The States Fight Back: Scholars and Grassroots Groups Promote Statehouse Revolt

By Elias Crim

Summary: Spurred by the specter of fi scal collapse and mounting federal mandates, Tea Party activists and legal scholars are mounting a movement to restore power to state legislatures. They are sponsoring a wave of controversial new legislative proposals aimed at restoring state sovereignty. Some of the ideas may seem far-fetched, but without political imagination there is no political reform. The U.S. Constitution is the move- ment’s yardstick.

n 2009 House Speaker Nancy Pelosi was asked a question about where in the U.S. IConstitution she found the authority to require every American to purchase private healthcare insurance. The Speaker responded with a laugh and then replied, “Are you seri- ous? Are you serious?” When the questioner said he was not joking, Pelosi just shook her head and took another question.

Pelosi’s off-handed dismissal was representa- tive of the reaction of many politicians when Polls have shown that large numbers of they are asked where they get the authority December 2010 to do what they want to do. Her scornful voters believe the NAFTA agreements, the Patriot Act, the Wall Street bailouts and the remarks are infuriating to increasing num- CONTENTS bers of Americans who want to hold elected 2009 fi scal stimulus were enacted without politicians and appointed judges to the higher the “deliberation” required by the U.S. authority of the Constitution. Constitution. The States Fight Back Page 1 A February 2010 Rasmussen poll confi rms But when citizens insist that the text of the the public’s frustration: 59% of likely voters Constitution must be cited to show the au- now believe the states should have the right thority for congressional action their appeals Briefl y Noted to opt out of federal programs of which they are rejected and ridiculed. Page 6 disapprove. Another 15% are not sure. OrganizationTrends

AFL-CIO staff writer Mike Hall wrote this Amendment to the Constitution. It reads in This was a symbolic moment: the on-air out- on the AFL-CIO Now Blog: full: “The powers not delegated to the United burst (now known as “The Rant Heard Round States by the Constitution, nor prohibited the World”) by CNBC reporter Rick Santelli “Most cults are based in some sort by it to the States, are reserved to the States that galvanized grassroots groups around the of skewed spiritual vision or the respectively, or to the people.” country. The Tea Party movement, beholden worship of a charismatic leader, to neither Republicans nor Democrats, called but there is a re-emerging cult that Limiting the Power of the Federal on Americans to take actions constraining bows down at the feet of the 10th Government federal government power. The election of Amendment to the U.S. Constitu- “Restore the Tenth” is a powerful idea. Tea Party candidates to Congress in 2010 is tion. Many of them want to bring Perhaps that’s why it’s the name of a joint a fi rst step to achieving that goal. their cultish beliefs to the halls of project of two groups dedicated to supporting Congress and are running for elec- those trying to resist federal mandates and But activists and scholars are proposing many tion this fall.” programs. The State Policy Network (SPN) other steps, some of them quite controversial is the federation of over 50 free-market state to break the grip of federal control. They Washington Post columnist Richard Cohen think tanks, with one or more in every state. are writing books, introducing resolutions is similarly annoyed by appeals to the Con- The Institute for Policy Innovation (IPI), a in state legislatures, and refusing to imple- stitution: Texas-based policy organization, focuses on ment federal mandates on the states. They “lower taxes, fewer regulations and smaller, are proposing binding legislation and state “This fatuous infatuation with the less-intrusive government.” SPN and IPI constitutional amendments to nullify fed- Constitution, particularly the Tenth have built impressive networks of state level eral power. And they are pushing measures Amendment, is clearly the work of experts and activists who aim to persuade to uphold the sovereignty of the states to witches, wiccans and wackos. It citizens and legislators that market-friendly determine their own policies. has nothing to do with America’s policies in state government can maximize real problems and, if taken too se- individual liberty and opportunity. They are Consider some of the emerging state sov- riously, would cause an economic a “refudiation” of the claim that the Tenth ereignty bills. The proposals are striking, and political calamity.” Amendment is the preserve of witches and not only for their variety but also because wackos. they don’t necessarily correspond to the There is nothing strange about the Tenth ordinary politics of left and right. One Los Nevertheless, today constitutional govern- Angeles-based grassroots group called the Editor: Matthew Vadum ment is in serious jeopardy. The principles of Tenth Amendment Center reports on the Publisher: Terrence Scanlon separation of powers, checks and balances, progress of these initiatives. From the Tenth and federalism used to be deeply ingrained in Amendment Center’s website: Organization Trends the minds of Americans. But they have been is published by Capital Research Center, a non-partisan education and eroded as the federal government imposes Firearms FreedomAct bills: “Originally research organization, classifi ed by more and more laws on the states to regulate introduced and passed in Montana, the the IRS as a 501(c)(3) public charity. private sector activities and individual be- FFA declares that any fi rearms made and Address: havior. Many of these “unfunded mandates” retained in-state are beyond the authority 1513 16th Street, N.W. require states to spend their own tax revenues of Congress under its constitutional Washington, DC 20036-1480 on programs devised in Washington, D.C. power to regulate commerce among Phone: (202) 483-6900 These impositions and others are fueling the states. The FFA is primarily a Tenth Long-Distance: (800) 459-3950 the public outcry that has become the Tea Amendment challenge to the powers of E-mail Address: Party movement. Congress under the ‘commerce clause,’ [email protected] with fi rearms as the object.” (Passed Web Site: Remember Feb. 19, 2009? “We’re think- in eight states, introduced or expected http://www.capitalresearch.org ing of having a Chicago tea party in July. to be introduced in approximately 20 Organization Trends welcomes let- All you capitalists that want to show up to more.) ters to the editor. Lake Michigan, I’m going to start organiz- Reprints are available for $2.50 pre- ing it.” 10th Amendment (or State Sovereignty) paid to Capital Research Center. bills: “Unlike the many 10th Amendment 2 December 2010 OrganizationTrends

