The Reflecting Pool
In This Article
An eye on the state-federal relationship.
By Carl Tubbesing
February 21, 2007
One primary objective of the National Conference of State Legislatures is to represent the states and their legislatures in the American system of government. NCSL’s Washington, D.C., office is devoted to fulfilling this critical mission.
Over its 32-year history, State Legislatures magazine has been an important way to inform the state legislative community about state-federal issues and trends in federalism. We’ve used it to highlight issues just peering over the horizon—two cover stories on the streamlined sales tax movement come to mind—and to outline major new federal laws, for example, the 1996 welfare reform law and last year’s Medicaid changes. The magazine has also been a great way occasionally to exult when the state-federal scale seems to be tipping in our favor and, perhaps more frequently, publicly worry when the balance has tilted the other way.
The monthly print version of State Legislatures, though, cannot keep readers informed about NCSL’s day-to-day and week-to-week state-federal activities. It takes several weeks to write, edit, lay-out, proofread, print and mail the magazine you receive 10 times a year at your office or home. This new online version of State Legislatures changes that. In a prototypical example of hope triumphing over experience, the editors of the magazine, who have been excising the clever bon mots and emending the spellbinding leads I’ve written for all those articles in State Legislatures over the years, have asked me to write this column.
The Reflecting Pool, which will arrive on your cyberspace doorstep once every two weeks, will keep you abreast of activities in our nation’s capital and will frequently focus on the people on both sides of the state-federal tug-of-war. When legislators come to Washington for Hill visits, I’ll let you know how the meetings went. When a member of Congress introduces a bill we like, I’ll let you know about that—and vice versa, of course. When something good or funny or outrageous happens, you can bet you’ll read about it here. When a federal agency issues a report you should know about, I’ll let you know—and translate it into plain English (at no extra cost, by the way). That’s the plan, anyway. Let’s see how it goes.
Real ID All the Time
It’s pretty clear that members of Congress are starting to hear the message being sent by state legislators concerned about various aspects of the Real ID act. The Arizona, Maine and Utah legislatures have officially adopted anti-Real ID resolutions and several others appear close to passing resolutions calling for repeal of the law or stating that the legislature won’t comply with it. This activity has generated press coverage—including The New York Times and Associated Press stories—and has created a stir in the U.S. Capitol.
Last week, Homeland Security Secretary Michael Chertoff went before the Senate Homeland Security Committee to pitch the department’s budget request for next fiscal year. The good news for legislators concerned about Real ID is that three members of the committee used their question time to voice their concerns about the law. The bad news is that Secretary Chertoff’s answers were not reassuring.
Maine Senator Susan Collins, ranking member of the committee, noted that it’s been two years since the law passed and the department still hasn’t issued regulations for states to follow. Secretary Chertoff responded they will be out this month and blamed the delay in part on the need to consult with state officials. Senator Collins said the law is an unfunded mandate. Secretary Chertoff replied the costs are exaggerated. Senator Collins asked about the technical barriers to implementation. Secretary Chertoff said they “are vastly overstated.”
Michigan Senator Carl Levin probed on the unfunded mandate question. “In any event, there is no funding in this year’s budget request. Is that correct?” Secretary Chertoff said, “That’s correct. But I don’t think it’s viewed as being something the federal government is going to pick up the cost for.”
Virginia Senator John Warner followed up. Secretary Chertoff outlined his view of how Real ID should be paid for. “This is—like all driver’s licenses—largely a fee-based system, and that ultimately the cost of building Real ID should be amortized over the driver’s license fee.” Luckily for states—and for drivers—Congress, and not Secretary Chertoff, has the power of the purse.
Chemical Plant Safety Rules Threaten State Authority
Regulatory preemption. Can you think of a more boring-sounding pair of words? You know it’s not a phrase you’re going to find when you thumb through the latest issue of Oprah's magazine, O. And, you just know that, when you Google it, the most compelling hit comes from a Georgetown law review article. It may sound boring, but, in fact, regulatory preemption has become a vexing third front in the federalism battle. (Federal unfunded mandates and legislative preemption are the other two.)
Over the past couple of years, federal agencies increasingly have used their rule-making powers to try to overrule state actions in several areas, including roof crush standards for passenger vehicles and drug labeling. The latest threat of regulatory preemption came in late December when the Department of Homeland Security issued proposed regulations designed to protect chemical plants from terrorist attacks. You might ask, “Why shouldn’t the Department of Homeland Security have that authority? Isn’t thwarting terrorist attacks its primary mission?” Of course, it is. But formal comments that NCSL has submitted assert that the department wants to go beyond the authority Congress gave it when it passed the law that the regulations are intended to implement.
Connecticut Senator Joseph Lieberman, who chairs the Senate Homeland Security committee, agrees with NCSL’s position and has written a strong letter to Secretary Chertoff saying that Congress did not intend to prevent states from setting higher chemical plant safety standards. The final rules are due in April, so it’s not too late for the department to change its position.
Rudy Fernandez Leaves the White House
Friday, February 9, was Rudy Fernandez’ last day at the White House. Fernandez had the title of special assistant to the president for intergovernmental affairs and was NCSL’s primary point of contact with the Bush administration. Over the past several decades, each administration has had a staffer dedicated to working with elected officials, including state legislators. Hard-working, effective and fair, Fernandez was one of the best we’ve ever worked with. He has returned to his home state of Florida to be vice president for governmental affairs at the University of Miami.
Legislators Participate in Transportation Funding Forum
Oregon Senator Bruce Starr and Ohio Senator Capri Cafaro represented NCSL in mid-February at an all-day meeting in Washington, D.C., on the future of surface transportation funding. The forum, organized by the National Academy for Public Administration, took a long-term look at the challenges and possible solutions for funding the country’s transportation needs. The unique feature of the meeting was that it not only included state and local elected officials, but also representatives of the Bush administration and congressional staff. The group will reconvene later this spring and, following that, will publish a paper with its findings and recommendations.
Carl Tubbesing is the deputy executive director of NCSL.