As Chapman law professor Ronald Rotunda noted recently, we “have come a long way towards governance by bureaucrats.” Some states, however, are taking positive steps in 2015 to thwart the effects of these unilateral — and wildly unconstitutional — acts.
The following is an overview of state legislation to thwart federal overreach that’s moving forward right now.
Federal gun control
Even though the ATF has, at least temporarily, backed down on a proposed M855 ammo ban, gun rights advocates should be alarmed. More of this should be expected moving forward, that is, more gun control no matter whom you elect to Congress.In Arizona, however, a bill that would effectively block in practice any additional restrictions on the natural right to keep and bear arms has already passed the state Senate by a 17-12 vote and is due for further consideration in the state House in the near future. A similar bill passed the Montana Legislature and is going to Gov. Steve Bullock’s desk, and another in Tennessee is up for a do-or-die vote in committee this week.
Other states like Ohio and Pennsylvania have seen legislation introduced, but not yet considered. Should any of the bills pass into law, they’d join Idaho, which in 2014 was the first in the country to pass legislation specifically designed to thwart any new federal gun control measures.
Broader bills have been introduced in other states, with the goal of addressing not just new federal gun control measures, but nearly all of them. Missouri HB1341 would make any federal gun control measure — past, present or future — invalid and unenforceable in the state. And two Texas bills, HB413 and HB422, would work together to do almost the same. Should either pass, they’d join Alaska, which passed a similar law in 2013.
Self-ownership
The Food and Drug Administration has a lengthy process for approving new treatments for people. In some situations, however, that long process can actually kill people.Take, for example, the case of Mikaela Knapp, who was diagnosed with kidney cancer. She and her husband, Keith, launched a social media campaign to lobby drug firms and the FDA to give her access to a new gene therapy. Their efforts gained national attention and generated 200,000 signatures on a petition, but failed to win access to the treatment. The 25-year-old newlywed died a few months later.
In 2014, Arizona residents approved Prop. 303, a measure that now allows people the “Right to Try” some experimental treatments not yet approved by the FDA. They joined Colorado, Missouri, Louisiana and Michigan in passing such legislation.
In 2015, governors in Wyoming in Arkansas have already signed a Right to Try act into law. Bills in Virginia, Montana, Indiana, Utah and Mississippi have also passed the full legislature and are awaiting a signature from each state’s governor.
“These laws are a no-brainer,” said Mike Maharrey of the Tenth Amendment Center. “When someone is on their deathbed, the fact that FDA regulations would let them die rather than try, has got to be one of the most inhumane policies of the federal government. Every state should nullify the FDA like this.”
Farming
The total retail value of hemp products sold in the U.S. in 2014 was recently said to be at least $620 million. According to the Hemp Industries Association (HIA), a nonprofit trade association consisting of hundreds of hemp businesses, this includes items like nondairy milk, shelled seed, soaps and lotions, along with clothing, auto parts, building materials and various other products.Federal regulations resulting in a de facto ban on hemp farming has created a situation where the U.S. is the world’s No. 1 importer of hemp, while China and Canada are the top two exporters in the world.
And while the Feds now “allow” hemp farming for “research purposes,” some states and individuals have taken action beyond what is permitted and are now harvesting crops for commercial purposes.
Hemp is already being farmed in both Colorado and Vermont. On Feb. 2, the Oregon hemp industry officially opened for business.
One week later, the first license went to a small nonprofit group that hopes to plant 25 acres this spring. The Tennessee Agricultural Department recently put out a call for licensing, signaling that hemp farming will start soon there, too. A law by Gov. Nikki Haley in South Carolina in 2014 authorizes the same. Another passed this year in North Dakota is awaiting a signature from Gov. Jack Dalrymple.
Hemp farming bills have also passed the New Hampshire House, the Washington State Senate, and committees in Connecticut and Missouri. Legislation has been introduced and will be up for consideration soon in Texas, Florida, Maine and elsewhere.
Surveillance
Former National Security Agency chief technical director William Binney called the agency’s practice of “parallel construction” the “most threatening situation to our constitutional republic since the Civil War.” This is the process whereby federal spying data is being handed off to local police for use in everyday law enforcement work, not just for investigating “terrorists.”In 2014, Utah and New Hampshire passed bills to ban each state from participating in this practice. And this year, bills in Texas, Alaska, Tennessee, Missouri, South Carolina and elsewhere have been introduced to ban all “material support or resources” to all federal bulk warrantless spying programs.
Passage would ban participation in parallel construction, but also take things further and withhold other resources like water, electricity or even trash pickup from state or local governments or agencies to any federal agency involved in the wholesale surveillance of anything and everything you do with your phone or Internet service.
Legislation to help block a recently revealed nationwide license plate tracking program has already passed the Virginia Legislature and the Montana House. Similar legislation is up for consideration in New York, Missouri, Vermont, Massachusetts and Oregon.
Obamacare
While the legal world awaits an opinion this summer from the Supreme Court in the King v. Burwell case, some states are considering bills that will help bring down the federal takeover no matter what the court opines.Bills passed in the Arizona House and introduced in Texas would ban a crucial enforcement mechanism for the federal act, and set the stage for pulling the rug out from under it and bringing it down.
What’s next
Sometimes, however rare, a federal court will stop a federal agency from unilaterally giving itself more power. Sometimes, a federal agency will back down on a newly proposed rule, like the recent M855 ammo ban from the ATF, because of heavy public pressure. And even more rarely, although I can’t remember anything of note, Congress will actually repeal a law it passed, giving up its own power.The truth of the matter is this: Federal courts cannot be trusted to limit federal power, and federal politicians cannot be trusted to limit their own power. Only the states and the people can do it now.
While these moves by states give liberty-lovers hope, there is no silver bullet to stop the runaway freight train that is the federal government. But instead of waiting years for a lawsuit, or a convention, or any other national-level process, these state nullification efforts chip away at the monster government right now — one state at a time.
What this gets down to is the power of the people. When enough people tell the Feds to pound sand, and enough states pass laws backing them up, there’s not much the Feds can do to force their unconstitutional laws, rules, regulations or mandates down our throats.
–Michael Boldin
