One of the ironies of the current conservative mania for “state sovereignty” is that it seems to have magically reappeared as part of the conservative mindset at the precise moment Barack Obama took office. George W. Bush was famously inclined to favor federal policies that preempted state laws that affected business interests, along with so-called unfunded mandates that pursued conservative policy goals, particularly in the law enforcement area.
So I guess it was no surprise that silence is pretty much all we heard from the deeply principled ranks of conservative Tenth Amendment fans when the President issued a landmark directive last week aiming towards reversal of Bush’s preemption habit:
Obama, in a memorandum to federal agency heads issued late Wednesday, said his administration should undertake regulations preempting state laws in rare instances and “only with full consideration of the legitimate prerogatives of the states and with a sufficient legal basis for preemption.”
The president ordered department heads to review all regulations issued in the past 10 years that are designed to preempt state law and determine whether they are justified under the new policy. If they cannot be justified, Obama said, his administration should consider amending the regulations.
Bush administration officials inserted preemptive language into dozens of federal regulations, in many cases shielding corporations from restrictive state laws. For instance, federal preemption provisions stopped California from enforcing a law limiting greenhouse gas emissions.
“It’s environmental law, it’s drug law, it’s mortgage law, it’s a whole host of areas where the Bush administration was really aggressive about using regulatory action to clear state and local laws that businesses and corporations didn’t like,” said Doug Kendall, president of the Constitutional Accountability Center.
You will notice that many conservative states-rights people only get upset at expanded federal power if it disturbs state control of, say, gun policy, or tempts states to participate in federal-state programs aimed at addressing inequality.
So don’t hold your breath for anyone like Bush’s protege Rick Perry–a big-time State Sovereignty advocate these days–to cheer the President for actually respecting state policy prerogatives. States are cool only when they do as conservatives want.
UPCATEGORY: Democratic Strategist
It is hard to overstate how important the new Obama regulatory standard respecting state regulations and arguing against blanket preemption of state laws will be for progressives. It means that local activism and innovation will actually be effective in holding corporations accountable locally and allow such local legislation to become models for broader federal reforms. That version of collaborative federalism could be one of the most important legacies of the Obama administration.