As Reagan pledges rights to states, Hill trims them
Denver — A funny thing happened on the way to President Reagan's much vaunted ''new federalism.'' While the administration has been fighting its battle of the budget, Capitol Hill has been quietly flooded with an unprecedented number of bills which would in some way preempt state authority.
These bills have been summarized in a report just released by the National Conference of State Legislatures (NCSL), which is trying to marshal state's rights proponents to oppose this legislative trend.
''It's not generally recognized how much preemptive legislation is floating around the Hill,'' says Earl S. Mackey, executive director of the NCSL. Instead attention has been centered almost exclusively on the fiscal aspects of the administration's programs.
Daniel J. Elazar, director of Temple University's Center for the Study of Federalism, has observed that the balance of power in the United States federal system moves in a predictable cycle, swinging between periods of intense federal activity and periods of innovation by the states. According to this federalism expert, the nation should be moving into an era where the power shifts to the states.
This natural swing is being impeded by another trend within US society, Mr. Mackey suggests. ''I believe there is more preemptive legislation today than in the past because there is more reason for it . . . because of the economic centralization which we have been experiencing. Business interests want federal legislation because they now have national markets,'' he explains.
State's rights proponents see a real danger in the current tide toward preemption. ''While preemption of state laws is viewed by many officials as the quickest way to eliminate ineffective laws, the continual use of preemption undercuts the value of state government and may effectively hamper the ability of states to provide for the welfare of their citizens. The question raised by preemption attempts today is not whether a particular state law is right or wrong, but whether the states or the federal government should be the ultimate decisionmakers in a particular situation,'' the NCSL paper argues.
The NCSL staff does not accuse Mr. Reagan of a covert campaign to preempt state authority. It notes that the administration has not taken a position on half of these cases. Rather, it charges that there is no consistent pattern of support for state's rights discernable in administration positions.
The problem with the Reagan new federalism in this area as well as in the matter of the supposed turnover of federal programs and money to the states is that ''it is more illusion, than reality,'' says Mackey. To back up this statement, he argues that there have been disproportionately large cuts in federal programs that go to state and local governments. This would not be so bad, he says, if the administration had not continually delayed giving the states the ''revenue turnbacks'' and the ''flexibility'' it has repeatedly promised so they can cope with the situation. Finally, the White House actually supports some preemptive legislation in important areas like interstate banking and refuses to oppose preemptive measures in other areas like hazardous wastes.
According to this report, the 97th Congress has made serious efforts to preempt state laws in the following areas:
* Usury ceilings. A number of states set limits on the amount of interest that banks and lenders can charge. With market interest rates exceeding many of these limits, the banking community is trying to repeal them through federal legislation.
* Due-on-sale clauses. Many states let home buyers assume the previous owner's mortgage at the original interest rate. They do this by prohibiting due-on-sale clauses in mortgages which the real estate and banking industries favor. They claim they cannot finance new home sales because of this provision. Proposed Senate banking legislation would deny states the authority to prohibit these clauses.
* Nuclear wastes. The nuclear industry is urging Congress to pass provisions overriding state objections to federal nuclear waste siting proposals unless Congress concurs with the objections.
* Industrial development bonds. These are bonds that state and local governments have used to subsidize commercial development. Following reports charging widespread abuse and significant loss of federal revenues through the use of these bonds, legislation has been introduced to restrict and even terminate such programs.
* Property tax exemption. A number of state and local governments tax AMTRAK Corporation property. A Senate transportation bill would exempt AMTRAK from such taxes.
* Consumer product safety. The US Chamber of Commerce is lobbying for an amendment that would preempt state product safety laws if an industry-sponsored voluntary standard were ''relied upon'' by the US Product Safety Commission.
* Interstate telecommunications. The cable television industry and American Telephone and Telegraph are seeking to preempt state and local authorities from regulating cable TV fees and long distance telephone rates.
* Emergency energy. Under the 1973 act that allowed the government to allocate gasoline in times of emergency, states were allowed a certain amount of gasoline to distribute to areas particularly hard hit by the shortage. The act recently expired, and in legislation to renew it the Senate voted to prohibit state programs.