In an interview more than a year ago, Utah Gov. Mike Leavitt assured me that, despite losing some of its initial momentum, the states' rights movement, of which he had been a leader, was forging ahead. But now, while no one was looking, President Clinton seems to have stuck his boot out and gently flicked the movement back a decade or two. We may have to wait for a new president to set things on course again.
On May 14, while he was at an economic summit in Birmingham, England, Clinton signed an executive order he said would "guarantee the division of governmental responsibilities embodied in the Constitution." In reality, it wiped out guidelines that had been in place since the Reagan administration and proclaimed the federal government as the supreme master of the states.That rumbling you hear is the sound of Founding Fathers rolling over in their graves.
Almost as remarkable as the order itself is the fact no one noticed it. Only now are the nation's governors and state legislators mounting a protest. That's because the administration never consulted with any of these groups before issuing the order and because everyone was looking somewhere else. It's hard to pay attention to everything in a White House that has become a multi-ringed circus.
But the governors have since sprung to action. Leavitt flew to Washington last week to ask members of the House to request that the order be withdrawn. The Senate already has done so, but no one should expect action anytime soon. My guess is this isn't going to be a top White House priority, not with Monica Lewinsky poised to tell all and Ken Starr knocking on the door. That's too bad, because federal bureaucrats tend not to be distracted by scandals, and the order gives them license to begin micromanaging states.
Under the old rules, federal bureaucrats were required to first analyze how any new regulation would affect state and local governments and to use the 10th Amendment as a guide. That amendment says that powers not specifically delegated to the feds belong to the states.
The new order doesn't mention the 10th Amendment, and it says states are subject either to limits in the Constitution or to limits in federal law as determined by a federal bureaucrat. Rather than limiting the scope of the federal government, it talks about how the "supremacy of federal law provides an essential balance to the power of states."
So far, the only White House reaction has been surprise. Actually, Clinton himself probably was as surprised as anyone. Staff attorneys obviously drafted the order, which revokes guidelines Clinton himself signed in 1993. But that's no excuse.
Leavitt said it well as he told members of a House subcommittee that the new order is a backward way of looking at the relationship. "States are not supplicants and the federal government the overlord," he said. "States are not special interests. States are full constitutional players - a counterbalance to the national government and a protector of the people."
As the governor likes to explain it, the original Constitution made states equal partners with the feds by allowing state legislatures to elect members of the Senate. That meant the Senate always acted with the needs of the states in mind, and it prevented the types of laws that would force policies on states without providing the money to enact them.
All of that disappeared in 1913 with passage of the 17th Amendment, which requires senators to be elected by the people. While the change was necessitated by political abuses, it drastically altered the relationship between states and the federal government.
Now we have a gaggle of bureaucrats sitting behind desks in Washington who, as Leavitt said, "think their real job is to double as a state health director, chief of police or local road superintendent." And the states have little recourse other than to call a constitutional convention, a move for which few have the stomach.
For a while, the states' rights movement was all the rage. Congress passed the Unfunded Mandates Relief Act and politicians blustered about how unfair it was to force states to raise taxes to pay for things the federal government dreamed up.
Now, White House sex scandals are the rage and the administration is forcing states to pay for Viagra prescriptions for Medicaid patients.
Clinton should know better. After all, he used to be a governor. But it looks like the states have little choice but to ride out the storm and wait for a change of skippers before setting the course again toward a better balance.