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Jeb Bush Campaign Press Release - The Tenth Amendment Presidency

December 09, 2015

The Constitution's architecture is shaped by separation of powers principles. Horizontally, the Constitution divides powers among the three branches of the federal government and allocates to each branch separate and distinct authorities. Vertically, the Constitution divides powers between the federal and state governments. Vertical separation of powers, known as federalism, finds life in several of the Constitution's provisions. Most notably, the Constitution creates a federal government of limited and enumerated powers, leaving all other legitimate government authority "to the States respectively, or to the people."

Most notably, the Constitution creates a federal government of limited and enumerated powers, leaving all other legitimate government authority "to the States respectively, or to the people."

Separation of powers aims to achieve three goals. The first is to prevent any single governmental entity from accumulating too much power. The second is to ensure that each branch of government exercises the type of authority that is best suited given its institutional nature; for example, since legislation requires careful consideration and compromise, legislative power is vested in a multi-member Congress. By contrast, executive power must be often wielded with dispatch and decisiveness and is, therefore, vested in the unitary executive. The third is to promote political accountability, so that the people can readily praise or blame the appropriate governmental entity for their happiness or their frustration. The Framers understood that these three goals are critical to the protection of individual liberty.

Unfortunately, over time, the federal government has amassed power at the expense of the states. Sometimes, this change has come about as the result of amendments to the Constitution. The 16th Amendment, for example, expanded the power of the federal government by enabling it to impose income taxes, without having to apportion them among several states. Meanwhile, the 17th Amendment limited the ability of states to have their voice heard in the Senate, thereby cabining their capacity to influence federal legislation. Other times, however, federal aggrandizement has been the result of an overaggressive federal Congress and/or the executive. As a result, states today too often operate in the shadows of national authority, functioning as the docile wards of a distant federal government. Individual liberty has suffered as a result.

We must re-empower states to be high-octane suppliers of change and innovation, allowing them to exercise their constitutional freedom to govern their citizens and residents. States are closer than the federal government to the schools our children attend, the hospitals that care for our sick, the rivers and lakes in which we swim, the water we drink and the air we breathe. It is the height of hubris for the federal government to assume that state governments care less about these things than the federal government. As an added bonus, states typically perform better and at less expense than the federal government. The appropriate devolution of responsibilities and activities would save families hundreds of billions of dollars on everything from health care costs to energy bills.

The federal government, of course, violates the Constitution when it seeks to act beyond its enumerated powers and when it tries to use its enumerated powers to commandeer state resources or to coerce state officials to carry out federal policies. But, even when the federal government is acting constitutionally, it violates the spirit of federalism—and often generates bad policy—when it seeks to use its authority to impose one-size-fits-all policies on the states. It is long past time for federal officials and lawmakers to acknowledge that the mere ability to trump state decisions is an insufficient justification for attempting to do so. Before acting, federal officials and legislators should ask why it is that the federal government is better suited than state and local governments to handle the issue under consideration.

As a country, we must acknowledge that many problems, even some that are of national scope, do not call for federal solutions.

As a country, we must acknowledge that many problems, even some that are of national scope, do not call for federal solutions. Governor Bush believes that shifting power to the states across the domestic operations of the federal government would simultaneously improve policy outcomes, put money back into American taxpayers' pockets and enhance individual liberty.

For this reason, Governor Bush has announced and will continue to announce policy initiatives that will restrain the size of the federal government and restore state authority in several areas, including health care, education, the environment, lands management, welfare and transportation. In addition to those substantive policies, Governor Bush believes that the following initiatives will help restore the proper balance between the federal and state governments, unleash robust economic growth and harness the benefits of our vast geographic diversity.

Prioritize Presidential Leadership over Federal Mandates

Our shared values imbue the president with substantial soft power over the states. A president can harness this power to move policy in his preferred direction without resorting to coercive measures. By emphasizing persuasion and coordination over preemption and control, the president can achieve his policy objectives while respecting states as the primary governors of their citizens and residents. A federalism-based leadership strategy also promotes flexible solutions capable of accounting for local circumstances and enabling a diversity of approaches, all while mitigating the dangers of picking the wrong policy to govern the entire country. And in an age of congressional gridlock, a leadership strategy offers a constitutional means of moving policy notwithstanding federal legislative recalcitrance.

As president, Governor Bush will make it a priority to hold regular meetings with governors to coordinate state-driven solutions to national concerns, exchange lessons learned and discuss the role the federal government should play in improving outcomes. In this regard, the president will assume the posture of a leader of chief executives. He will also strive to ensure that federal regulations respect states' autonomy and ingenuity. Under Governor Bush, all federal regulatory agencies will promote state-based solutions over federal solutions and when a federal rule is appropriate, regulators will first turn to state best practices before attempting to create a new approach from whole cloth. Governor Bush's regulatory spring cleaning commission, announced in September 2015, will identify areas of regulation that should be returned, in whole or in part, to state control.

