The Short Life and Sudden Death of Faux Federalism

After more than a century in exile, or maybe banishment would be a better word, the founding principle of Federalism came roaring back into fashion in many Democrat-dominated states in the Trump era, with California and Colorado leading the rebellious pack. The transformation came miraculously and instantaneously on the day Donald J. Trump took the oath of office. It seemed like a sea change of sweeping significance.

Suddenly, seemingly out of nowhere, the party that spent the last century methodically concentrating power in the grasping claws of central government, the party that long dismissed and denigrated conservative support for "states' rights" as a sinister echo of slave-era thinking, the party of one-one-size-fits-all, as long as that size is XXL, rediscovered "states' rights" and even "local control" as rallying cries.

These newly-neofederalist states weren't going to just take orders from the hated Trump administration. They weren't going to follow federal laws and regulatory diktats with which they disagreed. These states now wanted the autonomy and sovereignty they were due under our federalist system of governance. A strong whiff of secessionism filled the air, especially in California. 

Some went even further down the road toward open rebellion by forming a state-led cartel, with California at the helm, to establish stricter-than-federal vehicle emissions standards. Members of this new "Cali cartel" weren't just seeking autonomy under this unworkable two-tiered regulatory scheme; they were (and still are, since this power struggle is now before the courts) hoping to leverage their clout as car markets to make their standard the de facto national standard, effectively turning the federalist idea on its head.

This wasn't federalism but reverse federalism, in which a subgroup of states attempts to impose its emissions standard on all the other states, in textbook wag-the-dog fashion.   

Some rebel states further tested established boundaries my engaging in foreign policy. They vowed to abide by terms of the never-ratified Paris Climate Accord, for instance, a treaty Trump ran against.  California further upped the ante by negotiating a cross-border cap and trade scheme with Canada. 

Such shows of defiance delighted liberals and turned certain Governors (like California's Gavin Newsom) into instant celebrities. But they also constituted a challenge to federal power and prerogatives without parallel in recent history, prompting the Trump administration to push back. The provocateurs then posed as the "victims" of Trump's aggression and iron rule. It was a simplistic morality play some in the press eagerly played up. 

But then -- BAM! -- COVID19 hit and the zebras began showing their statist stripes again. 

Suddenly, America's most Trump-defiant states are the states bleating loudest for federal help, federal bailouts, federal guidelines, federal "leadership" -- even for federal force against states that won't impose Constitutionally-dubious lockdowns of various sorts. And suddenly, states unwilling to join the stampede to trample civil liberties become rogue "holdout states" that must be brought to heel. Trump now finds himself under fire from the neofederalist left for not imposing a national lockdown; for not ordering states to comply; for granting governors the latitude to tailor responses that meet their circumstances.

We're learning a lot about ourselves and our country, good and bad, during this crisis. It's become a gut check that was probably overdue. We're seeing the world more clearly and soberly as a result. True colors become much more vivid in a midst of tough times. Now we can put to rest any notion that Democrats suddenly have seen light on the merits and virtues of the federalist system of governance. We can see that faux federalism was just another pose they struck for partisan purposes.

They are what they've always been; statists to the marrow. 

Coronavirus and Cognitive Dissonance

Most of us by now know the warning signs. A spiking temperature. The raspy cough. Shortness of breath. Then there's the piercing headaches many American "progressives" experience as they sort through a cacophony of contradictory words, thoughts and emotions related to the coronavirus outbreak. These bouts of cognitive dissonance aren't mentioned in any of the CDC medical bulletins I've seen. However, I find the evidence for a link between COVID19 and liberal cognitive dissonance compelling, even if it's anecdotal at this point.

For instance, liberals who once darkly warned of Trump's autocratic and fascistic tendencies now complain that he hasn't been dictatorial enough in confronting the coronavirus crisis, as Rich Lowry points out. And meanwhile, in another brain-straining twist, you have liberal Trump-bashers laying the foundations for martial law and behaving very much like, well, fascists.

Crisis is also exposing the hollowness,  hypocrisy and cynicism of the left's feigned recent rediscovery of federalism, after decades of systematically concentrating unparalleled powers in the federal government. Democrat-dominated states that once blithely and cheerfully surrendered their powers and prerogatives to Washington suddenly grew rebellious after Trump was sworn in. The big bullies in Washington weren't gonna boss-around these states anymore. They were determined to set their own regulatory standards, selectively enforce federal law, and even go their own way on matters of foreign policy. 

But what a change crisis can bring. Suddenly, these same states are looking to the federal government for action, answers, resources and "leadership," leading to this dust-up between President Trump and New York Governor Andrew Cuomo over who is or isn't meeting their responsibilities as the crisis unfolds.    

All the President did on this call, from what I can tell, was encourage governors to take the initiative in terms of rounding up extra medical supplies and equipment, rather than waiting for a hidebound and sclerotic federal government to come to the rescue (my words, not his). Are states to just sit around and wait for federal helicopters to deliver stockpiled surplus respirators to emergency room doors? Or do states have an obligation to be creative, resourceful and proactive in addressing such problems themselves, if they possible can? Trump's suggestion that states had such an obligation reportedly angered and frustrated some governors, including those governors, like Cuomo, who have been leading the anti-Washington rebellion in recent years. 

