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Posts Tagged ‘federalism’
March 21st, 2016 at 8:44 am
March Madness and Sports Betting
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In an interview with CFIF, Jonathan Wood, Staff Attorney at Pacific Legal Foundation, discusses the Professional and Amateur Sports Protection Act, as well as the constitutional questions surrounding the state by state discrimination in sports betting laws.

Listen to the interview here.


March 6th, 2015 at 11:47 am
Online Gaming Bill: Congressional Debate Should Include Pro-Liberty, Pro-Federalism Voices
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We at CFIF believe that the issue of online gaming should remain something addressed at the state level, as opposed to a new one-size-fits all nationwide ban over all 50 states.  We therefore oppose proposed federal legislation deceptively named the Restoration of America’s Wire Act (RAWA).

Rather than disrespect the foundational concept of state sovereignty in our federal system, not to mention the principles of free markets and individual consumer choice, it would be better for Congress to simply maintain existing law.  After all, what reasonable person today believes that even more federal regulation of something traditionally left to states and individual Americans should be commandeered by federal bureaucrats within a one-size-fits all straightjacket?  On the heels of the Federal Communications Commission (FCC) moving last week to regulate Internet service as a “public utility,” that question is particularly potent regarding something affecting the Internet sector.

Unfortunately, some in Congress don’t even appear interested in allowing a balanced debate of the pending legislation.  As detailed by Tim Carney of The Washington Examiner this week, a subcommittee hearing on RAWA is overloaded with witnesses there to support the bill.  Efforts to persuade the subcommittee to allow greater ideological balance, or even to permit equal time in a separate conference room, apparently fell of deaf ears.

That obviously suggests fear on the part of proponents of the proposed bill that equal time would undermine their case, and at any rate it certainly doesn’t satisfy fundamental concepts of fairness and open debate.  The proposed legislation is bad enough.  But for proponents to resort to questionable tactics in advancing it only makes things worse.

January 7th, 2015 at 11:58 am
Gun Control Lobby Takes Aim at the States

After misfiring in Congress, the gun control lobby is taking aim at states that allow voter-initiated ballot measures to enact tougher restrictions.

In the process, those in charge are also changing their name to the “gun safety” movement.

The policy preferences, however, remain the same.

“After a victory in November on a Washington State ballot measure that will require broader background checks on gun buyers, groups that promote gun regulations have turned away from Washington and the political races that have been largely futile,” reports the New York Times. “Instead, they are turning their attention – and their growing wallets – to other states that allow ballot measures.”

States in the crosshairs include Nevada, Arizona, Maine and Oregon. Others are sure to follow.

Conservatives should be cautiously optimistic about this move. While the U.S. Supreme Court has affirmed that the Second Amendment’s guarantee of a citizen’s right to “keep and bear arms” applies to the states (McDonald v. Chicago), the extent of that right is up to states and localities to decide. This is federalism. Local communities are in the best position to determine which regulations best serve the interests of residents.

But federalism as the Founders understood it assumes deliberation in the republican sense – i.e. policy choices are made by the people’s elected representatives, not by direct democracy via a statewide ballot initiative. The point of sifting public opinion through elected representation is to strip away passions and get down to first principles. Busy citizens don’t have the time or the staff carefully to review proposals that set the standards for civic life. Better to resource an elected representative with time and personnel, and then hold him accountable for the votes he casts.

Herein lies the reason to be cautious. Being thoughtful about big policy changes isn’t usually achieved in the context of a media-heavy campaign blitz dominated by 30-second ads. But this limitation is no reason for constitutional conservatives to sit on the sidelines. Removing social policy issues like gun control to the state level reduces the expense of advocacy while at the same time making the appeals more personal. If this trend continues, conservatives will need to build on their successes in other issue domains to defend traditional American values in the arenas that are available.

Though it would be better to locate policy debates within the institutions that are best equipped to handle them, if liberals want to make a direct appeal to the public, conservatives will be ready and waiting to respond.

October 24th, 2014 at 12:24 pm
Video: The Forgotten Amendment
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In this week’s Freedom Minute, CFIF’s Renee Giachino questions what limits exist on the federal government and the importance of state and local sovereignty as envisioned by the Founding Fathers.

