A few weeks ago weeks ago we received a question on our Tenth Amendment Center Feedback Forum about TAC’s perspective of Ronald Reagan’s Executive Order 12612. The order, a direction to the members of the Reagan administration to follow traditional American federalism, offered a view of the government that was refreshingly consistent with the founders’ vision for the federal and state relationship under the Constitution.
The Order said in part that “Federalism is rooted in the knowledge that our political liberties are best assured by limiting the size and scope of the national government.” It accurately noted that, “The people of the States created the national government when they delegated to it…enumerated powers.” Reagan paraphrased the Tenth Amendment by saying, “All other sovereign powers, save those expressly prohibited the States by the Constitution, are reserved to the States or to the people.”
These are all very accurate and laudable principles, but there naturally arises a question about the long-term impact of the order. Did it spur a federalism revolution in Washington? The answer to that question is a resounding no. Disappointingly, Reagan the president wasn’t nearly as devoted to federalism and the Constitution as was Reagan the rhetorician.
There are many examples of Reagan’s constitutional violations throughout his two terms in office. He repeatedly ignored constitutional war authorization requirements. He meddled in the economy by, among other things, calling for increases in the debt ceiling and raising social security taxes. He also signed into law the constitutionally dubious Firearm Owners Protection Act which purported to correct some Second Amendment violations while authorizing an unconstitutional limitation on the ownership of automatic weapons.
But for the purposes of determining Reagan’s devotion to federalism, let’s consider his “War on Drugs.” Enforcement of drug laws escalated during Reagan’s presidency, as the percentage of federal prisoners locked up for drug offenses grew from 25% to 44% during his two terms. It was also during his administration that the CIA and the military became involved in drug interdiction and the Office of National Drug Control Policy was created. Given these facts, it is accurate to say that Reagan aggressively pursued anti-drug policies at the federal level.
The problem is that there is, of course, no constitutional justification for the national drug war. Drug policy is strictly a state issue, so every one of these actions by the Reagan Administration was unconstitutional. And while many of Reagan’s supporters were in favor of his stance on this issue, it is undeniable that his actions were in direct opposition to the lofty language of his executive order on federalism.
Reagan’s executive order was eventually revoked, to the consternation of conservatives, by Bill Clinton’s Executive Order 13083. But while many lament Clinton’s betrayal of the principles of federalism, the uncomfortable reality is that Regan’s order had changed nothing. Reagan had violated the Constitution, as would his successors. If both Reagan and Clinton failed to adhere to the Constitution, then the level of their stated devotion to federalism doesn’t really matter.
Historian and constitutional scholar Kevin Gutzman has said of Reagan’s executive order that, “Charles Cooper, the Reagan Justice Department official responsible for (federalism)…lamented that every time it became an actual issue, he lost out.” Gutzman opined that the probable reason the executive order was ignored was because “conservative initiatives came up and they decided that federalism was a lower priority — just as liberals would have done.”
Ultimately, Executive Order 12612 amounted to little more than high-minded ideals that were thrown aside as soon as they got in the way of federal politicians’ plans. And while my summary of its impact may be disappointing to the questioner on our Feedback Forum, there is, I think, a valuable lesson to be learned.
The lesson is that federalism will never be a top-down process. Ronald Reagan was elected in 1980 with 91% of the electoral vote. He was reelected in 1984 with 98% of the electoral vote and nearly 60% of the popular vote. This meant that Reagan had more political capital than any president since Franklin D. Roosevelt. If anyone would have been able to significantly move American politics back towards federalism, it would have been Ronald Reagan. And he failed.
While it would be nice if a president could sign an order, wave a wand and return us to our traditional American system of decentralized government, this will never happen. Federalism is by nature built from the ground up. It will only be recaptured when the states reassert their rightful role in the governmental structure, and state lawmakers will only stand up for their rights when they are encouraged to do so by us, their constituents.
Let the Reagan lesson be that there is no federal knight in shining armor that’s going to come riding to our rescue. It’s up to us.
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