Devolution: Congress Doesn't 'Walk the Walk'.

• Author: Grunwald, Michael

Congress supports state power--in theory--but members remain infected with the irresistible impulse to substitute their own judgement for that of the states.

The usual flood of legislative business cascaded through Capitol Hill in October. The Senate passed a ban on partial-birth abortions. Not to be outdone, the House passed a ban on assisted suicide.

Behind the scenes, House-Senate conference committees fought over a major overhaul of the nation's juvenile justice system, and an equally major overhaul of the nation's managed care system. In committees, members battled over one bill that would make electronic signatures valid nationwide, another that would gut so-called "homestead exemptions" in bankruptcy cases and yet another that would deregulate the nation's electrical power grid.

As usual, Congress addressed matters of great import, finally revamping the sweeping Depression era financial services laws that separate banks from insurance companies--and, not-so-great import, as the House passed a "foot fetish" bill making it a federal crime to sell a bizarre new genre of underground videotapes that feature animals being tortured with stiletto heels.

A COUNTERREVOLUTION

But there was one thing that the entire collection of initiatives had in common: They all would expand federal power at the expense of states.

Members of Congress still talk a lot about defending states' rights, about erasing Washington prerogatives, about a "devolution of power" to their beloved "laboratories of democracy." But when it comes to actual legislation, a quiet counterdevolution is well under way, as Congress continues to substitute its own judgment for that of the states. Lawmakers of both parties insist that they support state power in theory, but they can't seem to help trying to interfere when they don't like the way states are using it.

The assisted suicide ban, for example, was a direct effort to overturn Oregon's controversial Death With Dignity law. The HMO restrictions in the so-called Patients' Bill of Rights could preempt health care statutes in dozens of states, and a Republican add-on to the bill could create "alternative health plans" exempt from state regulations. The juvenile justice bill, best known for its gun control measures, would also force states to prosecute more adolescents as adults and would federalize a variety of crimes extending well beyond graphic footwear videos. The financial services overhaul includes language that critics believe will undermine the power of state insurance regulators, gut some state consumer protections, federalize many financial records and overturn a North Carolina law restricting predatory lending. The electricity bill could supersede at least 26 state...