Adhere to the Constitution's Limits on Federal Power

America must return to the idea of a limited federal government. Not only should the federal government defer as often as possible to state governments, in many cases it is constitutionally required to do so. The federal government cannot act beyond its constitutional limits. And even when the federal government stays within those limits, it cannot coerce states or command state officials to operate in particular ways or deploy state resources in a particular manner. Unfortunately, in the last century, the federal government's three branches have worked to foster a view of the Constitution that empowers the federal government well beyond anything the Founders' contemplated.

The next president need not accept this state of affairs. The president owes loyalty directly to the Constitution. Accordingly, the president should exercise authority consistent with their understanding of the Constitution. At times, that will mean adhering to the historical practice of not enforcing or defending laws that trample upon state constitutional authority. That will mean vetoing laws that are inconsistent with federalism.

Governor Bush will be the first president in our history to commit to vetoing legislation that he determines clearly exceed the limits of federal authority.

Governor Bush will be the first president in our history to commit to vetoing legislation that he determines clearly exceed the limits of federal authority. Governor Bush will provide written justifications for his vetoes, empowering the public to better understand the Constitution's limits on federal authority and the Congress to adopt legislation that complies with those limits. Governor Bush will use his veto authority to rein in the expansive judicial interpretations that have reinterpreted the Commerce, the Necessary and Proper, and the Tax and Spend Clauses to grant the federal government nearly unfettered authority to require and coerce states to bend to the dictates and desires of the federal government.

Governor Bush will also ensure that his judicial nominees are committed to vigorously enforcing the Constitution's limits on federal authority, rejecting reliance on vague notions of deference to uphold decisions of the political branches that exceed the limits of those branches' constitutional authority. Governor Bush's nominees will be people of the highest character and integrity who have extraordinary intelligence and the ability to persuade. They will also have a clear, proven record grounded in strictly interpreting the law, adhering to the Constitution's limits on government authority, and not legislating from the bench. Governor Bush has a consistent record of appointing judges who understand that their role is to enforce the Constitution, regardless of their policy preferences.

Nominate & Appoint Executive Branch Officials Committed to Federalism

A federalism-focused president must infuse a zeal for state-based governance throughout their administration. While the president sets the tone, their nominees and appointees are responsible for an array of decisions that determine the course of the federal government. People who have been socialized inside the beltway or in an ivory tower may be less inclined to govern with the respect and deference for state authority and autonomy that Governor Bush would expect from his administration officials.

Accordingly, Governor Bush will prioritize people with proven experience in the states over Washington insiders and academics in filling those administrative positions where state-federal cooperation is most critical. State-focused nominations and appointments will be most important at the Education, Energy, Interior, and Justice Departments, as well as at the Environmental Protection Agency and the Federal Energy Regulatory Commission.

State-focused appointments will also be important within the White House, particularly at the Office of Information and Regulatory Affairs (OIRA). OIRA is vital to presidential control over federal regulations because it oversees agencies' compliance with presidential executive orders on regulation. As president, Governor Bush will issue an executive order directing agencies to construe statutes in favor of preserving state authority, to favor state-based solutions over federal regulation, and to incorporate state-based best practices into federal regulations, if such regulations are appropriate. OIRA can also use its unparalleled visibility into proposed and final regulations government-wide to aid Governor Bush's independent commission to conduct a regulatory spring cleaning that will identify areas of federal overreach. A state-centric OIRA Administrator could be the difference between the success and failure of these federalism-based regulatory initiatives.

Broadly Reform the Regulatory Process

As discussed in Governor Bush's regulatory reform plan, many of President Obama's regulations offend federalism. The regulatory process must be substantially reformed to prevent such abuses from reoccurring. Statutes like the Unfunded Mandates Reform Act and Executive Order 13,132 call on agencies to account for federalism concerns before regulating, but these legal authorities are riddled with loopholes, under-enforced and readily evaded. One consequence is that states have spent the Obama years challenging regulatory overreaches in the courts.

That will change under Governor Bush. In his administration, all agencies—including independent agencies—will document, in detail, steps taken to resolve federalism-based concerns before finalizing any new regulatory initiatives. Among other things, agencies will be required to create a State Impact Analysis (SIA) for regulations with significant federalism implications. The SIA process will require agencies to document conclusions regarding the effects of their regulatory initiatives on state regulatory flexibility and budgets. OIRA will enforce these requirements through prompt review, and return letters, which will have presidential backing through a cabinet-level taskforce on regulation. Moreover, Governor Bush will make legislative codification of these principles a priority, so that they are binding on future administrations.

