There once was a time when most Americans revered the Constitution. The charter outlined how we mortals  structured our government so that reason and fairness were two of the guiding principles. But thanks to Donald Trump and the current generation of Republicans, our governmental structure no longer has clear definition. The rules governing what we can do are suddenly whimsical and chaotic. Where there used to be rhyme and reason, now we have fragmentation and dysfunction. Republican presidents, legislatures and judges have replaced the discretion with how we interpret the Constitution with blatant self-interest.

The reason is that Trump and his followers have little respect for preserving and strengthening the institutions and procedures that for so long have protected our democracy. If the rules do not provide most Republicans with unfair advantages, they rebel against the rules and try to change them, throwing caution to the wind.

The U.S. Constitution outlines a few basic principles that control how government in America is supposed to work. Just for quick review, here are the most fundamental of these.

1. Checks and balances. Each level of government has three branches: (a) executive, (b) legislative, and (c) judicial.
2. Levels of government. We have our national government, the federal government, the fifty states, and tens of thousands of local governments. Presumably the states are the most powerful because they came first. But the federal government has certain clear rights over the states, such as control of interstate commerce or the power to print money and control banking.

Local governments are closest to we the people and that gives the localities certain inherent advantages. For instance, public schools are controlled by local communities. Yet, the states give charters to local governments including school districts and thus the states can dictate a great deal about how we live, work and play.

Historically, the constitution has helped bring order to how our legislators pass laws and executives enforce the laws. But deciding who makes which rules can be extremely complicated. For two centuries, our constitution was helped by a strong measure of common sense among the electorate. An informed electorate with belief in the Constitution helped in determining which branches of government, or which levels of government (federal, state, or local) would make which decisions, and what would be the parameters of those choices.

Now we are finding that all levels and entities of government are wildly scrambling to advance their own power, regardless of the principles of the Constitution or historical precedent. In the world of the truly absurd, we currently find that the governor of Florida (Ron DeSantis) is telling public school districts that they cannot mandate students and teachers to wear masks to school to provide more protection from COVID-19. This is the kind of problem that historically has been solved by agreements largely forged through precedent and a commitment to promoting the common good. A school board would have control over the day-to-day operations of the school, and currently almost all local boards in the United States want to provide as much safety as possible for students, teachers, administrators and other staff.

But Republicans like DeSantis want to maximize the power of their offices and positions, showing little regard for America’s historical relationships branches and levels of government. Our system is now confusing, unpredictable, arbitrary, and capricious.

The answers to the “Who Decides” questions are not easy. The Trump era can show us how far off any beaten path we can go with these questions. It is enough to make your head spin. But that sort of dizziness has been avoided for most of the lifespan of our country because there were sound rules in our Constitution, and behavioral norms kept anyone from pulling DeSantis tricks.

Federalism was a brilliant idea conceived by our founders. It helps us determine publicly beneficial answers to a myriad of questions about “Who Decides.” But it is based on good will among citizens of different political persuasions. We will never recover from the damage of Donald Trump and his legions until they recognize the importance of governing by the rules that have provided us with a large measure of stability for most of the past two and a half centuries. Regrettably, the record of politicians gone wild in acknowledging their mistakes and reinstating the basic principles of governance is not good.

Progressives will need to reach out to others to try to forge relations built on reason and concern for the common good.

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Kate Bolduan, a very respected journalist on CNN, seemed to fall into a Republican trap on how to frame health care policy. She was interviewing Senators Lindsey Graham (R-SC) and Bill Cassidy (R-LA) about their new proposed Republican health care plan, one which would send money from Washington to state capitols where legislators and governors could presumably decide what to do with their new resources.

The problem was with the inadvertent way in which Bolduan referenced the plan as she interviewed the two senators.

Her opening query was to Senator Graham. She asked, “Senator Graham, in a nutshell, you’re taking Obamacare money and giving it back to the states.

The linguistic problem is with one word, “back.” How could the federal government give back to the states something that the states never had? The money that the federal government has used to finance the Affordable Care Act have come from a number of sources, but none of them are the 50 states.

Individuals and even corporations have paid a number of taxes and fees to the federal government. But states rely entirely on whatever taxes, fees and subsidies that they receive.

