Western states want reins on federal power

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Eliza Wiley / Helena Independent Record

Montana state Rep. Joel Boniek, shown with his mule Jesse, introduced a bill seeking to exempt from federal regulation any firearm made and used within the state borders.

An expanded federal role prompts declarations of state sovereignty. Montana goes further with a gun bill defying U.S. firearm restrictions. The goal: Keep Washington on its side of the fence.

By Mark Z. Barabak
June 16, 2009

Reporting from Bozeman, Mont. -- Frustrated by the expanded power of Washington, a growing number of state lawmakers are defying the federal government and passing legislation aimed at rolling back the reach of Congress and President Obama.

While many measures are symbolic ones declaring the sovereignty of states, some Westerners are taking more dramatic steps. One Utah lawmaker wants to limit federal law enforcement in his state. In Montana, legislators enacted a bill that flagrantly ignores federal firearm restrictions, hoping to force a constitutional showdown.

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FOR THE RECORD:
Western politics: An article in Tuesday's Section A about the state sovereignty movement referred to legislation being considered for introduction next year in Montana that would make the sheriff the top law enforcement official in each county. The state Legislature does not meet again until 2011. —

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Supporters of the bill want the Supreme Court to eliminate gun controls and, eventually, curtail Washington's ability to set policy on a wide range of issues, including education, civil rights, law enforcement and land use.

"It's about states' rights," said state Rep. Joel Boniek, an independent-turned-Republican from nearby Livingston, who introduced the bill. "Guns are just the vehicle."

The Montana Firearms Freedom Act seeks to exempt from federal regulation any firearm, gun component or ammunition made and kept within the state's borders. The legislation, signed by Democratic Gov. Brian Schweitzer, becomes law Oct. 1, though federal officials will likely act quickly to keep the measure from taking effect.

Legal experts are skeptical Montana will prevail in court, and even some proponents express their doubts. But supporters say the fight is a necessary step to change Washington's attitude. Similar bills have been introduced in nearly a half dozen states, and lawmakers in about a dozen more have expressed interest.

"We need 15, 25, 30 states to pass these types of legislation, so that we send a clear message to the country and to the national government," said Utah Rep. Carl Wimmer, a Republican from suburban Salt Lake City.

In addition to supporting a version of Montana's gun law, Wimmer is drafting legislation that would forbid local authorities to help enforce federal statutes inside Utah -- another bill that, if passed, would surely trigger a court fight.

"The national government has gained more and more power . . . to a point where we're simply subjects of the ruling masters in Washington, D.C.," said Wimmer, who has established an organization, the Patrick Henry Caucus, to rally like-minded lawmakers from other states. "That is not the way this country and this government were set up."

It is no accident the greatest defiance has surfaced in the West, a region with a history of antipathy toward outsiders and, especially, Washington.

"You're going to get more of it as people look at the growth of the federal government and the big bailout of financial interests," said Eric Herzik, a University of Nevada political scientist and expert on the Sagebrush Rebellion, the populist movement that swept the West a generation ago and helped put Ronald Reagan in the White House.

The sacred text for Wimmer, Boniek and their allies is the Constitution's 10th Amendment, which limits the powers of Washington. Although the language is straightforward -- all powers not specifically delegated to the federal government are reserved for the states -- the meaning has been debated (and elastically interpreted) throughout history.

Conservatives and libertarians have long cited the 10th Amendment to press their case against the expansion of federal power, usually to little avail. Their latest effort is the state sovereignty movement. (Some also refer to the "states' rights" movement, though for many those words evoke the segregated South and efforts to fight racial equality.)

In just the last few months, legislatures in five states -- Alaska, Idaho, North Dakota, Oklahoma and South Dakota -- have passed resolutions asserting their sovereignty and asking the federal government to "cease and desist" from meddling in their business. Similar measures are pending in about two dozen other states, including seven out West.

"There's a lot of people in the federal government saying: 'Do this. You must do that. We're the boss,' " said Republican state Rep. Brad Klippert, co-sponsor of sovereignty legislation pending in Olympia, Wash. "That's not true."