Resolutions that have been introduced might this observation apply? Their answer: an example of that toothy language. The around the country since 2008, these bills a great deal of it. Montana Tea Party Coalition is asking every are proposals for binding legislation. state legislative candidate if they will support They include language to affi rm the Woods argues that the Founders understood legislation along these lines: sovereignty of the people of the state and that it is up to the states, as parties to the to create a commission or a committee federal compact, to declare laws unconsti- “Any offi cial, agent or employee to review the Constitutionality of acts tutional. The federal government cannot be of the U.S. government or any em- emanating from the federal government.” expected to overturn unjust laws of its own ployee of a corporation providing (Introduced in six states.) making. services to the United States gov- ernment that enforces or attempts Healthcare Freedom Act bills: “The Live Free or Die to enforce an act, order, law, statute, Health Care Freedom Act is considered Dan Itse, a Republican state legislator in New rule or regulation of the government in states as either a bill or a state Hampshire took steps to convert his alarm at of the United States in violation of constitutional amendment, effectively growing federal power into action. “I knew this act shall be guilty of a felony prohibiting the enactment of any new I had to make these constitutional insights and upon conviction must be pun- government-run healthcare programs into a resolution for the New Hampshire ished by a fi ne not exceeding fi ve within the state. While many of the legislature and that I wanted to make them thousand dollars ($5,000) or a term bills have language similar to true an appeal to Jeffersonian principles, since of imprisonment not exceeding fi ve nullifi cation legislation, many of them he is of course an icon to my Democrat col- (5) years or both.” are promoted solely as a vehicle to drive leagues.” In 2009 Itse introduced HCR 6 “A a federal court battle – which is not Resolution Affi rming States Rights Based on Calling the Feds’ Bluff nullifi cation in its true sense.” (Passed as Jeffersonian Principles.” Nullifi cation proponents are sometimes ma- law in four states; introduced and passed ligned as secessionists and segregationists. one or both houses in 22 states.) Unfortunately, HCR 6 was defeated in the They are equated with the Southern politi- New Hampshire state legislature. Moreover, cians who sought to protect racial segregation The Tenth Amendment Center explicitly promotes “nullifi cation.” This is the idea that the U.S. Supreme Court does not possess a monopoly on the interpretation of the U.S. Constitution. Conservative historian Thomas C. Woods, the author of Nullifi cation: How to Resist Federal Tyranny in the 21st Century (Regnery, 2010) argues that the Founding Fathers gave states the authority to nullify federal power. it was only a resolution, a public statement by invoking the concept to defend “states’ Woods points out that Jefferson and Madison without force of law that served notice on rights” against federal civil rights laws. appealed to the concept of nullifi cation (the the Federal government to halt all activities But those who want increased support for “rightful remedy,” as they termed it) when outside the scope of its constitutionally- the Tenth Amendment –sometimes called they argued in 1798 against the Alien and Se- specifi ed powers. Still, it gave Itse a forum, “tenthers”—note the many honorable uses of dition laws, arguing that an unconstitutional and when he appeared on Glenn Beck’s TV nullifi cation in American history—notably, law is by defi nition null and void. Jefferson show he was able to report that 20 states resistance to the Fugitive Slave Law in the authored a resolution passed by the legisla- (increased to 28 one week later) were in- 1850s. ture of Kentucky in 1798 that formulated troducing similar sovereignty resolutions. this eye-opener: “Whensoever the General Itse said many of them borrowed language In our own time “states’ rights” is no reac- Government assumes undelegated powers, from his HCR 6. tionary doctrine. Under the mounting pres- its acts are unauthoritative, void, and of no sures of unfunded federal mandates, more force.” Today’s new “nullifi ers” ask: To how Itse predicts the next round of state sover- and more states have adopted nullifi cation much of current Congressional spending eignty bills will have more “teeth.” Here’s in practice if not in principle. For instance, December 2010 3 OrganizationTrends the REAL ID Act of 2005, signed into law primary race for governor to attorney general hold any taxes payable to the feds pending by President George W. Bush, established (and now-governor-elect) Tom Corbett. He their compliance with the Constitution’s national standards for state-issued driver’s believes fi scal pressures are the key driver in requirement that they specify an enumerated licenses and identifi cation cards, and it the push to regain state