Pubdate: Wed, 22 Jun 2005
Source: Orlando Sentinel (FL)
Copyright: 2005 Orlando Sentinel
Contact:  http://www.orlandosentinel.com/
Details: http://www.mapinc.org/media/325
Author: John Yoo, Special to the Sentinel
Note: John Yoo, a law professor at UC Berkeley and visiting scholar at the 
American Enterprise Institute, served in the Justice Department from 2001 
to 2003. He wrote this commentary for the Los Angeles Times, a Tribune 
Publishing newspaper.
Bookmark: http://www.mapinc.org/ashcroft.htm (Ashcroft, John)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

BUSH TIPS BALANCE OF POWER TO FEDS

The recent Supreme Court decision invalidating California's medical- 
marijuana law came under fire -- correctly -- from both the left and right 
for undermining federalism. But observers have missed the real culprit in 
the court's flagging interest in balancing federal and state powers: the 
Bush administration.

Justices Clarence Thomas and Sandra Day O'Connor explained the problem in 
their dissents. Granting Congress the authority to regulate small amounts 
of marijuana grown in a back yard -- marijuana that is never sold and never 
crosses state lines -- makes a mockery of the efforts of the Constitution's 
framers to place limits on federal powers.

"If Congress can regulate this . . . then it can regulate virtually 
anything, and the federal government is no longer one of limited and 
enumerated powers," Thomas wrote.

But why blame the Bush administration, too? In the medical-marijuana case, 
it was the Bush Justice Department that decided to defend the use of 
federal drug laws to suppress homegrown marijuana.

That decision followed many others that show the administration's lack of 
interest in the proper balance of powers between state and federal governments.

Consider its position on these issues:

The right to die: Former Attorney General John Ashcroft ordered that 
federal laws prohibit Oregon doctors from prescribing lethal doses of 
controlled drugs to terminally ill patients. He threatened to revoke the 
federal licenses of doctors who followed the Oregon law allowing 
physician-assisted suicide. Lower federal courts blocked him, but the 
administration pursued the case to the Supreme Court, which will review it 
this fall.

The president's support for Congress' efforts to block the death of Terri 
Schiavo: Congress issued an extraordinary directive to the federal courts 
to intervene in the normal workings of family law, an area that has 
remained under the control of the states since the birth of the republic.

Gay marriage: Last year, in response to activist judges and local officials 
in Massachusetts and San Francisco, the president proposed a constitutional 
amendment defining marriage as only between a man and woman. The "Family 
Marriage Amendment" would override state laws experimenting with gay marriage.

The No Child Left Behind Act: This 2002 Bush law reduces state autonomy in 
education by imposing uniform testing requirements. It uses the threat of 
significant restructuring of school operations if districts do not meet 
federal standards, all in an area that has historically fallen under the 
control of the states.

The best of intentions may be behind these measures, but they follow a 
dangerous constitutional strategy. Demanding rigid, one-size-fits-all 
nationwide rules counteracts the benefits of federalism, which calls for 
decentralized governance. Federalism allows states to compete for residents 
and businesses. Some will choose to live in California because they are 
willing to trade high taxes for strong environmental rules, while others 
may want to live in Massachusetts because of gay marriage.

Worse, imposing national rules in these areas suppresses the ability of 
states to serve as laboratories of democracy. As Justice Louis Brandeis 
said, "It is one of the happy incidents of the federal system that a single 
courageous state may, if its citizens choose, serve as a laboratory; and 
try novel social and economic experiments without risk to the rest of the 
country."

Expand federal power and you retard the innovation that can answer 
difficult national problems.

Washington should intervene only when it's clear that a single federal rule 
will solve a nationwide problem that cannot be cured by individual states.

Federalism bestows a third benefit. The framers sought to create a 
competition between the states and Washington to prevent government from 
trampling on individual liberty.

Because of federalism and a separation of powers, James Madison wrote in 
the Federalist Papers, "a double security arises to the rights of the 
people. The different governments" -- state and federal -- "will control 
each other; at the same time that each will be controlled by itself."

Early in his presidency, President Bush pledged to "make respect for 
federalism a priority in this administration," and he affirmed the 
founders' belief that "our freedom is best preserved when power is dispersed."

Now, he should give the Supreme Court an example to follow by heeding his 
own words, remaining humble about the abilities of Washington to cure 
social problems and appointing federal judges who understand the importance 
of states.
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MAP posted-by: Beth