The first case involves the issue of ‚Äúpreemption.‚Äù Congress routinely passes laws and resulting regulations which are in conflict with state laws and regulations. These federal laws do not state whether or not they are intended to preempt the state regulations. Clearly, members of Congress don‚Äôt want their constituents back home asking why their state authority has been stripped. But Congress can have it both ways. They leave the legislation ambiguous, knowing that the federal courts will more often than not interpret the statute as preempting state law, allowing elected officials in Washington ‚Äúthe federal court did it, I didn‚Äôt‚Äù excuse. This allows for no debate on the issue in Congress, just a decision by that source of so much conservative affection: the federal judiciary…
Not only was [the principle of federalism] what our founding fathers created ‚Äì a federal government with limited, enumerated powers with respect for other levels of government, it also provided a basis for a proper analysis of most issues: ‚ÄúIs this something government should be doing? If so, at what level of government?‚Äù
As I understood it, states were supposed to be laboratories that would compete with each other, conducting civic experiments according to the wishes of their citizens. The model for federal welfare reform was the result of that process. States also allow for of diverse viewpoints that exist across the country. There is no reason that Tennesseans and New Yorkers should have to agree on everything (and they don‚Äôt).
Those who are in charge of applying the conservative litmus test should wonder why some of their brethren continue to try to federalize more things ‚Äì especially at a time of embarrassing federal mismanagement and a growing federal bureaucracy. I am afraid that such a test is often based more upon who is favored between two self-serving litigants than upon legal and constitutional principles…
Adhering to the principles of Federalism is not easy… However, if conservatives abandon this valued principle that limits the federal government, or if we selectively use it as a tool with which to reward our friends and strike our enemies, then we will be doing a disservice to our country as well as the cause of conservatism.
Answers like that, and adherence to his principles, will carry Thompson far if he decides to run. Ponnuru, in a subsequent post, argues their differences are largely definitional with contrary ideas on the extent to which the Commerce clause can be applied.
I believe that the Founders‚Äô design requires the federal government to keep states from interfering with interstate commerce… Large areas of federal law ‚Äî see, for instance, telecom, securities, health insurance, and airline law are devoted precisely to this purpose. On Senator Thompson‚Äôs professed principles, however, we should have dueling state regulations to govern these industries and called it ‚Äúfederalism.‚Äù
Extending Ponnuru’s argument, those same industries (specifically telecom, airlines, and securities) increasingly have global, rather than state and local implications. Should we, in the cause of expediency, implement global solutions and allow the UN to regulate such industries? I assume Ponnuru would say no. However, to argue that the cause of commerce is impeded because different governmental jurisdictions apply different legal frameworks is laughable if you say that doesn’t hold true at a higher level as well. Why can different nations apply different rules to those industries with no adverse impact?
Thompson is right. Conservatives have, for far too long, conceded the value of federalism in the pursuit of political and economic expediency. We have sold our soul for a fast buck, or a fleeting political victory. If Thompson runs, maybe he can begin the process of helping us reclaim it.