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Re-Inventing Federalism How Executive Order 13132 undermines Constitutional Federalism (10th Amendment) and lays a foundation for a global management system By Andrew and Berit Kjos, September 1999 |
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President Clinton’s latest Executive Order on Federalism (August 5, 1999) tips the original balance between state and national governments in his favor. His clever wording and occasional confirmations of the old Constitutional views may silence critics for a moment. But don’t be deceived. His veiled language hides misleading assertions that replace the wise caution of our founders with the seditious plans of our power-hungry president. Much of Executive Order 13132 is simply a clever rewrite of President Reagan’s 1987 Executive Order 12612, also titled Federalism. It was revoked by President Clinton for an obvious reason: Reagan generally affirmed our founders’ wise intentions. Clinton alters the basic principles of federalism and paves the way for a new kind of government.
It’s no secret that Clinton, like England’s Prime Minister Tony Blair and other European leaders, envisions a Third Way (Notice the US-UK flag at this website) of governing people and land in the 21st Century. To finish what he has effectively begun, he cannot be encumbered by the traditional balance between state and national powers. So he rewrites the rules, paving the way to a global management system that would rule by -
1. national-and-international standards
2. federal regulations (based on UN guidelines for sustainable development)
3. consultation or facilitated dialogue and an illusion of consensusNo wonder the word "standards" is mentioned six times, "national standards" are mentioned three times, and "consult" or "consultation" occur eleven times. Like "partnerships" and "consensus," these words are vital to the new management system. When the "consultation" is driven by a federal agenda, the consensus process will surely be ruled by the stronger member of the new State-Nation partnership. When the latter partner also wields the purse-strings, the true meaning of American federalism quickly fades into the mist of forgotten history. (See Memory of the World.)
"GUIDING PRINCIPLES" THEN AND NOW.
To better understand Clinton’s goal, let’s compare his first executive order on Federalism, #13083, with the corresponding Executive Order 12612, signed by President Reagan in 1987. In his Section 2, President Reagan listed nine Fundamental Federalism Principles. These principles are important, because they provide a legal framework for everything that follows.1 Reagan’s list included these four principles:
"(a) Federalism is rooted in the knowledge that our political liberties are best assured by limiting the size and scope of the national government."
"(e) In most areas of governmental concern, the States uniquely possess the constitutional authority, the resources, and the competence to discern the sentiments of the people and to govern accordingly. In Thomas Jefferson's words, the States are 'the most competent administrations for our domestic concerns and the surest bulwarks against anti-republican tendencies.'"
"(g) Acts of the national government . . . . that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the Framers."
"(i) In the absence of clear constitutional or statutory authority, the presumption of sovereignty should rest with the individual State. Uncertainties regarding the legitimate authority of the national government should be resolved against regulation at the national level."
President Clinton’s recent Executive Order 13132 contains a similar list of principles. His Section 2, titled "Fundamental Federalism Principles" like President Reagan’s above, begins with this introduction:
"In formulating and implementing policies that have federalism implications, [federal] agencies shall be guided by the following fundamental federalism principles:"
In his first EO on Federalism (signed in 1998), Clinton deleted (g) and (i) above. You can see why. They clash with his plans. His demand that federal fingers guide our values, health plans, child-raising, education, community involvement, workforce training, transportation, land use, and a myriad of other activities illustrate his panoramic vision for federal control.2
Recently, since Congressional pressure forced him to revise his 1998 version (#13083), he put the two deleted principles back into EO 13132. But principle (i) along with (a) and (e), were significantly altered. Compare Reagan’s version with Clinton’s revision below:
"(a) Federalism is rooted in the belief that issues that are not national in scope or significance are most appropriately addressed by the level of government closest to the people."
Clinton deleted Reagan’s warning that "political liberties are best assured by limiting the size and scope of the national government." Softening the language and avoiding the word "State," Clinton points to a more manageable entity: "government closest to the people." This changes the entire focus from the intended balance between state and national governments to an ambiguous, sound-good ideal. More important, its ambiguity opens the door to all kinds of expedient interpretations and alternatives.
Worse yet, it could sanction federal manipulation and control through any local governmental group or "partner" linked to a Federal agenda. This is already happening from coast to coast through regulations and standards with financial strings tied to absolute compliance. The next revision doesn’t help:
"(e) The Framers recognized that the States possess unique authorities, qualities, and abilities to meet the needs of the people and should function as laboratories of democracy."
