The Electric Commentary

Friday, June 10, 2005

So you want a strong federal government, do you?

In the wake of Raich, many are celebrating the reaffirmation of federal power to regulate, well, pretty much everything. The New Republic had this to say in an editorial today:

The most radical dissenting opinion was written by Thomas. Thomas has proved to be the most reliable ally of the movement to resurrect what some conservatives call the Constitution in Exile, referring to limitations on federal power that have been dormant since the New Deal. In his dissent, Thomas said that courts should take it upon themselves to decide whether congressional regulations are "appropriate" and "plainly adapted" to executing powers explicitly listed in Constitution. Thomas's logic would uproot more than a century of Supreme Court cases, including the 1942 wheat case, and could paralyze the government's effort to enforce myriad regulations, including environmental and labor laws. As Stevens pointed out, Thomas's reasoning would also call into question Congress's power to regulate the possession and use of pot for recreational purposes, an activity that all states now prohibit.


My question to those of you that sympathize with The New Republic is, why are laws better if they are passed by the Federal Government? What is it, exactly, that gives someone the idea that a powerful Federal Government should be the default? The key to understanding this is realizing that the Federal Government differs from state government in a few important ways.

First of all, it is larger. State governments control a small section of the country. On the other hand, the Federal Government is perfectly capable of taking money from people in Illinois and giving it to farmers in Kansas. It is capable of raising the minimum wage to a point where a few people in Wisconsin have their lives slightly improved, while Californians are unaffected, and Nebraskans lose a few hundred jobs.

Therefore, federal laws have universal effect.

Second, The Federal Government is disconnected from its constituency. In general, a mayor is more accountable than is a congressman, than is a senator, than is a governor.

Therefore, the Federal Government is less accountable.

Those who support a strong Federal Government tend to cite successful federal programs. The Civil Rights movement and the New Deal safety net programs are frequently mentioned. The New Republic mentions environmental and labor laws as well. Some of these were unqualified successes (the civil rights movement), while others are controversial, but even assuming that these are all success stories, isn't there a dangerous flip side to this argument? After all, this argument is not really based on the benevolence of a few programs. In the absence of federal New Deal programs there is little doubt that a few states would have created programs that were similar to Social Security and Medicaid. Many of these programs would have come to exist with or without the Federal Government, albeit belatedly. What appeals to those who revel in a strong Federal Government is the universality of the regulation, and with it, the assumption that the Federal Government knows best. That is a dangerous assumption.

It is undeniably true that states make mistakes. The beauty of the federalist system of a "laboratory of democracy" is that the mistake is limited to that state. Moreover, the mistaken state will largely internalize the negative consequences of the mistake. For instance, Wisconsin has decided to tax wealth at an extremely high rate. As a result people tend to take their wealth out of state. There are probably some benefits to this rate and method of taxation but there are also obvious negatives. Fortunately, the people of Wisconsin have a choice. If they value Wisconsin's services they are free to stay, but if they would rather hang on to their hard earned cash and retire to Florida, they can do that as well. The negative aspects of the policy only impact Wisconsin. If Wisconsin's tax policy was enacted by the Federal Government it is extremely likely that we would have a much higher population of poor elderly people.

The risk when you nationalize a policy is that you will get it wrong, and occasionally the government does. Take sugar subsidies, for instance. Virginia Postrel recently wrote:

On this blog, I've often opined on the enduring problem of sugar protectionism, which drives sugar-using businesses out of the United States and stifles growth in developing countries that produce sugar far more economically than American farmers. Beet farmers and cane growers have tremendous political clout, even greater than environmentalists, Coca-Cola, and Hershey (not to mention free-trade advocates or consumers, who count for almost nothing in Washington).


When the Federal Government gets something wrong, they get it wrong for 250,000,000 people. That is the risk of a strong central government, and the very purpose of creating a government of limited and enumerated powers. In his dissent in Raich, Clarence Thomas wrote the following:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.

Respondents' local cultivation and consumption of marijuana is not "Commerce...among the several States." By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution‚’s limits on federal power.

Unfortunately John Paul Stevens, who penned the majority opinion, agrees with Thomas on this point:

We have never required Congress to legislate with scientific exactitude. When Congress decides that the 'total incidence' of a practice poses a threat to a national market, it may regulate the entire class.

He has guaranteed that if we as a nation fail at some point in the future, we will fail in spectacular fashion.

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