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Susan Estrich
12 Feb 2016
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5 Feb 2016
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The Newest Federalism


In 1981, Ronald Reagan's ideologists pronounced his attack on the welfare state an expression of the "new federalism." It wasn't that they were against helping the poor and the needy, but that the federal government was the wrong branch of government to do it. Even the president talked about it. People, myself included, wrote papers.

Later on, the new federalists acknowledged and even boasted that of course they weren't for state welfare states, either. They were for smaller government, period, and less dependence and all the rest. But at the time, federalism was an easier pill to swallow.

That certainly was true for those who opposed civil rights legislation in the 1960s on grounds that the federal government lacked the power to regulate public accommodations, including hotels and restaurants, to prohibit private discrimination and to change the rules and procedures for voting. Each of those battles went to the Supreme Court, which upheld federal power.

It was also true, ultimately, for the opponents of the New Deal who, when they lost the fights in Congress, took them to the Supreme Court and won — until the court backed down in the face of being packed and off we went to decades of upholding federal power.

There was a bubble around Reagan's time in the courts, as well, not so coincidentally, with the Rehnquist Court embracing its own version of federalism to impose limits on federal power. States as states were free of certain regulation, and limits were imposed on otherwise unlimited federal power in cases involving guns near schools and protests near abortion clinics. As always, there were debates as to whether the real moving forces in those cases were the hot button issues or the federal-state issues.

So it was probably just a matter of time before opponents of health care reform, who are as good at counting to 60 as anyone and know that the Democrats will not be counting that high again anytime soon, were bound to start talking federalism as the next step in a debate that won't end.

I almost laughed when I heard the old quotes against HillaryCare dusted off. As someone once said, there you go again.

Regulating health care is a lot easier, in commerce clause terms, than telling the owners of a hot-dog stand in a park in the middle of nowhere who they have to serve on account of the fact that the bottle of ketchup they're using came in as interstate commerce. That was enough for the court. I don't hear too many people arguing that the civil rights laws are unconstitutional.

Now, you can't keep telling me that health care is the biggest economic issue — 1/6 of our economy and all that — and then turn around and say there's not enough of a connection to interstate commerce to require 20-year-olds to have insurance. Uninsured 20-year-olds have a much greater impact on interstate commerce than hot-dog stands. I can introduce you to some. They are forces of interstate commerce, and as every parent knows, they are not immortal. They get hurt. They get sick. They should have insurance. If that's the worst thing the nanny state ever does to all of us, I'd say a gracious thanks.

I would not for a minute say that it was unconstitutional, and neither, I believe, will the Supreme Court.

As for one state getting a better deal than the other 49, that is a political question that is precisely the sort the courts don't have to get into, meaning that it's the breaks of democracy, not a case of the majority unfairly discriminating. When you get done counting to 60, you still have to count to five. I don't see five votes to protect 20-year-olds from insurance. Too many parents and grandparents and aunts and uncles in the crowd. Not to mention decades of precedent and the Constitution itself.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



8 Comments | Post Comment
I almost laughed when I heard the old quotes for HillaryCare were dusted off again. Someone is not seeing the big picture. You know children in America that are without health insurance. There are adults without insurance as well. Can we take a trip through American, Europe, and Canada and find which system has the most people dying on waiting list for doctors? Which is better? The system that says it will treat everyone or the system that actually treats everyone? It would be nice if there were facts available. My guess is that we are probably both misinformed. The trip is necessary because governments are incompetent at most everything and can't even produce reliable statistics. <br />
Lets try another approach. Name government institutions versus private institutions and then we'll tally which ones work better. I'll start off. <br />
Post Office vs. Federal Express <br />
Veterans Hospitals (government run and free) vs. Private hospitals veterans that can afford to pass on free government health care go to instead. <br />
Your turn

