BUSH TIPS BALANCE OF POWER TO FEDS

The recent Supreme Court decision invalidating California's medical-
marijuana law came under fire -- correctly -- from both the left and 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 back yard -- marijuana that is never 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, and the federal government is no longer one of limited and
enumerated powers," Thomas wrote.

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

Consider its position on these issues:

The right to die: Former 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 pursued the case to the Supreme Court, which will review it
this fall.

The president's support for Congress' efforts to block the death of Terri
Schiavo: Congress issued an extraordinary directive to the federal courts
to intervene in the normal workings of family law, an area that has
remained under the control of the states since the birth of the republic.

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 only between a man and 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 the 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. Federalism allows states to compete for residents
and businesses. Some will choose to live in California because they are
willing to trade high taxes for strong environmental rules, while others
may want to live in Massachusetts because of gay marriage.

Worse, imposing national rules in these areas suppresses the ability of
states to serve as laboratories of democracy. As Justice Louis Brandeis
said, "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 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 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, President 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 dispersed."

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.