It is true that states have been the recipients of largesse from the federal government. Medicaid is an excellent example of this. But it is difficult to find any case in which empowering the states with money has served the public better than when it is administered by the federal government in Washington, DC. The main reason why states receive federal dollars is because of pressure from “states’ rights” federal legislators (usually from the old Confederacy), who prefer to undermine measures that extend human rights, civil liberties and our social and economic safety nets.

When Senator Cassidy was asked if this plan passed the Jimmy Kimmel test, he said, “Yeah, because you’re giving money back to the states to make sure that those who have needs, are able to have their needs addressed.” Cassidy is trying to legitimize the meme that somehow money in the Affordable Care Act belonged to the states. In fact, it never did and it never should. Sending federal money to the states for health care is a way for Republicans to cut costs by encourage a “race to the bottom” among the states to see who can provide the least amount of care, and probably at an inflated price.

I doubt that Kate Bolduan wanted to take an adversarial position in favor of Republican plans for health care. But by taking one of their political memes and treating it as being neutral, she did just that. Kate deserves a “do-over,” but let’s hope that she can catch herself on this one in the future.

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We repeatedly hear that this state or that state is cutting back on Medicaid eligibility and benefits. For most progressives, it’s insulting. For anyone who is poor it’s like a dagger in the heart.

Medicaid was created by the Social Security Amendments of 1965, which added Title XIX to the Social Security Act. Medicaid was created as an entitlement program to help states provide medical coverage for low-income families and other categorically related individuals who meet eligibility requirements. Candidates include the blind, aged, disabled and pregnant women. In essence, Medicaid serves as the nation’s primary source of health insurance coverage for low-income populations. Each state administers its own Medicaid program, establishes their own eligibility standards, determines the scope and types of services they will cover, and sets the rate of payment. Benefits vary from state to state, and because someone qualifies for Medicaid in one state, it does not mean they will qualify in another.^[6] The federal Centers for Medicare and Medicaid Services (CMS) monitors the state-run programs and establishes requirements for service delivery, quality, funding, and eligibility standards.

It’s key to remember that Medicaid was authorized by Congress at President Lyndon Johnson’s request in 1965. It was that same year that he energetically moved forward with his Great Society programs. These programs expanded the federal government’s role relating to a number of domestic issues. The Civil Rights Act of 1964 gave the federal government an expanded role in regulations regarding interstate commerce. A key component  dealt with public accommodations, banning racial discrimination in restaurants, hotels, and a host of other venues where people congregate. The Great Society also brought us new cabinet offices, including the Department of Education, Department of Transportation, and the Department of Housing and Urban Development. The War on Poverty brought the creation of the Office of Economic Opportunity. It coordinated grassroots efforts to address poverty, including extending empowerment to the people who lived in impoverished areas. And let us not forget that Medicare was established in 1965 at the height of the Great Society.

The Great Society, including the establishment of Medicare, moved power from the states to the federal government. All of this lead to the states squawking over being left out of the areas of social change. Indeed ,the balance of power in our system of federalism was shifting dramatically toward the federal government.

The political viability of many members of Congress depended on support from those at home in their state governments. Many members of Congress previously served in state legislatures. Our elected officials in Washington were hearing loud and clear from those serving at the state level that they wanted a piece of this Great Society action.

Congress and President Johnson responded. They established a series of block grants, in which federal monies were transferred directly to the state governments for administration. While there are currently over 700 types of block grants from the federal government to the states, none is as important as the administration of Medicaid. The states wanted increased involvement in health care and the federal government responded in a way in which it did not with Medicare. It sent most of the money for Medicaid to the states and left it up to them to determine eligibility and allocation. Thus we have our current situation in which most states work to weaken Medicaid, even when extra money is provided by the federal government. With health care, as with many other programs, the states prefer to keep taxes low at the expense of providing needed public services for their citizenry.

When money started being transferred from the federal government to the states in large quantities, including with Medicaid, the intent may have been to be fairer to the states and maintain the established and historic balance we had in federalism. However, as domestic needs increased in the last third of the previous century and now into the 21^st Century, we clearly see that states are not up to the job of dealing with basic issues, such as income inequality. The federal government can do this if it wants. A good place to start would be in cutting off the Medicaid block grants to the states and instead running Medicaid itself.