Several Republican governors, including Sarah Palin in Alaska, Mark Sanford in South Carolina and Rick Perry in Texas, have gone beyond symbolism, turning down a portion of federal stimulus funds -- and rejecting the strings attached -- as a way of expressing their independence from Washington. That has sometimes meant going to court and fighting fellow lawmakers eager to accept the money.

The latest movement appears aimed at Obama, who, in just a few months, has increased the size and scope of the federal government more dramatically than any president in decades.

Advocates deny that, citing a litany of grievances that include the No Child Left Behind education bill, which imposed strict federal testing requirements, and the Real ID law, which dictates costly national standards for driver's licenses. Both were signed by President George W. Bush.

Still, Obama and his expansive agenda have unquestionably given momentum to the state sovereignty effort, which has been embraced by Republican politicians like Perry and heavily promoted by sympathetic commentators on conservative TV and talk radio.

For his part, Boniek at one point equated Obama with Hitler, Mao and Stalin, saying each loved his country in his fashion but proved disastrous as a leader. "He's ruining the country I love," Boniek said of Obama, his soft tone belying the harsh comparison. "He doesn't know what freedom is."

It is difficult to say how the Supreme Court might rule on Montana's gun law, which challenges the government's authority under the commerce clause of the Constitution, the legal basis for much federal regulation.

In the mid-1990s, the court struck down a federal law that sought to restrict guns near schools, using the rationale behind Montana's law: that the federal authority over interstate commerce did not extend to a product that was made and used within one state.

More recently, however, the justices rejected a direct challenge to the commerce clause, ruling in 2005 that the federal government had the authority to effectively override California's medical marijuana law, even though the cannabis was being grown and used within the state's borders.

"As an abstract legal matter, it's perfectly plausible," Eugene Volokh, a UCLA expert on constitutional law, said of Montana's case. "But it's very unlikely to succeed in today's legal climate."

Backers of the legislation concede as much. "No federal employee in a black robe is going to roll back the power of the federal government," said Gary Marbut, president of the Montana Shooting Sports Assn., who wrote the bill. "But we want to make a statement, get the legal arguments on the record and get people active."

Boniek, who makes his living operating a crane and leading big-game hunts, is already planning for next year's session. (Montana, like some other Western states, has a part-time legislature.)

He plans to introduce a bill that would make the sheriff the top law enforcement official in each county, requiring federal officers to seek permission to exercise authority in Montana.

For now, Boniek is waiting to see how the fight over his gun bill goes. "The whole thing is like a chess game," he said. "We've made our move. The next move is up to the federal government."

States Collect Big on Americans' Sins

States Collect Big on Americans' Sins

Mike Memoli

The key factors in the national economic slump have hit the state of Nevada particularly hard, so one lawmaker had an unusual idea to generate new revenues: tax the sex acts performed at brothels.

"I don't know why people won't recognize that we have a legal industry," state Sen. Bob Coffin, who introduced the legislation, told the Associated Press. "I'm willing to go in and do the dirty work if no one else will."

The proposal, which died in committee last week, is just one example of how struggling state and local governments are trying to turn citizens' vices into much-needed new moneys to plug their budget gaps in tough economic times.

According to the National Conference of State Legislatures, this year 12 states debated proposals to raise or impose new taxes on alcohol, while even more looked to taxes on tobacco products as a quick revenue enhancement.

This was even true in the Deep South, where tobacco taxes have been the lowest in the country. In Mississippi, whose governor once lobbied on behalf of "Big Tobacco," the state legislature is currently debating a compromise on just how much to the cigarette tax. In neighboring Arkansas, Gov. Mike Beebe (D) signed into law a 56-cents per pack increase in the cigarette tax, in addition to new taxes on other tobacco products. Along Tobacco Road, Gov. Bev Perdue proposed a $1 increase in North Carolina's cigarette tax.

These proposals are not just being considered at the state level. The expansion of the State Children's Health Insurance Program, signed by President Obama in February, is funded by a 61-cent increase in tobacco taxes.

But the most frequent answer for state governments was to consider new or expanded gambling, with no fewer than 17 states debating proposals for new statewide or local casinos, slot machines or lotteries. That does not include other initiatives floated by local governments across the country.

