Show-Me Institute Podcast
Federalism and The Founders' Vision with Charles C. W. Cooke
See Charles live on October 9 in St. Charles, MO Tickets and details: bit.ly/3BtZ2r3
Susan Pendergrass speaks with Charles C. W. Cooke, senior editor at National Review, about the growing trend of federal centralization and its threat to the U.S. federalist system.
They discuss how the founders intended for states and local communities to have control over their governance, and why the push to consolidate power in Washington undermines American principles of liberty and self-governance. Charles explains why this centralization is antithetical to the country’s founding ideals, the consequences of this shift, and why it’s essential to reverse course.
Produced by Show-Me Opportunity
- Broadcast on:
- 30 Sep 2024
- Audio Format:
- other
(upbeat music) - Well, I'm delighted this morning to speak with Charles Cook. You're gonna be doing an event at the Show Me Institute October 9th to discuss your thoughts and opinions on federalism and the need to return to federalism. So thank you for joining us. And can you just give me like the sort of elevator size on what has happened in the United States in regards to federalism? - Well, I think there's a couple of strong cases for federalism. The first one is that it is our system of government. This isn't some idea that I have come up with or the right or the left or anyone in between has contrived. This is our system of government. The Constitution anticipated a federal government that was limited in size and scope and that did certain things. And it reserved all of the other powers to the states and the people. And the constitutional order is still intact. So until that has changed, we really ought to be following the law whether we like it or not. But we should like it. And we should like it perhaps especially now when everyone seems so angry with one another. I mean, this is actually one of the things that surprises me the most about our current moment is that we have a political culture that while it is not quite as divided as the media things is charged politically. And instead of utilizing the tools that we have to take a whole bunch of important questions out of the national scene and return them locally to where they're closer to the people where people who have different ideas can live in different places and be happy under the same flag, we've decided to elevate almost everything. And the example that I give is of election night 2016. There was a video that went around. There was a young lady at Yale in the quad. And when Trump won, she performed what I can only describe as a primal scream. And look, it was funny. We all shared that it was funny. That's not good behavior. And as an adult, she should have known better. But in one sense, it's not funny because nobody should be that alarmed by who becomes president. The stakes should not be what they are. And I think it's incredible that when we have a left wing in this country that is terrified of the right and a right wing in this country that is terrified of the left, that we haven't got stronger bipartisan consensus in favor of de-emphasizing Washington and allowing people to set the rules that they like locally. So my approach to this has been not only that it is good in general and it's how the country is set up and that it provides all sorts of benefits we can talk about, but that if there was ever a moment to return to it, it's now. - Yeah, I was at the department of US Department of Education when George W. Bush was president. And I appreciated my job and I enjoyed my job as an advisor. However, I took the job just to sort of see what the heck was going on over there because that administration expanded the footprint of the US Department of Education like no other. And I think people take it now as fact that no child left behind and what's ever has come after is the way public education works which is that the federal government tells you you have to test third through eighth grade plus 10th grade in reading and math and science. That is not, that's relatively new and that was an enormous federal government power grab from the states that I personally was not in favor of. - It was certainly a transformation. The Department of Education was founded I think in 1978 and in 1980 Ronald Reagan ran promising to abolish it. And that was the best chance we would have had because it was only two years old. And he didn't succeed in doing that. He was obviously highly successful in many areas but that wasn't one of them. And then George W. Bush won just 20 years later, two decades. And more time has elapsed since George W. Bush won to today than between Reagan promising to abolish the Department of Education and the bill you're describing which I think came in 2001, it was an early initiative. - That's right. - Yes, it surprises me, perhaps it shouldn't. I think there is a debate at the moment over this that has two sides of the coin. So there is a strand of thinking on the right in some libertarian circles that holds that if you are opposed to the Department of Education, which I am for the record, then you shouldn't ever use it. And I think that's wrong. If the Department of Education is putting out rules, for example, and those rules are going to exist irrespective, then the incumbent president should have a role in setting them. Otherwise you have an unaccountable bureaucracy doing it. What George W. Bush did though that you just described was different than that. It wasn't a matter of saying, well, we can't get rid of this, we'd like to therefore, we will direct the funds that we are constitutionally obliged to spend in ways that we like. His plan was to push through Congress an expansion of the Department of Education and its role in American life. And that was uncalled for. And I think it was misguided and we're still living with it. And as you say, we have not really on