February 24, 2021

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Justin Owen: Give power back to the states, as Founders envisioned

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Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America. Click HERE to read the series.

With the Democrats holding a slimmer-than-expected majority in the House and a 50-50 split in the Senate, the next two years will represent an almost equal tug of war between Republicans and Democrats in Congress. Rather than simply fight over who wins this particular short-term battle, a more significant long-term path forward would be to return more control to the states and the people themselves like our Founders envisioned, so that whatever happens in Washington means less to our daily lives. 

Indeed, our Founders were perpetually concerned about vesting too much power in a single governmental body, let alone the federal one. They took pains to craft a system that kept any single branch from asserting or any centralized federal government from amassing too much authority. As Thomas Jefferson said, “It is by dividing and subdividing these republics from the great National one down thro’ all its subordinates, until it ends in the administration of every man’s farm and affairs by himself; by placing under every one what his own eye may superintend, that all will be done for the best.”

There is no more local control than that which resides at the kitchen table. Our Founders knew we were a country of individuals who granted the government enumerated powers. And that a government closer to the people would far better represent them than one centralized in a faraway land.

So how do we do that in practice with a federal government encroaching ever further into our daily lives? First, our nation’s governors and state legislators need to assert their authority to make decisions that should be local and not dictated by the federal government. This should include more block grants and state control over existing programs that are currently directed by federal agencies. 

Tennessee Gov. Bill Lee, for example, recently secured an agreement to make his state the first to receive the equivalent of a block grant to run its Medicaid program. Among other changes, the new plan allows the state to develop innovative ways to serve Medicaid patients and receive an even split of all cost savings. Previously, any and all savings reverted to federal coffers. This use-it-or-lose it approach has left no incentive for the states to be more efficient and effective with those dollars, resulting in Medicaid becoming the largest single government program in most states and the third-largest government program.

By allowing states to be laboratories of democracy as intended, Congress can turn its attention to using the power it actually does have to rein in the administrative state. With duly elected lawmakers passing legislation rather than ceding authority to bureaucrats to make laws via rule making, we can finally begin to get the federal government out of every facet of our lives.

Right now, the bulk of federal intrusion comes not from Congress, but from unelected bureaucrats making up a 400-agency administrative state. A longstanding constitutional principle was the nondelegation doctrine, which forbade Congress from delegating its authority to the executive branch. But by time I went through law school a decade ago, this doctrine was taught as some kind of ancient and mysterious codex. The consequence of ignoring the nondelegation doctrine? The Federal Register — a compilation of executive branch rules and regulations — now sits at an astonishing 70,000 pages.

Fortunately, the Supreme Court has signaled that it might soon resuscitate this important check on executive power. By requiring Congress to pass the laws that impact our lives, there would once again be accountability to the people, and — as it is harder to enact laws through the legislative process than it is to pass rules through the administrative state — fewer laws altogether. 

Returning more control to the states and decimating administrative red tape will do far more to fix our fractured society and minimize the harm done by our dysfunctional federal government than any individual or political party ever could. Who sits in the White House and who controls Congress is, of course, important. But should it consume us? If these people didn’t have so much effect over our lives, perhaps we could rest easy knowing that it wouldn’t matter quite as much, just as our Founders intended.

⦁ Justin Owen is president and CEO of the Beacon Center of Tennessee think tank. 

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Justin Owen
2021-02-23 17:54:48

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