The state of Delaware, which already has casino gambling in its capital of Dover, passed a controversial measure this year that would have the First State join gambling mecca of Nevada as well as Montana in allowing wagers on sporting events. Its new governor, Democrat Jack Markell, explained his proposal in an interview last week with Real Clear Sports.

"In my mind this is a comparative advantage," he said. "It's a tool that's available to Delaware. It's not available to any other state east of the Mississippi. My job is to do what's in the best interest of Delaware taxpayers, and I believe that by offering this competitor advantage we can generate additional revenue."

There are a number of arguments made against these so-called sin taxes. Critics of the federal tobacco tax increase to fund children's healthcare, for instance, argued that it is an unstable source of revenue, since cigarette consumption is expected to decrease as a result of the higher cost. The Associated Press reported that on April 1, the day the increase took effect, smokers were "flooding the lines" of stop-smoking hot lines across the country. Michigan had to cancel its anti-smoking hotline when it ran out of money; it had provided callers with free nicotine patches, gum or lozenges.

A more common argument against sin taxes is that they tend to disproportionately impact poorer citizens who are less able to absorb the impact of extra taxes. According to the Heritage Foundation, half of smokers are in families earning less than 200 percent of the federal poverty. As the Obama administration was highlighting a middle class tax cut, press secretary Robert Gibbs was asked if some lower-income citizens are not bearing a heavier burden in the end because of these increased tobacco fees.

"People make a decision to smoke," Gibbs argued, comparing it to taxes on plane fares. "Those people also got a tax cut."

Thomas Grey, spokesperson for StopPredatoryGambling.org, said that vice taxes are particularly shortsighted for governments to pursue, because it erodes its ability to enact more stable revenue sources by giving taxpayers the idea that such gimmicks are successful. It's an inefficient revenue source as well. With sales taxes, states pocket 99 percent of the revenue. But in the case of lotteries or gambling, they get no more than 34 percent of dollars spent by citizens, Grey said.

"It's a collapse of leadership in public policy," said Grey. "When government has to prey on the vices of its own citizens to function, it no longer protects and serves, it exploits."

In Pictures: Top 10 States That Pay the Most for Their Sins

States Rebellion Pending

States Rebellion Pending: The 10th Amendment in Action

by Walter Williams

Our Colonial ancestors petitioned and pleaded with King George III to get his boot off their necks. He ignored their pleas, and in 1776, they rightfully declared unilateral independence and went to war. Today it's the same story except Congress is the one usurping the rights of the people and the states, making King George's actions look mild in comparison. Our constitutional ignorance -- perhaps contempt, coupled with the fact that we've become a nation of wimps, sissies and supplicants -- has made us easy prey for Washington's tyrannical forces. But that might be changing a bit. There are rumblings of a long overdue re-emergence of Americans' characteristic spirit of rebellion.

Eight state legislatures have introduced resolutions declaring state sovereignty under the Ninth and 10th amendments to the U.S. Constitution; they include Arizona, Hawaii, Montana, Michigan, Missouri, New Hampshire, Oklahoma and Washington. There's speculation that they will be joined by Alaska, Alabama, Arkansas, California, Colorado, Georgia, Idaho, Indiana, Kansas, Nevada, Maine and Pennsylvania.

You might ask, "Isn't the 10th Amendment that no-good states' rights amendment that Dixie governors, such as George Wallace and Orval Faubus, used to thwart school desegregation and black civil rights?" That's the kind of constitutional disrespect and ignorance that big-government proponents, whether they're liberals or conservatives, want you to have. The reason is that they want Washington to have total control over our lives. The Founders tried to limit that power with the 10th Amendment, which reads: "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."

New Hampshire's 10th Amendment resolution typifies others and, in part, reads: "That the several States composing the United States of America, are not united on the principle of unlimited submission to their General (federal) Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force." Put simply, these 10th Amendment resolutions insist that the states and their people are the masters and that Congress and the White House are the servants. Put yet another way, Washington is a creature of the states, not the other way around.