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Not too long ago I was with a group of well-informed people who were speaking about current events. When one gentleman was asked what was on his mind, he said that he was concerned that in the United States we have too many levels of government. His words warmed my heart. The topic is rarely discussed, but if someone wanted to invent a system that would foster confusion and obstructionism, he or she could not do much better than with the American system of federalism.

As has been stated numerous times in this column, I have serious doubts about the purpose and viability of states in the modern world. Just consider the recent Supreme Court ruling that gutted the Voting Rights Bill of 1965. Removing the federal government from the oversight of state election laws, the path is wide open for any and all states to tinker with voting regulations to prevent any group of citizens from having a clear right to vote with easy access to the ballot box. The federal government was founded on ensuring basic rights to both the individual and the society as a whole. After the original colonies, most states just gave perfunctory adherence to basic rights in order to qualify to be admitted to the unions.

In my book, An Unlikely Candidate, published in early 2011, I suggested a revised system of federalism with enhanced powers for the federal government and metropolitan governments but less for states and individual localities. I wrote:

In defense of states, it can accurately be argued that they were here first. The colonies existed before the Articles of Confederation or the United States of America. The federal government was formed with the consent of the states. It would be inappropriate as well as realistic to remove states from our federal system.

But states have not been good stewards of their money, they have not protected human rights, and one can tell by looking at a map of the United States that in many ways they are meaningless. You can drive seamlessly across the country without any meaning to the states you traverse. We are no longer an agrarian society; metropolitan population has long since surpassed rural population.

Many metropolitan areas stretch across state lines and the states are often obstacles to sound planning and collaboration. Among these cities are New York, Chicago, Washington, Boston, Philadelphia, St. Louis, Cincinnati, Louisville, Memphis, Kansas City, Las Vegas, and Portland, OR.

Imagine reducing the role of states and directing federal dollars to each of these metropolitan areas to use without jurisdictional limitations. Other metropolitan areas that are not along state boundaries also could benefit from independence from states. Such areas include Los Angeles, San Francisco, Atlanta, Houston, Dallas, Denver, Detroit, Cleveland, Indianapolis, and Pittsburgh.

We know that we cannot eliminate states, but over the course of time, we should take small steps to diminish their roles. Rather than having federal dollars go to states, the flow could go in the other direction. The federal government is much more fair in distributing limited resources. No one in Missouri or any other state would be without Medicaid if the states backed off and recognized that until otherwise demonstrated, the federal government is the best protector of fairness and human rights that we have.

Considerable additional governmental restructuring would be beneficial. Again it will take decades to accomplish this, but it is important that we move along with study and planning. In St. Louis County there are over ninety municipalities and numerous other jurisdictions including school districts. We need to restructure these communities so that they conform to natural boundaries and represent the actual areas in which people live, work, and spend their time.

I mentioned earlier that one of the reasons that voters get bewildered or discouraged is that it is virtually impossible to know for whom to vote because there are so many races on the ballot. Government consolidation and restructuring could considerably simplify this.

Imagine that it is a presidential year and you go to the polls to vote. A reasonable ballot could include your choices for:

1. President / Vice-President
2. U.S. Senate
3. U.S. House of Representatives
4. State Governor (other statewide positions could be appointed with the diminished roles of states).
5. State legislator (All states could follow the example of Nebraska and move to a unicameral [one house] legislature)
6. Municipal area executive (mayor of the metropolitan area in which you live)
7. Metropolitan area council representative

That’s it. You would have become familiar with seven races. The media could cover all of them. There would be an order to the way in which we do government rather than a tangled web.

Our governmental system would be much more transparent and easier to effect meaningful change. It would not be structured as it is now, which is to make virtually everything other than saying “no” difficult to do.

We’re far from that point, and tinkering with the Constitution is fraught with numerous known and unknown hazards. I would not support a new constitutional convention in today’s political climate. However, I would advocate expanding the conversation. My thanks to Gary at the Meetup gathering who did so.

