OUR FOUNDERING FEDERALISM

The U.S. Supreme Court decision invalidating California's medical marijuana
law has come under fire -- correctly -- from both the Left and the Right
for undermining federalism. But observers have missed the real culprit in
the court's flagging interest in balancing federal and state powers: the
Bush administration.

Justices Clarence Thomas and Sandra Day O'Connor explained the problem in
their dissents. Granting Congress the authority to regulate small amounts
of marijuana grown in a backyard -- marijuana that is not sold and never
crosses state lines -- makes a mockery of the efforts of the Constitution's
framers to place limits on federal powers.

"If Congress can regulate this ... then it can regulate virtually
anything," wrote Thomas, "and the federal government is no longer one of
limited and enumerated powers."

But why blame the Bush administration too? In the medical marijuana case,
it was the Bush Justice Department that decided to defend use of the
federal drug laws to suppress homegrown marijuana.

That decision followed many others that show the administration's lack of
interest in the proper balance of powers between state and federal governments:

# The right to die: Then-Attorney General John Ashcroft ordered that
federal laws prohibit Oregon doctors from prescribing lethal doses of
controlled drugs to terminally ill patients. He threatened to revoke the
federal licenses of doctors who followed the Oregon law allowing
physician-assisted suicide. Lower federal courts blocked him, but the
administration has pursued the case to the Supreme Court, which will review
it this fall.

# Gay marriage: Last year, in response to "activist judges and local
officials" in Massachusetts and San Francisco, the president proposed a
constitutional amendment defining marriage as between only a man and a
woman. The "Family Marriage Amendment" would override state laws
experimenting with gay marriage.

# The No Child Left Behind Act: This 2002 Bush law reduces state autonomy
in education by imposing uniform testing requirements. It uses the threat
of significant restructuring of school operations if districts do not meet
federal standards, all in an area that has historically fallen under the
control of states.

The best of intentions may be behind these measures. But they follow a
dangerous constitutional strategy. Demanding rigid, one-size-fits-all
nationwide rules counteracts the benefits of federalism, which calls for
decentralized governance.

Imposing national rules in these areas suppresses the ability of states to
serve as "laboratories of democracy." As former Supreme Court Justice Louis
Brandeis observed, "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."

Expand federal power and you retard the innovation that can answer
difficult national problems. Washington, D.C., should intervene only when
it's clear that a single federal rule will solve a nationwide problem that
cannot be cured by individual states.

Federalism bestows a third benefit. The framers of the Constitution sought
to create a competition between the states and Washington to prevent
government from trampling on individual liberty.

Because of federalism and a separation of powers, James Madison wrote in
the Federalist Papers, "A double security arises to the rights of the
people. The different governments" -- state and federal -- "will control
each other; at the same time that each will be controlled by itself."

Early in his presidency, Bush pledged to "make respect for federalism a
priority in this administration," and he affirmed the Founders' belief that
"Our freedom is best preserved when power is disbursed."

Now he should give the Supreme Court an example to follow by heeding his
own words, remaining humble about the abilities of Washington to cure
social problems and appointing federal judges who understand the importance
of states.

John Yoo, a law professor at the University of California, Berkeley, served
in the Justice Department from 2001 to 2003.