August 21st, 2014 at 2:38 pm
Avik Roy Updates His ObamaCare Alternative

Credit Avik Roy for being open-minded.

A week after unveiling his ambitious – and controversial – reform of ObamaCare, Roy, a well-respected health policy expert, is incorporating some of the best criticisms as amendments to his plan.

Most of the changes are highly technical, and not worth delving into in a short blog post. For readers interested in specifics, here is the link to Roy’s updates page.

What’s refreshing about Roy’s response to his fellow conservatives is his willingness to defend his ideas, but not to the point of brushing aside legitimate improvements.

As to the biggest concern – that preserving ObamaCare’s insurance exchanges makes it possible that Democrat congressional majorities in the future might use them as a springboard to a single-payer system – Roy replies, “No health-reform plan can singlehandedly prevent Democrats from doing whatever they want if they ever again have 2009-size, filibuster-proof majorities. But if that’s the standard for constructive GOP reform plans, well, let’s just call it a day.”

Roy’s point is well taken, but it highlights a central tension among conservatives whenever federal policymaking is considered – Which is more important: Market efficiency or federalism?

Policy wonks like Roy tend to favor efficiency as a way to lower spending and improve citizen-customer experiences. Constitutionalists like myself tend to favor federalism and the policy diversity that it affords. Of course, different regulatory regimes produce market inefficiencies. However, that just may be the price of freedom.

Roy should be applauded for trying to make his ObamaCare alternative as strong as possible. Time will tell whether conservatives will come to favor an efficient, federally-regulated national market, or continue to favor a system that lets states and their citizens decide what works best for them.

July 31st, 2014 at 2:46 pm
Federalism on the Firing Line

With so much attention on the turf war between Congress and the President, it’s easy to overlook another, equally disturbing separation-of-powers crisis – the swift erosion of federalism.

Just as the U.S. Constitution assigns certain powers and duties to the three coequal branches of the federal government (legislative, executive, and judicial), so too does it differentiate lines of responsibility between the federal and state governments. This latter idea is known as federalism, and it’s in pretty bad shape according to a thought-provoking essay by Richard Epstein and Mario Loyola.

In particular, the practice of conditioning receipt of federal money on capitulation to federal regulations is turning states into mere enforcement officers.

“Federal officials exert enormous influence over state budgets and state regulators, often behind the scenes,” write Epstein and Loyola. “The new federalism replaces the ‘laboratories of democracy’ with heavy-handed, one-size-fits-all solutions. Uniformity wins but diversity loses, along with innovation, local choice, and the Constitution’s necessary limits on government power.”

Both parties are guilty, but the Obama administration has accelerated the trend. Poison pill programs like Common Core, ObamaCare’s Medicaid expansion, the federal highway system and the Clean Air Act all condition money for popular programs on local officials committing their states to dependency status.

“Federal ‘assistance’ to the states currently accounts for 30 percent of state budgets, on average,” according to the authors. “Since the early 1980s, the federal government has transferred about 15 percent of its budget to the states, which is almost as much as the federal deficit in an average year.”

Let that sink in for a moment. Annual federal transfer payments to the states roughly equal the yearly federal budget deficit.

Of course, eliminating the deficit isn’t as simple as zeroing out all federal-state spending relationships. Much of the logic of federal transfer payments hangs on the idea that poor states are funneled the resources they need to close the gap on some quality of life indicators with rich states. Until relatively poor states like North Dakota are allowed to fully exploit their natural economic advantages – such as being able to extract and export its huge oil reserve – ending redistribution without removing wealth-inhibiting regulations doesn’t make sense.

However, seeing the connection between the deficit and transfer payments to states does highlight the unsustainable nature of our current federalism-destroying arrangement. If we as Americans want to have more financial flexibility at the national level, we first need to remove the barriers to economic opportunity at the state and local level.

January 21st, 2014 at 7:46 pm
Time to REIN-in State & Local Govt. Too

Steven Hayward is out with a blistering piece on the need to remember that state and local governments can be just as mind-numbingly bureaucratic as the feds.