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The U.S. Senate recently passed an online sales tax bill. At this point it is not certain whether it will become law, because there are many Republicans in the House who oppose such a tax. The taxes would go to the states even though the bill would apply to interstate transactions. This presents a bit of a conundrum because on the one hand the federal government oversees interstate commerce but on the other hand there is no such tax as a federal sales tax. It is not surprising that Congress would consider a bill to provide more revenue for the states because (a) all members of Congress have a set of obligations to their home states and (b) Republicans are dead-set against supporting any measure that increases federal revenues. However, this might be time for Congress to exercise a technique that it rarely uses, thinking outside the box. There are compelling reasons why making it a federal sales tax would be a preferable policy to sending the money to state capitals. This is not the first time that a federal consumption or value-added tax has been suggested.  Fred T. Goldberg, former commission of the IRS (appointed by George H.W. Bush) has proposed this in the past. But first a little more on the bill:

The Hill reported on May 6, 2013,

The 69-27 vote is a major victory for retail groups and state governments, who for years have fought to close what they see as a loophole that allows as much as $23 billion in annual taxes from online sales to go uncollected.

The measure split Republicans senators, as 22 Republicans voted no in addition to five Democrats. Nineteen Republicans supported the measure.

The bill, which is backed by online powerhouse Amazon, empowers states to collect taxes on purchases made online by consumers in their states from out-of-state retailers. Under current law, states can only collect from companies that are physically located within their borders.

It’s interesting that Amazon supports the bill, perhaps it is because the mechanics of collecting the tax will be much easier for larger on-line businesses with sales in all 50 states. The collection process will be much more of a headache for smaller businesses which would have to accommodate the needs of all forty-five states that have sales taxes (states without a sales tax are Alaska, Delaware, Montana, New Hampshire, and Oregon).

The estimated $23 billion that the states would receive from this bill is a considerable sum. Some states would receive more than a billion dollars alone. However, a key question remains: would the states do a better job of managing new revenue than the federal government would?

The states do not set the bar very high for the federal government to surpass. Consider what has happened over the past twenty years. States have looked at a multitude of ways to raise revenue without instituting new taxes. Primarily what they have done is accumulate a pile of broken promises.

Every state has either a lottery or casino gambling. In many states, a promise was made to voters that if they approved the establishment of these enterprises they would have more money to fund their schools and they could do it without raising taxes. It is remarkable how many state governments have had to sheepishly go back to voters to ask for tax increases because the “funny money” didn’t meet their expectations. If the state didn’t have to do it, then the local school district did.

States are in competition with one another to have the lowest taxes because they compete against one another for businesses and residents. They often play havoc with money that is passed along to them from the federal government such as Medicaid funding.

If the estimated $23 billion per year from an internet sales tax went to the federal government, it could completely fund NASA. It would provide enough money to fund both the E.P.A. and the Department of the Interior (all national parks).

In recent years the federal government has proven to be a much better steward of our money than the states. It’s certainly not foolproof, but it is generally reliable. There appears to be little or no public debate about the option of instituting an online sales tax with revenue going to the federal government. It would do us all well to at least raise this idea up the flagpole and give it due consideration.

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Maybe it’s because I’m from Missouri, a  mishmash state with no clear identity except low self-esteem.

I wouldn’t say the same thing about the United States.  We are the world’s oldest living democracy and have special responsibilities around the globe.  Our Declaration of Independence and Constitution were created right out of the pages of The Enlightenment.  We have genuine principals by which we try to live, something that is not particularly true for the state of Missouri or for that matter any other state.

I wondered even more-so when I read an op-ed piece in the New York Times by Bill Keller entitled States Gone Wild.  Keller writes:

No sooner had Arkansas adopted the country’s most regressive abortion law earlier this month — a ban after about 12 weeks of pregnancy — than North Dakota lowered its limit to as early as six weeks. Both measures are expected to be ruled unconstitutional, but here’s my question: Is North Dakota that much more conservative than, say, South Dakota, where abortions are permitted up to 24 weeks?