sovereignty. authority to spend the revenue. created procedures requiring them to be approved by the Department of Homeland But Rohrer also believes executive leader- 2. Erect an impenetrable wall around the Security. Fiscal conservatives believed the ship is required. He notes that three state County Sheriff and the Second Amendment. law was another unfunded raid on state rev- governors were responsible for stopping the To protect the right to self-defense the group enues, and civil libertarians objected that the Real ID Act: South Carolina’s Mark Sanford, supported “Sheriff First” legislation recog- government was consolidating Americans’ Texas’ Rick Perry and a Democrat, Mon- nizing the “pre-eminent” legal authority of private information. The act is still on the tana’s Brian Schweitzer. “We need a whole the county sheriff. It would require federal books, but more than two dozen states have group of governors pushing for these Tenth agents and offi cers to give notice to and seek refused to participate in the program. They Amendment initiatives—that’s the roadmap permission from sheriffs before conducting have passed laws or resolutions opting out to national renewal,” he adds. any arrest or search and seizure. of its enforcement. However, Rohrer explains that what usually 3. Restore Sound and Honest Money. States In the November elections Californians got tempers the enthusiasm of governors—who, should put pressure on Congress to audit the to vote on a different nullifi cation drive. like many politicians, tend to come from legal Federal Reserve in order to reveal that the Proposition 19 would have made recreational backgrounds—is that they think in terms of system enables private bankers to profi t at marijuana cultivation and use legal under court rules and case law. This mindset stops public expense. Shea also called on the states California state law while leaving intact them from displaying executive courage once to back resolutions putting the federal gov- federal laws over the controlled substance. they’re in offi ce. ernment on notice to end fractional reserve Attorney General Eric Holder announced that banking and restore a currency backed by the Obama administration strongly opposed In Washington State, Representative Matt gold and silver (and perhaps commodities). Prop 19 and would continue to uphold fed- Shea led a group of legislators who met to The document cites the expertise of noted eral law. Had Prop 19 passed, it would have look at ways that statehouses could reassert constitutional scholar Dr. Edwin Vieira to blocked state offi cers from seizing marijuana their authority. The group did not let “political support its monetary theory and history. deemed in compliance with state law. This reality” restrain their political imagination. would have prevented the coordination typi- 4. If State Legislatures Fail, Introduce Laws cally undertaken between federal and state Like his New Hampshire colleague, Shea’s through the Initiative Process. The people law enforcement offi cials. Proposition 19 group argued that the federal government are the fi nal check and balance against ar- was defeated by a 54-46% margin. would ignore protests against its power bitrary power. Recognizing that many state until the states did more than pass tooth- legislatures will refuse to consider proposals In 1996, however, California became the less resolutions. Meeting in summer 2009 such as those mentioned above, Shea em- fi rst state to nullify federal laws on medical the group wrote a four-part program called phasizes the importance of reserving to the marijuana use. Thirteen other states followed “Resist DC: A Step-by-Step Plan for Free- people the fi nal power of legislation. That suit, and last month Arizona voters made their dom.” Here it is. means protecting and expanding the political state the 15th to defy federal law prohibiting processes of the Initiative, the Referendum, the use of marijuana by people claiming a 1. Reclaim State Sovereignty through and the Recall. medical necessity. Nullifi cation Legislation. The document recommended that the states introduce The Repeal Amendment Resist DC bills to nullify Obamacare and any national OK, suppose Congress passes a law that Healthcare and education are far more “cap–and-trade” energy regulatory laws. It is not unconstitutional—but it’s still a bad important issues than marijuana for most also demanded that Congress specify the idea. Is there anything the states can do to Tea Partiers and other fi scal conservative enumerated power it uses to justify its own overturn it? Enter the strategy of the Repeal activists. “These are the two areas that are laws. If the federal government fails to do Amendments. breaking the backs of the states, fi scally so, Shea’s group said states should pass laws speaking,” says Sam Rohrer, a Pennsylvania establishing an “Escrow Account” for federal In a Sept. 16 Wall Street Journal column, state representative who lost the Republican tax dollars. That would allow the states to Georgetown University law professor Randy 4 December 2010 OrganizationTrends