Environmental protection is an area ripe for regulatory reform. State officials consistently report frustration with the federal government's takeover of environmental regulation, as far-flung bureaucrats patronizingly reject state attempts to protect their own natural resources in favor of one-size-fits-all federal plans. Such decisions seem rooted in an unjustified assumption that states care less about their environment than does the federal government. Of course, the federal government has an important role in protecting the environment, but we cannot forget that states have ample incentives to protect the rivers and lakes in which their children and grandchildren swim, the water they drink and the air they breathe. Before intervening in this area, the federal government should have to make the case that there are interstate issues at stake and that state governments are not willing or able to adequately respond.

In recent years, the federal government has demonstrated a particular willingness to override state environmental authorities in ways that devastate private property rights. For example, the "Waters of the United States" (WOTUS) rule subjects nearly all private land use to review by the Environmental Protection Agency. The rule expands federal authority to virtually all wet areas (and temporarily wet areas) in the states—including ditches, drains, seasonal puddle-like depressions, and large "buffer areas" of land adjacent to waterways. For example, the rule potentially subjects 99 percent of Pennsylvania's acreage to federal jurisdiction. The WOTUS rule is inconsistent with longstanding presumptions in favor of state-based water regulation and unnecessarily and arbitrarily increases the cost and uncertainty of many industrial, commercial and farming operations. Those who fail to comply face stiff penalties of roughly $40,000 per violation.

The recently announced $1 trillion Ozone Rule is also troubling from a federalism standpoint. In this rule, the administration adopted a new overly stringent maximum level of ozone allowed in the air, notwithstanding that ozone levels were declining, due in large part to local regulation and market-based solutions. The Ozone Rule will likely curtail agriculture and manufacturing production, alter farming methods, require new waste storage mechanisms, impede food processing operations and impair the production of renewable fuels. With state regulation and market-based solutions driving ozone levels to record lows, this is an unnecessary expansion of the federal government's control over states.

The same is true for the administration's so-called Clean Power Plan, which unlawfully seizes from states the authority to regulate power supply systems. The plan violates the Clean Air Act and disrupts a long history of state control over how they generate and distribute electricity. It violates both the horizontal and vertical separation of powers.

The plan aptly demonstrates the pitfalls of uniform federal "solutions," imposing emissions control requirements on states that do not account for local needs, infrastructure or resources. The result of the plan's onerous requirements is to make the continued operation of many coal-fired plants impossible, giving states little option but to replace those plants with enormously expensive alternative sources of energy generation.

Governor Bush has pledged to repeal—and where necessary replace—each of these regulations. He believes that these regulations must be repealed, not only because they are costly and will produce little to no environmental or health benefits, but also because they upset the proper relationship between the state and federal governments.

Governor Bush will pursue two regulatory reforms that will keep regulators focused on truly federal problems, leaving states with more time and resources to govern their residents and less need to fight back against federal overreach.

In addition, Governor Bush will pursue two regulatory reforms that will keep regulators focused on truly federal problems, leaving states with more time and resources to govern their residents and less need to fight back against federal overreach. First, Governor Bush will require federal agencies to live within a budget. Regulators will be forced to make tradeoffs between regulatory priorities while eliminating or modifying regulations that no longer make sense. Agencies will not add regulatory costs during the first year of Governor Bush's administration unless they are offset by regulatory savings. Second, Governor Bush will ensure that his regulatory spring cleaning commission scrubs the regulatory code for rules that need to be repealed or modified in order to restore the proper role of state governments in our constitutional system.

Create an Office of Cooperative Federalism

Governor Bush has already detailed how he will return substantive regulatory authority to the states in several areas, including health care, welfare, the environment and land management. He will soon release an education agenda focused on rolling back the Obama Administration's coercive imposition of Common Core and dramatically enhancing state flexibility with respect to education resources provided by the federal government.

Even with these reforms, however, the federal government will retain ample authority in those and other areas where states can play a constructive role, on their own or in partnership with the federal government. For this reason, many federal laws already empower agencies to engage in cooperative federalism with states, whether by giving states the opportunity to implement federal law, subject to agency oversight, or by giving agencies authority to waive federal requirements. The goal of these cooperative federalism opportunities is to free states to develop innovative solutions to public policy problems.

Unfortunately, cooperative federalism in practice has often failed to achieve these goals. Rather than free states to explore new policies, agencies have abused cooperative federalism, converting it into a tool to coerce states to adopt policies that sometimes exceed the bounds of federal law. Cooperative federalism can thus provide the illusion of state control, while in reality allowing bureaucrats to assume the mantle of lawmakers.