American states gone wild is somewhat like Balkanization gone wild.  Consistency is more of an accident than the result of a thought-out plan.  Imagine being a woman in North Dakota who is slightly more than six weeks pregnant and whose choice is to have an abortion.  You might think that you’re in luck because abortions are legal in South Dakota through the 24^th week.  However there is only one clinic in South Dakota.  If you live in northwestern North Dakota, you have to drive 646 miles, nine hours and fifty-three minutes, just for an initial examination at that clinic in Sioux Falls, SD.

Keller points out:

Colorado has now decriminalized possession of small amounts of marijuana. Is Colorado really more libertarian than neighboring Wyoming, where possession can still get you a year in prison?

Pennsylvania allows same-sex couples to adopt children. Are Pennsylvanians so much more enlightened than the citizens of Ohio, where gay parents have hardly any rights?

And when the issue is life and death, he says:

Maryland has just decided to repeal the death penalty. Good for Maryland. But why not Delaware, next door, where the 17 inmates on death row are still biding time until their lethal injections?

Not everything is so discombobulated from state to state.  Living in Louisville may be very similar to Cincinnati; Portland, ME similar to Portland, OR.  But why should basic human rights such as civil rights, the freedom to marry who one wishes, and the guarantee of free and open access to voting be so different from state to state?  The proponents of states’ rights often call our fifty sub-sections laboratories for experimentation.  That can indeed be true; among the best examples is Massachusetts cobbling together a health care program based on an individual mandate.  Obama liked Mitt Romney’s idea so much that he copied it on the federal level.

While “laboratory for experimentation” sounds uplifting, in reality it might just as justifiably be called “Race to the Bottom.”  Which state can make abortion most restrictive or which state has the lowest regard for a clean environment?  As Keller says, “the state labs may cook up poisons — Arizona’s anti-immigrant statutes, or those new, restrictive abortion laws — and you pray that Congress or the courts will find an antidote.”

The bottom line is that the principles that form the foundation of our democracy and respect for human rights come from the federal government.  A suggested course of action: (1) stop fiddling at the state level with issues that are far too important and far-reaching for them to handle, and (2) encourage all three branches of the federal government to step forward and recognize that the 21^st Century (and probably the two preceding centuries) require federal leadership to ensure the viability and the functionality of our system.

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There was a time when the term “states’ rights” was simply code for racial discrimination. In the early 1960s, Governors Ross Barnett of Mississippi and George Wallace of Alabama adhered to the policy of “segregation now, segregation tomorrow, and segregation forever.” They felt that as governors each state had the right to set policies regarding segregation and integration.

States’ rights are still an essential tenet of the Republican Party. Many Democrats who are scared of the so-called conservative movement in the country also embrace the rhetoric and policies of states’ rights.

There are a few courageous politicians who acknowledge the reality of “we’re all in this together” and the federal government is the entity that addresses the challenges that face all of us. One who supports strong federal involvement in domestic policies is former Michigan Governor Jennifer Granholm. Her views come from conviction and experience. She was governor of Michigan as its economy began to tank in the early 2000s, well before the rest of the country fell into a recession. The early 2000s was a terrible time for American auto manufacturers and Michigan bore the brunt of the distress more than any other state in the nation.

In her book, A Governor’s Story: The Fight for Jobs and America’s Economic Future, Granholm states:

After three decades of conservative ascendancy, global competition is confronting us with the hard fact that pure laissez-faire, free-market theory no longer works. Recent experience shows that tax cuts, deregulation, and a hands-off approach to government don’t amount to a magical formula for jobs, profits, and prosperity.

Throughout the book, she explains the limitations of what Michigan, as a single state, could do to address the serious economic problems that it faced. She was as energetic and creative as any governor could have been, but Michigan was caught between the vice of corporate greed and federal indifference during the George W. Bush years until the waning months of his term.