“A key principle of federalism is that state and local government would resist the centralization of power in Washington, and defend the principle of ruling with and by the consent of the governed,” writes Hayward. “It is time to recognize that this kind of government no longer exists…”

As proof he cites several stories of local cops shutting down kids’ lemonade stands, and county air pollution regulators that make more than the top officials at the federal EPA. One could add to this Santa Monica’s “ban the [plastic] bag” campaign, and any of former New York City Mayor Michael Bloomberg’s wars on salt and soda, among many others.

And it’s not just in deeply blue states that bureaucrats revel in meddling. The four lemonade stand shut-downs that Hayward spotlighted occurred in Texas, Georgia, Iowa and Wisconsin.

In a nutshell, states and localities have succumbed to a me-too mentality that simply creates mirror images of federal bureaucracy all the way down. In order to justify their existence, each level imposes fines, collects fees and issues regulations – many times at odds with each other. The duels over rule have gotten so pervasive, there’s even a judicial doctrine called “preemption” to help courts sort through competing claims over which gang of regulators gets to control citizens’ lives.

One way to limit any bureaucracy’s social footprint is to make its decisions subject to approval by the legislature that creates it. At the federal level, the REINS Act would require congressional approval before any regulation costing $100 million or more annually goes into effect. Similar efforts, with lower thresholds, could and should be pursued at the state and local level.

Putting state legislators and city council members on the record when it comes to imposing increases to the costs of living will likely reduce the number of increases imposed. After all, if it makes sense at the federal level, why not closer to home?

June 17th, 2013 at 4:33 pm
In the Battle of Ideas, the South is Winning
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Federalism essentially allows us a controlled experiment in which we can examine which policies work and which don’t by examining the contrasts between states that have chosen different paths. The results, as Joel Kotkin notes at the Daily Beast, are pretty lopsided:

The North and South have come to resemble a couple who, although married, dream very different dreams. The South, along with the Plains, is focused on growing its economy, getting rich, and catching up with the North’s cultural and financial hegemons. The Yankee nation, by contrast, is largely concerned with preserving its privileged economic and cultural position—with its elites pulling up the ladder behind themselves.

… While the Northeast and Midwest have become increasingly expensive places for businesses to locate, and cool to most new businesses outside of high-tech, entertainment, and high-end financial services, the South tends to want it all—and is willing to sacrifice tax revenue and regulations to get it. A review of state business climates by CEO Magazine found that eight of the top 10 most business-friendly states, led by Texas, were from the former Confederacy; Unionist strongholds California, New York, Illinois, and Massachusetts sat at the bottom.

… Over the past five decades, the South has also gained in terms of population as Northern states, and more recently California, have lost momentum. Once a major exporter of people to the Union states, today the migration tide flows the other way. The hegira to the sunbelt continues, as last year the region accounted for six of the top eight states attracting domestic migrants—Texas, Florida, North Carolina, Tennessee, South Carolina, and Georgia. Texas and Florida each gained 250,000 net migrants. The top four losers were New York, Illinois, New Jersey, and California.

There are only two options for the boutique coastal states and the union-dominated interior: emulate the South or be supplanted by it. This should be fun to watch.

March 4th, 2013 at 3:06 pm
Pocast: Virginia AG Cuccinelli Discusses “The New Fight for American Liberty”
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In an interview with CFIF, Virginia Attorney General Ken Cuccinelli discusses the role of the states to protect individual liberty and push back against an expansive federal government, and his new book, “The Last Line of Defense: The New Fight for American Liberty.”

Listen to the interview here.

October 23rd, 2012 at 5:56 pm
Want to Keep More of Your Income? Move to a Red State
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In keeping with my recent focus on the fruits of federalism — the divergence between states based on public policy — I thought I’d pass along the Tax Foundation’s newest numbers on state and local tax burdens. Here are the 10 most confiscatory locales in the nation (as reported by CNS News), represented in terms of the tax burden as a percentage of state income:

  1. New York, 12.8 percent
  2. New Jersey, 12.4 percent
  3. Connecticut, 12.3 percent
  4. California, 11.2 percent
  5. Wisconsin, 11.1 percent
  6. Rhode Island, 10.9 percent
  7. Minnesota, 10.8 percent
  8. Massachusetts, 10.4 percent
  9. Maine, 10.3 percent
  10. . Pennsylvania, 10.2 percent

