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Saturday, September 17, 2005
By Steven L. Taylor

Ok, I have finally figured out the main point of contention between myself, Scott Gosnell and Matthew Shugart. (At least I think I have).

I agree with Matthew and Scott that the federal government has the right to collect taxes and then spend that money on items not enumerated in the Constitution, and that the states have the right to refuse that money, at least in theory. As such, the core of federalism is maintained.

My overall objection, which the Byrd Constitution Day requirement brought to fore, is that Congress has been known to abuse this relationship in a way that I think tips the federal scales far more in their direction than ought be the case.

What do I mean by this? Well, it is one thing for Congress to say that, for example, that the federal government will give the states the money to fund the purchases that citizens make under the Food Stamp program so long as the state pays the administrative cost. The federal government, in this case, sees a legitimate public need, but lacks the delivery mechanism at the state level to provide the service, and the cost to develop such an apparatus separate from state institutions would be prohibitive, not to mention a duplication of existing capabilities. The state, on the other hand, has poor citizens in need of assistance, but may not be able to pay for such assistance, yet already has the ability to deliver services directly to citizens. So we end up with a useful policy synergy that involves both levels in our federal system.

States could refuse the offer from the federal government, but there is no good reason to do so. All well and good—although I do think that this element of policy-making and implementation in the United States is poorly taught and poorly understood. Further, it does allow the Congress to involve itself in public policy areas not covered by Article I, Section (neither via the Expressed/Enumerated Powers nor via Implied Powers).

Ok, so what’s my objection and what in the world does it have to do with Robert Byrd and Constitution Day? Well, what I find irksome is when the policy relationship entered into between the state and federal governments can then be used by the feds to adjust its demands on the states. Byrd’s rider in the appropriation bill is just that sort of ex post alteration to the contract (i.e., a generic mandate made on the states that must be complied with, or funds will be withdrawn, but where said mandate had nothing whatsoever to do with the original policy partnership).

This is what Congress did in the 1970s when it mandated a lowering of the speed limit to 55. The states had been receiving highway funds for decades and were highly dependent on the money, and so when Congress said lower the speed limit or lose your highway funds, what choice did the states really have? I would argue none, and I would further argue that that type of action weakens federalism in a way that is not consonant with the Constitution.

In short, the amount of money involved, and the dire need of funds at the state level, means that the federal government can change the terms of the “contract? at will, at least in practical terms. Sure, the states could stop taking the money and thereby halt the mandate, but that is simply not a realistic option.

So, when Byrd basically threatens to pull funds if states don’t celebrate Constitution Day, I see that an abuse, even if the goal is one that could be considered laudable.

Although, as I noted at Matthew’s place: give Byrd some credit, as he has gotten us to talk about the Constitution!

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6 Responses to “Perhaps the Fouth Time…”

  1. KipEsquire Says:

    “[T]he federal government has the right to collect taxes and then spend that money on items not enumerated in the Constitution, and that the states have the right to refuse that money, at least in theory. As such, the core of federalism is maintained.”

    But there is another “core of federalism” that you are completely overlooking — the idea that the federal government should only use federal taxes for federal functions, states should only use state taxes for state functions, and localities should only use local taxes for local functions — what I call “fiscal federalism.” If government, at all levels, held true to fiscal federalism, then your “Spending Clause – Enumerated Powers – Implied Powers” conundrum would evaporate.

  2. ATM Says:

    Indeed part of the problem is that the federal government takes in too much revenue directly. Lower federal income taxes and let states increase their own taxes.

  3. Bryan S. Says:

    I think it’s called blackmail in the real world.

    Don’t forget the 21 year old drinking age extortion. Louisiana resisted raising the drinking age for years and had horrible roads as a result.

    In this relationship, the federal government is like the pusher who gets the addict hooked and then starts upping the cost of supplying the drugs, knowing that the addict can’t quit.

  4. Rob M Says:

    I find the best part of this debate the fact that Byrd inserted Constitution Day into a Conference Report.

    A Mandate with no Debate. :)

  5. Fruits and Votes Says:

    Federalism and Constitution Day once more

    OK, I relent. I was not going to say any more about this issue.
    But Steven posted the other day a further clarification of a point he and I have been bouncing forth and back and forth again, with Scott also getting into the mix (and all of us making…

  6. Federal Taxes Says:

    Federal Taxes

    Income taxes and the number of members in your LLC Great niche market. N


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