Category Archives: Separation Of Powers

Montana Firearms Freedom Act: Tilting At Windmills

While I laud any state trying to expand the freedom of its residents while simultaneously thumbing it’s nose at Washington, I can’t see this ending well:

On October 1, 2009, Montana passed the Montana Firearms Freedom Act, the purpose of which was to regulate guns manufactured and kept within Montana state lines under a less restrictive regulatory regime than federal law provides. That same day, to ensure that Montanans could enjoy the benefits of this less restrictive state regulation, the Montana Shooting Sports Association filed a declaratory judgment claim in federal court.

The lawsuit’s importance is not limited to Montana, as seven other states have passed laws similar to the MFFA and 20 states have introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

The district court granted the government’s motion to dismiss, however, and MSSA appealed to the Ninth Circuit. Now on appeal, Cato has joined the Goldwater Institute to file an amicus brief supporting the MSSA and arguing that federal power does not preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which MSSA argues is a state-specific market distinct from any related national one.

The general question here is whether modern Commerce Clause jurisprudence should be upended for this case. I believe it should, but I believe it won’t. The manufacture/sale/possession of firearms, while declared to be purely intrastate matters, would seem to “substantially affect” interstate commerce in the same way as the Court found in Wickard & Raich. On the question of whether the activity affects interstate commerce, I don’t think there can be any debate should current Commerce Clause jurisprudence hold. Under such jurisprudence, the Feds can reasonably claim that their more stringent requirements for firearms is Necessary to effectively regulate firearms in an interstate manner.

The actual brief (linked above) submitted by Goldwater & Cato draws more narrow inferences than the quoted text above, however. They recognize the current precedent of Wickard & Raich, but push a state sovereignty angle which seems much more substantial. The argument seems to be that in areas traditionally regulated at the state level, rather than the federal level, and where the state action is protecting individual liberty rather than restricting it (i.e. no 14th amendment privileges & immunities issues here), the level of scrutiny required by the Feds to override State law should be significantly higher. However, I suspect that such efforts will still either fall short, or require Supreme Court gymnastics to carve out a VERY narrow exception here (i.e. emanations & penumbra gymnastics).

It’s telling that one of the cases used as justification here is a case [Massachusetts v. Sebelius] where Massachusetts argued against the DOMA, on the grounds that Massachusetts more libertarian law upholding same-sex unions was infringed upon by DOMA. Effectively DOMA made it impossible for certain federally-funded programs which would traditionally go to “married” couples (or survivors thereof) could not be extended to same-sex couples. Because the regulation of marriage was traditionally within the purview of the States, not the Feds, and because DOMA violated the State’s liberty-protecting equal protection clause within the Massachusetts Constitution, for the Congress to intervene here was shown to be a violation of Massachusetts sovereignty.

However, I don’t think the Massachusetts case will be applicable here. While it is traditionally the purview of the States to regulate marriage, I don’t think it can be shown here that Massachusetts recognition of same-sex marriage substantially affects interstate commerce. The portion of DOMA that would have protected states from being forced to recognize same-sex marriages from other states was also not at issue. While it might be within the general police powers of the States to regulate some aspects of firearms manufacture/sale/ownership, I believe the Court would find the Commerce Clause precedent more binding than a finding of state sovereignty.

Another aspect of the state sovereignty argument appears in section I-A of the brief [p7-11]. Several points are raised:

  • That the Federal government cannot force a State legislature to legislate as directed by the Feds. In this case, I don’t believe the point applies, as the Feds are not demanding the States implement this regulation for them, but rather declaring such regulation to be a Federal matter to be decided by Congress rather than the States.
  • That the Federal government cannot commandeer State resources for the execution of federal regulation. Again, they are not forcing State police to enforce a more strict version of firearms regulation, and various drug decriminalization (and State medical marijuana initiatives) have created a situation where, while a State may [unconstitutionally] declare certain activities legal that the Federal government deems illegal, the States are within their rights to limit the use of State resources for investigation and prosecution of Federal crimes that they deem unwieldy. California can simultaneously hold the position that while medical marijuana is Federally illegal, the State does not consider it criminal, and thus the Feds themselves must enforce it if they so choose.
  • That the Federal government may not regulate/criminalize wholly intrastate activities with no economic impact. I think Commerce Clause jurisprudence would suggest that manufacture/sale/possession of weapons cannot be shown to be wholly intrastate, and it certainly includes economic impact.
  • Finally, that the Federal government may not subject State government employees to the dictates or working regulations of the Federal government — I think this one is so far removed from the case at hand to not warrant discussion.

