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Bush, Obama waltz with state sovereignty 

By Staff | May 29, 2009

In the waning days of the 2009 session, the North Dakota Legislature passed House Concurrent Resolution 3063 proclaiming state sovereignty and demanding that “the federal government halt its practice of assuming powers and imposing mandates on the states for purposes not enumerated in the Constitution of the United States.”

Ironically, while complaining about the ever-increasing role of the national government in the federal system, the Legislature was passing a state budget, one-third of which was coming from the federal government. Not only that, counties and cities drowning in spring floods were depending on millions of dollars from FEMA and the Corps of Engineers to save them from an eternity of debt. This dependence on the federal government begs the sovereignty issue.

The sovereignty of states has been eroding since the beginning. In the Constitution itself states granted the national government a share of their sovereignty in major policy areas and then included language with elasticity that enabled policymakers to adjust the meaning of state sovereignty to changing circumstances.

Being the party espousing less government, Republicans have favored states’ rights because states do less. However, with the development of interstate marketing on a grand scale, businesses now take a dim view of complying with 50 different state laws and regulations. In response to the business community, President George Bush abandoned the traditional Republican stance on states’ rights by promulgating scores of regulations that pre-empted state authority in the areas of environment, drugs, mortgages and a few others.

Because Democrats know that states are inclined to do less, they have favored action at the national level, usually at the expense of states’ rights. But when President Bush was proposing regulations that encroached on state sovereignty, Democrats opposed his pre-emption of state authority, not because they had repented of their nationalist ways but because of the issues involved.

President Obama now has agency heads scouring government regulations for cases where previous administrations had negated state sovereignty. He plans to become a new advocate for states’ rights by revising these regulations.

Speaking for the business community, the U. S. Chamber of Commerce warned that “removing federal pre-emption forces employers to navigate a confusing, often contradictory patchwork quilt of 50 sets of laws and regulations.”The declining enthusiasm for states’ rights by the business community undermines the Legislature’s hope to return to the state sovereignty that existed in the 1780s.

By playing with regulations, Presidents Bush and Obama are proving that the shape of states’ rights is not governed by a rigid interpretation of state sovereignty as stated in the Tenth Amendment, but it responds to the economic and social needs – and the politics – of each generation. In reality, we have a flexible federalism and pliable state sovereignty.

Omdahl is a UND professor emeritus in political science and a former lieutenant governor of North Dakota.

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