States' Rights Resurgence

The New York Times ran an article, "States' Rights is Rallying Cry for Lawmakers" on March 16, 2010 (I saw it in the Boston Globe). Kirk Johnson wrote:

Whether it’s correctly called a movement, a backlash or political theater, state declarations of their rights — or in some cases denunciations of federal authority, amounting to the same thing — are on a roll.

Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on Friday declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota.

On Thursday, Wyoming’s governor, Dave Freudenthal, a Democrat, signed a similar bill for that state. The same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul.

In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session last week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.”

Some legal scholars say the new states’ rights drive has more smoke than fire, but for lawmakers, just taking a stand can be important enough.

“Who is the sovereign, the state or the federal government?” said State Representative Chris N. Herrod, a Republican from Provo, Utah, and leader of the 30-member Patrick Henry Caucus, which formed last year and led the assault on federal legal barricades in the session that ended Thursday.

Alabama, Tennessee and Washington are considering bills or constitutional amendments that would assert local police powers to be supreme over the federal authority, according to the Tenth Amendment Center, a research and advocacy group based in Los Angeles. And Utah, again not to be outdone, passed a bill last week that says federal law enforcement authority, even on federal lands, can be limited by the state.

“There’s a tsunami of interest in states’ rights and resistance to an overbearing federal government; that’s what all these measures indicate,” said Gary Marbut, the president of the Montana Shooting Sports Association, which led the drive last year for one of the first “firearms freedoms,” laws like the ones signed last week in South Dakota and Wyoming.

In most cases, conservative anxiety over federal authority is fueling the impulse, with the Tea Party movement or its members in the backdrop or forefront. Mr. Herrod in Utah said that he had spoken at Tea Party rallies, for example, but that his efforts, and those of the Patrick Henry Caucus, were not directly connected to the Tea Partiers.

And in some cases, according to the Tenth Amendment Center, the politics of states’ rights are veering left. Rhode Island, Vermont and Wisconsin, for example — none of them known as conservative bastions — are considering bills that would authorize, or require, governors to recall or take control of National Guard troops, asserting that federal calls to active duty have exceeded federal authority.

“Everything we’ve tried to keep the federal government confined to rational limits has been a failure, an utter, unrelenting failure — so why not try something else?” said Thomas E. Woods Jr., a senior fellow at the Ludwig von Mises Institute, a nonprofit group in Auburn, Ala., that researches what it calls “the scholarship of liberty.”

Mr. Woods, who has a Ph.D. in history, and has written widely on states’ rights and nullification — the argument that says states can sometimes trump or disregard federal law — said he was not sure where the dots between states’ rights and politics connected. But he and others say that whatever it is, something politically powerful is brewing under the statehouse domes.

Other scholars say the state efforts, if pursued in the courts, would face formidable roadblocks. Article 6 of the Constitution says federal authority outranks state authority, and on that bedrock of federalist principle rests centuries of back and forth that states have mostly lost, notably the desegregation of schools in the 1950s and ’60s.

“Article 6 says that that federal law is supreme and that if there’s a conflict, federal law prevails,” said Prof. Ruthann Robson, who teaches constitutional law at the City University of New York School of Law. “It’s pretty difficult to imagine a way in which a state could prevail on many of these.”

And while some efforts do seem headed for a direct conflict with federal laws or the Constitution, others are premised on the idea that federal courts have misinterpreted the Constitution in the federal government’s favor.

A lawsuit filed last year by the Montana Shooting Sports Association after the state’s “firearms freedom” law took effect, for example, does not say that the federal government has no authority to regulate guns, but that courts have misconstrued interstate commerce regulations.

National monuments and medical marijuana, of all things, play a role as well.

Mr. Herrod in Utah said that after an internal memorandum from the United States Department of the Interior was made public last month, discussing sites around the country potentially suitable for federal protection as national monuments — including two sites in Utah — support for all kinds of statements against federal authority gained steam.

And at the Tenth Amendment Center, the group’s founder, Michael Boldin, said he thought states that had bucked federal authority over the last decade by legalizing medical marijuana, even as federal law held all marijuana use and possession to be illegal, had set the template in some ways for the effort now. And those states, Mr. Boldin said, were essentially validated in their efforts last fall when the Justice Department said it would no longer make medical marijuana a priority in the states were it was legal. Nullification, he said, was shown to work.

Whether the political impulse of states’ rights and nullification will become a direct political fault line in the national elections this fall is uncertain, said Mr. Woods of the von Mises institute.

But in Utah, at least, a key indicator is coming much sooner. The party caucuses to determine, among other things, whether candidates will face primary elections, are to be held next Tuesday, and Mr. Herrod said the states rights’ crowd would attend and push for change.

“Those politicians who don’t understand that things are different are in big trouble because a few people showing up to caucus can have a big influence,” Mr. Herrod said.

A spokeswoman for Gov. Gary R. Herbert, a Republican — who signed a firearms law like South Dakota’s last month declaring exemption from federal regulation for guns made and used within the state — said Mr. Herbert was still studying the new batch of bills passed this week and had not yet made decisions about signing them.

When I went looking for the N.Y. Times' version of what I read in the Boston Globe, I stumbled over an earlier article in the Times, on March 2, 2010, "States' Rights vs. Gun Rights," by the editors. This is a short editorial on the Supreme Court hearing the gun control case, McDonald v. City of Chicago, and looks at the development of recent gun control cases in the Court. Then, they present short essays by four prominent scholars: Eugene Volokh, Saul Cornell, Donna Schuele, and James Alan Fox. Then, there are pages and pages of readers' comments. I can't help but think the resurgence of activity in asserting states' rights is meaningful and that the federal government should at least pay attention to the event.