I’m telling ya, the Tenth Amendment is the key (followed closely by the repeal of the Seventeenth and the Current Tax Payment Act of 1943).
I’ve been meaning to bring up the following New York Times graphic since it was published last month, as it shows that Republicans are at their highest level of control of state governments in 60 years. Not bad for a party supposedly in deep trouble and on death’s door. (Notice, by the way, that Republicans controlled exactly zero states after the 1976 election.)
So while all eyes are on Washington and the fiscal cliff, outside of Washington a determined counterattack against liberalism is under way, and looks to have some good chances of success. First, several states have announced they are going to refuse to set up Obamacare insurance exchanges, heeding Michael Greve’s always well thought out advice that states actively assert their constitutional prerogatives to “interpose” themselves between Washington and the people:
[S]tate interposition—meaning a refusal to cooperate in Medicaid or exchanges—may yet produce an Obamacare crash-and-burn within the President’s term in office. Moreover, and more importantly , it may produce a collapse on constitutional terms, provided someone can articulate them. . .
The Madisonian precept gains special force and constitutional dignity in the context of federal programs that require, or rather imperiously demand, the states’ active cooperation. A state failure to do the feds’ bidding is not an ugly outbreak of neo-Calhounism. The power to interpose comes from a form of government that the Constitution permits but, unmistakably, treats as deeply suspect: a government over governments. States have been complicit in that scheme for far too long. Saying “no” to a further extension—for partisan reasons, fiscal reasons, or no reason at all—is an implicit embrace of a constitutional proposition: the feds have their sphere, and we (the states) have ours. If the feds insist on their scheme, let them do so with their money andtheir officers: they have the power. If they want to work through us, we interpose. The Constitution contemplates it; allows it; and very nearly demands it.
But the really big news came out of Michigan this week, with the state legislature’s vote to make Michigan a right-to-work state. No one saw this coming, which is one reason why it succeeded. It is a dagger at the heart of union power. First Wisconsin, and now Michigan. Notice, also, how Democratic legislators walked out of the capitol in Michigan. That’s the face of liberalism today: rather than abide by a democratic election result, walk out and try to prevent the legislature from functioning. And then holler about “secession” talk from conservatives. Heh.