New Cato Paper Proposes Fixes for Loss of Federalism

By:  Joe Wolverton, II, J.D.
New Cato Paper Proposes Fixes for Loss of Federalism

A new study published by the Cato Institute proposes several tactics for the restoration of federalism.

As the Obama administration accelerates the federal government’s accumulation of all powers — those that constitutionally belong to it and those which should rightly remain with the states — conservative and libertarian organizations are searching for a way to apply the brakes.

The Cato Institute recently released a new policy analysis by John Dinan, "How States Talk Back to Washington and Strengthen American Federalism." In his paper, Dinan points to several ways states can limit federal overreach, beyond lawsuits, lobbying, and nullification.

According to a press release announcing the new publication, "Decentralized federalism is at the core of Cato's policy and Dinan, a professor of politics and international affairs at Wake Forest University, shows how political and legal processes offer states a way to limit the reach of the federal government."

The study declares that states can use the following tactics to simultaneously push back against the feds and make headway in the restoration of federalism:

Decriminalization: Using regulatory authority states can enact measures decriminalizing certain prac­tices, hoping federal executive officials will not enforce federal statutes in states with contrary policies.

Nonparticipation: States can decline to partici­pate in federal programs and accept the des­ignated penalties, hoping Congress will revise statutes or executive officials will issue rules or waivers that moderate the programs.

Judicial Reconsideration: When federal judicial doctrine is uncertain or in flux, states can enact measures inconsis­tent with Supreme Court precedents, hoping the Court will reconsider and relax judicially imposed constraints on state policy discre­tion.

Judicial Veto: States can also enact measures inconsistent with federal statutes, hoping the Supreme Court will invalidate or limit the reach of federal statutes.

Dinan’s study provides examples of states successfully employing these tactics in gaining relief from federal laws and regulations relating to marijuana, education, abor­tion, and health care.

“These examples show the kind of leverage states officials have in pushing back against federal officials and securing modification or repeal of policies that burden states or impose unnecessary uniformity,” the press release declares.

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