For example, the No Child Left Behind Act has become largely dysfunctional and needs to be substantially overhauled. In the absence of congressional resolution, however, the Obama Administration has withheld desperately needed waivers from states unless they bend to its policy desires. Similarly, federal law gives states primary authority to meet clean air standards in a document known as a State Implementation Plan (SIP). In the unusual event that a SIP is deficient, the Environmental Protection Agency can set standards using a Federal Implementation Plan (FIP). Until the Obama Administration, FIPs were relatively rare—roughly one per year. Since 2008, the administration has imposed, or attempted to impose, nearly 20 FIPs, sometimes using them to drive states toward policy outcomes not required by federal law.

These results should not be surprising. Federal regulatory agencies are staffed by many unelected people who come to view their positions as opportunities to implement policies they believe are good for the country. Properly implementing cooperative federalism reserves that power to state officials. Allowing federal officials to abuse waivers also enhances their power, usurping authority from both Congress and the states.

As president, Governor Bush will urge Congress to transfer cooperative federalism authority from the various departments to a new Office of Cooperative Federalism within the Office of Management and Budget. Staffed primarily by people with experience in state government, this small office will oversee and coordinate waiver requests, state-federal planning and other delegation issues, giving respectful consideration to states' innovative policies and promoting meaningful federal/state flexibility and cooperation. To promote regulatory innovation, the office will generally grant waivers and approve state-driven plans unless the proposals are arbitrary, infeasible or contrary to federal law.

Enhance State Enforcement of Federal Immigration Policies

First, the federal government should augment its current enforcement of immigration laws, such as identifying and apprehending people who overstay their visas, by training and supervising state and local law enforcement officials to assist them. Local law enforcement personnel know their communities better and have more boots on the ground. Governor Bush's border security proposals, announced in August 2015, included this proposal. Under Governor Bush, Florida was the first state to partner with the federal government under its Section 287(g) program to enforce federal immigration laws. These training and supervision programs should be further expanded to ensure an unprecedented level of federal/state cooperation in immigration enforcement.

Second, we need to amend current law. States cannot enforce state laws that conflict with federal immigration law, which is embodied in the Immigration and Nationality Act (INA). During the Obama Administration, however, the federal government has taken an even more hostile view toward state law, preventing states from enforcing state laws that harmonize with federal immigration laws. For instance, federal law currently penalizes employers who hire illegal workers. However, the president has attempted to thwart states who pass laws bolstering enforcement of this existing federal law, especially in the face of weak federal enforcement efforts.

Congress could amend the INA to make it a "conflict preemption" statute rather than a "field preemption" statute, allowing states to enforce complementary state laws that do not conflict with federal law, do not violate civil liberties, and do not criminalize conduct that is not criminal under federal law.

This one change could be critical in unlocking the country's ongoing debate over immigration policy. Empowering states to enforce laws that promote the goals of federal immigration law—without allowing states to create their own immigration regimes—will address states' persistent demand that any effort to reform the country's immigration system ensures that the border is secured and that internal enforcement is robust. In such a system, states could be confident that federal immigration law will be enforced, even during administrations and Congresses that direct federal resources to other areas.

Promote State-Driven Labor and Employment Policies

Technological advances are changing the way people live and work in the modern economy. Rigid work rules designed for an industrial economy are poised to stifle innovation and foreclose new and flexible work opportunities for millions of Americans. Federal initiatives to redefine who counts as an "employee," a "full-time employee," or an "employer" are more often than not, efforts to enhance the control of the National Labor Relations Board (NLRB), the Department of Labor and the Department of Health and Human Services over the economy, and to force employers to act in accordance with the policy preferences of distant federal bureaucrats. The NLRB, for example, seeks to make more types of employers subject to unionization so that it can prevent them from engaging in practices it believes are unfair. Meanwhile, the Labor Department seeks to redefine the law to limit the number of hours employees can work at agreed-upon wages. Moreover, the Department of Health and Human Services redefines what it means to work "full time" so that it can force employers to provide workers with Washington-determined health benefits packages.

Many states, however, believe that there are better ways to regulate labor relations in the modern economy. They are pursuing their own policy initiatives in areas like the minimum wage, right-to-work rules, and other issues related to the changing nature of work. As our economy changes, it is unlikely that inflexible federal rules will generate the best possible outcomes.

As president, Governor Bush will work to ensure that federal labor regulations do not unduly restrict state flexibility in responding to the workforce demands of the new digital economy.

As president, Governor Bush will work to ensure that federal labor regulations do not unduly restrict state flexibility in responding to the workforce demands of the new digital economy. Federal labor policy must not be an obstacle to the development of the innovative business models that characterize today's economy. The federal government must ensure that our state policy laboratories have ample flexibility to experiment with different models of labor regulation. This flexibility maximizes the opportunities for American ingenuity to flourish, helping the country achieve the growth necessary to afford economic opportunities to people at all levels of society.

Jeb Bush, Jeb Bush Campaign Press Release - The Tenth Amendment Presidency Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/312849

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