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  •   Supreme Court Rulings Fuel Fervor of Federalists

    By William Claiborne
    Washington Post Staff Writer
    Monday, June 28, 1999; Page A02

    The Supreme Court's trio of bold rulings last week giving states more power at the expense of the federal government is being welcomed by state leaders as putting the issue of federalism on the front burner again.

    "We are entering a new frontier of federalism, and I can confirm that there is not just an appetite for rebalancing the relationship between the national and state governments, but there is room for achieving it," said Utah Gov. Mike Leavitt (R), a strident advocate of states' rights.

    Strict federalists have pursued the elusive goal of adhering to the constitutional framework conceived by James Madison and other founding fathers who envisioned a central government that oversaw national defense, diplomacy and foreign trade, with virtually all other powers residing with the states. For the most part political conservatives, many of these champions of states' rights view congressional initiatives from the New Deal of the 1930s to the Great Society of 1960s as encroachments on the exclusive domain of states.

    On the other side of the debate are those who contend that a strong federal government has been crucial to achieving the most progressive reforms in U.S. history, including ending slavery, enacting child labor laws, creating the Social Security system and enforcing civil rights guarantees in the Constitution.

    Now, with the Supreme Court's rulings last week curbing the power of Congress to enforce certain federal laws, it appears that it is the advocates of states' rights who may be gaining the upper hand.

    Leavitt predicted that the 1998 Internet Tax Freedom Act could be affected by the Supreme Court's rulings restricting Congress's ability to make federal law binding on the states. The act placed a three-year moratorium on electronic commerce.

    "There you have the capacity of states to create their own tax policy being infringed upon by the national government," Leavitt said. "But what we are seeing is a Supreme Court beginning to reassert the federalist principles upon which this nation was founded."

    However, Raymond C. Sheppach, executive director of the National Governors' Association, said that while he welcomed Wednesday's rulings, along with earlier court decisions favoring states, he doubted that the court could move quickly enough to block such measures as the Internet tax law.

    "It's a scary, insidious trend, a lot of it driven by the international marketplace, and we are on a little bit of shaky ground," Sheppach said. "I don't think they can move quickly enough in that area."

    Daniel M. Sprague, executive director of the Council of State Governments, said the Supreme Court's decisions last week "pique people's interest again in the federalism issue, particularly since there's been a fairly steady erosion of powers in the past."

    Sprague said next year's presidential campaign will be of particular interest because of its potential effect on the Supreme Court. The court's two longest-serving members, Chief Justice William H. Rehnquist and Justice John Paul Stevens, could retire and leave openings for the next president to fill.

    "There should be a lot of questions put to the candidates in terms of a litmus test for future justices on the federalism issue," Sprague said.

    Though last week's high court decisions rekindled the issue of federalism, there have been other times in recent years when governors and state legislators have raised their voices over what they view as a steady erosion of states' rights.

    State leaders of both parties were driven by growing opposition to so-called "unfunded mandates," the costs states bear in enforcing federal regulations attached to environmental and social welfare laws that Congress passes on to state and local governments without regard to how they will pay for them.

    The last major burst of federalist fervor came five years ago, when a group of governors – mainly from the western states – tried to organize a "Conference of States," which they envisioned as a precursor to a constitutional convention aimed at correcting what they felt was an imbalance in the federal-state relationship.

    Led by Leavitt and endorsed by the governors' association and the National Conference of State Legislatures, the movement advocated either forcing Congress to vote on constitutional amendments giving the states more power or, failing that, calling a constitutional convention to consider the amendments. The preliminary "Conference of States" would draw an action plan for a new federalism, according to the plan.

    Ironically, the "Conference of States" proposal was torpedoed by far-right political activists who feared a runaway convention that would rewrite the Constitution. The conservatives threatened to block state legislation by appointing delegates to the convention, and the initiative collapsed.

    The impetus for New Federalism eventually subsided, and it has largely been replaced with the issue of "preemption," which states' rights advocates view as another tool of Congress to compel states to do as it wishes.

    Among the preemptive legislative acts that rankle states' rights activists the most are those governing electronic commerce, deregulation of electric power companies, health care and attempts to intrude in local planning and zoning issues.

    "It limits the capacity of states to be joint participants in the federal system," Leavitt said. He used language from Justice Anthony M. Kennedy's majority opinion Wednesday in which the justice declared, "Congress has vast power but not all power. Congress must accord the states the esteem due to them as joint participants in a federal system."

    © 1999 The Washington Post Company

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