To argue that this is a matter of state sovereignty is to argue that regulations of firearms has been a long-standing matter of the states themselves, and that for the Federal government to step in and demand more stringent regulation under Commerce Clause grounds requires such heightened scrutiny that cannot be supported here. However, Federal firearms laws have been in force since 1934, and while this is not proof that the regulation of firearm manufacture/sale/ownership should be a Federal matter, it certainly cuts some strength from the argument that this is purely a matter of state sovereignty.

It seems to me that this lawsuit is a bit of a hail mary. For it to succeed, we would need to see a sea-change in Commerce Clause jurisprudence (almost impossibly unlikely), or for the Brady Bill and/or National Firearms Act to be struck down as Unconstitutional (because both would infringe on state sovereignty). A greater likelihood, based on current conservative makeup of the court, would be a VERY narrowly worded decision involving some legal gymnastics. However, given the deference to Federal power I’ve seen from Roberts & Alito, and given that they would need such a narrow crafting to ensure that they wouldn’t open up whole hosts of other State sovereignty challenges to Federal law, I don’t see much likelihood there. Fundamentally the plaintiffs are pushing for a general large change in Federal/State interaction, one which I doubt the Supreme Court is ready to uphold.

Of course, that’s all assuming it ever makes it to the Supreme Court, itself an unlikely prospect.

While I have great sympathy for the plaintiffs here, I can’t say I’d be laying strong odds on their success.
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Gary Johnson to President Obama: “Time’s Up in Libya”

The “limited kinetic action” (don’t call it military force or war!) in Libya has reached the 60 day mark; the statutory time limit a president can use military force without congressional approval according to the War Powers Act of 1973. There doesn’t seem to be a whole lot about the goings on in Libya in the news these days with Obama deciding what another sovereign nation (Israel) should do about its borders*.

Not everyone has completely forgotten about Libya though. Former New Mexico Governor and presidential candidate Gary Johnson wrote an opinion piece today in The Daily Caller pointing out that the president’s authority to use kinetic action in Libya has expired today.

This blatant disregard for the law must not go unchallenged. As several senators did this week, Congress must demand an explanation for the fact that, with no declaration of war, no authorization from Congress, and certainly no imminent threat to the U.S., our forces are today engaged in what is clearly a military conflict halfway around the world in Libya.

Specifically, the War Powers Act requires that the use of American forces in a conflict must be ended within 60 days of commencing — unless Congress expressly authorizes otherwise. In terms of our current engagement in Libya, Congress hasn’t authorized anything, nor has the president asked them to, and today, May 20, is the 60th day.


[The War Powers Act] was carefully crafted to allow the commander-in-chief to respond to attacks and otherwise take whatever action necessary to protect us. At the same time, it was obviously crafted to limit precisely the kinds of ill-defined and costly uses of our military that we are witnessing in Libya right now.


To be fair, this president is certainly not the first to disregard the War Powers Act. Some have even questioned its constitutionality. But until the courts or Congress deem otherwise, it is the law of the land — and in my opinion, a good one.

This is yet another example of President Obama’s lack of respect for the rule of law when the law isn’t compatible with his policy.

Hope n’ Change you can believe in.

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The saving grace of federalism

Were it not for our federalist system, the debate over Real ID would have been over long ago. Fortunately, it’s still going:

The political problem for the GOP committee chairmen is that the 2005 Real ID Act has proven to be anything but popular: legislatures of two dozen states have voted to reject its requirements, and in the Michigan and Pennsylvania legislatures one chamber has done so.

That didn’t stop the House Republicans from saying in a letter this week to Homeland Security Secretary Janet Napolitano that “any further extension of Real ID threatens the security of the United States.” Unless Homeland Security grants an extension, the law’s requirements take effect on May 11.

Hopefully this comes to a head, and hopefully the Republicans pushing this get an education in federalism. It’s going to come in mighty handy in resisting Obamacare.

South Dakota Lawmakers Confused By Federal/State Distinction — Embarrass Selves

[shakes head]

A group of South Dakota lawmakers has introduced a bill that would require almost everyone in their state to buy a gun once they turn 21.

Turns out it’s not a serious attempt. Rather, the lawmakers are trying to make a point about the new health care law — that an individual mandate is unconstitutional, whether it requires everyone to buy health insurance or, in South Dakota’s case, a firearm.

Rep. Hal Wick, one of five co-sponsors, told The Argus Leader newspaper that he expects the bill to fail.

“Do I or the other co-sponsors believe that the state of South Dakota can require citizens to buy firearms? Of course not. But at the same time, we do not believe the federal government can order every citizen to buy health insurance,” he said.

The town of Kennesaw, GA mandates that every resident own a gun. The State of Massachusetts mandates that every resident purchase health insurance. Neither of those mandates caused a US Constitutional crisis. How in the world is the proposed South Dakota gun mandate in any different?

