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State Rights

A Fed’s Eye View of the States

     In 1993, when Hillary Clinton was working behind closed doors with the Health Care Interdepartmental Working Group, Walter Zellman had, apparently at the behest of H. Clinton, posed a questions to the Department of Justice as to whether the Federal Government could force the States to adopt a National Health Care Plan.

     The DOJ sent a thirteen-page response in memorandum form. From that, a lawyer on the Health Care Task Force drafted a summery of the DOJ memorandum. When a physicians’ group sued on grounds that the task force violated the constitution by operating in secrecy, the documents were ordered to be made public. The memorandum was found in the National Archives, along with the ‘summary’. Following is an exact transcript of page 4 of the summary, which gives us a fed’s eye view of the States, and how they have fallen into a reverse roll of agent-principal by the federal government.

     The DOJ memorandum is stamp dated, March 5, 1993. There is no date shown on the summary draft. You’ll notice the page begins in the middle of a sentence, following from page 3 of the draft. We’ve typed in bold print the paragraph relating to the States, and for the purpose of authenticity, transcribed the entire page.

     The oxymoron used to define the States as "subordinated sovereignties", should be sending up red flags and setting off warning sirens. The definition of sovereign is: preeminent; having no higher power. Today, the fed wields power over the States as a CEO wields power over a janitor. Lest we forget: The federal government is a creation of the States. T. David Horton, Constitutional Attorney, remarked that:

"The sooner we get over our inferiority complex in relation to the federal government the sooner this system could be turned right-side-up."


Reproduced at the
National Archives 


[stamped upside down]
Clinton White House
Health Care
Interdepartmetal Working Group

Preliminary Draft for Official Use Only

Do Not Quote or Release for Any Purpose   -   page 4

responsible to the President; and although the Congress may not demand a voice in the appointment and removal of particular officials they may set standards governing the President’s exercise of his appointment and removal powers. Whether to set up the federal agency as a regular executive branch agency with a single head or as some other model is therefore a matter of policy and politics.

                (b) may the federal government use other actors in the governmental system and the private sector as its agents and give them orders as though they were part of a prefectorial system?

          The short answer is "no". State governments are independent, although subordinated, sovereignties, not subdivisions of the federal government. Although the federal government may regulate many of their functions directly (as where, for example, it subjects state water districts to the Clean Water Act), it may not require them to exercise their own governmental powers in a manner dictated by federal law. The states may be encouraged bribed or threatened into entering into joint federal state programs of various sorts, from unemployment insurance to Medicaid; but they may not be commanded directly to use their own governmental apparatus in the service of federal policy. There is a modest jurisprudence of the Tenth Amendment that seems to have settle on this proposition. See the DOJ memorandum for a fuller elaboration.

          The possible range of relationships between the federal government and private corporations is somewhat more difficult to describe. It is clear that the Congress may not delegate to private parties the task of developing rules and standards that are legally binding upon their issuance by the private party; nor may the government delegate to private parties the power to issue legally binding interpretations of federal law or adjudicate disputes arising under federal statutes. Under the federal constitution the executive power may be exercised only by Article II entities and the judicial power only by Article III entities, which is to say, federal administrative entities and federal courts. On the other hand, it is possible to delegate to private parties a range of advisory and even standard-setting functions so long as their output must be acted upon by entities holding the Article II power. The jurisprudence of this area is quite underdeveloped. The question is whether a non-governmental HIPC might be authorized to set standards for participation of plans, or to decide finally what plans may participate in the markets that it controls, if the HIPC’s action can be interpreted as a legal standard or the equivalent of a legal standard rather than as the action of a market participant. This will be a thorny issue; the more the powers vested in an HIPC approach being the powers of government, the more inappropriate it will be, both as a constitutional matter and as a matter of policy, to vest them in a non-governmental entity, and consequently the more likely it is that a delegation to a non-governmental entity will be held to be unconstitutional. There is very little case law on this point precisely because legislative draftsperson who have developed relationships between the federal government and private entities have avoided raising the delegation issue by characterizing the powers of the non-governmental entity in a way that does not make them appear to be powers to make or enforce law.

     How does the federal government "encourage, bribe and threaten" the States into subordination? Revenue Sharing. And the State Legislatures opted in. They opted in and they can opt out. The following article from USA TODAY , 4-10-97, is a perfect example of the "encouraging, bribing and threatening". Perfect.

Plan links seat belt use, road funding

     The Clinton administration is expected to announce a controversial plan to get states to increase seat-belt use or lose millions in highway funding.

     The plan, which could be out as early as next week, seeks to push seat-belt use to at least 85% from 68% now.

     The administration initially would reward states with extra money if they beef up enforcement of seat-belt laws and get more people to wear belts. [bribing]

     But the administration also has drafted legislation that would withhold highway funds from states that don’t enact tougher belt laws or achieve big gains in belt use by 2003. [threatening]

[ next five paragraphs says that Governors strongly oppose the sanctions, but the administration is determined to get belt use up – even if it gets heat from critics. Gives statistics on lives saved by seat belts, and says that states can boost belt use any way they want, but the administration will push for more stringent laws.]

     The plan is also expected to encourage states to hit motorist who don’t buckle up with penalty points, which raise motorists’ insurance rates. [encouraging]

     Every state except New Hampshire requires motorists to wear safety belts. But in most states, police can give you a ticket for not wearing your belt only if you are stopped for another violation, like speeding.

     Just 11 states have "primary" seat-belt laws: a police officer can stop you simply for not buckling up. The administration wants states to pass primary belt laws and enforce them aggressively.  -- End Article --

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