“At wast! The wong arm of the waw is weaching out and cwosing in on you, you scwewy wabbit.”
– Elmer Fudd
In this case, the long arm of the law is that of West Virginia Attorney General Patrick Morrisey and the “scwewy wabbit” isn’t Bugs Bunny but the federal government, which, in Morrisey’s view, has a penchant for passing laws and issuing regulations that stifle economic growth, deprive us of freedom and, at least sometimes, violate the Constitution.
So Morrisey is establishing an Office of Federalism and Freedom and charging it with the task of “identifying and challenging unconstitutional laws and regulations.” He has also made it clear where he’s going to start looking — Obamacare, the Environmental Protection Agency and any gun control measures that might emerge in the wake of the Sandy Hook tragedy.
The effort will be led by attorney Elbert Lin, a former clerk of Supreme Court Justice Clarence Thomas and a member of the Federalist Society.
But, what is federalism?
The Constitution’s 10th Amendment reserves to the states or the people powers not expressly granted to the federal government. In that spirit, federalism is the principle that, to the degree practicable, power should devolve to governmental units nearest the people. Federalism is usually invoked by states that believe federal laws or regulations usurp their powers.
Although federalism was once cited in defense of slavery and is often associated with conservative causes, inherently it’s neither conservative nor liberal. States have invoked federalism to defend liberal policies such as assisted suicide, medical marijuana, greenhouse gas regulations and campaign finance reform.
Here in West Virginia, when natural gas companies sued Morgantown over its ban on fracking, claiming that state law pre-empts municipal law, the city defended its ban on federalism grounds, among others.
Federalism can also be taken to extremes. Texas Gov. Rick Perry cited federalism when claiming that Social Security and Medicare are unconstitutional and recent Republican senate candidate John Raese wanted to abolish the EPA, the federal Department of Education and the minimum wage on the grounds of federalism.
But, while politicians — usually Republicans — profess fealty to federalism, most do so opportunistically and set federalism aside when attempting to impose pet policies on unwilling states. Examples include congressional attempts to limit stem cell research and abortion, the No Child Left Behind Act, the federal Defense of Marriage Act and nearly annual attempts to enact national medical malpractice reform.
In short, great mischief can be made both under the banner of federalism and in spite of it.
Morrisey, a former congressional staffer turned lobbyist, seems an unlikely extremist, but political opportunism may be within his reach. He has earned the right to apply the principles on which he campaigned. But if he applies federalism on a selective basis to achieve ideological goals that conservatives cannot achieve electorally and legislatively, the results won’t be good. In fact, it won’t even be federalism. It will be Fudderalism.
Fudderalism, named for Elmer Fudd, the world’s greatest practitioner of monomaniacal fixation (“Kill the wabbit!”), is characterized by a lack of moderation, objectivity, and rigor that usually ends in disaster.
Objectivity may prove challenging for Morrisey.
Ideally, the federalism office will select issues impartially rather than cherry-pick them in pursuit of a political agenda. But Morrisey has already announced his intention to hit three conservative hot buttons — EPA regulations Obamacare — notwithstanding the Supreme Court’s ruling that the law is constitutional — and gun control, despite the fact that law he pledges to fight hasn’t even been enacted.
Meanwhile Morrisey, who supports natural gas development, has been silent on the Morgantown fracking ban even though the principle of federalism suggests that Morgantown and not the state should decide the terms of development within municipal borders.
Another test of objectivity will be the reports and opinions produced by the new office. Will they focus narrowly on the legal questions at issue, carefully weighing the arguments for and against? Or will they read like campaign press releases designed to score political points with hyperbolic phrases such as “job killing”?
And how great will be their scope? Will they confine themselves to the legal merits of the laws in question or will they explore economic and social implications as well? If they adopt the broader perspective, how objectively and competently will they do it?
It’s one thing to claim on the campaign trail that EPA regulations kill jobs, but reports issued by the attorney general’s office should meet higher standards. Claims should be substantiated and quantified and the underlying data made available so observers can verify the claims’ validity.
In that regard, Obamacare may pose a problem for the attorney general because, ideological objections aside, the measure is extremely beneficial for West Virginia, insuring more than a 100,000 currently uninsured residents and pumping hundreds of millions of dollars annually into the state’s economy at very little cost, which is why Ohio Gov. John Kasich decided his state should fully expand Medicaid under Obamacare despite his philosophical opposition.
So, will it be the Office of Federalism or Fudderalism? Will it adopt a nonpartisan stance that examines laws impartially and reports on them objectively, or will it become an ideologically driven, taxpayer-funded, conservative propaganda mill?
So far, Morrisey has been “vewy, vewy quiet” on these questions. Let’s hope it’s not because he’s already out there hunting wabbits.
— Sean O’Leary can be contacted at firstname.lastname@example.org. A version of this column containing links to references and statistical sources may be found at