Finally, with the stimulus package fashioned by the Obama Administration with a Democratic Congress, necessary aid came. Granholm describes the good news that came in the form of a phone call from an aide to Vice-President Joe Biden. Here’s part of what Michigan was getting from the stimulus package:

“KD Advanced Battery Group—$161 million, factory to be built in Midland, Michigan. Johnson Controls—$299.2 million, factory to be built in Holland, Michigan. A123 Systems to get $249.1 million—factories to be built in Romulus and Brownstown. Compact Power, also known as LG Chem—$151.4 million for battery cells for the GM Volt, facilities to be built in Holland, Pontiac, and St. Clair. General Motors and Ford—two awards each for four different projects. Chrysler’s getting one. Magna E-Car Systems of America is getting $40 million for a plant in Holly. Eaton in partnership with the Coast Air Quality Management District is getting $45.4 million for a plant in Galesburg.

In order to appreciate the full significance of the Obama Administration’s commitment to the stimulus package as well as Governor Granholm’s clear understanding of its need, it is helpful to reflect on the vital engagement of the federal government in domestic issues in the 1960s and then see how Republicans have continuously tried to undermine it.

During the 1960s the federal government passed a series of civil rights laws based on the premise that human rights enforced by the federal government trumped states’ rights. Had the Civil Rights bills of 1964, 1965, and 1968 not been passed, it’s quite possible that in the South and other isolated locales, African-Americans could not eat at the same restaurants as whites. They could not stay in the same hotels. They could not live in communities where whites did not want them to be their neighbors. They would not have equal access to employment opportunities. There would be no enforcement procedures to ensure that African-Americans had equal rights to vote.

At the same time that the Kennedy and Johnson Administrations were advancing human rights, they were also addressing the economic needs of the poor and some in the middle class. These programs, known as the Great Society, included Medicare, Medicaid, the War on Poverty, increased federal aid to education, and increased federal assistance for mass transit. Additionally, consumer protection laws were enacted to provide protection for citizens against deceptive practices by some corporations.

The human rights and economic advances of the 1960s were of enormous benefit to the disenfranchised. But that’s not the entirety of the equation. In some ways, the advances for the “have nots” was a loss for the “haves.” Business owners could not refuse to serve African-Americans if they chose not to do so. Few African-Americans could vote in the South which ensured that candidates would continue to try to “out-segregate” one another. Politicians did not need to concern themselves about appealing to at least a modicum of moderate and progressive voters.

States’ rights has become the mantra for virtually all the Republicans running for president as well as a number of other candidates running for offices at the federal and state levels. In many ways the reason is residue from the advances of the 1960s. As Dr. Martin Luther King said, “laws cannot change the hearts of others, but they can change their habits.” The progressive laws of the 1960s have provided vital new opportunities for minorities and others who are disenfranchised. However, the laws appear to have not done much with regard to changing the hearts of others.

In many ways, the support of states’ rights by the Republican party is the residue of or a reincarnation of the Southern bigotry that has existed through most of the country’s history. The planks of their platform are largely based on trying to undo the civil and economic rights that became the law of the land of the 1960s.

1. Republican views opposed to human rights:

a. Anti-choice

b. Anti-contraception

c. Anti-gay rights

d. Anti-euthanasia

e. Anti-immigration

2. Republican view opposed to economic rights for the poor and middle class

a. Opposing ending Bush tax cuts for the wealthy

b. Initial opposition to payroll tax cuts (only applying to lower and middle class)

c. Opposing additional stimulus to provide more jobs for the unemployed

d. Opposing retaining maximum length of unemployment insurance at 99 weeks (or increasing that number if necessary)

e. Opposing the Affordable Health Care Act which extends health care coverage to an additional 35 – 40 million citizens

f. Opposing federal aid to education

g. Favoring reducing spending on virtually all domestic programs.

h. Anti-environmental protection

i. De-regulation which increases corporate profits at the expense of consumer and worker interests.

While Barack Obama has been criticized by some progressives for not pushing a sufficiently strong liberal agenda, over the past year he has been fashioning more policy around the strength of the federal government. He has the strongest bully pulpit of any public figure. With help from other Democrats who can sense the absurdity of many Republican positions, President Obama can help us restore the perspectives of the 1960s when it was clear that major answers to public issues rested with the federal government. The Republicans have given Democrats a wonderful opportunity to bring common sense back to governance. Jennifer Granholm clearly understands the importance of a strong federal government. Barack Obama is moving more in that direction. Now we need other Democrats to seize the moment.

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