the either side of the aisle enjoyed the fruits of it. I mean, after that came Common Core, which Obama tried to-- I really hated it. Everyone hated it, including the unions. Sure, yeah. And again, I mean, this is just a good example of what I'm talking about. So we have this law passed, as you say, no child left behind in this expansion. Conservatives, as distinct from the Bush administration on this, didn't like it. Teachers unions didn't like it. I think-- and I'm not a big teachers union guy, of course. But I think with some justification, because they said, well, hold on, you should at least face this in, because we don't know how to implement this. So some of the testing and benchmarking rules, which went into effect immediately, I understand why they caused some consternation. Then you get to Common Core. Conservatives hated massive backlash, absolutely justified. But also, progressives didn't particularly like it, either. Why has there not been a bipartisan agreement that we should scale this back? But there hasn't. Yeah, and I recall-- you have a delightful British accent, and I remember somebody. I used to be at the National Center for Education Statistics, which has existed since the late 1700s. So that's separate from the department. But somebody called me from Great Britain to say, what are the high school graduation requirements in the United States? And I said, well, there's minimally 50. I'm like, what do you mean? Why don't you have one? Because the constitution left public education to the states. And so there is no-- and then people couldn't get their head around why no Common Core. And it's like, this is how it's designed. And I think it's what makes us stronger. We have at least 50 opportunities to try something and see what did or didn't work, as opposed to a single system. And I guess I should ask you, are you surprised that we have been slowly just giving up more and more and more to the federal government? Yeah. So one of the distinctions that I often draw when I talk about federalism is revolved around this Louis Brandeis quote, the laboratories of experimentation. And the problem with that quote is that it is often used to justify a slower one-size fits all policy rather than to justify the state setting their own policy. What I mean by that is the benefits of a federal system for policymaking are, as Brandeis pointed out, obvious, in that you can try something in New Jersey that if it fails does not affect anyone else. And then if it succeeds, sure, you can as a governor of Florida or a legislature in California say maybe we should try that too. There's nothing wrong with that. But the presumption that the purpose of federalism is to try something out, see if it works, and then impose it on everyone is false. Because people in this country, quite reasonably, have different expectations of their government, different worldviews, and different needs sometimes, depending on their geography, for example, such that it's not always going to be the case that's something that worked really well in New Jersey would work well in Florida. If you travel around, as I have, I've now done 47 states, three to go, Rhode Island, Alaska-- sorry, I've been to Alaska, Hawaii in Montana-- you notice that it is extremely different here in Florida where it's flat and humid and swampy than it is in, say, Colorado or in Alaska or in Iowa. And the notion that the purpose of government, whether it's a state government or a federal government, is to find the best solution. And then when you win a presidential election, adopt that and give it to everyone is wrong. So yeah, I am surprised by it. And as I'll say again, especially surprised by it, given how cross we all are with each other, that we haven't noticed this is one of the problems. I mean, when Trump won, I wrote in the Los Angeles Times in response to the rise in sentiment in favor of secession, California, which had hit something like 25%. The California did not need secession. It needed federalism. There's no need for California to succeed. I don't want California to succeed. Now, I understand in order to do a majority of Californians, but 25% was pretty high. What they needed was to inoculate themselves against what they didn't like from the Trump administration. But to do that, you have to agree to give up some federal power. Otherwise it's just in one direction and they're not willing to do it. - So while we end up though, in the scenario that you outline where states determine policies on legalization of drugs or marriage equality or abortion or those types of issues, Missouri is a very red state. I want you to just end up with like a Missouri and an Oregon and then people who liked the Missouri thing moved to Missouri and then people who liked the Oregon thing moved to Oregon. And then we become these little tribal areas with very little ability to communicate between them and then doesn't it just exacerbate the level of vitriol? - I think it could, but I think there's two reasons why I suspect that it would not. So the first thing to say is there are, of course, some areas that are federal in nature. And to be a federalist is not to deny that. So obviously you have foreign policy, you have immigration, you have trade. And then there are the cases that are on the edge. For example, what you do about pollution which doesn't respect state lines. I think sometimes that is used as a pretext to impose federal rules with it and belong. But sometimes it's not. I mean, rivers do not care where the state border is. So there are some federal questions. And in so far as the most divisive and rightly divisive questions in American history have been federalized. I'm talking here about slavery and segregation and civil rights. That is a good thing. The question then you pose is well, will a set of different standards for abortion, for example, cause people to be more angry with one another? And I don't think that they will. I actually think the opposite is the case. I think that we need some time to do this. But post-Dobs, I think that it is much better that anger be dissipated locally than channeled nationally into one rule. Now, this is, of course, a horrible topic. I'm pro-life, so I believe that it is killing. And I don't like the idea that this would be decided state by state. But I also think, first, that is constitutionally mandatory that it be decided to state by state. 