And here are the 10 lowest:

  1. Alaska, 7.0 percent
  2. South Dakota, 7.6 percent
  3. Tennessee, 7.7 percent
  4. Louisiana, 7.8 percent
  5. Wyoming, 7.8 percent
  6. Texas, 7.9 percent
  7. New Hampshire, 8.1 percent
  8. Alabama, 8.2 percent
  9. Nevada, 8.2 percent
  10. . South Carolina, 8.4 percent

Notice a trend? All of the top 10 high-tax states are consistently blue (Wisconsin and — less likely — Pennsylvania may be in play this year, but those are exceptions to the historical trend). Meanwhile, all of the top 10 low-tax states are reliably red, with the two exceptions of New Hampshire and Nevada, both of which are in play this year, but both of which, regardless of party affiliations, also boast very libertarian political cultures.

The upshot: if you want to increase your take-home pay, move to a red state.


October 22nd, 2012 at 5:43 pm
Go West, Young Man … Just Stop Before You Hit the Ocean
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Take it from this Californian — the Golden State is no longer the destination du jour for starry-eyed dreamers looking to turn ambition into fortune. The rest of the west, however, looks pretty good. From the Daily Caller:

If you are looking to start a new business, Wyoming might be a place to consider moving. According to the Tax Foundation’s annual State Business Tax Climate report, Wyoming ranks first among the fifty states for most business-friendly tax code.

Behind Wyoming are South Dakota, Nevada, Alaska, and Florida. Washington, New Hampshire, Montana, Texas and Utah rank in the top ten.

For those of you keeping score at home, that’s eight of the top ten states for business located in the West. And if a pro-energy candidate wins the White House, expect the numbers from those states to become even more impressive, given the tremendous amount of resources in the region.

California has chosen gilded decline and reaped economic disaster. The rest of the west, however, has chosen freedom. And prosperity is following closely behind.

September 14th, 2012 at 12:22 pm
Video: The War on Federalism
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In this week’s Freedom Minute, CFIF’s Renee Giachino discusses the erosion of states’ rights, highlighting recent instances of Executive Branch attempts to expand federal power at the expense of state sovereignty.

August 23rd, 2012 at 1:12 pm
In Indiana, an Education Success Story
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Here at the Center for Individual Freedom, we recently launched a State Sovereignty Project that aims to encourage states to resist Washington’s encroachment on their constitutionally-protected powers. While resisting federal overreach is, in and of itself, a worthy pursuit, it becomes even more valuable when the states then use that freedom to enact major public policy innovations.

As I’ve noted here before, one of the areas where that charge is being met with the most vigor is in education reform, where a handful of Republican governors are transforming the way we think about public schools. One of the leading lights of this crusade has been Indiana’s Mitch Daniels, who successfully pushed legislation providing for the sweeping use of school vouchers in the Hoosier State. As a recent profile by The Economist notes, he’s getting results:

The voucher scheme, potentially the biggest in America, was set up a year ago as part of a big package of educational reforms led by Indiana’s governor, Mitch Daniels, and his superintendent of schools. These include teacher evaluations that take student performance into account, giving school heads more autonomy and encouraging the growth of charter schools. Jeanne Allen, president of the Centre for Education Reform, a Washington-based advocacy group, says the reforms are unique because Indiana has looked at education reform in its “totality”, rather than taking a piecemeal approach as many other states have done.

The Indiana scheme has allayed fears that vouchers will not reach their target audience of low-income families. In the first year about 85-90% of children receiving them have come from households that qualify for free school lunches. Moderate-income families can receive a voucher with a lower value. … Indiana’s philosophy of promoting choice has also extended to making it possible for students to apply to any public school—including those outside the school district in which the child lives. And some signs suggest greater choice is having a positive effect in Indiana. For one thing, some public schools have started to compete for students. They are advertising their educational prowess directly to parents, through billboard signs on highways, mailing campaigns and clothes carrying slogans. Schools are trying to make themselves more attractive to students, for example by buying iPads.

