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States' rights movement sweeping across America

by Greg Lucas, published

Gov. Arnold Schwarzenegger’s quest to convince the federal government to put-up-or-shut-up by paying California an additional $6.9 billion he says the state needs to carry out Washington D.C. imposed mandates is just one high-profile example of states increasingly asserting their rights.

The battle over when states rights trump federal government edicts is as old as the constitution, waxing and waning in favor of each camp for nearly 225 years.  But recently, an increasing number of states are standing up to the federal government and asserting their independence through legislation, resolutions or rhetoric.

“It’s widespread. We’re seeing states all across the republic with different resolutions or legislation. Some deal with health care, some firearms some light bulbs. Civil resistance against federal drug policy began here in California. In a way, we’re leading the charge,” said Bryce Shonka, (CQ) California state coordinator for the Tenth Amendment Center, a Los Angeles-based clearinghouse and advocacy group for states rights issues.

As Shonka says, while Schwarzenegger’s chief focus is securing money to balance California’s budget, other states are declaring their independence differently.  According to the National Conference of State Legislatures, 23 states have followed Montana and introduced legislation saying if a gun is manufactured in that state and stays in that state, then federal regulation, such as registration, doesn’t apply.  On March 12, Gov. Mike Rounds of South Dakota, a Republican, signed such a bill into law. Wyoming’s governor signed a similar bill the day before.

Idaho’s GOP Gov. C.L. "Butch" Otter signed a law March 17 ordering the state attorney general to sue if Congress approves health care legislation. Similar bills are pending in 37 other states although its unlikely any would survive a court challenge.

Frank Antenori, an Arizona lawmaker, introduced a bill in February similar to the gun measures but dealing instead with incandescent light bulbs which begin to be phased out in 2012 under a federal law signed by President George W. Bush. Under Antenori’s bill, HB 2337, incandescent bulbs manufactured in Arizona and sold only to Arizona residents would not be subject to the phase-out.  Antenori, a freshman legislator, is candid about his goals – pick a fight with the federal government and go to court.  “The real intent of this legislation is to challenge the federal mandate in court,” he told the Arizona House Commerce Committee. “We could make history by having the (United States) Supreme Court rule that the federal government overstepped its bounds.”

Another Arizona lawmaker has introduced a firearms measure similar to the one signed by Rounds of South Dakota.     Starting with Maine in 2007, 25 states have passed resolutions or legislation denouncing or refusing to implement the federal REAL ID which imposes strict – and costly – security and authentication standards for issuing drivers licenses, the Tenth Amendment Center says. 

While some say the push for states rights is largely a Republican, red state, Tea Party phenomenon, Shonka doesn’t agree.
He points to Oregon, Wisconsin, Maryland and New Hampshire – all states won by President Obama in 2008 – where resolutions were introduced last year aimed at bringing members of the National Guard home from Iraq and Afghanistan.    “It’s not at all a partisan issue. Having decisions made closer to home, everyone appreciates that sort of thing,” said Shonka. “Centralization was in full gear all throughout the last decade under Bush just as it is under Obama. When Obama was elected, the people on the right naturally were the ones more eager to oppose the federal government.”

One of the most common manifestations of states rights is passing legislation that exceeds federal law.  “The governor has always said, under Presidents Bush and Obama, we’re not going to wait for Washington to act,” said Aaron McLear, Schwarzenegger’s press secretary. “And that’s why the real action has been happening in the states.”

Schwarzenegger and California’s Democratic majority Legislature have passed laws stronger than federal statutes routinely, particularly on environmental matters.  AB 32, the landmark 2006 measure designed to ratchet down state greenhouse gas emissions to 1990 levels by 2020 is the most visible example.  More recently, California approved stricter tailpipe emission standards. Twenty other states followed California and passed the same law. The Obama administration has now adopted the same emission standards for the country. 

It’s unclear what ultimate impact many states rights measures will have. Much of the legislation tracked by the Tenth Amendment Center is resolutions, which are non-binding and don’t carry the force of law. A large percentage of the states' rights bills, regardless of subject, don’t win legislative approval let alone a gubernatorial signature.

But the message is clear: Don’t Tread on Me!

“We no longer can ignore what is owed to us or what we are forced to spend on federal mandates,” Schwarzenegger said in his January State of the State speech.  “We are currently owed billions of dollars by the federal government for various different programs. We need to work with the feds so that we can fix the flawed formula that demands that the states spend money that we do not have.”

While members of the Schwarzenegger administration say its unlikely they will receive their goal of $6.9 billion in additional federal revenue, the GOP governor’s crusade has yielded some positive results.  To date, California has either received or been pledged 42 percent of the $6.9 billion, according to Schwarzenegger’s Department of Finance.

At the center of the arguments made by states' rights advocates is the Tenth Amendment of the Bill of Rights:

    “The 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.”

That amendment is a weaker version of a similar sentence in the earlier Articles of Confederation:

    "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."

Over the past century, federal court rulings have expanded the federal government’s reach – largely by applying the Constitution's Interstate Commerce Clause: Congress shall have the power “to regulate commerce… among the several states.”  During the first part of Franklin Roosevelt’s New Deal in the 1930s, the Supreme Court struck down many of his proposed expansions of federal authority – enough that Roosevelt proposed increasing the number of justices on the court from nine to 15. 

The court subsequently shifted its stance on the Commerce Clause.  A key 1942 Supreme Court ruling, Wickard v. Filburn, involved a farmer, Roscoe Filburn, who grew wheat to feed his chickens said the limits on wheat production imposed by the federal government to increase the price shouldn’t apply to him because he sold none of the extra wheat.  Using the Commerce Clause, the court reasoned that the extra wheat Filburn grew reduced the amount of wheat he would otherwise buy for chicken feed on the open market.  Because there was a national trade in wheat, Filburn’s extra production affected interstate commerce, allowing federal regulation.

Citing the Wickard ruling and the Commerce Clause, the courts struck down California’s medicinal marijuana law in 2005.    Growing marijuana for personal or medical use would “frustrate” the federal interest in ending commercial transactions in the interstate market, the court said.  “In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity,” the majority opinion says.

Taking the side of states rights, Justice Sandra Day O’Connor wrote:

    “The court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some states, concerned for the lives and liberties of their people, to regulate medical marijuana differently.  Whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.”

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