Category Archives: Separation Of Powers

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.

Nolan Exposes McCain’s Antipathy for Civil Liberties in Arizona Senate Debate

David Nolan, co-founder of the Libertarian Party and author of “The World’s Smallest Political Quiz” (to which the result is plotted on the “Nolan Chart”) is running against none other than the most recent Republican presidential nominee, Sen. John McCain for his senate seat. KTVK-3TV hosted a debate last Sunday which included Sen. McCain along with challengers Rodney Glassman (D), Jerry Joslyn (G), and David Nolan (L). Believe it or not, all candidates were given equal time to debate the issues; something that is usually missing from the debates I’m accustomed to watching.

Despite the skills of those challenging Sen. McCain – particularly the two 3rd party candidates, the latest Real Clear Politics Average Poll shows McCain with a comfortable 17.4 point lead over his closest challenger, Rodney Glassman. Critics of 3rd parties look at poll results like this and wonder “what’s the point” of allowing 3rd party candidates to participate when their chances of winning are so miniscule.

IMHO, I believe that both Nolan and Joslyn did a fine job demonstrating why 3rd party candidates should be included by raising issues, proposing solutions, and exposing the shortcomings of the two party system and the candidates themselves to voters and concerned citizens.

In the 3rd part of this debate (below), Nolan brought up a McCain sponsored bill that is most likely not on the radar of very many people: S. 3081, the “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.”

(Beginning at -6:14 in part 3 of the debate)

Nolan: “One of the reasons I got into this race is that right now, at this very moment Sen. McCain is a sponsor – I think the lead sponsor of Senate Bill 3081 […] a bill which would authorize the arrest and indefinite detention of American citizens without trial and without recourse. This is one of the most dangerous, evil, un-American bills that’s ever been proposed in congress and nobody who would sponsor such a bill should be sitting in a seat in the United States Senate.”

And what was Sen. McCain’s response to the charge by Nolan of sponsoring such a “dangerous, evil, un-American” bill?

McCain: “Well again, I hope that our viewers won’t judge me by the remarks just made [by Nolan], they may be a little bit biased.”

Nolan raised the issue again in his closing remarks. Sen. McCain did not respond.

Okay, fair enough. Perhaps Mr. Nolan is biased. He is trying to take his job after all. Fortunately for now at least, the average person with an internet connection can freely search and find the bill and learn of its contents. Let’s take a look and see how “biased” Mr. Nolan was and determine whether or not Arizona’s senior senator should be “judged” by the bill he is currently sponsoring.

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010’.

SEC. 2. PLACEMENT OF SUSPECTED UNPRIVILEGED ENEMY BELLIGERENTS IN MILITARY CUSTODY.

(a) Military Custody Requirement- Whenever within the United States, its territories, and possessions, or outside the territorial limits of the United States, an individual is captured or otherwise comes into the custody or under the effective control of the United States who is suspected of engaging in hostilities against the United States or its coalition partners through an act of terrorism, or by other means in violation of the laws of war, or of purposely and materially supporting such hostilities, and who may be an unprivileged enemy belligerent, the individual shall be placed in military custody for purposes of initial interrogation and determination of status in accordance with the provisions of this Act.

(b) Reasonable Delay for Intelligence Activities- An individual who may be an unprivileged enemy belligerent and who is initially captured or otherwise comes into the custody or under the effective control of the United States by an intelligence agency of the United States may be held, interrogated, or transported by the intelligence agency and placed into military custody for purposes of this Act if retained by the United States within a reasonable time after the capture or coming into the custody or effective control by the intelligence agency, giving due consideration to operational needs and requirements to avoid compromise or disclosure of an intelligence mission or intelligence sources or methods.

“Suspected unprivileged enemy belligerent” ? No, that doesn’t sound Orwellian at all. Now let me highlight Sec. 3b3 and let you, the reader decide if any of this strikes you as “dangerous,” “evil,” or even “un-American.”

(3) INAPPLICABILITY OF CERTAIN STATEMENT AND RIGHTS- A individual who is suspected of being an unprivileged enemy belligerent shall not, during interrogation under this subsection, be provided the statement required by Miranda v. Arizona (384 U.S. 436 (1966)) or otherwise be informed of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona.

Talk about double speak! Such individuals are not “criminal suspects” who in our criminal justice system normally considers “innocent until proven guilty” who have Constitutionally protected rights but “suspected enemy belligerents” who are apparently assumed guilty until a high ranking official in the executive branch, or the president himself determines otherwise.

