WASHINGTON – Republicans who swear by the principle of states' rights are having to make some exceptions when it comes to the Terri Schiavo (search) case, or reining in trial lawyers, protecting the sanctity of marriage and advancing the party's other priorities.
Capping medical malpractice payouts (search), putting in place President Bush's centerpiece education law and modernizing the election system also are among the GOP goals that, critics say, expand federal powers at the expense of states' rights (search).
"Our members have raised the alarm" about the tendency of Washington to pre-empt state laws, said Susan Parnas Frederick, who heads the law and criminal justice committee of the National Conference of State Legislatures.
"We obviously feel that there are times when national actions are necessary," she said. But recently, she said, "everything comes down from the federal government whether we like it or not."
Her bipartisan group has put out its first "Pre-emption Monitor" to warn state legislators about federal efforts to usurp their powers.
It mentions two of the Bush administration's proudest accomplishments: the No Child Left Behind Act (search), which establishes national education testing standards, and the recent law that seeks to restrain lawsuit abuse by allowing class-action suits to be moved from state to federal courts.
In addition, there is the 2002 election law that imposed national standards on the states in such areas as registration and provisional balloting. A 2004 law created federal standards for state-issued driver's licenses and personal identification cards.
On a smaller scale, a law last year pre-empted state concealed weapons (search) laws by giving an across-the-board exemption from those laws for active or retired law enforcement officers.
The states' rights issue gained prominence when Republicans, frustrated by the refusal of Florida state courts to reverse the decision to remove the feeding tube from the brain-damaged Schiavo, rushed through emergency legislation allowing the case to be heard by a federal court. Federal courts wouldn't order the feeding tube restored, however, and Schiavo died Thursday.
Lawmakers, aware that such an issue is traditionally left to the states, wrote the bill so that it applied only to the Schiavo case and did not affect the substantive rights of the states.
But the chairman of the House Judiciary Committee, Rep. James Sensenbrenner, R-Wis., also noted that "America's federal courts have played a historic role in defending the constitutional rights of all Americans," including the disabled.
Rep. Mark Souder, R-Ind., was more blunt. Whether it is the right to medical treatment or the basic constitutional right to life, "they all prevail over states' rights."
Rep. Mike Castle, one of only five Republicans to vote against the bill, said that as a former governor of Delaware, "I believe strongly in the sovereignty of states and the integrity of their courts." The Schiavo bill, he said, challenged that legitimacy.
States' rights advocates look to the 10th Amendment. It says that "powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
But that distinction was dulled by a Supreme Court ruling in 1937. The justice said the constitutional provision granting Congress control over interstate commerce also gave Congress the authority to legislate in matters that had been relegated to the states.
New Deal Democrats used that ruling over the decades to vastly expand federal powers. One of the aims of the Republicans when they finally seized control of Congress in 1995 was to restore to the states their rightful powers.
"Republicans today are as guilty, almost, as the Democrats were over their long reign in power," said Roger Pilon, director of the Center for Constitutional Studies at the Cato Institute, a group that advocates limited government and individual rights. "Now that they find themselves in power they are not at all reluctant to use government for the ends they favor."
That noticeably has been the case on issues that matter to social conservatives. That includes the drive to pass a constitutional amendment and prevent state courts from recognizing gay marriages, and the administration's support for action against states that legalize medical marijuana or assisted suicide.
Democrats have been quick to remind Republicans that they are forgetting their states' rights roots.
Republicans, said Senate Democratic leader Harry Reid of Nevada during debate on the class-action bill, "should be embarrassed to support this bill, which is one of the most profound assaults on states' rights to come before Congress in many years."