Pubdate: Sun, 05 Jan 1997
Source: New York Times (NY)
Copyright: 2001 The New York Times Company
Author: Keith Bradsher
Note: Accompanied by photograph encaptioned 'Dennis Peron, a campaigner for 
the initiative passed in California to allow the medical use of marijuana, 
smokes a joint'


Los Angeles - Ever since Ronald Reagan's "new federalism" revived the 
debate over states' rights in the 1980's - and particularly since 
Republicans took control of Congress in 1994 - power has seemed to be 
ebbing from Washington. Last year, the Federal Government gave up its 
six-decade responsibility for welfare. California, like other states, has 
moved to assert its authority in other areas, voting to side-step the 
Federal commitment to affirmative action and Federal drug laws on marijuana.

The trend may be unmistakable, but devolution, it turns out, isn't 
revolution. Arid it isn't easy, as advocates of states' rights, 
particularly in the West, are learning the hard way. They have been angered 
at recent assertions of authority by the Clinton Administration and the 
Federal judiciary.

A month ago, a Federal judge temporarily blocked California from cutting 
back affirmative action programs, even though a majority of voters in a 
November referendum had required state officials to do just that. On 
welfare, Clinton Administration officials have suggested in recent weeks, 
as more money and responsibility for administering it passes to the states, 
that there will be more Federal strings attached than some state officials 
had expected. And last week the Administration threatened penalties for 
doctors who prescribe marijuana for patients in California and Arizona, 
where citizens recently voted to permit marijuana use for medical reasons.

The latest development, like earlier ones, has left some advocates of state 
rights sputtering.

"We consider this action by the Government to be Soviet repression," said 
Sam Vagenas, the political consultant who coordinated the successful 
November referendum campaign in Arizona to legalize medicinal use of marijuana.

But on the marijuana issue, even some defenders of state rights concede 
that some of their brethren can take things too far. Daniel E. Lungren, the 
California Attorney General and generally an outspoken sup-porter of state 
rights, said drug policy should be under Federal control because of the 
Federal Government's constitutional responsibility to regulate interstate 
commerce. "The Federal Government has the authority and it's legitimate for 
them to stand up," he said.

Big-Government Fans

His view suggests one reason why the web of Federal authority is unraveling 
as slowly as it is: liberals aren't the only fans of big government.

Among conservatives, libertarians have promoted the devolution of Federal 
power and a general reduction in governmental authority at all levels. But 
cultural conservatives have tended to look for help at whatever level of 
government seems most accommodating.

"Very few people are attached to federalism as a matter of principle, and 
it's hard to blame them," said William Kristol, the editor of the Weekly 
Standard, a conservative journal in Washington. "It's not a principle that 
has as much force as liberty or morality."

Last year, for example, with states' rights advocates ascendant, the 
Republican-led Congress passed a law setting forth a Federal definition of 
marriage as the union of one man and one woman, as it authorized states not 
to recognize Hawaii's gay marriage rules. Throughout this century, Federal 
power has tended to increase when states take action that the majority 
views as irresponsible (be they southern states in the civil rights era or 
Hawaii today) or when states acting independently create a hodge-podge of 
regulations (governing workplace conditions, for example) seen as contrary 
to the general good.

Yet the overall shift toward state power seems to be continuing. On close 
examination, each of the three recent exercises of Federal power appear 
quite limited. They demonstrate only that change comes slowly in a Federal 
system full of constitutional checks and balances and reliant on more than 
two centuries of legal precedents.

While the prospect of Federal penalties against doctors drew headlines last 
week, the Administration's stance was actually quite mild. It did not file 
a lawsuit or take other sterner measures despite previous hints that it 
might do so.

Instead of asserting the Federal Government's authority over drug policy, 
the Clinton Administration warned that doctors who prescribe too many, 
illegal drugs could lose their Federal certification to write 
prescriptions. Offenders could also be barred from receiving Medicaid or 
Medicare payments. But criminal penalties for doctors, while not ruled out, 
were played down.

On welfare, the Administration seems to be moving toward making Federal 
grants to the states conditional on their spending their own money to meet 
certain Federal standards. But those moves are, in effect, brakes on an 
overall transfer of authority to the states. While such Federal 
restrictions have irked advocates of states' rights, numerous court 
decisions have long upheld the. Federal Government's right to attach 
conditions when doling out Federal money.

The outcry from advocates of states' rights has been loudest over the 
Federal judge's injunction barring California from enforcing its referendum 
limiting affirmative action. But California referendums have a history of 
quickly winding up in court, and the judge's move surprised few lawyers who 
had been following the issue.

If anything, the Federal judiciary is trying to gradually transfer more 
authority to the states. In the Supreme Court, one of the hallmarks of 
Chief Justice William H. Rehnquist's tenure over the last 10 years has been 
his emphasis on expanding states' power. Some constitutional scholars 
expect the court to rule this year against a section of the Brady 
gun-control law, for example, that requires local sheriffs to run 
background checks on gun buyers.

The Judicial Conference of the United States, the policy-making body for 
lower Federal courts, has also opposed legislation to turn domestic 
violence and other offenses into Federal crimes. The members of the 
conference, not wanting to burden the Federal judiciary further, are hoping 
the state courts will shoulder the load.

"They've tried in any number of ways to unload cases that have been in the 
Federal courts and put them in the state courts," said Mayor Dennis Archer 
of Detroit, a former justice of Michigan's Supreme Court.

Constitutional scholars have argued that the balance of power between the 
Federal and state governments tends to shift over very long periods of 
time, with cycles lasting as long as 60 or 70 years.

"We are clearly in an era in which the pendulum is shifting toward state 
power," said Paul Gewirtz, a law professor at Yale University. "But it 
should surprise nobody that even in an era of that shift, we still see 
Federal power in area after area."