All well and good, but we can already hear the skeptics saying that competing for students isn’t the same as generating better results. Well …

The reforms have had already phenomenal results, according to Mrs Allen. Tony Bennett, the superintendent of public instruction in Indiana, arrived in 2009. Every student performance indicator has improved he says and over the last two years the state has ranked second in the country for achievement on college-level courses taken in high school. Graduation rates from high school are at an all-time high.

Competition is working intra-state in Indiana. Now, it falls to federalism to get it to work inter-state. If the Hoosier State keeps up the progress, it won’t be long before the nation’s education laggards start to realize that they could improve their results by following Indianapolis’ lead. No such comparisons would have been possible had education reform been imposed top-down from Washington. That’s one more reason to defend the Tenth Amendment.

August 17th, 2012 at 9:13 am
Video: Heroes of Federalism
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As part of CFIF’s ongoing State Sovereignty Project, Renee Giachino this week shines a spotlight on Heroes of Federalism.

July 30th, 2012 at 1:39 pm
California’s Surging Exports … of People
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We’ve made a bit of a cottage industry here at CFIF of chronicling the downfall of California, a truly great state where metastasizing liberalism threatens to kill its host. Over the weekend, the Daily Caller’s Angelica Malik put the results into sharp relief:

The California Manufacturing and Technology Association found in a recent study that 82 percent of companies surveyed did not consider California when expanding or opening a new facility.

The study also noted that companies looking to expand their operations favored states with proximity to their customers, generous tax incentives, low cost labor, proximity to suppliers and a comprehensible and a favorable tax system.

California ranked last or bottom tier in all of those categories.

This comes on top of the recent news that the Golden State ranked last in CEO magazine’s ratings of state business climates for the eighth straight year.

The upshot: billions in lost revenues, millions in lost citizens, and hundreds of fleeing businesses (with scores more downsizing or dismissing the prospect of heading to California in the first place).

There’s little here in the way of silver linings, except for this: there’s a fair bit of education here for the rest of the nation. If the Lilliputians of liberalism can tie down even mighty California, they can wreak untold havoc anywhere. No one is immune. It’s just a shame that it requires such a significant casualty to convey this point.

May 22nd, 2012 at 12:28 pm
To Get More Federal Money, States Claiming Volunteer Organizations are a Form of Welfare Spending
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One of the great triumphs of the federal welfare reform legislation passed in the mid-1990s was an insistence that states lay down tough work requirements for welfare recipients as a condition of receiving federal assistance. Though the fact is little publicized, however, another provision of the law allows states to substitute increased welfare spending for the work requirements and still receive money from Washington. That, of course, is an invitation to mischief, as reported by CNSnews, quoting Congressman Geoff Davis

“Many States have scoured their budgets to find other current program spending–such as for Pre-K, child care, and after school programs–they could report as TANF [welfare] spending,” Davis said at a hearing on Thursday. “Others began counting third-party spending–such as assistance offered by food banks and Boys and Girls clubs–as TANF spending.  One State even apparently found a way to count the value of volunteer hours by Girl Scout troop leaders as State TANF ‘spending.’

This is, by the way, all entirely legal under the law as written.

This is a worthwhile reminder: even legislation as noble as federal welfare reform is only as strong as those charged with carrying it out. The right laws are deeply important. But so are the right lawmakers.

April 18th, 2012 at 9:10 am
A Federal Budget That Ignores the Constitution
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Writing in the Washington Times, Richard Rahn — Senior Fellow at the Cato Institute and Chairman of the Institute for Global Economic Growth — puts the current state of federal spending in rather horrid relief:

The federal government is spending about 24 percent of gross domestic product (GDP). Most of it goes for Social Security, Medicare, Medicaid and other entitlement programs. The “discretionary” portion of the budget equals about 9 percent of GDP, with about half going for defense. Until 1930, the federal government normally spent less than 4 percent of GDP, except for the periods during World War I and the Civil War. The Constitution gives the federal government very few tasks for which it is required to spend money — the big item being the “common defense.” Again, up until 1930, the courts forced the federal government to live largely within the confines of the Constitution. Deducting defense spending from the federal budgets before 1930 shows that the federal government lived perfectly well on 2 percent to 3 percent of GDP for the first 140 years of the republic.

