Federalism On Life Support: The Affordable Care Act And How It Affects You – Guest Essayist: Troy Kickler

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Criticism abounds regarding President Barack Obama and executive overreach. To name one example, the Affordable Care Act (ACA), commonly known as “Obamacare,” has raised the ire of many Americans. Expansive government and centralized approaches to political issues, admittedly, started before the Obama administration, but current executive overreach has accelerated the size of the national government and threatens individual liberty.  Various administrative divisions, whether classified as executive agencies or executive departments, such as the Environmental Protection Agency and the Department of Education, have been scrutinized, too. Through “the administrative state,” what some have labeled the “fourth branch of government,” the executive branch seemingly continues to have its fingerprints on more and more aspects of American lives.

Even though they may complain, many Americans still believe that the best answers come out of Washington, D.C.  In particular, they wait for presidential solutions to America’s problems. If the current administration is ineffective or suggests bad policy, many Americans believe that replacing the President with the right man or woman—their candidate—will alleviate all of the nation’s problems. Even champions of limited government and critics of executive overreach ironically often seek top-down solutions and focus most if not all attention on the national level while placing an inordinate amount of unconstitutional significance on the executive.

The founders understood exceedingly well that power in the national government might accumulate in one place or in one person. So, they divided the general government into three branches: legislative, executive, and judicial. Articles 1-3 of the Constitution spell out the powers given to each branch; it is not coincidental that Article 1, the one listing the powers of Congress, the representatives of the people, is the longest article.

Throughout the Constitution, checks and balances are interwoven and are designed to keep one branch from having exclusive power, or “whole power.” For instance, the President also has a legislative role when making policy suggestions in the State of the Union address or when vetoing a bill.  On the other hand, Congress has some power over the executive when overriding a veto or impeaching the President. The Senate, in particular, has authority to approve treaties and confirm judicial appointments.  (These are only a few checks within two of the three branches.) According to constitutional scholar James McClellan in his magisterial Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government, “The checks and balance system is probably the most ingenious and carefully crafted feature of the American Constitution” (331).

Although there are checks and balances in the national government, it is possible that the three branches can be walking lockstep in an unconstitutional direction. What is the “check” when all three branches seem to work together to empower the national government at the expense of individual freedom?  The founders, to be sure, anticipated centripetal forces, so they further separated power with federalism.

The instructive Federalist #39 explains the federal nature of the American government. The final sentences read: “In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.”

Alexis de Tocqueville considered federalism the Constitution’s greatest achievement; it could promote prosperity and protect the “freedom of man.” Many Americans nevertheless forget or underappreciate this dual sovereignty aspect of the Constitution. As a result, they overlook how states can push back against oppressive or encroaching national government and executive overreach. (Political scientist John Dinan of Wake Forest University has written about this approach in a 2013 CATO Policy Analysis titled “How States Talk Back to Washington and Strengthen American Federalism.”) Forgetting about federalism not only overlooks plausible societal and political solutions but also unwittingly contributes to a growing, modern notion that one office—President of the United States—should address all problems.

Like checks and balances, federalism is interwoven in the Constitution. Indeed, powers are given and denied to the national government, and states are prohibited from certain activities. The unmentioned powers are left to the various states. Here is a particular example of interlacing federalism in the Constitution: The presidency is part of the federal concept, for the Electoral College elects the President.  As a result, much emphasis is placed on states during a presidential election.

Although federalism’s importance has declined in the United States, debate still continues where exactly state power begins and national power ends. Americans need to remember that federalism can be a “check” on centralization and executive overreach. There are advantages to federalism, writes James McClellan, and one of them is that “obedience to all orders from a national capital is not automatic.” “Federalism,” McClellan continues, “makes it difficult for an unjust dictator or fanatical political party to seize power nationally and rule the whole country arbitrarily . . . Totalitarianism cannot succeed where federalism thrives” (318-19). In a federal context, then, local and state elections and politics are also ones of national importance, and federalism allows for innovative and informed approaches to our nation’s particular problems.

Troy Kickler is the Founding Director of the North Carolina History Project and Editor of northcarolinahistory.org

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2 replies
  1. Ron
    Ron says:

    Mr. Kickler is right on this one. 99% of the discussions I have with other conservatives, as well as 99% of what I hear on radio, tv, etc. focus exclusively on electing conservative presidents and congressmen. The 17th Amendment essentially neutered the states’ power that federalism granted them in the Constitution.

    Both “we the people” and the states enjoy the transfer payments from Washington and therefore don’t want to rock the boat and have those transfer payments reduced or cease, thereby enabling Washington to continue accumulating its power. So where we are now is at the point where both citizens and the states, even conservative ones, look to Washington, and especially to the president (even Republican presidents) to solve all problems, even local ones (which usually come from Washington with mandates).

    Unless “we the people” change our attitudes with respect to where problems should be solved, and unless we repeal the 17th amendment, regardless of which party rules the presidency and the congress, we’ll continue down the century-long path to a “living constitution” and the eventual demise of the Republic.

    Reply
    • Ralph Howarth
      Ralph Howarth says:

      There is a more sinister problem to overcome. The federal government enjoys the backing of the Federal Reserve that is able to print fiat money (or simply just issue credit) that in turn the federal government can bribe states with to obey edicts from on high. For states to regain independence would require states to get back to also issuing coin, and possibly on a money supply-demand basis: if it is not profitable to coin money, then don’t coin money. If the money supply becomes so thin that the demand for coin goes up, then resume coining. The value of the dollar then would attain a stable value basis floating somewhere around the price point of making more coin. The consequence of the Federal Reserve being cornered in the money market is that not only will the federal government loose its ability to keep bribing states, the US would be forced to trade on international markets in real dollars. Other countries cannot trade unless they have something to trade with. But the USA is able to just print money for trade without trading anything tangible because the current international trade currency is US dollars. When international trade dumps the dollar, then consumer prices at home will relatively go up.

      Reply

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