By Daniel J. Dew

Thank you Chairman Uecker, Ranking Member Thomas, and members of the Committee for allowing The Buckeye Institute this opportunity to comment on Senate Concurrent Resolution 15. We would also like to thank Senators Faber and Obhof for calling attention to this critical concern.

As the Concurrent Resolution rightly acknowledges, the Constitution of the United States created a federal government of limited and enumerated powers, enshrining within its Articles and first ten Amendments the principles of federalism and the separation of powers. Invoking these principles and reminding ourselves, our citizens, and our Congress in Washington that federal powers are in fact “few and delegated” is an important first step toward reestablishing the system of dual sovereignty that has preserved our rights and guarded our liberties for more than 200 years. As Chief Justice Roberts reminded everyone a few years ago: “The States are separate and independent sovereigns. Sometimes they have to act like it.”[1]

Indeed, as Ohio asserts her sovereignty, it is important to recall how the Founders understood the federalism that frames our constitutional system. Thomas Jefferson, for example, once described the balance between state and federal prerogatives this way:

The several states composing the United States of America are not united on the principle of unlimited submission to their general government; but by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes [and] delegated to that government certain definite powers and whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.[2]

James Madison, the “Father of the Constitution,” explained in Federalist 45 that: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”[3]

Regrettably, today a federal government of “few and defined” powers seems but a distant memory. As the Committee is well aware, the sovereignty of the states has been dramatically eroded as federal mandates, requirements, and conditions have exerted ever more control and influence over areas of our personal and economic lives once emphatically the province of state and local authorities. For decades now, Washington has increasingly imposed its “one-size-fits-all” approach to government in complete contravention of the federalist principles announced in our nation’s founding documents.

As a free-market public policy think-tank, The Buckeye Institute is keenly aware of how the rapid erosion of these constitutional principles and limited, enumerated federal powers continues to economically harm states like Ohio.

First, mandates from Washington are often “unfunded mandates” from Washington—exposing states and their taxpayers to rising and unexpected costs. Examples of Uncle Sam’s unfunded decrees are legion, but President Obama’s Affordable Care Act and the budget-busting expansion of Medicaid provides an all-too-obvious example. Countless provisions in that Act heap significant additional costs and regulatory burdens on Ohio taxpayers, consuming swaths of state resources at the expense of other priorities.

The Buckeye Institute’s Crushing Burden report projected in 2010 that “...nearly 565,000 additional Ohioans will be enrolled in Medicaid at a seven-year (2014–2020) additional cost to the state of nearly $1 billion because of the Patient Protection and Affordable Care Act.”[4] Unfortunately, we now know—as Medicaid enrollment already approaches nearly 680,000 enrollees—that even this rather pessimistic prediction underestimated enrollment and the true costs of Medicaid’s expansion.[5] Even more worrisome, as Congress soon scales back the full federal funding that enticed states to join the moribund program, Ohio taxpayers will shoulder even more of the financial burden for a program practically designed to keep enrollees from ever regaining their self-sufficiency.

Second, federal red tape spun from the belly of Washington’s bureaucracy ensnares states in an ever-widening web of costly restrictions, requirements, and responsibilities. The federal government’s Race to the Top program, for example, put Ohio on the road to embracing the controversial Common Core standards. The U.S. EPA’s so-called “Clean Power Plan”—another unfunded mandate—will be a dagger to the heart of Ohio’s energy and manufacturing industries and will raise energy costs for all Ohio consumers, harming lower income households and communities the most.[6]

Taking care of our sick and elderly, educating our children, regulating our local businesses and industries—these were all once core responsibilities entrusted to state, not federal, control. The Constitution expressly grants none of these regulatory powers to Congress or federal bureaucrats. And, as the Tenth Amendment to the U.S. Constitution succinctly states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, it was never the design of the Constitution that all spheres of state and local life should spin in the federal orbit. Instead, as even the decidedly liberal jurist, Justice Louis Brandeis explained in a 1932 Supreme Court decision: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”[7]

We encourage Ohio to rise as that “single courageous State” against Washington’s expansive and pervasive entry into virtually every facet of our daily and economic lives. For just as Congress seems bent on putting our democratic “laboratories” out of business, the “rest of the country” is now at risk—just like Justice Brandeis prophetically warned. Thus, in our view, returning to the constitutional principles and federalism that our Founders established is a critical imperative. 

1. NFIB v. Sebelius, Slip Op. at 49 (2012).

2. Thomas Jefferson, “The Papers of Thomas Jefferson, Volume 30: 1 January 1798 to 31 January 1799,” Princeton University Press, accessed May 20, 2016, https://jeffersonpapers.princeton.edu/selected- documents/jefferson%E2%80%99s-draft , accessed May 2-0, 2016.

3. James Madison, “Federalist No. 45,” U.S. Congress, January 26, 1788, https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-45

4. Blasé, Brian, “Crushing Weight: National Health Care Law Threatens to Make Medicaid an Unsustainable Burden for Ohioans,” The Buckeye Institute for Public Policy Solutions, December 2010, at http://www.buckeyeinstitute.org/uploads/files/BUCKEYE-crushing-weight.pdf

5. Ohio Department of Medicaid, “ODM Eligible Clients- April, 2016,” accessed May 20, 2016, http://medicaid.ohio.gov/Portals/0/Resources/Research/MedicaidEligExpReports/2016/Med-04.pdf

6. The Buckeye Institute for Public Policy Solutions, “Public Comments Docket EPA-HQ-OAR-2013-0602,” December 1, 2014, http://www.buckeyeinstitute.org/uploads/files/12-1- 14%20US%20EPA%20Clean%20Power%20Plan%20Comments%20(Final).pdf

7. New State Ice Co. v. Liebman, 285 U.S. 262 (1932) (Brandeis, dissenting).