Tuesday, November 13, 2007

Tocquevillian Federalism

What do Alexis De Tocqueville, immigration policy and federal education policy all have in common? If you answered federalism, you would be right, but not for the reasons you might think.

In the seminal observational document of American democracy, Tocqueville noted that American democracy is predicated upon the premise of national laws locally administered. In the 1830's this was not an option for the young republic. If Congress passed a law, the slow methods of communication, the small nature of the national government and the far flung nature of America at the time, all but demanded a certain reliance upon local government to not only promulgate federal law but to enforce it as well. In this respect the federal nature of the American democracy suited the rugged individualism of the American people. In short, those who administered the law had to look their neighbor in the eye when making decisions and that led to some different applications of the law to account for circumstances that Congress could not envision.

However, today, with rapid transit and even faster communications, we as a republic have lost some of that republican application. Congress can pass a law and a massive federal bureaucracy, backed up by a judiciary interested in even and consistent enforcement of the law, can execute a law without regard to sectional or local differences. Indeed, even the laws Congress passes are larger and more complex than ever before. To be sure, the world is more complex, but that complexity screams not for more complexity in the law, but for broader guidelines on the national level and local enforcement and administration.

Outside of health care, educaiton and immigration policy are likely to dominate the debate on domestic policy in the 2008 elections. On their face, there could be no two issues more different thatn these two. Education, a traditionally state and local govenrment responsibility, has become more and more federalized, even though the Framers, who thought education was vitally important, made no mention of education in the Constitution. In some respects that is not a bad thing, but in many other respects, education is a policy area screaming for Tocquevillian federalism. Immigration, on the other hand, a policy area expressly delegated to the Congress and federal government, is a policy area that Congress and the executive have nearly abdicated; paralyzed by interest group politics and our desire to not look mean-spirited on the international state. In the absence of federal leadership, more and more localities are stepping up to fill the void, only to be slapped down by judges who must read the law and see a federal pre-emption in this area.

A Tocquevillian federalism approach to both of these policy areas can provide immediate and lasting change. If Congress were to pass a set of broad federal goals in each of these areas of policy and empower the states and localities to enforce the law as their needs dictate, the goals of federal policy can be achieved and the proper functioning of our republic can be achieved.

As for immigration, the laws are already on the books that need to be enforced. Local law enforcement, typically tasked with enforcing state and local law, must still adhers to federal law. There is no reason to suspect that a local cop in incapable of enforcing federal law as well as state law. A local cop can check the immigration status of suspected illegal aliens and can begin the process of deportation just as easily as an ICE agent. Furthermore, a local cop in Thermopolis, WY has different immigration enforcement needs than a copy in El Paso, TX. If we empower the local police to help enforce federal immigration law, we can immediately and drastically increase the manpower to effectuate real immigration control.

On the education front, the more we read about states gaming the accountability system and the federal intereference in a traditionally state province, the more people are coming to realize that No Child Left Behind is better turned on its head. A national education standard, the goals and criteria that Congress believes indicates a well education child must serve as the goal of federal education policy. But that is where federal policy must end and state enforcment begins. This would be the ultimate in Tocquevillian Federalism, a broad national standard enforced by the states as best fits their conditions. States would be left to determine the remediation needed by schools that fail to meet the national standard. There would be no doubts as to what the standard is and the states woul be held accountable by their citizens, a more immediate accountabilty than a federal bureaucracy, for failure to prod schools to meet the standard.

Upon examining the Constitution and the specifically enumerated powers, there are some powers that must be undertaken by the national government alone. But in many other policy areas a Tocquevillian Federalism, of a national standard or law that is locally enforced can do wonders, but in terms of reducing the size of govnerment, but also in ensuring that national law does not become so large and complex so as to attempt to deal with every potentiality. As the U.S. Code has grown, the responsiveness and adaptiveness of federal law has declined. We need to embrace the idea that just because Congress can and actually does have the power to make legislation in a given area, does not necessarily mean that the states and local govenrments are incapable applying and enforcing that law.

In Tocqueville's time, such local administration was a necessity born of condition. Today, local administration is a necessity required by flexibility. Modern communications, instead of demanding centralized control, can actually effectuate local administration.

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