By Michael Lucci
Friday, November 26, 2021
Two weeks ago, President Biden hit a legal wall when
the U.S. Court of Appeals for the 5th Circuit reaffirmed and extended its stay
on his Occupational Safety and Health Administration’s (OSHA) vaccine mandate.
The OSHA mandate would require employers to ensure that their employees are
either vaccinated or masked and regularly tested for COVID-19. In its decision
to stay the mandate, the court cited the likelihood that the mandate
exceeds OSHA’s statutory authority and violates the constitutional separation
of powers. The court further called the policy as “a one-size-fits-all
sledgehammer,” a description that could just as easily apply to Biden’s
domestic agenda as a whole.
Overarching, centralized control makes for frail and
inflexible governance. Whether or not Biden’s vaccine mandate is reversed in
the courts, the legal battle over it ought to catalyze a swing in the pendulum
of power away from Washington, D.C., and toward state capitols. Fortunately,
excessive centralization can be healed through the decentralization that is
explicitly encouraged by our federalist constitutional order. Forward-looking
congressional policymakers should capture the momentum of decentralization and
advance an agenda to devolve powers and responsibilities to the states and the
people. And state leaders should do their part by embracing the new
opportunities and responsibilities that decentralization offers them.
Right now, the federal government isn’t making it easy
for states. The past ten months have seen a policy assault on federalism and
state authority. The American Rescue Plan Act (ARPA), signed into law on March
11, undermined fiscal federalism by flooding state and local governments and school
districts with previously unimaginable amounts of cash. The law micromanaged
how states could spend those and explicitly restricted state tax cuts, a
provision that was found to be an unconstitutionally ambiguous “invasion of state
sovereignty” by an Alabama district judge on November 15. It further
incentivized joblessness by providing bonus unemployment benefits that often
matched or exceeded workers’ lost wages, prompting 26 states to
opt out of the federal unemployment-insurance program. Medicaid standards were
altered and welfare was expanded, further tying states’ hands and undermining
labor markets.
These failures have consequences. Inflation is soaring
while the economic recovery is souring. Supply chains are broken, and labor
markets are in a severe shortage, with workers quitting their jobs at record
rates. There are currently more unfilled job openings (10.4
million) in the U.S. than there are officially unemployed workers (7.4
million), and job growth has been especially slow in states
with excessive economic restrictions. The OSHA vaccine mandate risks
another bout of labor-market upheaval, putting millions of jobs in limbo.
The stalled portions of Biden’s agenda would similarly
target state prerogatives. The For the People Act would eviscerate state
control over elections. The Build Back Better plan would double down on ARPA’s
mistakes, saddling states with new child-care programs and spending mandates,
restoring federal subsidies to high-tax, mismanaged states, and subsidizing
expensive sources of energy.
Americans rightfully see Washington, D.C., as a source of more
problems than solutions. Polls show that they trust the intent and competence
of state and local governments far more than the intent and competence of the
federal government. It makes sense, then, that state leaders are increasingly
pushing back on federal mismanagement. In addition to the aforementioned
opt-outs from the federal unemployment-insurance program, dozens of states have sued to strike down the federal
“tax mandate,” Texas governor Greg Abbott is working to secure the southern
border without Washington’s help, Kansas Governor Laura Kelly is pushing back on the vaccine mandate,
and the Florida legislature is considering a bill that would create the state’s own OSHA in order
to curtail federal overreach and protect Floridian jobs.
Decentralization is critical to restoring trust,
competence, and effectiveness in government programs, and to making the nation
more flexible and resilient. State leaders should continue to stand up against
federal mismanagement, but doing so still constitutes more of a rear-guard
action than a proactive strategy for taking back power from the federal
government. Moreover, states can’t fix problems if state solutions are
prohibited by federal fiat. Thus, what is needed is a federal effort to remove
mandates on the states and devolve powers and domestic program authority back
to them. Once that happens, Washington, D.C., will be free to focus on its core
responsibilities, and states can start proactively creating solutions to
America’s biggest policy problems.
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