Barnett and William Howell, the Speaker of senators voted in Congress. But the practi- issues: “It should be a structural question: the Virginia House of Delegates, suggested cal effect, many would argue today, is that Do you want to live in an imperial society that states could use their powers under Ar- senators’ votes are now controlled by special or a self-governing one?” ticle V of the Constitution to call a convention interest groups in Washington, D.C. that would propose a federalism amendment The states are capable of using power badly, to repeal laws passed by Congress. Obamac- “If senators were again selected by state Woods agrees. “But at least you have some are is the law they have in mind. Here’s the legislatures,” argues Washington Times recourse when they do. Nobody can control proposed language: columnist Tony Blankley, a former top Washington, D.C.—this is obvious.” That’s aide to former Speaker of the House Newt why many Tea Party rebels are looking to Any provision of law or regula- Gingrich, “the longevity of Senate careers the states. tion of the United States may be would be tethered to their vigilant defense repealed by the several states, and of their state’s interest—rather than to the in- Elias Crim is a publishing consultant based such repeal shall be effective when terests of Washington lobbyists.” The Senate in Valparaiso, Ind. the legislatures of two-thirds of the would then take on its original function—the several states approve resolutions place where the states are represented in for this purpose that particularly the federal system. In the Nov. 15 issue of describe the same provision or National Review George Mason University provisions of law or regulation to law professor Todd Zywicki observes that be repealed. the common practice of using the states to carry out federal mandates would be unthink- Barnett stressed that such an amendment able if U.S. senators were beholden to state would be structural (i.e., it is not tailored governments. to a particular policy) and self-executing (i.e., it does not rely on the courts to enforce By Any Peaceful Means Necessary it). Unlike nullifi cation, which asserts the Tom Woods recognizes that nullifi cation constitutional rights of the states, the repeal proposals and other political initiatives to amendment functions more like the presi- push back federal power are still at the draw- dent’s veto power. ing board stage. He argues that all forms of decentralization—nullifi cation, repeal How would repeal work? In January the amendments, even (peaceful) secession— legislature of Virginia will consider propos- deserve consideration. “We need a national ing just such an amendment. This effort, united front of decentralists—a patchwork of Please consider contributing paired with Virginia Attorney General Ken efforts which can get majority support.” early in this calendar year to Cuccinelli’s court battles over Obamacare, the Capital Research Center. will make the state a veritable hotbed of He also acknowledges the challenge of federal pushback. bipartisan collaboration: Will NRA second We need your help in the amendment activists want to collaborate current diffi cult economic Repeal the 17th Amendment with potheads who want to legalize mari- climate to continue our im- Besides restoring the Tenth Amendment, juana? “Can we work with people who portant research. some scholars and activists have urged the want exemption from federal laws that we repeal of the Seventeenth. That’s the con- may happen to like but which are in fact Your contribution to advance stitutional amendment ratifi ed in 1913 that unconstitutional?” our watchdog work is deeply removed state legislatures from the process of appreciated. selecting U.S. senators and adopted the elec- To accomplish that requires the citizens of tion of senators by popular vote in each state. the several states to buy into a philosophy Many thanks. The Progressive movement thought popular of “I leave you alone, you leave me alone,” elections would prevent state legislators which has a libertarian ring that not all Terrence Scanlon from exercising their power to control how conservatives can comfortably embrace. President But Woods argues that these aren’t left/right December 2010 5 OrganizationTrends Briefl yNoted ACORN fi led for Chapter 7 bankruptcy last month in order to escape its debts. Despite a 40-year track record of corruption and lawbreaking, ACORN chief organizer Bertha Lewis blamed the organization’s problems on its conservative critics, claiming ACORN was the victim of its own “highly effective strategies” that succeeded in “catching the attention of right-wing media and its proponents.” According to Lewis, the undercover videos last year showing ACORN employees giving tax and legal advice on starting a brothel for pedophiles had nothing to do with it.

