Pubdate: Sun, 05 Jan 1997 Source: New York Times (NY) Copyright: 2001 The New York Times Company Contact: http://www.nytimes.com/ Details: http://www.mapinc.org/media/298 Author: Keith Bradsher Note: Accompanied by photograph encaptioned 'Dennis Peron, a campaigner for the initiative passed in California to allow the medical use of marijuana, smokes a joint' STATES' RIGHTS LOSE SOME OF THEIR HIGH Los Angeles - Ever since Ronald Reagan's "new federalism" revived the debate over states' rights in the 1980's - and particularly since Republicans took control of Congress in 1994 - power has seemed to be ebbing from Washington. Last year, the Federal Government gave up its six-decade responsibility for welfare. California, like other states, has moved to assert its authority in other areas, voting to side-step the Federal commitment to affirmative action and Federal drug laws on marijuana. The trend may be unmistakable, but devolution, it turns out, isn't revolution. Arid it isn't easy, as advocates of states' rights, particularly in the West, are learning the hard way. They have been angered at recent assertions of authority by the Clinton Administration and the Federal judiciary. A month ago, a Federal judge temporarily blocked California from cutting back affirmative action programs, even though a majority of voters in a November referendum had required state officials to do just that. On welfare, Clinton Administration officials have suggested in recent weeks, as more money and responsibility for administering it passes to the states, that there will be more Federal strings attached than some state officials had expected. And last week the Administration threatened penalties for doctors who prescribe marijuana for patients in California and Arizona, where citizens recently voted to permit marijuana use for medical reasons. The latest development, like earlier ones, has left some advocates of state rights sputtering. "We consider this action by the Government to be Soviet repression," said Sam Vagenas, the political consultant who coordinated the successful November referendum campaign in Arizona to legalize medicinal use of marijuana. But on the marijuana issue, even some defenders of state rights concede that some of their brethren can take things too far. Daniel E. Lungren, the California Attorney General and generally an outspoken sup-porter of state rights, said drug policy should be under Federal control because of the Federal Government's constitutional responsibility to regulate interstate commerce. "The Federal Government has the authority and it's legitimate for them to stand up," he said. Big-Government Fans His view suggests one reason why the web of Federal authority is unraveling as slowly as it is: liberals aren't the only fans of big government. Among conservatives, libertarians have promoted the devolution of Federal power and a general reduction in governmental authority at all levels. But cultural conservatives have tended to look for help at whatever level of government seems most accommodating. "Very few people are attached to federalism as a matter of principle, and it's hard to blame them," said William Kristol, the editor of the Weekly Standard, a conservative journal in Washington. "It's not a principle that has as much force as liberty or morality." Last year, for example, with states' rights advocates ascendant, the Republican-led Congress passed a law setting forth a Federal definition of marriage as the union of one man and one woman, as it authorized states not to recognize Hawaii's gay marriage rules. Throughout this century, Federal power has tended to increase when states take action that the majority views as irresponsible (be they southern states in the civil rights era or Hawaii today) or when states acting independently create a hodge-podge of regulations (governing workplace conditions, for example) seen as contrary to the general good. Yet the overall shift toward state power seems to be continuing. On close examination, each of the three recent exercises of Federal power appear quite limited. They demonstrate only that change comes slowly in a Federal system full of constitutional checks and balances and reliant on more than two centuries of legal precedents. While the prospect of Federal penalties against doctors drew headlines last week, the Administration's stance was actually quite mild. It did not file a lawsuit or take other sterner measures despite previous hints that it might do so. Instead of asserting the Federal Government's authority over drug policy, the Clinton Administration warned that doctors who prescribe too many, illegal drugs could lose their Federal certification to write prescriptions. Offenders could also be barred from receiving Medicaid or Medicare payments. But criminal penalties for doctors, while not ruled out, were played down. On welfare, the Administration seems to be moving toward making Federal grants to the states conditional on their spending their own money to meet certain Federal standards. But those moves are, in effect, brakes on an overall transfer of authority to the states. While such Federal restrictions have irked advocates of states' rights, numerous court decisions have long upheld the. Federal Government's right to attach conditions when doling out Federal money. The outcry from advocates of states' rights has been loudest over the Federal judge's injunction barring California from enforcing its referendum limiting affirmative action. But California referendums have a history of quickly winding up in court, and the judge's move surprised few lawyers who had been following the issue. If anything, the Federal judiciary is trying to gradually transfer more authority to the states. In the Supreme Court, one of the hallmarks of Chief Justice William H. Rehnquist's tenure over the last 10 years has been his emphasis on expanding states' power. Some constitutional scholars expect the court to rule this year against a section of the Brady gun-control law, for example, that requires local sheriffs to run background checks on gun buyers. The Judicial Conference of the United States, the policy-making body for lower Federal courts, has also opposed legislation to turn domestic violence and other offenses into Federal crimes. The members of the conference, not wanting to burden the Federal judiciary further, are hoping the state courts will shoulder the load. "They've tried in any number of ways to unload cases that have been in the Federal courts and put them in the state courts," said Mayor Dennis Archer of Detroit, a former justice of Michigan's Supreme Court. Constitutional scholars have argued that the balance of power between the Federal and state governments tends to shift over very long periods of time, with cycles lasting as long as 60 or 70 years. "We are clearly in an era in which the pendulum is shifting toward state power," said Paul Gewirtz, a law professor at Yale University. "But it should surprise nobody that even in an era of that shift, we still see Federal power in area after area."