The Volokh Conspiracy

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Volokh Conspiracy

Buckley v. Grants to States


The Honorable James L. Buckley is an interesting chap. Before becoming a judge on the U.S. Court of Appeals for the D.C. Circuit, he was an undersecretary of state, head of Radio Free Europe and a U.S. senator—elected as a third-party candidate no less. Some may recall that Judge Buckley was the lead plaintiff challenging federal regulation of campaign finance in Buckley v. Valeo. His experience as a third-party candidate convinced him that such laws would work to the advantage of incumbents (and some would say he was right). He's also the older brother of the late William F. Buckley Jr.

Judge Buckley has a new book, Saving Congress from Itself: Emancipating the States and Empowering the People. In this book, he makes the case for eliminating federal grants-in-aid to state governments. Such programs, he argues, encourage excessive federal spending. blur the lines of accountability and undermine the federalist structure. This week, Judge Buckley had a WSJ op-ed summarizing his argument. Here's a taste:

Those programs, which provide funding for Medicaid as well as everything from road and bridge construction to rural housing, job training and fighting childhood obesity—now touch virtually every activity in which state and local governments are engaged. Their direct cost has grown, according to the federal budget, to an estimated $640.8 billion in 2015 from $24.1 billion in 1970.

Their indirect costs, however, go far beyond those numbers both in terms of dollars wasted and the profound distortions they have brought about in how we govern ourselves. Because the grants come with detailed federal directives, they deprive state and local officials of the flexibility to meet their own responsibilities in the most effective ways, and undermine their citizens' ability to ensure that their taxes will be used to meet their priorities rather than those of distant federal regulators. The irony is that the money the states and local governments receive from Washington is derived either from federal taxes paid by residents of the states or from the sale of bonds that their children will have to redeem. . . .

It is impossible, in this article, to detail all the costs imposed by those programs, but here are some of the most egregious ones: They add layers of federal and state administrative expenses to the cost of the subsidized projects; distort state priorities by offering lucrative grants for purposes of often trivial importance; and undermine accountability because state officials bound by federal regulations can't be held responsible for the costs and failures of the projects they administer.

Finally, and of prime importance, those programs have subverted the Constitution's federalism, its division of federal and state responsibilities, that was intended to prevent a concentration of power in a central government that could threaten individual liberties.

Judge Buckley's book was also the subject of a panel at the Federalist Society's National Lawyers' Convention. Here's the video.