Opinion: Continuing deadlock in Congress may boost state power

The January forecast for Congress calls for a continued deep freeze. 

That means the most important public policy debates facing the nation will remain locked under the icy divide between the Democratic majority in the Senate and the Republican majority in the House. This forecast has held true since the start of the 112th Congress last January.

The frigid environment led the president last week to make a controversial recess appointment for the head of a new consumer watchdog agency. Senate Republicans, true to the freeze, claim the Senate is not in recess so as to block the appointment. The president, playing on the historic high level of public discontent with congressional inaction, said he refused to “stand by while a minority in the Senate puts party ideology ahead of the people they were elected to serve.”

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Last year the freeze on Capitol Hill brought us a paltry two-month extension of the payroll tax cut. It also led to the failure of the supercommittee, the burying of the deficit reduction plan proposed by former Sen. Alan Simpson (R-Wyo.) and former White House Chief of Staff Erskine Bowles and three-near government shutdowns. The cold inside the Capitol spread to Wall Street and led to the downgrade of the nation’s credit rating.

And now there is the added chill that arrives with an election year. The GOP has no incentive to give the president any legislative victories. At best, Republicans in the House and Democrats in the Senate will try to force their opposition into casting unpopular votes on big issues. The goal is not to pass any meaningful legislation but to score political points and create fodder for political attack ads. 

The bottom line for the coming year is that action on issues affecting the lives of real Americans will come from state governments and federal courts. Here are three major policy fights that will take place on battlegrounds far from Capitol Hill.

Immigration: GOP governors and state legislatures are pressing tough new immigration laws modeled after Arizona’s S.B. 1070. States such as South Carolina, Tennessee, Alabama and Georgia have enacted similar “Papers Please” laws. A federal judge blocked Arizona’s law in 2010 and last month, another federal court blocked parts of the South Carolina law as unconstitutional infringement on federal law. The GOP proponents of the state laws argue they are necessary due to Congress’ failure to act on immigration reform. The Supreme Court has announced it will rule on Arizona’s appeal sometime this year. 

Healthcare: In the absence of federal reform, Medicaid will continue its downward spiral into insolvency. This means that cash-strapped states will have to make painful cuts and enact cost-saving measures like means-testing to make up the difference. Also, the Supreme Court has said it will rule on the individual mandate in President Obama’s healthcare reform law. Several Republican governors argue it is unconstitutional and will burden businesses in their states. Last November, 66 percent of voters in Ohio voted for a ballot initiative which declared their state to be exempt from a national healthcare mandate – directly contradicting a central piece of the Affordable Healthcare Act – and setting up a fight between the state government and a paralyzed federal government.

Education: Congress has failed to pass much-needed revisions to No Child Left Behind for the past three years and it is highly unlikely they will do so in 2012. States are using up their stopgap funding for education that was included in the stimulus bill. And the Race to the Top grant program where states compete for additional funding faces serious cuts. The only hope for education reform would appear to be on the state level. GOP governors are following the lead of New Jersey Gov. Chris Christie, a passionate reform advocate. However, Christie was unable to get his ambitious reform package through his Democratic-controlled state legislature in 2011. Christie says he will renew his push for merit pay, tenure reform and expansion of charter schools and vouchers in 2012.  

And the list of major public policy disputes also includes the controversy over state laws requiring photo identification for voters. The Department of Justice has challenged several of these laws, setting the stage for another battle in federal court. South Carolina’s new voter ID law was recently blocked by the DOJ under the 1965 Voting Rights Act. Gov. Nikki Haley (R-S.C.) has said she is prepared to challenge the Obama administration all the way to the Supreme Court on this one.

Presidential and congressional candidates will be reacting to whatever legislative action comes from the states. Note that each of these issues tests the limits of federalism itself. This bedrock principle of the U.S. Constitution, codified by the Tenth Amendment, says that there is a separation of powers between the state and federal government. But what happens when the federal government is not doing its job? 

Voters can expect both Republicans and Democrats to run against the do-nothing Congress. 

Because of Congress’s partisan paralysis, 2012 may signal a monumental shift in power away from the federal government to the state governments – and in the process permanently alter the constitutional interpretation of federalism.