Congress Overstepping on State Turf, Some Say

Times Staff Writer

The Republican-controlled Congress, in a departure from the traditional GOP support for states' rights and limited federal rule, has been moving on a number of fronts to curtail state and local powers over matters important to business groups and advocates of tighter national security.

The recent moves by Congress have begun to provoke objections even in states that are socially conservative and have pro-business governments.

"It does appear that Congress is becoming increasingly unplugged from the states," complained Arkansas Gov. Mike Huckabee, a Republican. "It's a real growing source of frustration for both Democratic and Republican governors."

States have traditionally set their own rules for issuing driver's licenses, but Congress this year imposed the first national requirements for licenses, in what lawmakers described as an effort to thwart terrorists.

States have sought to play a major role in approving sites for liquefied natural gas terminals, saying they can respond best to local environmental and safety concerns. But Congress this year gave federal regulators final say over those projects, overriding objections from states, including California.

And Congress this year nullified the laws in more than a dozen states that said auto rental agencies could be held liable for accidents involving their vehicles. The federal law said the agencies could be sued only if they were negligent or acted criminally.

In all three cases, President Bush signed the measures into law. Just after winning the 2000 election, Bush, a former Texas governor, had assured other governors during a meeting at his Texas ranch: "While I believe there's a role for the federal government, it's not to impose its will on states and local communities."

Before the current Congress finishes its work next year, it may extend federal authority into other areas.

Lawmakers in the House and Senate are angry that the Supreme Court said this year that states and local governments could use eminent domain powers to seize private property for commercial development. Legislation before Congress would strip economic development funds from any state or local government that tried to use that authority.

Lawmakers are also proposing to limit the number of gasoline blends that states can require to reduce smog. They are considering national standards for elections, possibly requiring, for example, that voters present a government-issued ID to cast a ballot.

And lawmakers are debating a federal measure that would preempt stronger state laws -- including one in California -- that require companies to notify customers of data security breaches.

"When I got to Washington three years ago," said Sen. Lamar Alexander (R-Tenn.), a former Tennessee governor, "one of my biggest surprises was to find that Republicans who get to Washington appear to be just as bad as Democrats in coming up with big ideas, taking credit for them and sending the bill to governors and mayors."

Michael Bird, federal affairs counsel for the National Conference of State Legislatures, who has been monitoring Congress for about two decades, said this Congress had produced "the most rampant amount of federal preemption" that the group had ever seen.

Lawmakers who have supported some of the measures say they are necessary to protect the free flow of interstate commerce and to ensure national security, areas that traditionally have been federal responsibilities. They also say that in some cases, such as with efforts to stop identity theft, a federal law is preferable to a patchwork of state laws that drive up business costs and hurt the economy.

"Republican support for the 10th Amendment is no less today than it was when our members took power in 1994," said Eric Ueland, chief of staff to Senate Majority Leader Bill Frist (R-Tenn.), referring to the amendment that says that "powers not delegated to the United States by the Constitution ... are reserved to the states."

The new federal requirement on driver's licenses, which says applicants must prove they are legal U.S. residents and lays out what documents constitute proof, was prompted in part by the fact that some of the Sept. 11 hijackers had obtained driver's licenses, which they used as identification for travel. "I am gob-smacked that any local bureaucrat attempts to defend his little fiefdom in a system that gave terrorist killers driver's licenses," Ueland said.

Huckabee is among a number of governors who were upset with the driver's license legislation, saying it would impose new costs on states and calling it unreasonable "to assume that states are equipped to perform a national security function.... I don't think there is a governor in America who believes entry-level DMV workers should be the folks you put front and center in the battle against terrorism."

Referring to the measure that gave federal regulators authority on the siting of liquefied natural gas facilities, Ueland said: "Energy production, importation and distribution falls under the interstate commerce clause and is a classic federal responsibility."

The federal-state tension is also playing out in proposed legislation that would allow phone companies to compete with cable TV firms in offering television services, but without obtaining local approvals.

Proponents say that competition would be stifled and that consumers would have fewer choices and higher costs if companies had to negotiate thousands of agreements with communities. But the National League of Cities says cities would find it harder to control the companies digging up their streets and sidewalks to lay wires.

"No citizen wants to have to call Washington, D.C., when there is a pothole in the road," said Cheryl A. Leanza, a telecommunications counsel at the cities' group.

In some states, the loudest objection to the federal government asserting new authority has involved the No Child Left Behind Act, one of Bush's signature initiatives. The law requires schools to make progress each year in students' reading and math proficiency, and requires annual testing in the third through eighth grades.

Some states have challenged the law, calling it an unfunded mandate. But Bush has called for extending similar standards to high schools.

Efforts to override state authority go against the philosophy that some government regulation is best left to officials who are "closest to the people -- the ones who are most accountable to the voters, the ones who have the most knowledge about the impacts of policies," said John Yoo, a UC Berkeley law professor.

The efforts are also "inconsistent with the rhetoric that the Republican Party has traditionally used for smaller government and giving states the primary role in making choices about policy," said Yoo, who served in the Justice Department during Bush's first term.

He attributed the federal actions to the "natural reaction of any party in power to show that they are reacting in solving the problem of the day. People aren't going to get reelected if they're seen as not doing anything, even though doing nothing may at times be the best thing for the government to do."

Jonathan Turley, a George Washington University law professor who has written about states' rights and federalism, said he was "astonished at how hostile the Bush administration and the Republican Congress have been toward states' rights."

A number of experts cited Congress' efforts to involve the federal courts in the case of Terri Schiavo, the brain-damaged Florida woman who died March 31 after a state court sided with her husband and ordered her feeding tube removed. "Now you've got a Congress and a president who have radically expanded the authority of big government and routinely intrude on states' rights," Turley said.

Small-government advocacy groups, most of which are consistently aligned with Republicans, are also taking note of the mandates and directives.

David Keene, chairman of the American Conservative Union, said that many Republicans who in theory support states' rights "now have the feeling that since they have the power here in D.C., they ought to dictate to the states on matters that are, strictly speaking, none of Washington's business."

Keene said that federal preemption was justified in the case of lawsuits that aimed to "destroy a national industry." He was referring to federal legislation recently approved by Congress and signed into law by Bush that shields gun makers and sellers from lawsuits related to gun violence.

But, Keene said, "such actions need to be scrutinized carefully and skeptically."

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