Resolution Calling on Congress and the President to Protect the States’ Autonomy to Set Their Own Consent Procedures

Summary

This model policy addresses the federal administrative state’s tendency to impose prescriptive grant consent practices on the states. To ensure that the states accept grants that introduce controversial policies into the states, the federal government attaches highly prescriptive consent procedures to the grant offer made to the state.  These procedural requirements differ from grant to grant, but can prescribe, for example, the official who must accept the grant on behalf of the state and the consultative process that official must use. The model policy requests that Congress and the federal executive prohibit grant consent practices through legislation, executive orders, and amendments to the Code of Federal Regulations.

Resolution Calling on Congress and the President to Protect the States’ Autonomy to Set Their Own Consent Procedures

Whereas, our unique governing system in the United States of America was designed to federate diverse States and people for vital national concerns, while preserving to the American people the benefits of self-government – efficient, effective, accountable government – which amplifies their governing voice.

 

Whereas, to accomplish this objective, the Framers designed a new hybrid form of government that was part “national” (called the federal government today) and part “federal” (a federation of the States), with clear divisions in the roles and responsibilities delegated to the national government and to the States.[1]

 

Whereas, the Framers marveled at “the accuracy with which the line is drawn between the powers of the general government and those of the particular state governments,” observing “that the powers are as minutely enumerated as was possible.”[2]

 

Whereas, a clear division of governing responsibilities was essential to this new form of government to provide “a double security … to the rights of the people,” against overreach from either sphere, because “the different governments will control each other.”[3]

 

Whereas, Alexander Hamilton admonished that “This balance between the national and state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people.”[4]

 

Whereas, by all accounts, there is no clearly discernible division of roles and responsibilities between the general government and the States today. The governing partnership is more like two football teams lining up on the field for a healthy competition, only to look down and discover there are no lines on the field.

 

Whereas, an overwhelming percentage of Americans feel frustrated that government is not efficient, effective or accountable. They sense something wrong with our governing system and increasingly disengage from political discourse because they feel their voices no longer matter.

 

Whereas, Supreme Court Justice Anthony Kennedy warned of the consequences of allowing our system to atrophy: The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.[5]

 

Whereas, divisions, limits, and balance in the various governing roles and responsibilities, and the self-governing engagement of the people, are essential to the preservation of our system. This singular system is the solution to securing the rights of the people to pursue their unique visions of happiness over such an expansive and diverse nation.

 

Whereas, in his Farewell Address, George Washington admonished all constitutionally oath-bound officers (U.S. Constitution, Article VI) that for us “to preserve [this system of reciprocal checks] must be as important as to institute them.”

 

Whereas, in 2019 the national government spent $721 billion on aid to State and local governments—amounting to 3.4 percent of that year’s Gross Domestic Product and about 30.7 percent of total State spending.[6]

 

Whereas, neither the national nor the state constitutions contemplate the transfer of such large amounts of money from the national government to the state governments.

 

Whereas, the federal grant-in-aid offers often include consent procedures, procedural requirements the state must follow in order to accept a federal offer.

Whereas, from grant offer to grant offer, these consent procedures impose a wide range of requirements on the States that can include, among other things, dictates as to which state actors will consent on the state’s behalf as well as how the state internally discusses, deliberates, and decides whether to join a federal program.[7]

 

Whereas, such prescriptive practices imperil the core of sovereignty: the allocation of power and responsibility among various branches and offices of government; the system of checks and balances designed to protect liberty and participatory government; the lines of accountability to the state citizens; and the expectations of the people as to the responsiveness of state bodies and officials to other state actors, local government, and the people themselves.

 

Whereas, such contours of state government are all the more crucial with the introduction of vast amounts of federal money to state government.

 

Whereas, impairments to the governance structure distance decision-making from the citizens, interfere with their expectations, and alienate them from state government.

 

Whereas, the national government’s meddling with the structure of state decision-making affects the ability of the states to act like “separate and independent sovereigns.”[8]

 

Whereas, the limitations that federalism entails are not solely the concern of States but are also a concern of citizens.[9]

 

Whereas, care of the Constitution and a proper respect for the citizens of the Republic require that the national government tread carefully with regard to the integrity of state constitutions and state government, rather than treat them like vanquished foes.

 

NOW, THEREFORE, BE IT RESOLVED THAT the Legislature of the State of ___________, the concurrence of the Governor, do hereby call upon the Congress of the United States of America to enact legislation (i) prohibiting the federal government from prescribing the state official, office, or branch of government that is to accept or reject a federal grant offer or offer to otherwise participate in a federal program; (ii) prohibiting the federal government from prescribing the consultative processes underlying such decisions.

 

BE IT FURTHER RESOLVED THAT the aforementioned, do hereby call upon the President of the United States to issue an amendment to Title 2 of the Code of Federal Regulations (i) prohibiting federal agencies from prescribing the state official, office, or branch of government that is to accept or reject a federal grant offer or offer to otherwise participate in a federal program; (ii) prohibiting federal agencies from prescribing the consultative processes underlying such decisions.

[1] Federalist 39.

[2] James Wilson, Pennsylvania Ratifying Convention.

[3] James Madison, Federalist 51.

[4] Alexander Hamilton, New York Ratifying Convention, 1788.

[5] NFIB v. Sebelius, 567 U.S. 519 (2012) (Kennedy, J., dissenting).

[6] OMB/White House, https://www.whitehouse.gov/omb/analytical-perspectives/

[7] See Bridget A. Fahey, Consent Procedures and American Federalism 128 Harvard L. Rev. 1561, 1565 (2015); Bridget A. Fahey, Health Care Exchanges and the Disaggregation of States in the Implementation of the Affordable Care Act, 125 YALE L.J. F. 56 (2015), http://www.yalelawjournal.org/forum/health-care -exchanges-and-the- disaggregation-of-states-in-the-implementation-of-the -affordable-care-act; Andrew B. Ayers, Federalism and the Right to Decide Who Decides, 63 Vill. L. Rev. 567 (2018).

[8] See NFIB v. Sebelius, 567 U.S. 519, 579 (2012) (quoting opinion by Roberts, C.J.)

[9] See Bond v. United States, 564 U.S. 211 (2011).