ACORN executive Amy Busefi nk cut a last-minute deal with Nevada prosecutors in hopes of avoid- ing prison time for her role in a voter fraud-related conspiracy. Busefi nk entered an “Alford plea,” roughly equivalent to “no contest.” Prosecutors say she condoned a conspiracy to provide illegal monetary bo- nuses to voter registration canvassers who exceeded daily quotas. Nevada law forbids this because it provides an incentive for canvassers to fi le bogus registrations. Sentencing for Busefi nk is set for Jan. 10. ACORN is not quite off the hook. Prosecutors say they plan to pursue already pending conspiracy charg- es against ACORN itself.

Federal auditors say ACORN can’t account for $3.2 million in government grants it received to remove lead paint in homes. They want ACORN to repay the money, part of which they say was spent inappropri- ately on fundraising and political campaigns.

The George Soros-funded Secretary of State Project did not achieve its aims in the November elec- tions. Of seven secretary of state candidates endorsed by the SoS Project, only Democratic incumbents Mark Ritchie of Minnesota and Debra Bowen of California survived the GOP onslaught. The leftist SoS group tries to elect secretaries of state who believe voter fraud is a fi gment of conservatives’ imaginations.

George Soros is also bankrolling a documentary that celebrates anarchists who plotted to napalm Repub- licans at the 2008 GOP convention in Minnesota. The soon-to-be-released fi lm Better This World depicts David McKay and Bradley Crowder as idealistic activists who, according to the offi cial blurb, “set out to prove the strength of their political convictions to themselves and their mentor.” In fact, their plot to hurl Molotov cocktails at Republicans was foiled by former radical activist Brandon Darby, who worked with the FBI. The fi lm depicts Darby as the villain, and McKay and Crowder as heroes. They were convicted of possessing unregistered “fi rearms” and are now serving prison terms. The Sundance Institute’s Docu- mentary Film Program, which provided a grant to the fi lmmakers, has received $9.6 million since 2002 from Soros’s Open Society Institute. Sundance has taken in $11.2 million in government grants since 1997.

A government commission with a good idea? The co-chairmen of President Obama’s bipartisan com- mission to reduce the federal debt have proposed killing federal funding for the Corporation for Public Broadcasting. CPB funds the left-wing radio network NPR and PBS. Taxpayers would save almost half a billion dollars. The commission’s full report is due this month.

The American Conservative Union Foundation, sponsor of the annual Conservative Political Action Conference (CPAC), is hosting its fi rst ever CPAC Mid-Winter Cruise this month. Emerging conservative leaders Sen.-elect Marco Rubio (R-Fla.) and Puerto Rico Gov. Luis Fortuno are among the featured guests on the cruise that will begin in Ft. Lauderdale and visit Puerto Rico, Turks and Caicos, the U.S. Virgin Islands, and the Bahamas. The 2011 CPAC begins Feb. 10 in Washington, D.C.

6 December 2010