Interstate cooperation pushes back on federal overreach

The correct term for state push-back against the feds is interposition. James Madison first applied that word to state constitutional checks on federal power. Interposition is built into our constitutional system. I’ve been advising state officials on interposition for nearly 30 years. In 2016 I examined the topic in a Heartland Institute issue paper (). This essay summarizes some of the paper’s conclusions and adds further observations. The methods of interposition range from very weak to the strongest possible constitutional approach. Several methods overlap, and state officials can use any or all of them. But some forms don’t always work and some backfire. Educational Methods One educational device is a state legislative resolution condemning some aspect of federal overreach. During the Clinton years, several state legislatures adopted “Tenth Amendment Resolutions.” The first of these, passed in Colorado in 1994, included the following language: “Be It Resolved … That the State of Colorado hereby claims sovereignty, under the 10th Amendment to the Constitution of the United States, over all powers not otherwise enumerated and granted to the federal government by the United States Constitution. “That this Resolution shall serve as Notice and Demand that the federal government, as our agent, is hereby instructed, effective immediately, to cease and desist, any and all mandates that are beyond the scope of its Constitutionally authorized powers.” This “Notice and Demand” was toothless, and federal officials ignored it. Sometimes even state officials ignore a legislative resolution. In 2011, the Montana legislature unanimously adopted a resolution opposing the Real ID program. Montana’s executive branch continued with the program, and the legislature eventually backed down. I believe the time for passing mere resolutions is long past. Whatever educational value inheres in them also inheres in more efficacious measures. Lobbying Congress State legislative resolutions memorializing Congress on federalism issues are one form of lobbying, but Congress figuratively consigns them to the circular file. In 1995, Michigan Gov. John Engler made it more personal. He camped out in congressional lobbies promoting a bill curbing federal mandates. He had some success. However, that was 26 years ago, when Congress was controlled by a new GOP majority eager to scale down federal excess. I don’t consider state lobbying efforts to be worth much today, except perhaps in moderating bad legislation that’s going to pass anyway. Judicial Challenges States have sued the feds repeatedly in recent years. States’ most significant victory probably was persuading a 7–2 Supreme Court majority to strike down Obamacare’s mandate that all states expand their Medicaid programs. A carefully considered judicial challenge is often worth the time and expense. But victories are rare and often narrow in scope. Litigation can be very slow. The Supreme Court upheld the remainder of Obamacare only because it was supported by a “tax” designed to force citizens to buy government-approved health insurance. Yet Congress repealed that “tax” four years ago, and by the Supreme Court’s logic, Obamacare should have collapsed. But litigation continues and the feds continue to force Obamacare on us—driving up costs, spreading arteriosclerosis throughout the medical system, and depriving states and families of health care freedom. Coordination Among States Interstate coordination is old, tried, and true: The first convention of American colonies was held in 1677 and the most recent convention of states met in 2017. There have been about 40 in all. The basic procedure is that a state calls a convention to consider a common problem, other states agree to attend, and the state delegations meet to consider the issue and propose a solution. Since the 1960s, conspiracy theorists have attacked interstate conventions on specious, often ridiculous, grounds. For example, in 1994–95, Nebraska Gov. Ben Nelson, a Democrat, and Utah Gov. Mike Leavitt, a Republican, proposed an informal “conference of the states” to explore common responses to federal mandates. Conspiracy fans claimed the proposed conference could become a “constitutional convention” that might stage a coup d’ état! As absurd as their claim was, it gave lukewarm lawmakers in many states an excuse to avoid participating. Fortunately, in these days of teleconferencing, in-person consultations usually are no longer necessary (except for constitutional amendment purposes; see below). In addition, several national organizations of state officials regularly meet to facilitate communication. These groups include the American Legislative Exchange Council (ALEC) and the National Conference of State Legislatures (NCSL).