Compare the last principle with Reagan’s (e). Then ponder the added phrase: "function as laboratories of democracy." The form of "democracy" that President Clinton, Mikhail Gorbachev, and other leaders promote amounts to global socialism. Based on the Third Way of government control, it turns federalism upside down. So do its deceptive political tactics and transformational strategies. Yet, the next principle fits right into this new system:
"(i) The national government should be deferential to the States when taking action that affects the policymaking discretion of the States and should act only with the greatest caution where State or local governments have identified uncertainties regarding the constitutional or statutory authority of the national government."
This ambiguous demand requires little more than the right attitude. The national government should be deferential, but it doesn’t have defer to the State. It must be cautious, but doesn’t have to stop its intrusive action. The key to victory is the media. If the media cooperates by defending federal intrusion or turning a blind eye, then the public won’t complain and Clinton will get away with anything. This soft language leaves wide-open doors for interpretations that could erode federalism altogether.
RE-INVENTING GOVERNMENT.
Some of Clinton’s principles carry less potential for misuse than others, but the eighth guiding principle sets the stage for mandating more of the "voluntary" social and psychological programs required by Goals 2000:
"(h) Policies of the national government should recognize the responsibility of - and should encourage opportunities for - individuals, families, neighborhoods, local governments, and private associations to achieve their personal, social, and economic objectives through cooperative effort."
The social agenda behind Clinton’s education and health programs are essential to the White House plan to "re-invent" our government. Remember, in the context of Clinton’s unceasing attempts at social engineering, everything must change -- government, education, the balance of powers, American sovereignty, human relationships, and the meaning of words. As Vice President Al Gore warned us on page 274 in his 1992 book, Earth in the Balance, there must be "a wrenching transformation of society."
For instance, Webster defines "opportunity" (see above quote) as "circumstances providing a chance or possibility." It implies voluntary action or participation. As used in Goals 2000, Clinton’s massive education law, it calls for an expected participation in a government program. Refusing to comply with the "voluntary" opportunity would be costly, for all the "opportunities" the federal government provides would be tied to its rewards. To earn the right to federal funds, higher education, and better jobs, both the State and the individual would be pressured to conform to federal standards and guidelines. That’s why Section 6 (b)(1) below is so alarming. It helps enforce the new system for managing human resources.
Think about it. Do you, as an American citizen or family, have a "responsibility" to achieve your personal and social objectives through what our president calls "cooperative effort"? In what kinds of cooperative effort would he encourage us to participate? What kinds of "opportunities" will the government provide, or rather, mandate? What are implications of these suggestions?3
Since our White House leaders have already begun to "reinvent government" and redefine the obligations of citizenship, we had better look at Clinton’s stated goals. In his 1998 State of the Union address to Congress, he gave us a glimpse of his vision for a collective society. Notice his nice-sounding call for "a common identity" hammered on "the forge of common enterprise." This is a blueprint for the 21st century global village and "service learning" -- both of which would immerse participants in the mind-changing consensus process:
"We must work together, LEARN together, LIVE together, and SERVE TOGETHER. On the forge of common enterprise, Americans of all backgrounds can hammer out a COMMON IDENTITY . . . . With SHARED VALUES, HONEST COMMUNICATION, and citizen SERVICE, we can UNITE A DIVERSE PEOPLE…. We are many. WE MUST BE ONE."
Clinton was calling for "solidarity," UN style. I heard the same call to oneness at the 1996 UN Conference on Human Settlements in Istanbul. At an all day session on global solidarity, Federico Mayor, the head of UNESCO, summarized the goal:
"CITIZENSHIP for the next century is learning to live together. The 21st Century city will be a city of social solidarity.... We have to REDEFINE the words... [and write a new] social contract."
Redefine the words, write a new social contract . . . . Sounds familiar, doesn’t it? That’s what our president has been doing all along. This executive order strengthens a program already well under way. If Clinton decides to use this particular principle as a legal guide, adults as well as children would be pressured to participate in a process that would "forge a common identity," create "solidarity," and solve the problem of another "s" word: separatism.
Separatism is the opposite of solidarity. Remember Al Gore’s statement at the 1991 Communitarian Conference in Washington DC: "Seeing ourselves as separate is the central problem in our political thinking."
To deal with the attitude of separatism in families, in churches, and in communities, Clinton suggested, during his 1997 White House Conference on Hate-Crimes, that the government establish after-school clubs and organizations. It’s part of the "lifelong learning" program that Judge Robert Bork summarized in his 1996 book, Slouching Toward Gomorrah:
"Now, however, the educational system has become the weapon of choice for modern liberals in their project of dismantling American culture. Our egalitarians view every culture (other than European) as equal."4
It’s also part of the new system of government by partnership. The church-state partnership that both Al Gore and George W. Bush promote will lead to compromise and change on both sides – but especially for the church. It, like the State, loses its independence fast when it puts consensus and popularity ahead of truth. Remember, the stronger partner will rule the consensus process.