In truth, it’s not. We have long placed certain actions within the purview of State power that would be unconstitutional if done federally. It is only blatant misreading of the commerce clause that has allowed the Feds to infringe as far as they have.

Yet these dolts think that trying to enact a STATE mandate is somehow logically analogous to fighting a federal mandate. As if nobody had heard of MassCare or nobody had drawn up the suggestion that states have the power to require car insurance but may be* unconstitutional to mandate at the Federal level. They, by their words above, do not even seem to grasp the distinction between Article I, Section 8’s enumeration of powers at the Federal level and the fact that States are held to a different [lower] standard.

I can only see two reasons for this:

  1. They really ARE this dumb.
  2. This is all just one big publicity stunt.

The former suggests that the voters of South Dakota shouldn’t be trusted at the ballot any further, as they clearly can’t elect people capable of behaving responsibly in office. The latter suggests that the politicians just happen to believe that the voters of South Dakota [and writers for Fox News] are so dumb that they can’t tell the difference between State and Federal actions. Either way, it’s one more example that democracy doesn’t work.
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A Repeal Amendment Would Be A Benefit, But A Limited One

I’m a bit late to the party, but significant discussion has been made about a potential “repeal amendment” to the Constitution. Advocated by Randy Barnett, he suggests that it is a necessary counterpunch to the 16th and 17th Amendments, which together increased the Federal government’s ability to raise revenue to do what it likes while weakening States’ ability to restrain Federal actions politically.

On the opposite side is Ed Morrissey, who has a couple of concerns about the idea. First and foremost, he doesn’t think the amendment will be presented without a Constitutional Convention, an idea that opens a Pandora’s Box with the potential to backfire so spectacularly that it truly frightens me. But second, he is concerned about the messiness of the process:

Let’s say for argument’s sake that Congress approves and the states ratify the amendment. What happens when Congress passes a law? How long do the states have to get two-thirds of the legislatures to demand repeal? Within the same session? Four years? Decades? Does it proceed along the same lines as a Constitutional amendment, where the states have seven years to ratify a veto? If the time is limited to the current session, most state legislatures won’t have time to react, and future Congresses will simply put off most of their controversial measures until lame-duck sessions.

If it isn’t limited to the same session, then this will remove a great deal of certainty and stability from the American legal system and to acts of Congress, which is after all the people’s branch. Consider tax laws on which no one could rely, regulatory and deregulatory efforts that could take years to clarify, and then think how investors both here and abroad will react in that environment. And that isn’t even getting to the budget, which appears subject to this amendment as well. The states could force a shutdown of the federal government. This seems like a prescription not just for gridlock and instability, but also an invitation for an expansion of power for the executive branch to run the federal government by executive order and agency power.

It is here that I think Ed is overstating the likelihood of states to overturn legislation. I think we are highly unlikely to see a widespread application of a repeal amendment for two reasons:

  1. Getting two-thirds of states together to agree on repeal of any particular provision due to voter anger is unlikely except in the most egregious cases. I’m not sure we could get two-thirds to vote to repeal Obamacare.
  2. The incentive to repeal purely federal matters isn’t there for the states. Morrissey suggests that the states might repeal particular tax provisions. Buy why would states care about Federal income or corporate tax rates that don’t directly affect their own budgets?

For these two reasons, I expect the most hoped-for results of a repeal amendment — states wholeheartedly fighting expansion of federal power — will not come to pass. I just don’t see the incentives lining up to make that happen. States have plenty of their own problems to worry about; they’re not going to trouble themselves with something that doesn’t directly affect their own powers or budgets. This doesn’t mean that such a power will never be utilized, but only in cases where public opinion is so overwhelmingly against a policy but for which Congress cannot find the will to act on their own to end it.

At the same time, I do see a very important potential application, for which the incentives line up perfectly. It’s all about unfunded mandates. The Feds have a tendency to demand certain behaviors by the States without properly funding those behaviors. It is a way for Congress to placate their own desire for control without actually paying for those desires. States have a perfect incentive to repeal laws which impose costs upon them not of their own choosing, and thus a repeal amendment could be a very powerful constraint on Congress’ ability to enact laws and regulations for which it puts the burdens on states to fund.

It is for this reason that while I don’t have high hopes that its scope will reach as widely as its proponents may claim, that I still support a repeal amendment. Cutting into Congress’ ability to saddle states — who are already in dire financial straits — with unfunded mandates will have overall positive effects. It forces Congress to pay its own way, and while Congress hasn’t shown any concern about deficit spending, it at least adds one additional check on their appetite. Adding to this the ability for states to act as an additional check on Federal action when those policies are so egregious as to override the states disincentive to act on most Federal matters is just gravy.

A repeal amendment is not the answer, but it’s certainly a step in the right direction.

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