Comment: #1
Posted by: calvin
Fri Jan 8, 2010 6:08 AM
Wow! So corruption (bribery) in the federal government is ok! It's just not ok in the world of capitalism.
Also, civil rights was about personal rights guaranteed by the Constitution. No so with health care. It's not a right granted by the constitution. The same is true for federal welfare (taking from the rich to give to the poor).
I thought Susan was an educated person, apparently not! She's just another leftist loon.
Comment: #2
Posted by: Early
Fri Jan 8, 2010 6:13 AM
I hear all the right-wingers whining about big government and big spending now that Obama is in office. Where were those same mouths when George W. was enslaving future generations to the Chinese in exchange for billions in loans to fund two questionable wars off budget. Now the interest on that debt is being placed On-budget to make Obama look like a big spender. And now these guys say, "...I want my country back."???? Hello, .... they gave it away.
They accuse Obama of having a Socialist agenda, when they turned the pursestrings of this country over to the Chinese Communists every time they passed an off-budget war spending authorization. I'd rather have a Socialist Health program than have us subservient to the ChiComms. One final thought,,,we recently authorized 35,000 more troops to Afghanistan. Did that make us safer on Christmas Day from the Gonad bomber???
Comment: #3
Posted by: robert lipka
Fri Jan 8, 2010 7:28 AM
Re: robert lipka
Hello Robert! You obviously live in the isolated island of liberalism. Many conservatives were SCREAMING at Republicans about the over spending. If you look at the election findings you would note that conservatives stayed home! Some conservatives even voted for Obama they were so angry at Republicans. The pork that was being strapped to bills were making us crazy. I do believe that Republicans and Democrats in D.C. are destroying our country, I believe however that Democrats are doing it at warp speed.
Comment: #4
Posted by: barbara
Fri Jan 8, 2010 2:27 PM
Have you read the health care bill? After seeing the special on the Bilderberg secret society by Jesse Ventura(Hillary and Bill are members) with their goal to make a one world government, all of the push for health care made sense. The control of who gets care and who does not is a way to decrease the population. They want the elderly gone who have memories of what America was like. This society feels America is holding them back and we are the only ones they cannot control. With Obama along with Reid, Pelosi, Clintons and many more in power they are bulldozing what they want because they know in November most will be voted out. Please watch the special and comment everyone who reads this. Susan I challenge you to write about them and I know you will not because Hillary is involved. I should say the democrats will ostracize you . My question to everyone is: Is this what you want for your children and grandchildren? Susan is this all true or false? I know you know!!!!
Comment: #5
Posted by: Kathaleen
Sun Jan 10, 2010 5:32 AM
Robert Llpka - In this war (and it is a war), either the Islamist terrorists destroy us or we killl them first. I think I know which side you're on.
Comment: #6
Posted by: Early
Mon Jan 11, 2010 8:14 AM
Bush kept us free from terrorist attacks after 9/11 but he did it at an unnecessary price. In exchange for support of Iraq and Afghanistan, he agreed to not veto any spending bills. The Republicans in both houses used this as a chance to load up all spending bills with pork for their districts and States. The tax cuts worked fine, but they were exceeded by excessive spending during good economic times. To keep the ball rolling both parties kept interest rates too low for too long, and allowed unnecessary risks to be taken by the financial institutions. There was a very good reason that the Glass-Segal act was passed years ago, and were it still in place the financial impact experienced in 2008 would have been much milder. Now we are monitarizing the debt (i.e.Printing money) that has to be taken out of the money supply or massive inflation will follow. The only winners in inflation are federal and state governments that experience increased tax revenue do to tax indexing, and the ability to pay back old debt with cheaper money. Not the little guy, I sold a house in 1980 and put money down on a house being built when home interest rates were 11%. Six months later when the house was finished and I went to close rates were at 21%. Yes folks, rates rise that fast in inflation.
Comment: #7
Posted by: red5mutual
Tue Jan 12, 2010 2:54 PM
Re: red5mutual
Red I remember those days! The good ol Jimmy Carter years. I was a senior in college that had lots if kids studying Petroleum Engineering. The Shah fell and those students' families came over in masses. Tons of Iranian Jews. I remember graduating in Spring of 1979 and not being able to get a job because unemployment was 12% and making sure to get up at 5am on even days to be able to put gas in my car. Had to buy a car at 21% because my car had been totaled by a drunk driver. Actually Obama does not remind me of Jimmy Carter he makes me think of what I read about Woodrow Wilson. Unfortunately today people do not learn from their mistakes. We will definitely be revisiting them. The scary part is that technology has definitely moved on since between World War I or II. If we look at another World War at least we won't have to worry about Global Warming- whoops! Forgot it's now Climate Change. Debt is what hurt us in the past and it will cause our downfall in the future.
Comment: #8
Posted by: barbara
Tue Jan 12, 2010 4:40 PM
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