'Cause I see no power that the federal government has to regulate it in either direction. Second, I just think as a matter of fact, political fact at the moment. And my side of this has to accept this, I think, we as pro-life is a losing. And we have not persuaded people that we are right. And so if you do try to elevate this to the national level, to diminish local strife, you're going to get a national policy that forces every state to have some form of a rose-style abortion regime. Well, I expect that that would cause a great deal of anger and resentment, as eroded in 1973, in states that are pro-life. If you went to California under that role, sure, people would say, "I'm happy with this." I don't think the same emotion would obtain in Texas or Alabama or Wyoming or Missouri, right. So I don't really see it as a solution. What I would add to that is that while abortion is, of course, an emotive issue, most of the stuff that we're talking about when we talk about federalism actually shouldn't be. I mean, we're talking about transportation policy, tax policy, education policy, to some extent, healthcare policy, zoning. These are issues that have been increasingly federalized, but that really do not divide people or ought not to divide people who don't live in the places that they affect. I mean, if there is someone out there in New York City who is genuinely angered by Indiana zoning policies, that person needs help. They need to go and see a psychiatrist. - Right. Well, I do think it's fascinating in the, fascinating, like right now, the context of a presidential election when the candidates get asked, "How are you gonna solve this? How are you gonna solve that? How are you gonna solve A, B, or C?" And they're like, "Oh, here's how I'm gonna solve prices at grocery stores." And I do tell people, like, take a breath and calm down. I've been in D.C. They can no more solve any of those problems, you know, certainly in a divided government situation. The good news is very little gets done. And I think that it's right, we've had, I think Tom Hanks was voted on, like, you know, we've had, was the worst president we've ever had. I don't know, we made it through that. We made it through Andrew Jack. I don't know, but I think it, and then there will be people after this and we all need to stop talking about having to move one way or the other. But I do think it's important, and I do think that, or I wonder from you, how does this happen? Do you have a strong governor? Do you have a strong governor who says, "Look, you're not gonna tell us." I mean, Missouri passed a law, and I might not get this 100% correct. But it basically said that Missouri police officers don't have to enforce the federal government laws. 'Cause it is counter to our state law. And so what you do, you have just a strong stance that says, no, no, we have a state law that supersedes that law and we will fight you on that point. - Well, that's one of the things you do. That law, I think, unless it goes further than some of the others you find in Mississippi, for example, or in Wyoming, is the application of a principle that was first applied in a Supreme Court decision called Prince of the United States. It's ironic that the main application of prints, which was a gun case, has been to defend sanctuary cities. So you have conservatives who are angry about the consequences of a case that they brought. But what Prince essentially said was that, as a function of federalism, the federal government cannot force state employees to enforce federal law. The federal government can enforce federal law in the states and the states can't stop them doing it. But you cannot, as the president of the United States, say to the state of Missouri, your police officers must enforce federal law. And I think what Missouri's law says is that that is enshrined at the state level as well as by this Supreme Court case. If it goes further than that, you might have some issues. But if it's an anti-commondering law, then it's almost certainly constitutional. So yeah, you do do that. But I think this is oddly enough, one of those issues that also has to be solved federally. In other words, the federal government needs to some self-abnegation first. - Look at the mirror. - Well yeah, first you have to start electing people who, as Reagan did, in most cases, a few exceptions, drink driving me, one of them, that you are not going to try to micromanage the state. And we can do that, we've chosen not to recently, but we can do that. The second thing you need is a strong Supreme Court that understands the original public meaning of the constitution and polices the boundaries between the federal government and the states. And the third thing you need is governors and attorney generals who will stand up for their prerogatives and not try to get what they can't get locally out of the federal government. Now, I think Florida, I know more about that 'cause I live here, has been really good in this way. The state government has been jealous of the powers that the constitution grants it and it's pushed back against attempts to usurp them from Washington, D.C. That's not always the case, both for Republicans and Democrats. Sometimes Republicans and Democrats, essentially, lobby the federal government to intervene. It's weird, it's a bit like how you see members of Congress writing to the president, asking him to do things that they can't get through their own branch - Right. - So again, that's an election question. You need people at the state and local level and indirectly into the courts who are gonna police those boundaries. It has got a bit better with the Supreme Court in the last four or five years. We do have a Supreme Court that has got a better attitude toward federalism, but it hasn't actually done it yet in any meaningful case. So the jury's out. - Yeah, I mean, again, we're going back again to education with No Child Left Behind. The federal government gives money to states, to districts actually for serving low-income students. And they threatened that you wouldn't get that money, title one money. If you didn't provide No Child Left Behind, well, that's really not the way the law is written. I think if anyone had challenged that, if any state had challenged, that's to say you can't withhold title one funds. We don't test according to your schedule and have everyone proficient by 2017. - So unbelievable. I wasn't challenged. And they, as far as I know, have never withheld title money under the Every Student Succeeds Act ever, even though it's been threatened before, for like English language learners and in some other cases, but they've never withheld federal money, even Title IX. I mean, there's no teeth in it. So I don't see why a state hasn't stood up and said, "We're not going to do that." I mean, they ask for waivers, but I don't think that they're, I haven't seen a governor, maybe Florida, who's been willing to take the federal government on challenge. - But just think about what you just said there, that they added this rule, whether it's enforced or not, that said that you as a state have to do X, Y or Z, or we will withhold money from you. That's also the way that our alcohol age works. It's 21 in every state because in the 1980s, Congress burst with the objections of Ronald Reagan and then with his support later on, said that you would not get highway funds as a state if you didn't set the age at 21. Now, that is not the most important issue in the world, but if you think about it structurally, that is an end run around the Constitution's enumerated powers doctrine. And if you combine the income tax, the federal income tax, which has existed since 1913, with the federal government's willingness, sometimes with the blessing of the Supreme Court, sometimes not, to set these rules, you are essentially expanding the role of the federal government at the expense of the states in a way that was not anticipated because if Congress were to pass a law that directly said, every state must set the drinking age at 21, it would get struck down in 10 seconds flat. If the federal government were to pass a law making the educational changes that you just added and rated, it would get struck down in 10 seconds flat. But if they add coercive funding restrictions, often with money taken from the people that they're then depriving, it's in some circumstances, okay, and this is not really in the spirit of the law. - Right, so it sounds like, are you optimistic or pessimistic with the trend towards or away from federalism right now? What do you think the future looks like? - I would say I'm neither. - Okay. - The next few years, I suspect, are going to be marked out by divided government federally, whether or not Trump or Harris wins. I just think if you look at the statistical likelihood of who will win the Senate, the presidency in the House, it just seems probable to me that those dice are gonna come out with the divided government. When that happens, you get less out of Washington per se and a lot of the action moves to the executive branch. Now, that is not good as a federal separation of powers issue, that's not good. But executive orders are easier to challenge in court than laws passed by Congress because usually they rest on flimsy assumptions. - Like a student loan forgiveness maybe, I don't know. - Exactly, exactly. I mean, so that's a great example. When Congress does something, even if it's unconstitutional, it's usually clear. So it will say, we are requisitioning funds to achieve this end and this is now federal law. And then the question in the courts is whether or not it's constitutional and that's a higher bar. With executive action, normally what happens is Congress won't do what I just described. And so the president says, I want to do this anyway. And instead of looking at the law that he couldn't get passed, he finds some other law that he squints at and says, maybe if I convince everyone around me to lie, then they'll be able to source their authority from this unrelated law. And when that goes into the courts, you get the statutory cases that are quickly dismissed. So I think the next few years may actually be good for federalism purely in the sense that the federal government will be diminished. But we haven't won this argument yet. We just haven't won it yet. It's not something people think about or talk about. And until we win that argument and we persuade enough people in the public and we persuade enough people going into Congress and running for president that this matters, then we're really always a landslide election away from either the right or the left pushing Washington's will onto the states at the expense of federalism. So I'm neutral at the moment. - Okay. Well, I appreciate you coming on and talking to us about it. And I'm sure that there are many people listening today who will like to see you in person and be able to ask you their own questions about it. Next week, October 9th and say hello. So that's gonna be great. I really appreciate it. It's a bit esoteric, but I mean, it's something that affects your day-to-day life in ways you don't realize. And so I appreciate that you're out there talking about it. So wisely. - No, well, thank you so much. I appreciate it coming on. I will see you instantly on the 9th of October. 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