Congress and the White House will laugh off these state resolutions. State legislatures must take measures that put some teeth into their 10th Amendment resolutions. Congress will simply threaten a state, for example, with a cutoff of highway construction funds if it doesn't obey a congressional mandate, such as those that require seat belt laws or that lower the legal blood-alcohol level to .08 for drivers. States might take a lead explored by Colorado.

In 1994, the Colorado Legislature passed a 10th Amendment resolution and later introduced a bill titled "State Sovereignty Act." Had the State Sovereignty Act passed both houses of the legislature, it would have required all people liable for any federal tax that's a component of the highway users fund, such as a gasoline tax, to remit those taxes directly to the Colorado Department of Revenue. The money would have been deposited in an escrow account called the "Federal Tax Fund" and remitted monthly to the IRS, along with a list of payees and respective amounts paid. If Congress imposed sanctions on Colorado for failure to obey an unconstitutional mandate and penalized the state by withholding funds due, say $5 million for highway construction, the State Sovereignty Act would have prohibited the state treasurer from remitting any funds in the escrow account to the IRS. Instead, Colorado would have imposed a $5 million surcharge on the Federal Tax Fund account to continue the highway construction.

The eight state legislatures that have enacted 10th Amendment resolutions deserve our praise, but their next step is to give them teeth.

Study measures states by personal, economic freedoms

Study measures states by personal, economic freedoms

Areas with the least amount of regulations ranked high in report

By Julie Carr Smyth

A new study raises an intriguing question: How free is your state?

The index of personal and economic freedom, developed by the Mercatus Center at George Mason University in Arlington, Va., is wide-ranging and comes from an individual-rights perspective.

The study, released late February, ranks New Hampshire, Colorado, South Dakota and Idaho as most free. New York, New Jersey, Rhode Island and California are ranked as the least free.

By the researchers' measure, ordinances such as seat-belt laws and sobriety checkpoints "count as notable infringements on individual liberty."

The index also issued freedom demerits for alcohol regulations, including taxes on beer, wine and spirits and "blue laws" that prohibit Sunday alcohol sales.

Laws that allow residents to carry concealed handguns are considered good. As are relatively lax marijuana laws.

The study also lists "paternalistic" government activities: bicycle and motorcycle helmet laws, regulations requiring motorists to carry personal injury insurance, home- and private-school regulations and campaign-finance rules and asset forfeiture laws that allow government to take property without a conviction of the owner.

Amy Hanauer, a former New Yorker and Coloradan who is now executive director of Policy Matters Ohio, a liberal think tank in Cleveland, said she finds the idea that New York is the nation's least free state absurd. She said the study appears to give high marks to states with particularly low taxes, such as Colorado.

"You can talk about freedom broadly — being able to practice the religion of your choice, speak the language you choose. … But to lump that in with the freedom from paying taxes is something I've always found troubling and not very persuasive," Hanauer said.

"The public sector is what enables us to pursue many other freedoms in our lives," she said, "by keeping us safe, keeping our water clean, and giving us the ability to know that we are not surrounded by people who are in desperate want, which can also affect our freedom."

The researchers — political scientists William Ruger of Texas State University and Jason Sorens of the State University of New York-Buffalo — note that no one area of the country nor political party appears consistently to offer citizens more freedom. Much has to do with state politics and a state's social attitudes.

For example:

•California, ranked 47th in overall freedom, is more lenient on marijuana and same-sex partner laws, but its laws are tougher on gun owners, motorists and smokers. Labor laws are also strict. The study cites California as one of five states that require short-term disability insurance.

•Mississippi, ranked 25th, has high taxes and "eminent domain abuse has not been curtailed," the study says, but it is one of a few states without an open-container prohibition for car passengers, and regulation of home-schooling is minimal.

•Florida, ranked 22nd, does not have a personal income tax, but its property and general sales taxes are higher than average, the study finds.

•New Hampshire, ranked first, has among the most liberal gun laws in the USA, although a permit is required to carry a firearm in a car, the study says. The state lacks a motorcycle helmet law (though it has a bicycle helmet law) and is the only state without a seat-belt law for adults.