Pubdate: Sun, 26 Jun 2005
Source: Oakland Tribune, The (CA)
Copyright: 2005 MediaNews Group, Inc. and ANG Newspapers
Contact:  http://www.oaklandtribune.com/
Details: http://www.mapinc.org/media/314
Author: John Yoo
Note: John Yoo, a law professor at the University of California, 
Berkeley, served in the Justice Department from 2001 to 2003.
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)

WHY FEDERALISM IS FOUNDERING

THE recent U.S. Supreme Court decision invalidating California's
medical marijuana law has come under fire -- correctly -- from both the
left and the 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 backyard -- marijuana that is not 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," wrote Thomas, "and the federal government is no longer one
of limited and enumerated powers."

But why blame the Bush administration too? In the medical marijuana
case, it was the Bush Justice Department that decided to defend use of
the 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: Then-Attorney General John Ashcroft ordered that
federal laws prohibit Oregon doctors from prescribing lethal doses of
controlled drugs to terminally ill patients. Lower federal courts
blocked him, but the administration has 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. Fortunately, in that case, the federal courts proved more
mindful of federalism than Congress and refused.

- -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 between only a man and
a 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 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.

Worse, imposing national rules in these areas suppresses the ability
of states to serve as "laboratories of democracy."

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

Federalism bestows a third benefit. The framers of the Constitution
sought to create a competition between the states and Washington,
D.C., 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, 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 disbursed."

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 under stand the
importance of states.
- ---
MAP posted-by: Richard Lake