The GOP’s Fraught Relationship with Federalism

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In the pitched battle for the Republican presidential nomination, Rick Perry and Mitt Romney are both crusading against a modern-day conservative heresy that the other enacted as governor. For Romney, the well-trodden issue of his health care overhaul in Massachusetts and subsequent changes he made to his campaign book after Obama enacted a similar plan nationally have provided his chief rival with cannon fodder. Perry, meanwhile, has absorbed a barrage from Romney et al. over his support for a program that granted in-state college tuition to some illegal immigrants in Texas. The attacks might exploit different areas of Republican discomfort, but both Romney and Perry are covering themselves the same way: wrapping the issues in the cloak of states’ rights.

Romney’s regular invocation of the 10th amendment on health care is actually much older than many people realize. As a first-time presidential candidate in 2007, when Obama’s Affordable Care Act was nothing more than a twinkle in the junior Illinois Senator’s eye, Romney was downplaying the national potential of CommonwealthCare to Karen Tumulty:

Instead he rarely discusses the details of his Massachusetts plan and certainly doesn’t tout his partnership with Kennedy. As a presidential candidate, he cautiously adheres to by-the-book Republican dogma of giving individual states leeway in the form of tax breaks to design their own reforms.

Romney explains this seemingly odd tactical choice by arguing that he never intended for his Massachusetts plan to be a role model for the rest of the country. “An individual mandate in most states today–in all states but one–would be irresponsible and unfair,” Romney says. “Because in most states today, insurance is too expensive.”

Perry’s also been a fan of states rights arguments: His answer to tuition critics is that he did what he thought was right for Texas, while opposing similar legislation nationally. And that too matches with what he’s said in the past. He supported Arizona’s decision to impose a draconian immigration law without endorsing the policy itself.  And his recent book,  Fed Up!, was essentially a paean to decentralized governance. “From marriage to prayer, from zoning laws to tax policy, from our school systems to health care, and everything in between, it is essential to our liberty that we be allowed to live as we see fit through the democratic process at the local and state level,” he wrote.

Many Republicans find this argument appealing, as far as it goes, which isn’t really very far. That whole “marriage” thing flies in the face of social conservative dogma on same-sex marriage as Perry found out earlier this year, when he briefly endorsed states’ right to allow gays to marry before backtracking to support a federal marriage amendment. And, most importantly, Republican primary voters don’t seem too keen on accepting a federalist defense of policies that are antithetical to their worldview. Dave Weigel talked to state party delegates in Florida about Perry’s immigration record, and came away with quotes like this: “Stop. Giving. To the illegals.” Romney has only avoided an extreme pile-on over CommonwealthCare so far because he made it old news, and thanks to Perry’s hulking frame, which caught the lion’s share of intra-party debate flak during Perry’s initial surge in national polls.

But it’s overwhelmingly likely that one of these two candidates will be the party’s nominee. “At the top of the race we are confronted with two men who have two problems. Both are 10th Amendment issues and both are states right issues,” writes Erick Erickson of Red State, who interprets Romney’s alleged one-time desire to impose CommonwealthCare on the nation (which, by the way, I think is hard to square with what Romney was saying in 2007) as the worse offense, while chafing at Perry’s suggestion that his immigration critics don’t “have a heart.” Erickson is acknowledging what seems to be the reality: Republican voters will have to come to terms with one of these uncomfortable positions, and with it, a federalist justification for their stance. “I think whether we like it or not,” he writes, “we should, as conservatives who believe the states should be engines of experiment, respect their right to solve problems in their states as they and their legislatures see fit.” What other choice is there?