What all of this means is that approximately three-quarters of all federal government spending is not required by — and often is contrary to — the Constitution.

Conventional wisdom in Washington increasingly holds that those who wish to see the federal government pare back its expenditures rather than increase the tax burden on the American people are delusional, if not antediluvian. Yet for the majority of American history, the federal government was only a fraction of what it is today — and the Republic did quite well for itself.

Are we really to believe today that spending cuts that would still leave the federal government’s share of GDP several multiples higher than it was less than a century ago mark some civilizational rot? Because by all indicators (Europe comes to mind), the failure to prune seems to be the more perilous course.

August 26th, 2011 at 7:12 pm
Arizona Sues Feds Over Voting Rights Act

With its tough anti-illegal immigration law headed to the Supreme Court, the State of Arizona is opening up another legal front in its 10th Amendment tussle with Eric Holder’s Justice Department.  NBC News reports that the issue this time is the Voting Rights Act:

Arizona is challenging the law’s requirement that the state seek Justice Department approval for any changes in how elections are conducted. Many states are subject to the law’s pre-clearance requirement, generally to remedy past restrictions that discouraged minority voting.

“Arizona is still penalized for archaic violations that were corrected with the implementation of bilingual ballots prior to the 1974 elections,” said the state’s Attorney General Tom Horne. He noted that in 1974, Arizona became the second state to elect a Hispanic governor.

In his response, Attorney General Holder showed how tone deaf he is to any claim of federal overreach:

Vowing to fight the challenge, Holder said the provisions challenged in this case, including the pre-clearance requirement, “were reauthorized by Congress in 2006 with overwhelming and bipartisan support. The Justice Department will continue to enforce the Voting Rights Act, including each of the provisions challenged today,” he said.

So, a law is constitutional because Congress reauthorized it with “overwhelming and bipartisan support”?  There isn’t a justice on the Supreme Court who has let that kind of vapid thinking dissuade him or her from overturning a law.

If that’s the best defense Holder can muster, Arizona may have found the perfect foil to (unwittingly) help it downsize the federal government.

August 22nd, 2011 at 3:10 pm
Clarence Thomas and the Tea Party

From a must-read profile in the New Yorker on Supreme Court Justice Clarence Thomas:

The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.

Later on, the profiler notes that Thomas – along with other conservatives on the Supreme Court – is poised to overturn the clearest expression of government overreach in a generation: ObamaCare.  If that happens, Thomas’ judicial philosophy, and the Tea Party’s importance, will be vindicated.

January 21st, 2011 at 12:52 pm
The Economics of Federalism

Yesterday, 60 members of the House Republican majority endorsed a bill that would “deregulate” health insurance purchases by allowing consumers to buy plans across state lines.  The idea is to let companies compete on a national scale, spreading the risk and lowering premiums.  The bill is gaining support as a free market counterargument against ObamaCare’s one-size-fits-all regulation of health insurance.

There is a caveat.  In order to liberalize the insurance market, the GOP-sponsored bill must take away the states’ power to regulate insurance.  The reason insurance plans cost different amounts in different states is because individual states have different regulatory schemes.  Those schemes are the product of public policy decisions hammered out at the state level.  Importantly for 10th Amendment limited government types, the plan to “deregulate” the health insurance market comes at the expense of state sovereignty.

Ironically, the only way the House Republicans’ answer to ObamaCare gets passed is through an expansive reading of Congress’ ability to regulate interstate commerce “among the states.”  Members of Congress will (or at least should) have to struggle with which conservative principle they value more in this instance: the free market or federalism.  In a certain sense, federalism grants to states a public policy monopoly over all issues not expressly contained in the text of the U.S. Constitution.  That monopoly drives up prices for consumers in states with costly regulations.  Theoretically, if people want to pay less for health insurance, they could move to a state with less costly regulations.

Ideas like federalism have consequences.  As the Tea Party-flavored House GOP boards the ship of state, it will be interesting to see which crate of principles the revolutionaries toss over.

H/T: Los Angeles Times