Sorry, I’m getting a little ahead of myself. I haven’t even got to the most disturbing part of the bill yet – Section 5:

SEC. 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED ENEMY BELLIGERENTS.

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

So here we are in 2010, Sen. McCain et al advocating giving American citizens POW status under Article 5 of the Geneva Convention as they may be “enemy belligerents” in an ill-defined and open-ended “war on terror.” The provisions of the USA PATRIOT Act which were originally supposed to be temporary but now as a practical matter, a permanent fixture of federal law, apparently don’t go far enough to dismantle what is left of the Bill of Rights.

One thing I found interesting in this debate was not only Sen. McCain’s response (or lack thereof) but also the deafening silence of his Democrat challenger who could have easily picked this issue up and ran with it if he shares Nolan’s civil liberties concerns. Could it be that Mr. Glassman would also support this bill if he were elected to replace Sen. McCain? If so, I wouldn’t be at all surprised considering that President Obama who is a member of the same political party as Glassman actually believes he can assassinate Americans without due process of any kind. Both the Obama and Bush administrations have even gone as far to say that if or when the president makes a “state’s secrets” claim, no court can even consider the legality of such cases. There’s little doubt in my mind that President Obama would sign S. 3081 into law as this would only enhance his power.

Maybe for now on we should stop referring to the first ten amendments as “The Bill of Rights” and call them “The Bill of Privileges.” This would at least be honest because rights cannot be taken away and therefore can never be “inapplicable.”

Ken Buck’s “Radical” Proposal to “Rewrite” the Constitution

I do not support Ken Buck in the Colorado senate race and I will not vote for him. Actually, between his extreme position on abortion, on banning common forms of birth control, and his sexist comments he made about his primary opponent, I think he is quite a jackass.

But even as much as I have some major concerns about Ken Buck and dislike him personally, the Democrats are running some ads that I believe are lacking in historical context and misrepresent the founding principles of our constitution and our republic.

Here’s the first ad entitled “Different”:

This “radical” idea that the state governments would choose their senators instead of the voters is hardly a new idea conjured up by Ken Buck. If we accept the notion that Buck would “rewrite” the Constitution, he would merely be changing the way senators are selected back to the way the founders intended 223 years ago. It wasn’t until the 17th Amendment was passed in 1913 that senators were chosen by popular vote in each state. In fairness, the ad does mention that for “nearly 100 years” Colorado voters picked their senators. It seems to me that the Democrats are counting on the average historical ignorance of civics 101 of the average person to be outraged at such an “un-democratic” idea.

Now to the second ad entitled “Represent”:

The second ad repeats the “rewrite the Constitution” claim but goes even further “change the whole Constitution?” Repealing the 17th Amendment is hardly changing the whole Constitution.

And what about this scandalous idea that Ken Buck wouldn’t necessarily “represent” what Coloradans wanted and would “vote the way he wanted”? Is this really what we want – senators and representatives with no will of their own?

To the lady in the ad who says “If Ken Buck doesn’t want to listen to what we have to voice our opinion then why is he even running?” my response would be that if its up to each senator to poll his or her constituents on each and every issue, why do we even need senators at all? This is why we have elections. If your congress person or senator consistently acts contrary to your principles, vote for someone else on Election Day. If you have a problem with Ken Buck’s policy positions as I do, don’t vote for him.

Despite popular belief, our system of government is not a democracy but a republic based on the rule of law. The senate was designed to be a counter balance to the fickle whims of the majority of citizens. Prior to the 17th Amendment, senators were selected by state legislatures so that the states themselves would be represented at the federal level while the people were represented directly in the House of Representatives.

There are certainly some good arguments for repealing the 17th Amendment that I don’t believe are “radical” at all. For one, if the state legislatures picked the senators, perhaps there would be more reason to pay attention to government at the state level. How many people in 100 can name their senator and representative in their state legislature let alone have any idea about their voting records?

Also, because senators are chosen by popular vote, some argue that their loyalties are not so much with the states they are supposed to represent but the senate itself. As a result, its much easier for the federal government to blackmail the states via unfunded mandates and holding funds hostage if states pass laws the federal government disagrees with (ex: forcing all states to keep the drinking age at 21 in order to receive highway funding).

Certainly, the repealing the 17th Amendment wouldn’t be a panacea and there are probably some very persuasive arguments in supporting the 17th Amendment. No system of government is perfect even in its most ideal form.

The founders were keenly aware that majorities could be as tyrannical as any monarch or dictator. A more democratic government does not necessarily mean people have more liberty; the opposite is more likely the case.

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