “The euro should not fluctuate according to the mood of the markets. A monetary zone must have an exchange rate policy. If not it will be subjected to an exchange rate that does not reflect the real state of the economy.”  The week before, the euro was at $1.37, a 15-month high. The euro was at its strongest rate against the Japanese yen since April 2010. Behind the rise in the currency’s value was a surge in investor interest in the euro from assessments that the worst of the debt crisis had passed. Hollande’s statement can be critiqued on a number of points.

Was the upswing in the value of the euro just the beginning of the currency's rise as a reserve currency around the world?

The full essay is at Essays on the E.U. Political Economy, available at Amazon.

Bulgaria Shrugs Off the Euro

In early September 2012, Reuters reported that Bulgaria had “abandoned plans to adopt the single currency in response to deteriorating economic conditions and rising uncertainty over the prospects of the European Union. Finance Minister Simeon Djankov was quoted as saying as much.  Bulgaria was at the time the poorest state in the E.U. (similar perhaps to Mississippi in the U.S.). It is significant that Bulgaria was one of the least indebted states and was “trying to stick to tight fiscal discipline to avoid risks to the lev currency, which [was at the time] pegged to the euro.” In this regard, Bulgaria was like Finland and Germany in that it faced the prospect of paying for other states’ profligacy and lack of self-discipline. From this vantage point, it makes perfect sense for Bulgaria to demur. However, the perspective may be short-sighted in another respect. Specifically, Bulgaria risked missing the boat on the E.U.

The full essay is in Essays on the E.U. Political Economy," available in print and as an ebook at Amazon.

SCOTUS: Congress Coercing States to Expand Medicaid

The aspect of the court’s decision on “Obamacare” that forbids Congress (and the President) from threatening states by withholding funds already promised is significant in terms of American federalism. In his dissent, Scalia notes the Court had never before “found a law enacted under the spending power to be coercive.” In the case then before the Court, all but two justices found “the conditional of a State’s continued receipt of all funds under a massive state-administered federal welfare program upon its acceptance of an expansion of that program” to be just that, and thus unconstitutional. The majority was doubtlessly acting to protect federalism from even more encroachment by the U.S. Government at the expense of the sovereignty retained at least de jure by the state governments.

According to the precedent, while Congress can specify the purpose to which funds can be used by states, other funds already being received by the states cannot be held ransom. As a result, we can expect greater differences between the states in terms of government programs, including entitlement programs like Medicaid. Given the empire-scale of the American Union of fifty republics, such diversity is both natural and healthy. 

It is significant that in the case before the Court, twenty-six states were objecting to the Affordable Care Act. That the anticipated forced-expansion of Medicaid could have been onerous to the states may thus have weighed more heavily on the justices than did the burden of the mandate on individuals. By its decision, the Court gave those states some relief in being able to “just say no” to the expansion without having to lose existing Medicaid funds. In recognizing the states’ authority in this respect vis a vis that of the federal government, the justices evaded further political consolidation at the expense of federalism (and the sovereignty retained at least formally by the states). 

Sources:

 

National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al., 567 U.S. Supreme Court (2012).

Amanda Terkel, “GOP Governors Resist Implementing Obama’s Health Care Law DespiteSupreme Court Ruling,” The Huffington Post, June 29, 2012. 

No State Left Behind: American Education Eclipsing Federalism

Facing a federal requirement that every student be proficient in math and English by 2014, the member-states in the U.S. rushed to apply for waivers in 2011 and 2012. In 2010, 38 percent of the schools had failed to meet their goals for annual progress toward the 2014 goal. The U.S. Secretary of Education thought that figure could soar to 80 percent. When a school fails to meet such goals, the No Child Left Behind law requires “a series of interventions by the district and the state that can culminate in a state takeover. With so many schools failing, “that threatened to create an impossible burden on states and districts,” according to Chester Finn, director of an institute that studies education.[1] The waivers did not come without strings, however. The Obama administration pushed the governments to measure teacher performance, and put increased emphasis on low-performing groups as well as on the lowest-performing schools.

The full essay is at "No State Left Behind."

1. Richard Perez-Pena, “Waivers for 8 More States from ‘No Child Left Behind,” The New York Times, May 30, 2012.

Weakened U.S. Federalism as a Cause of the Financial Crisis

Weakening federalism in the name of preemptive deregulation played a major role in enabling the financial crisis of 2008. Specifically, Carter’s Depository Institutions Deregulation and Monetary Control Act of 1980 abolished Regulation Q (over time), which had limited thrifts’ deposit interest rates, and preempted “the many state usury laws that placed a ceiling on mortgage and credit card rates.”[1] Consolidation at the expense of federalism thus contributed as a risk factor.

The complete essay is at Essays on Two Federal Empires, available at Amazon.

1. Jeff Madrick, Age of Greed: The Triumph of Finance and the Decline of America, 1970 to the Present (New York: Alfred Knopf, 2011), p. 360.

The Affordable Care Act Running Up Against Federalism

According to Newsweek, "Conservatives have been quick to declare that "ObamaCare is on life support" in the wake of federal district court Judge Henry E. Hudson's ruling in Virginia that the Affordable Care Act’s (ACA) requirement to buy health insurance is unconstitutional. But in truth Virginia’s attorney general, Ken Cuccinelli, won only a partial victory. He sought to have the entire law overturned, but instead only the section creating an individual mandate was." This is perplexing to me, as the law contains a clause indicating that if any part is deemed to be unconstitutional, the entire act would fall. Clearly, the health insurance industry didn't want to be forced to pay out without being guaranteed the expanded customer base by the U.S. Government.  

The full essay is at "Obamacare and Federalism."

The Consolidation of Power in the American and Roman Empires: On the Rise and Fall of Empires

The American federal government was for at least a century, and perhaps even longer, primarily involved in defending the new empire and regulating commerce between the republics (or states more generically). By the dawning of the twenty-first century, the U.S. Government had grown both in scope and in the number of employees on its payroll while the governments of the republics had been reduced to functioning as little more than local governments. In other words, Congress had come to act like a state legislature, while the states had accepted their status as mere localities. This fundamental shift with respect to American federalism, as well as the empire-“kingdom”-city arrangement, bears a striking resemblance to the Roman empire. By implication, this similarity might lead us to some conclusions regarding the future the United States within the larger story of the rise and fall of empires.

The complete essay is at Essays on Two Federal Empires.