WASHINGTON -- IT IS TIME to admit what was once obvious and is becoming painfully
obvious again: The doctrine of states' rights, so often invoked as a principle,
is almost always a pretext to deny the federal government authority to do things
that conservatives dislike. These include expanding claims to individual rights,
increasing protections for the environment, and regulating business.
How do I know this? Because when states have the temerity to try doing the
things I just listed, conservatives are quick to use federal power to stop them
from exercising their right to act.
Big government in Washington is bad, in other words, unless it can be used
to quash progressive state action. And ''judicial activism,'' long a target of
polemicists on the right, is becoming the movement's weapon of choice whenever
it can muster five votes on the US Supreme Court.
Take last week's case testing the right of states to pass patients' bill of
rights statutes. You would think that conservative justices who have written one
decision after another supporting states' rights would shudder at the idea of
the federal government preempting the 42 states that have passed such laws.
In fact, the four justices who would have overturned the Illinois patients'
rights law - and by extension, all the other laws - included the three most reliable
states' rights votes on the court, Justices Clarence Thomas and Antonin Scalia
and Chief Justice William Rehnquist. They were joined by their sometimes ally,
Justice Anthony Kennedy.
The case was interesting because health maintenance organizations claim that
the 1974 federal Employee Retirement Income Security Act, known as ERISA, should
override state patients' rights statutes. ERISA includes a broad preemption of
state laws that relate to employee benefits, but it includes an exception for
Fortunately, five justices supported an intelligent decision written by Justice
David Souter that embodied judicial restraint. Souter argued that HMOs have taken
over so much business ''formerly performed by traditional indemnity insurers''
that the states had every right to regulate them.
But writing in dissent for his not-this-time states' rights colleagues, Justice
Thomas seemed terribly alarmed over the idea that states would intrude in this
area of federal jurisdiction.
''Allowing disparate state laws that provide inconsistent external review
requirements to govern a participant's or beneficiary's claim to benefits under
an employee benefit plan,'' he wrote, ''is wholly destructive of Congress' expressly
stated goal of uniformity in this area.''
Now hold on. Aren't states' rights advocates such as Thomas always arguing
against the terrible ''uniformity'' imposed by Washington? Don't they constantly
praise states as our ''laboratories of democracy''? Maybe states' rights are only
valid when they can be invoked to cut programs for the poor. In this case, the
states are trying to strengthen the rights of individuals against the HMOs,
and the court's states' rights advocates felt compelled to say no.
Even more remarkable was the four dissenting justices' little venture into
the realm of public policy: ''To the extent that independent review provisions
... make it more likely that HMOs will have to subsidize beneficiaries' treatments
of choice,'' Thomas wrote for the dissenters, ''they undermine the ability of
HMOs to control costs, which, in turn, undermines the ability of employers to
provide health care coverage for employees.''
What does this argument have to do with the law? Nothing. It's ideology. You
might even call it judicial activism. It's a perfectly respectable case for the
HMOs and their political supporters to make. But if these four justices want to
get into the thicket of policy-making, they should quit the court and run for
Congress. In fairness, these justices are not the only conservatives who dislike
states' rights when they get in the way of their preferences. As The Washington
Post reported last week, major Wall Street firms have drafted amendments to federal
law that would block state securities regulators from investigating whether stock
analysts misled investors. They're responding to New York Attorney General Eliot
Spitzer, who forced Merrill Lynch & Co. to pay $100 million to settle charges
that its analysts privately derided stocks that they were publicly touting to
Representative Richard Baker, a Louisiana Republican who chairs the House
Financial Services subcommittee on financial markets, derided Spitzer's effort
as ''a failed attempt to usurp federal rulemaking and oversight of capital markets.''
''If 30 different states come up with 30 different sets of rules regulating
financial service firms,'' Baker said, ''that's a calamity.''
In other words, states' rights are great until Wall Street firms or HMOs decide
they don't like them. Then they're a calamity. So much for states' rights.
© Copyright 2002 Globe Newspaper Company