Are federal laws like a salad bar? Can states just pick and choose?

Posted at 11:23 AM, Mar 31, 2015

In the Obama era, it's become commonplace for state officials to sue the federal government over a whole range of matters, including immigration and the president's signature health care law, the Affordable Care Act.

Before Greg Abbott was elected governor of Texas last fall, he liked to say that as state attorney general, "I get up in the morning, I sue Barack Obama, and I go home."

Rather than complaining about what might be considered impudence, congressional Republicans seem to be doing their best to egg states on.

The other day, former GOP vice presidential pick Paul Ryan had some straightforward advice for state legislators wondering if they should prepare to set up health insurance exchanges in case the Supreme Court strikes down a key part of the Affordable Care Act.

"Oh God, no," Ryan said on a conference call organized by a conservative think tank. "The last thing anybody in my opinion would want to do, even if you are not a conservative, is consign your state to this law."

Do states really have a choice about which federal laws they "consign" themselves to following?

Mitch McConnell apparently thinks so. The Senate majority leader recently sent a letter to the nation's governors advising them to ignore Environmental Protection Agency regulations meant to limit carbon emissions from power plants. The rules are "already on shaky legal ground," McConnell informed the governors.

"I can't think of past examples of a party leader in Congress recommending that the states defy or ignore regulations," says David Robertson, a federalism expert at the University of Missouri-St. Louis.

If congressional leaders snubbing their noses at federal laws and regulations is a novel approach, it's in keeping with the general spirit of non-cooperation prevailing in Washington just now. It's of a piece with GOP senators sending a letter to Iran questioning President Obama's authority when it comes to nuclear negotiations, or House Speaker John Boehner inviting Israeli Prime Minister Benjamin Netanyahu to address Congress without White House say-so.

"It reflects a breakdown of the comity that's supposed to exist among the three branches of government," says Lewis Gould, author of The Republicans: A History of the Grand Old Party. "The majority leader has no authority to say you can pick and choose among the laws you want to obey."

Republicans have pointed out that plenty of congressional Democrats have freelanced in their day, whether it was Nancy Pelosi traveling to Syria to meet with President Bashar al-Assad in 2007 for talks that were criticized by the Bush White House, or Jim Wright and other Democrats sending a "Dear Comandante" letter to Nicaraguan leader Daniel Ortega back in 1984.

In a democracy, dissing the president is fair game.

"This is not all that unusual when they feel that the president is on shaky ground and they can assert themselves," says presidential historian Robert Dallek. "This is what happens when a second-term president gets into the final months of his administration, however popular he may be -- and, of course, Obama is not knocking it out of the park in terms of popular support."

Obama, for his part, hasn't always played nice with Republicans. Members of Congress have frequently denigrated what they view as his tendency toward executive overreach. Remember last year, when House Republicans filed suit against Obama for not faithfully executing the law (in this instance, the same Affordable Care Act they despise)?

The federal government contains many voices -- remember checks and balances from civics class? But, the idea of letting other political actors play out their respective roles seems to have fallen from favor. The only prerogatives that count, it seems, are one's own, not the other guy's.

GOP South Carolina Sen. Lindsey Graham, testing the presidential waters in New Hampshire, suggested that if he were in charge, Congress would give the Pentagon all the funding it needs -- or else. " I would literally use the military to keep them in if I had to," he said.

Graham said he was joking (hilarious), but the idea that one branch would force another to bend to its will is "profoundly unconstitutional and undemocratic," Gould says.

The historian was quick to raise the specter of the days before the Civil War, when southern leaders felt free to nullify the federal laws they didn't like.

But the law is not a salad bar from which you get to choose the selections you like. Once a law has been enacted, politicians are supposed to respect it.

"If they want to sue, that's fine, but it's beyond the mark for the majority leader of the Senate to say, 'Don't obey the federal government,'" Gould says. "If you say, 'Obey only the laws you want to obey,' a certain anarchy comes in after a while."

[Also by Alan Greenblatt: The era of show horses rather than workhorses]

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