Clinton is building his case on a progressive movement toward a "cooperative conception" of federalism. It sees the federal relationship between the states and the national government "as mutually complementary parts of a single governmental mechanism."5 One of the dangers of this progressive merger was pointed out by the respected Constitutional scholar, Edward S. Corwin, editor of the 1952 Library of Congress book, The Constitution of the United States of America:
"Cooperative Federalism invites further aggrandizement of national power. . . . for when two cooperate, it is the stronger member of the combination who usually calls the tunes. Resting as it does primarily on the superior fiscal resources of the National Government, Cooperative Federalism has been, at least to date, a short expression for a constantly increasing concentration of power at Washington in the stimulation and supervision of local policies."6
Clinton’s vision of solidarity demands uniformity. Uniformity demands national standards. And standards demand the "increasing concentration of power at Washington." It’s all falling into place.
NATIONAL STANDARDS.
"Standards" are mentioned six times in Executive Order 13132. Our government cannot enforce social solidarity, monitor progress, or correct non-compliance without uniform standards. These national standards must guide each state toward the common goal. Their measurements of the human resources within their territory must be based on uniform national standards, not only for math and reading, but also for mental health, for literacy, 7 for (non-traditional) history, for the new subjective science, and for anything else that demonstrates the politically correct "learning" for the 21st Century community.
These national standards must be linked to international standards or benchmarks. America cannot fulfill the UN demand for a homogeneous global education system without linking the completed national system to the UNESCO network. All the pieces must fit into the global puzzle in order to build "quality" human resources for the global workforce and managed communities.8
You saw that Clinton’s first attempt to redefine federalism (EO 13083) failed. But it did serve one purpose: it exposed his intentions. It began with a series of reassuring confirmations of the 10th amendment limitations of federal power. But Section 3 (d) canceled those assurances with its list of justifications for federal intrusion into State affairs. In other words, the Clinton administration could intrude -
"(3) When there is a need for uniform national standards."
"(5) When States have not adequately protected individual rights 9 and liberties."What did the president mean by the ambiguous phrase, "not adequately protected?" Actually, Clinton’s revised executive order on federalism leaves out this open-ended permission for the federal government to impose its standards and unwelcome "protection" on sovereign States and their citizens. But both are already being enforced through more subtle means. Notice below that Section 3(d) of the new Executive Order doesn’t actually limit or forbid federal intrusion. It merely calls for consultation with States. The second point (2) suggests that the federal agency would not have to "defer to the States" if the consultation fails and it’s not possible to win through the consensus process:
"(d) When undertaking to formulate and implement policies that have federalism implications, agencies shall:
"(1) encourage States to develop their own policies to achieve program objectives and to work with appropriate officials in other States;"One of my trips to Michigan a few years ago happened to coincide with the week that Governor Engler signed an executive order to implement School-to-Work legislation in his state. The federal school-to-work bill was stalled in Congress, but individual state governors were bypassing their own legislatures in order to implement the national plan. Behind the scenes, the guidelines below had already been put to use:
"(2) where possible, defer to the States to establish standards;
"(3) in determining whether to establish uniform national standards, consult with appropriate State and local officials as to the need for national standards and any alternatives that would limit the scope of national standards or otherwise preserve State prerogatives and authority; and"(4) where national standards are required by Federal statutes, consult with appropriate State and local officials in developing those standards."
FUNDING VERSUS FREEDOM
Working through the Education Commission of States, the federal government has for many years been pressuring state legislatures to write their own laws reflecting national guidelines. Long before the US Congress passed the Workforce Development Act (HR 1385), most states had passed their own school-to-work legislation and were implementing their respective parts of the national workforce system. Many were practically forced to cooperate, since federal funding had been linked to compliance.
The incremental steps toward greater control have been multiplying fast. As federal taxes increase and funds are returned to states through various federal programs, the strings are drawn tighter. But you wouldn’t notice the subtle conditions by merely scanning the legal documents. Look at Section 6 (b). It sounds good - until you ponder the exemptions:
"(b) To the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications, that imposes substantial direct compliance costs on State and local governments, and that is not required by statute, unless:
"(1) funds necessary to pay the direct costs incurred by the State and local governments in complying with the regulation are provided by the Federal Government;"No federal favors without compliance. No freedom with such federal favors! But today’s change agents pay little attention. No cost is too great if it achieves their goal. Having rewritten the rules and changed the context, they can now demand conformity and punish non-compliance.
