Republican enthusiasm for states' rights on back burner

WASHINGTON -- Traditionally the champions of small government and states' rights, President Bush and his allies in Congress have aggressively pursued policies that expand the powers of Washington in the schoolroom, the courthouse, the home and the doctor's office.

Sometimes over the objections of states -- and often at the behest of business -- Republicans have passed or are promoting legislation and regulations that make Washington the final arbiter on environmental standards, class-action lawsuits, medical malpractice cases and Internet taxes.

The extent to which this administration has subordinated states' rights in carrying out its political agenda is "somewhat breathtaking," said Michael Greve, who heads the Federalism Project at the conservative American Enterprise Institute.

Federal power has always 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 normally are the prerogative of states.

When 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 Gingrich's commitments often came with a catch requiring states to fall in line with federal policy: Some of the money available under the massive 1996 welfare law, for instance, was tied to states starting abstinence-only education programs, and states seeking money for new prisons under a big crime bill had to show that criminals were serving 85 percent of their sentences.

George W. Bush, the former governor of Texas, ran as a strong states' rights advocate until the Florida election dispute, when it was Al Gore arguing before the U.S. Supreme Court that the Florida state supreme court should have the final say on a recount. Bush insisted that the highest federal court step in.

'A big, big turnaround'

Bush has since 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 always been under state and local control. The "Patriot Act," a result of the Sept. 11, 2001, terror attacks, has given federal law enforcement greater authority to supersede states where necessary in investigations and prosecutions of criminal activity.

The education act, said Greve, was "really a big, big marker in many ways, and a big, big turnaround."

Republicans have recognized 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, R-Colo., said this year in attempting to explain 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 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 said there's also been a "hubristic" streak in the Bush administration, "an attitude that we know what the policy should be, for instance, for accountability in schools."

Backed by the business community and after failing in 2003, Republicans in Congress this year will again be pushing bills to move class-action lawsuits from state 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.

GOP lawmakers, with support from some Democrats, also are trying, over the objection of some states, to impose a permanent moratorium on Internet access taxes after succeeding at supplanting some tougher state laws with anti-spam 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 anti-fraud 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."

Bush also signed a bill that, while increasing protections for people's 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 have 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: Bush in 2001 restricted federal funding for embryonic stem cell research and this year signed a bill that for the first time makes it a federal crime to perform a certain type of abortion. Federal officials are also taking legal action against medical marijuana laws in California and Oregon's assisted suicide law.

Cato's Boaz said the next big fight will be over GOP attempts to stop state moves to sanction gay 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.