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Ernest Gellhorn, Professor of Law, George Mason University
ALPHABETICAL LIST OF WITNESSES Anthony, Hon. Clarence E.:
Prepared statement, July 14, 1999
Prepared statement Carper, Hon. Thomas R.:
Testimony, May 6, 1999
Prepared statement, July 14, 1999
Prepared statement Galston, William A.:
Prepared statement Gellhorn, Ernest:
Prepared statement Leavitt, Hon. Michael O.:
Prepared statement Lefcourt, Gerald B.:
Prepared statement McGinnis, John 0.:
Prepared statement Meese III, Hon. Edwin:
Prepared statement Merritt, Hon. Gilbert S.:
Prepared statement Moss, Randolph D.:
Prepared statement Nelson, Caleb E.:
Prepared statement Spotila, Hon. John T.:
Prepared statement Steinzor, Rena:
Prepared statement Thompson, Hon. Tommy G.:
WEDNESDAY, MAY 5, 1999
and Deputy Administrator, Office of Information and Regulatory Affairs,
ted by Chairman Thompson Adam Ď. Thierer, Walker Fellow in Economic Policy, The Heritage Founda
tion, prepared statement with an enclosure of the “Backgrounder,” dated
WEDNESDAY, JULY 14, 1999
Director of Securities, State of New Hampshire, President, North American
with an attachment
force Issues, General Government Division, entitled “Federalism: Comments
land School of Public Affairs, prepared statement
THE STATE OF FEDERALISM
WEDNESDAY, MAY 5, 1999
Washington, DC. The Committee met, pursuant to notice, at 9:12 a.m., in room SD-342, Dirksen Senate Office Building, Hon. Fred Thompson, Chairman of the Committee, presiding:
Present: Senators Thompson, Collins, Voinovich, Lieberman, Levin, and Edwards.
OPENING STATEMENT OF CHAIRMAN THOMPSON Chairman THOMPSON. Let us come to order, please. Gentlemen, thank you for coming. I apologize for being a little late. I picked a bad morning to have a meeting downtown this morning.
I know that you have limited time before you have to depart. I will ask the Committee Members to refrain from making opening statements and let the witnesses testify, and then we will have an opportunity to make opening statements. I would like to insert opening statements from Senators Collins, Levin, and myself, into the record.
[The prepared opening statements of Senators Thompson, Collins, and Levin follows:)
PREPARED OPENING STATEMENT OF CHAIRMAN THOMPSON The issue the Committee is discussing today is at the heart of our Democracy. Federalism is the principle that some matters are best handled by State or local government and other matters should be addressed at the Federal level. Federalism helps clarify what government should be doing and where it should be done. The Framers of our Constitution strongly believed that government closest to the people works best. The chief architect of our Constitution, James Madison, said “The pow. ers delegated by the proposed Constitution
to the Federal Government are few and defined. Those which are to remain in the State governments are numerous and indefinite."
The Framers had good reason to limit the power of the Federal Government. The diffusion of power between the Federal Government versus State and local government, as well as among the different States, can lead to healthy competition. States will compete for citizens business, taxes and talent. Citizens can vote with their feet to choose among different government services. This will lead governments to strive to provide better services, lower taxes, and a higher quality of life tailored to the values and needs of the community.
But we have strayed far from the federalist vision of the Framers. As Justice O'Connor noted, “The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses: First, because the Framers would not have conceived that any government would conduct such activities, and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities.” Indeed, some proponents of Big Government view federalism as an historical relic. The consequences of this drift are regrettable. The Federal Government seems to many to be
irresponsive, wasteful, and corrupt. Public cynicism toward government has risen to alarming levels. Some citizens feel that their right to vote, a right that came at a very high price, has lost its meaning.
Reviving federalism would mean that many important decisions that affect people's lives would be made closer to home. Government as a whole could be more efficient, effective and accountable. Despite the many obstacles, there is hope that federalism is reascendant in the historical dialogue. The Supreme Court has breathed new life into federalist doctrines. Congress has taken some important steps to return authority to the States. And many State and local officials and the people they serve are rightly demanding a voice in the debate. Ultimately, that uniquely American quest may be the greatest hope for success.
PREPARED OPENING STATEMENT OF SENATOR COLLINS Mr. Chairman, I commend you for holding these hearings on the State of Federalism. My hope is that these hearings will be an important first step that will help restore the vital principles that serve as the basis of our constitutional form of government. Clearly, the Federal Government has been a positive force for change in our society over the past 30 years, especially in areas such as environmental protection and civil rights. It will continue to do so in the future. However, I have become increasingly concerned that the Federal Government's role in our society has expanded far beyond what the constitutional Framers intended. Moreover, this expansion has continually encroached on the traditional prerogatives of State and local governments.
The United States Constitution established the basic federalist principles that are the framework for the distribution of power among Federal, State and local governments. Under the Constitution, the Federal Government's proper role is to assume responsibility for broad national issues that directly impact the Nation as a whole, such as defense and the regulation of commerce between the States. As we all know but far too often forget, the Tenth Amendment to the Constitution reserves most other powers to State and local governments. The constitutional Framers wisely understood that, by virtue of their proximity to the people, State and local governments are in by far the best position to evaluate and respond to the needs of their communities and citizens.
Unfortunately, Congress and unaccountable Federal agencies too often have undermined these critical federalist principles through well-meaning but ultimately counterproductive legislation and regulations. I am particularly concerned about Federal laws and regulations that “preempt”-or nullify—traditional State and local laws. Without the ability to manage their affairs free of unwarranted Federal intrusion, State and local officials cannot craft workable programs that balance the competing interests of all citizens and at reasonable costs.
Reversing the trend towards greater Federal control will require increasing vigilance by those of us who strongly support federalist principles. For example, last year the Clinton Administration introduced Executive Order 13083, which revoked a Reagan Administration Executive Order on federalism and would have granted the Federal Government unlimited policymaking authority over the States. Mr. Chairman, I eagerly cosponsored your Sense of the Senate Resolution—which was adopted by unanimous consent-demanding that the President revoke his Executive Order. In August of last year, President Clinton thankfully withdrew this unwise Executive Order.
I again commend you Mr. Chairman for directing the public's attention to this key issue. As a result of these hearings, I hope we can identify other useful steps that will advance the goal of restoring the proper role played by the Federal Government in the lives of our citizens. Such steps will hopefully deter Congress and Federal agencies from unnecessarily preempting State and local authority and restore the balance between Federal and State power that is called for in our Constitution. Thank you, Mr. Chairman,
PREPARED OPENING STATEMENT OF SENATOR LEVIN Mr. Chairman, thank you for calling these hearings on the State of Federalism. It is, as always, a timely and important issue.
We know from our Constitution, from our history books and from our experience that the relationship between the Federal Government and State, local, and tribal governments is one of balance and equilibrium, a partnership. Alexander Hamilton wrote in Federalist Paper No. 31 that “it is to be hoped” that the American people "will always take care to preserve the constitutional equilibrium between the gen