2012: A "Power to the States" Year?

Since the adoption of the US Constitution, there have been ongoing tensions between the federal government and the governments of the individual states.  While the most widely-known consequence of differences of opinion over what authority the states retain has been the US Civil War, debate over the federal/state relationship continues to this day.  For the past century or more, the states have pretty consistently been on the losing side.  So far in 2012, though, there have been three developments in which the states' authority has been (or will be, if campaign promises are kept) reinforced.

First, the US Supreme Court ruling (Virginia v. Sebelius, hereafter just Virginia) regarding the Patient Protection and Affordable Care Act limited the power of the federal government in two ways.  For the last 100+ years, the Commerce Clause of the Constitution has been stretched to allow regulation of more and more activities.  In Virginia, the Court found that that clause couldn't be stretched far enough to allow the federal government to require individuals to purchase health insurance.  The second thing that the Virginia case did was establish that there are indeed limits to how much coercion the federal government can threaten the states with.  As I've mentioned before, this part of the decision appears to me to create a great deal of uncertainty around the federal/state relationship that will take additional court cases to clarify.  For example, the threat to states that fail to implement unemployment insurance programs that conform to federal requirements seems to me to meet exactly the standards set out as being excessive in Virginia.

Second, this week a three-judge panel of the DC Circuit Court of Appeals vacated the EPA's Cross State Air Pollution Rule (CSAPR) at least partially on the grounds that the EPA is required to give the individual states an opportunity to solve the problem on their own before imposing a federal clean-up plan.  Earlier in the month, a different federal court vacated the EPA's rejection of the Texas state rules for obtaining certain types of air pollution permits.  Both cases turned on the language of the federal Clean Air Act, which gives the states a significant role.  In one sense, the cases are more about subjecting the federal executive branch to the authority of Congress than about the federal/state relationship, but the decisions will inevitably cause the federal executive to defer more often to state desires in the future.

Third, Mitt Romney published an energy policy document for use in his 2012 Presidential campaign.  One of the major points in that proposal is to empower states to control onshore energy development, and in particular to oversee the development and production of energy on (much of the) federal lands within their borders.  The impact of such a change in land management would be almost exclusively in the West; federal land ownership outside of the West is too small to be significant.  Unstated in the white paper is whether or not states will be allowed to levy severance taxes on any new production done under their permitting.  State severance taxes are typically higher than what the state would receive through federal royalty sharing.  Either way, the existence of extensive federal land holdings in the West, and how that land should be managed, has been a perennial issue out here.

I cheerfully admit to being a supporter of decreased federal authority in some areas where both the federal and state governments have authority (but not all areas, social insurance and civil/voting rights being two where there should be a consistent national policy).  Federal land holdings in the West are a particular sore spot for me; it certainly seems that by being "late to the party" in terms of statehood, the Western states haven't been treated equitably.  2012 might well be a year in which the increase in federal power at the expense of the individual states has stopped, or at least slowed.  I look forward to seeing if the pendulum that has swung one way for most of the last century will swing the other way now.