WAIVERS AND SPECIAL FAVORS.
Sometimes our mighty federal government is willing to trade one kind of compliance for another. Notice the patronizing tone in the following expression of fatherly patience. Section 7, titled "Increasing Flexibility for State and Local Waivers," states:
"(b) Each agency shall, to the extent practicable and permitted by law, consider any application by a State for a waiver of statutory or regulatory requirements in connection with any program administered by that agency . . . .
"(c) Each agency shall, to the extent practicable and permitted by law, render a decision upon a complete application for a waiver within 120 days of receipt of such application by the agency. If the application for a waiver is not granted, the agency shall provide the applicant with timely written notice of the decision and the reasons therefor."
This demonstration of fatherly "kindness" shows how far we have drifted from our founders intentions. The 10th Amendment states simply:
"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."
In stark contrast, President Clinton states in 3(c), that
"With respect to Federal statutes and regulations administered by the States, the national government shall grant the States the maximum administrative discretion possible. . . . "
Originally, the States granted certain powers to the national government. Now the Federal government grants the States "the maximum administrative discretion" it can allow them without impeding President Clinton’s agenda. Federalism has been turned upside down by power-hungry pretenders who tolerate neither American nor State sovereignty.
Listen to this warning from Dr. Thomas Sowell, respected economist and Senior Fellow at Stanford University's Hoover Institution. In his review of Friedrich Hayek's expose of socialism, Road to Serfdom, he writes,
"At the heart of the socialist vision is the notion that a compassionate society can create more humane living conditions for all through government "planning" and control of the economy . . . .
[I]dealist socialists create systems in which idealists are almost certain to lose and be superseded by those whose drive for power, and ruthlessness in achieving it, make them the "fittest" to survive under a system where government power is the ultimate prize.... The issue is not what anyone intends but what consequences are in fact likely to follow." 10
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A SOBER WARNING. Our nation and our freedoms face grave dangers. In Old Testament times of danger, a watchman would blow the trumpet and alert the nation. Today George Washington’s final message could serve as such a trumpet call for us. In his 1796 Farewell Address, our first president shared his "apprehension of danger" and issued a sobering reminder of the many "causes which may disturb our union:
"One method of assault may be to effect in the forms of the Constitution alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. . . .
"...the habits of thinking in a free country should inspire caution in those entrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. . . . .
"Let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. . . .
"Real patriots who may resist the intrigues of the favorite are liable to become suspected and odious, while its tools and dupes usurp the applause and confidence of the people to surrender their interests."
If America and our current president would heed our first president, today's progressive usurpation of powers might end and freedom be preserved. At his First Inauguration, April 30, 1789, George Washington placed his hand on a Bible opened to Deuteronomy 28:1. We would do well today to heed its warning:
"Now it shall come to pass, if you diligently obey the voice of the LORD your God, to observe carefully all His commandments which I command you today, that the LORD your God will set you high above all nations of the earth."
Does that sound like America? A long list of wonderful blessings follows. Some of the blessings can be compared to those God has graciously granted America. But verse 15 begins a parallel list of consequences for disobedience. May I suggest you read the whole sobering chapter -- down through these words: "Because you did not serve the LORD your God with joy and gladness of heart, for the abundance of everything, therefore you shall serve your enemies . . . ." (Deuteronomy 28:47-48, see also 1 Cor. 10:11)
I pray this downward slide to servitude will not be the final page in the history of our wonderful United States of America.
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1. Sec. 5. Special Requirements for Legislative Proposals. Agencies shall not submit to the Congress legislation that would: (c) preempt State law, unless preemption is consistent with the fundamental federalism principles set forth in section 2, and unless a clearly legitimate national purpose, consistent with the federalism policymaking criteria set forth in section 3, cannot otherwise be met.
2. See Local Agenda 21: The UN Plan for Your Community.
3. See The UN Plan for Your Mental Health.
4. Robert H. Bork, Slouching Towards Gomorrah (New York: ReganBooks, 1996), 301.
5. Edward S. Corwin, The Constitution of the United States of America (Washington, DC: Legislative Reference Service, Library of Congress, 1952), p. 7.
6. Ibid.
7. See the international meaning of "literacy" in Workforce Development Means Lifelong Indoctrination.
8. See Local Agenda 21: The UN Plan for Your Community.
9.See Trading US Rights for UN Rules.
10.Thomas Sowell, "A Road to Hell Paved with Good Intentions," Forbes (January 17, 1994); 62, 64.