Fair weather federalism?

During a recent podcast Brad, Brandon, and I discussed the increased attention (and reverence) that Republican politicians seem to be directing toward the 10th Amendment lately.

At one point this past summer, Gov. Rick Perry (R-Texas) seemed to speak favorably about the potential for Texas’ secession from the United States.Weeks later, Gov. Tim Pawlenty (R-Minnesota) similarly suggested that the 10th Amendment might provide an avenue for opponents of health care reform.

These statements and the introduction of “10th Amendment” resolutions in state legislatures (mentioned in the first Politico article linked above), remind me of the mid-1990s. GOP opposition to Clinton administration policies was often framed as overbearing federal regulation and lawmaking at the expense of state and local governmetn prerogatives. On the campaign trail in 1996, presidential candidate Sen. Robert Dole (R-Kansas) frequently referred to the copy of the 10th Amendment that he carried in his shirt pocket.
This has seemed to me to be a bit of hypocrisy on the part of the GOP, since I don’t recall hearing a lot about 10th Amendment issues during the Bush administration. But, am I over simplifying? Let’s look at some data.

I did a NexisLexis search for the phrase “tenth amendment” in news articles appearing in the New York Times, Washington Post, and USA Today over the period from 1989 through October 2009.  This gives me an indication of how prevalent the 10th Amendment is in our national conversation at different points in time. A graph showing the number of articles for each year is presented below.


What do we see here? Prior to 1994, there were fewer than 10 articles per year in the three newspapers that mentioned the 10th Amendment. In 1994, 95, and 96 total mentions increased, peaking at 56 in 1996. There was a steep decline in 1997 and from then through the first term of the Bush administration, the 10th Amendment became much less salient as a news issue, although there was a slight increase in mentions in 1999. Since 2000, total mentions have stayed under 10 per year with a blip upward in 2005 and what appears to be the start of another blip in 2009.

So, how do we account for this pattern? A simple explanation is that we saw a large increase in attention to the 10th Amendment during the last Democratic presidential administration, practically no attention during the succeeding Republican administration, followed by what appears to another increase beginning with the new Democratic administration. My initial inclination is to blame hypocritical GOP members who beat the federalism drum only during Democratic administrations.

But if that’s the case, why didn’t the high salience of the 10th Amendment continue through Clinton’s entire time in office? And what were the blips about in 1999 and 2005? My initial reaction seems too pat.

To get an idea about causes, I scanned the news articles for these years. Warning: what follows is not a systematic analysis of the articles, but just my impression from scanning the headlines and content.

In 1994, many of the articles concerned three policy issues with implications for federalism: the Gun-Free School Zones Act that imposed federal penalties for anyone possessing a firearm near a school, term-limits for federal legislators that 21 states had enacted, and a provision of the Brady law that required state and local law enforcement officials to perform background checks on firearms purchasers.

In 1995, quite a few articles were about Supreme Court decisions concerning the first two issues listed above, state sovereignty resolutions introduced in state legislatures, and the GOP takeover of Congress and the attention that Gingrich and other Republicans directed toward federalism issues.

In 1996, there were more articles regarding the Brady law, welfare reform and the changes it brought to federal-state relations, and Bob Dole’s pocket sized 10th Amendment he carried on the campaign trail.

In 1997, the articles largely concerned the Supreme Court’s decision regarding the Brady background checks.

The blip in 1999 largely concerned the application of Fair Labor Standards provisions to states as employers, an issue that came before the Supreme Court. The blip in 2005, largely concerned the death of Chief Justice Rehnquist who was considered the architect of the 10th Amendment decisions  of the mid-1990s.

Given all this, I think my initial reaction is a bit too simple. There was a big explosion of attention to the 10th Amendment in the news media during the 1990s, largely because of several major policies with the potential to significantly restructure the state-federal relationship. Some of these policies, like term limits for members of Congress, bubbled up from the states. Others, like the Brady law and the Gun-Free School Zones Act, were passed by Congress. Yet others, like welfare reform, were a product of state-federal cooperation.

Some of those policies, especially the gun-related ones, are just the sort of policies from which we might expect a lot of conflict between Democrats and Republicans. Those particular policies were also some of the major laws passed by Congress and signed by Clinton prior to the 1994 GOP takeover. So I think these policies stimulated a lot of public discussion, including discussion by politicians, about state-federal issues.

By the late 1990s, the Supreme Court had weighed in on these policies. Some, like the Gun-Free School Zones Act, were decided in favor of the states. Some, like the matter of congressional term limits, were decided against the states. At any rate, with more-or-less “final” decisions having been made on these policies, the discussion died down.

During the Bush administration, there weren’t as many federalism issues on the table. Issues of war and executive power seemed to drive much of the controversy, so there was less opportunity to frame issues in terms of the state-federal relationship.

Still, there are examples of Republican hypocrisy with respect to the 10th Amendment issue that we can point to during the Bush administration. First, there is No Child Left Behind, one of Bush’s signature policies. This policy led to a pretty major expansion of the federal role in elementary and secondary education. I suggest that it would have been vigorously opposed by the GOP had it been proposed by a Democratic president.

Second, there was the major expansion of Medicare drug coverage, another signature Bush policy. This policy was opposed by many Republicans and if memory serves it passed with a lot of Democratic support in Congress. Republican opposition, however, focused on the cost of the program. I don’t recall them raising 10th Amendment issues the way they are doing with the current health reform effort.

Third, there is the medical marijuana issue. Republican “states’ rights” advocates have mostly not championed these state efforts to loosen restrictions on the distribution and consumption of marijuana. Instead, they have seen this as an area in which vigorous federal enforcement and federal supremacy are the order of the day. So, it seems to me that Republicans are pretty selective about the issues in which they see 10th Amendment implications.

So, in short, yes Virginia, there is Republican hypocrisy with regard to the 10th Amendment. But the mid-1990s was a time when many federalism issues were on systemic and institutional agendas, so it is natural that the 10th Amendment was a topic of discussion during that period. As those issues were supplanted by others, it is natural that the 10th Amendment discussion died down. It will be interesting to see how and if the 10th Amendment continues to figure in Republican critiques of Obama’s policies.



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