Federalism for Preschoolers

As predicted here, another Republican governor has folded his states’ rights tent and consented to Obamacare’s Medicaid expansion in his state. That would be the intrepid Rick Scott of Florida—as it happens, the lead state in the litigation over the ACA. Today’s snarling Wall Street Journal editorial appears here; nro coverage here.

One more time: the GOP governors’ Medicaid position, as stated in the Obamacare litigation and embraced by the Supreme Court, has done zero, zilch to fix Medicaid’s insane fiscal incentives. The principal result was a marginal improvement in the states’ bargaining position vis-à-vis the feds. (Law professor Sam Bagenstos has a very fine piece on that subject here. The article is particularly impressive because the author in good faith attempts to extract, from a mess of a Supreme Court opinion, a defensible Spending Clause principle that’s probably at odds with his political orientation. Me, I’ve never gotten beyond playing the opinion for laughs.) Governor Scott, supposedly a shrewd businessman, has sought to exploit the bargaining advantage. He may have gained some added administrative “flexibility” in exchange for his surrender. Moreover, he says, the consent is good for only three years and so long as the feds pay 100 percent of the cost. So the Sunshine State will put a few hundred thousand people on the Medicaid rolls and then, when the feds tighten the screws or stem the flow of dollars they don’t have, kick the beneficiaries off again. Sounds like a plan.

Meanwhile, in a different ring of the federalism-for-four-year-olds circus, President Obama has proposed federal co-funding for pre-school programs, which are said to work in Georgia and Oklahoma. David Brooks of the New York Times (motto: “If we must have a conservative let it be Brooks”) has celebrated the proposal as “very good news”:

Washington’s main role will be to measure outcomes, not determine the way states design their operations. Washington will insist that states establish good assessment tools. They will insist that pre-K efforts align with the K-12 system. But beyond that, states will have a lot of latitude.

Should early education centers be integrated with K-12 school buildings or not? Should the early childhood teachers be unionized or certified? Obama officials say they want to leave those sorts of questions up to state experimentation. “I’m just about building quality,” Education Secretary Arne Duncan told me. The goal is to make the federal oversight as simple as possible.

Reihan Salam has a very good critique (including cites to the utterly depressing literature on the effectiveness of preschool programs) here. To pursue the point:

Would it be churlish to observe that every single “cooperative” federal program has been accompanied at its creation by promises of “latitude” and “experimentation”?

Is it wise to “align” prospective pre-K programs with a K-12 system in which the effects of early childhood education, to the modest extent that they exist, have consistently been shown to disappear within three years?

Suppose that five years in, the “good assessment tools” and “simple” federal oversight show that the programs have failed everywhere except in Nowhere, Nebraska. Or that they’ve been a rousing success all over, or (like Headstart, clocking in at $8 billion per year) a dismal failure everywhere. Or that the results have been mixed but could be improved. Is it not safe to predict that Washington’s response to each of these scenarios will be more money and oversight? Can David Brooks (a respected authority on the workings of Washington) envision anyscenario that might prompt a different response? In his rich experience, can he recall such an event?

If the predicted political response is invariant, why should we bother to “assess” and “measure outcomes”—to ensure employment for education bureaucrats and consultants from Yale? If so, why not economize on transaction costs and pay these people to stay home?

If the program proves less-than-perfect in some respect, should the Secretary of Education “build quality” by keeping the money flowing under extra-legal waivers from statutory requirements, as is now the practice for federal K-12 programs? Should we steer clear of rule-of-law problems by condensing the 2013 Pre-K Act to a single word and number (“Here: $10,000,000,000”)?

Under what circumstances, if any, are politicians’ good intentions bad news?

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

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