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The Newest Federalism

A Commentary By Susan Estrich

Friday, January 08, 2010

In 1981, Ronald Reagan's ideologists pronounced his attack on the welfare state an expression of the "new federalism." It wasn't that they were against helping the poor and the needy, but that the federal government was the wrong branch of government to do it. Even the president talked about it. People, myself included, wrote papers.

Later on, the new federalists acknowledged and even boasted that of course they weren't for state welfare states, either. They were for smaller government, period, and less dependence and all the rest. But at the time, federalism was an easier pill to swallow.

That certainly was true for those who opposed civil rights legislation in the 1960s on grounds that the federal government lacked the power to regulate public accommodations, including hotels and restaurants, to prohibit private discrimination and to change the rules and procedures for voting. Each of those battles went to the Supreme Court, which upheld federal power.

It was also true, ultimately, for the opponents of the New Deal who, when they lost the fights in Congress, took them to the Supreme Court and won -- until the court backed down in the face of being packed and off we went to decades of upholding federal power.

There was a bubble around Reagan's time in the courts, as well, not so coincidentally, with the Rehnquist Court embracing its own version of federalism to impose limits on federal power. States as states were free of certain regulation, and limits were imposed on otherwise unlimited federal power in cases involving guns near schools and protests near abortion clinics. As always, there were debates as to whether the real moving forces in those cases were the hot button issues or the federal-state issues.

So it was probably just a matter of time before opponents of health care reform, who are as good at counting to 60 as anyone and know that the Democrats will not be counting that high again anytime soon, were bound to start talking federalism as the next step in a debate that won't end. I almost laughed when I heard the old quotes against HillaryCare dusted off. As someone once said, there you go again.

Regulating health care is a lot easier, in commerce clause terms, than telling the owners of a hot-dog stand in a park in the middle of nowhere who they have to serve on account of the fact that the bottle of ketchup they're using came in as interstate commerce. That was enough for the court. I don't hear too many people arguing that the civil rights laws are unconstitutional.

Now, you can't keep telling me that health care is the biggest economic issue -- 1/6 of our economy and all that -- and then turn around and say there's not enough of a connection to interstate commerce to require 20-year-olds to have insurance. Uninsured 20-year-olds have a much greater impact on interstate commerce than hot-dog stands. I can introduce you to some. They are forces of interstate commerce, and as every parent knows, they are not immortal. They get hurt. They get sick. They should have insurance. If that's the worst thing the nanny state ever does to all of us, I'd say a gracious thanks.

I would not for a minute say that it was unconstitutional, and neither, I believe, will the Supreme Court.

As for one state getting a better deal than the other 49, that is a political question that is precisely the sort the courts don't have to get into, meaning that it's the breaks of democracy, not a case of the majority unfairly discriminating. When you get done counting to 60, you still have to count to five. I don't see five votes to protect 20-year-olds from insurance. Too many parents and grandparents and aunts and uncles in the crowd. Not to mention decades of precedent and the Constitution itself.

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See Other Commentaries by Susan Estrich

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