STATES' RIGHTS LOSE SOME OF THEIR HIGH

Los Angeles - Ever since Ronald Reagan's "new federalism" revived the
debate over states' rights in the 1980's - and particularly since
Republicans took control of Congress in 1994 - power has seemed to be
ebbing from Washington. Last year, the Federal Government gave up its
six-decade responsibility for welfare. California, like other states, has
moved to assert its authority in other areas, voting to side-step the
Federal commitment to affirmative action and Federal drug laws on marijuana.

The trend may be unmistakable, but devolution, it turns out, isn't
revolution. Arid it isn't easy, as advocates of states' rights,
particularly in the West, are learning the hard way. They have been angered
at recent assertions of authority by the Clinton Administration and the
Federal judiciary.

A month ago, a Federal judge temporarily blocked California from cutting
back affirmative action programs, even though a majority of voters in a
November referendum had required state officials to do just that. On
welfare, Clinton Administration officials have suggested in recent weeks,
as more money and responsibility for administering it passes to the states,
that there will be more Federal strings attached than some state officials
had expected. And last week the Administration threatened penalties for
doctors who prescribe marijuana for patients in California and Arizona,
where citizens recently voted to permit marijuana use for medical reasons.

The latest development, like earlier ones, has left some advocates of state
rights sputtering.

"We consider this action by the Government to be Soviet repression," said
Sam Vagenas, the political consultant who coordinated the successful
November referendum campaign in Arizona to legalize medicinal use of marijuana.

But on the marijuana issue, even some defenders of state rights concede
that some of their brethren can take things too far. Daniel E. Lungren, the
California Attorney General and generally an outspoken sup-porter of state
rights, said drug policy should be under Federal control because of the
Federal Government's constitutional responsibility to regulate interstate
commerce. "The Federal Government has the authority and it's legitimate for
them to stand up," he said.

Big-Government Fans

His view suggests one reason why the web of Federal authority is unraveling
as slowly as it is: liberals aren't the only fans of big government.

Among conservatives, libertarians have promoted the devolution of Federal
power and a general reduction in governmental authority at all levels. But
cultural conservatives have tended to look for help at whatever level of
government seems most accommodating.

"Very few people are attached to federalism as a matter of principle, and
it's hard to blame them," said William Kristol, the editor of the Weekly
Standard, a conservative journal in Washington. "It's not a principle that
has as much force as liberty or morality."

Last year, for example, with states' rights advocates ascendant, the
Republican-led Congress passed a law setting forth a Federal definition of
marriage as the union of one man and one woman, as it authorized states not
to recognize Hawaii's gay marriage rules. Throughout this century, Federal
power has tended to increase when states take action that the majority
views as irresponsible (be they southern states in the civil rights era or
Hawaii today) or when states acting independently create a hodge-podge of
regulations (governing workplace conditions, for example) seen as contrary
to the general good.

Yet the overall shift toward state power seems to be continuing. On close
examination, each of the three recent exercises of Federal power appear
quite limited. They demonstrate only that change comes slowly in a Federal
system full of constitutional checks and balances and reliant on more than
two centuries of legal precedents.

While the prospect of Federal penalties against doctors drew headlines last
week, the Administration's stance was actually quite mild. It did not file
a lawsuit or take other sterner measures despite previous hints that it
might do so.

Instead of asserting the Federal Government's authority over drug policy,
the Clinton Administration warned that doctors who prescribe too many,
illegal drugs could lose their Federal certification to write
prescriptions. Offenders could also be barred from receiving Medicaid or
Medicare payments. But criminal penalties for doctors, while not ruled out,
were played down.

On welfare, the Administration seems to be moving toward making Federal
grants to the states conditional on their spending their own money to meet
certain Federal standards. But those moves are, in effect, brakes on an
overall transfer of authority to the states. While such Federal
restrictions have irked advocates of states' rights, numerous court
decisions have long upheld the. Federal Government's right to attach
conditions when doling out Federal money.

The outcry from advocates of states' rights has been loudest over the
Federal judge's injunction barring California from enforcing its referendum
limiting affirmative action. But California referendums have a history of
quickly winding up in court, and the judge's move surprised few lawyers who
had been following the issue.

If anything, the Federal judiciary is trying to gradually transfer more
authority to the states. In the Supreme Court, one of the hallmarks of
Chief Justice William H. Rehnquist's tenure over the last 10 years has been
his emphasis on expanding states' power. Some constitutional scholars
expect the court to rule this year against a section of the Brady
gun-control law, for example, that requires local sheriffs to run
background checks on gun buyers.

The Judicial Conference of the United States, the policy-making body for
lower Federal courts, has also opposed legislation to turn domestic
violence and other offenses into Federal crimes. The members of the
conference, not wanting to burden the Federal judiciary further, are hoping
the state courts will shoulder the load.

"They've tried in any number of ways to unload cases that have been in the
Federal courts and put them in the state courts," said Mayor Dennis Archer
of Detroit, a former justice of Michigan's Supreme Court.

Constitutional scholars have argued that the balance of power between the
Federal and state governments tends to shift over very long periods of
time, with cycles lasting as long as 60 or 70 years.

"We are clearly in an era in which the pendulum is shifting toward state
power," said Paul Gewirtz, a law professor at Yale University. "But it
should surprise nobody that even in an era of that shift, we still see
Federal power in area after area."