Some of these indignant governors have operated in open defiance of the federal government during the Trump years. They've refused to enforce federal immigration law and engaged in secessionist-sounding actions and rhetoric. But now, suddenly, when the chips are down, they strike the pose of helpless children who can't function in a crisis without Uncle Sam's (and Uncle Donald's) guiding hand? 

The fauxneofederalists have talked a good game in the Trump era, about how they won't be pushed around or dictated-to by this Republican President. They've adopted the sort of militant states' rights rhetoric one long associated with the right rather than the left. But confront them with a little adversity, push them to show genuine initiative and take actual responsibility, and they default to the whiny, Washington-worshipping statists they've always been.

Liberal cognitive dissonance may not be among the coronavirus symptoms you'll find listed in the medical literature. But there can be little doubt, based on a mountain of anecdotal evidence, that such a link in fact exists. And only time will tell whether a vaccine or a cure can be found. 

The Mild Mild West

I sometimes wish Colorado had a little more of the rebellious spirit you still see in other Western states. We've become tame, compliant and conditioned to accepting federal domination, while a number of neighbors -- in this case, Idaho -- are still bucking under Washington's big saddle.

A little sagebrush rebellion now and again is a good thing -- it helps keep alive the spirit of rugged individualism that once defined the West. But Colorado is now the most Californianized of Western states. While other statehouses in the region are roiling with bills designed to take on the feds (at least symbolically), our legislators seem about as cantankerous and rebellious as those you'd find in Iowa.

The neo-federalist revival we're seeing elsewhere isn't stirring a ripple in Colorado. We're sitting safely on the sidelines while something really exciting is passing us by.

Fur May Fly Over Federal Bait and Switch

Imperial Washington has some states on the verge of rebellion. They’re acting out in various ways. Some are taking ObamaCare to court. Others are challenging Washington on firearms and emissions controls. One state, Arizona, is bucking Uncle Sam on immigration enforcement.

But what, one wonders, will be the breaking point? When will all the neo-federalist saber-rattling -- all the talk of the 10th Amendment, the 17th Amendment, nullification – cross the line and become in-your-face defiance? What state, what governor, will take this resistance movement the next step, and force the seemingly-inevitable showdown, by just saying "no" to Washington?

I think the breaking point may come in a relatively unexpected place, on a relatively obscure issue -- wolf reintroduction.

The history of federal re-wilding efforts involving gray wolves is too convoluted to detail here. But the program's statistical success, instead of quelling the controversy, is actually bringing the conflict to a fresh boil, as Wyoming, Idaho and Montana fight for a federal de-listing decision they think science and the original program benchmarks support. One federal judge in Missoula thinks otherwise, and recently reversed wolf de-listing at the behest of green litigants. Frustrated states, feeling betrayed by what they view as a bait-and-switch, seem on the verge of open rebellion. There is talk of states refusing to enforce federal wolf protections, in the face of an escalating number of conflicts between man and beast.

The fight over wolves has from the beginning been a states' rights dispute, but it's becoming more obviously so every day.

Wyoming Gov. Dave Freudenthal, a Democrat who gained and maintained popularity in the Cowboy State by standing up to Washington on a range of issues, precipitated the most recent conflict, by declining to strictly follow federal dictates on how states should manage the booming number of reintroduced wolves. It was that lack of uniformity, across the 3 states most impacted by the re-wilding effort, that served as the pretext for a recent re-listing of the animals by a federal judge in Montana. That reversal of a widely-applauded de-listing decision angered many and reignited the conflict.

Idaho Gov. Butch Otter's announcement that his state will no longer pay compensation for livestock kills by wolves, his bitter accusations of promises broken by the federal government and his evoking of Idaho's "sovereign right to protect our wildlife" from wolf predation, seem to move us a step closer to a showdown -- one that's fueled by the powerlessness Westerners feel living in Washington's long shadow.

Some are hoping to get relief by working the issue in Washington, but that's a fool's errand, if history is any guide. Environmentalism Inc. has a lot of lobbying clout inside the beltway. It has turned back any and all attempts to reform, temper or tweak the Endangered Species Act. Non-Westerners in Congress don't understand or don't care about the law's impacts out here. Getting Congress to intervene on the side of common sense seems like mission impossible. State legislators also are talking strategy, but what they can do about any of this is questionable.

Legal avenues to relief remain open, but fickle federal judges and conflicting and contradictory rulings make coherent policymaking nearly impossible. Today the wolves are listed, tomorrow they're not. Two days later, some robed dictator in a federal courthouse, interpreting an inflexible and unworkable law, is pushing policy in another direction. Public lands policy-making through judicial edict helped create this jumbled mess: no reasonable person looks there for the answer.

All this, along with the frustration that comes from feeling betrayed, and the fact that wolf recovery benchmarks keep shifting, has people in wolf-impacted states in a very rebellious mood, with some at the grassroots pushing for a non-compliance or open defiance. The old joke about adopting the "Triple S" approach to wolf management -- shoot, shovel and shut-up -- is now told in less jocular tones. A sagebrush rebellion is being reborn. Wolf management is becoming a states' rights issue, setting the stage for a test of wills.

How Washington would police the far-flung federal wolfpack without state assistance is unknown. It probably lacks the resources and manpower to do so. Would President Obama sue states to force compliance, or dispatch the national guard to babysit federal wolves if states refuse to comply with a court order? That could precipitate quite a showdown -- perhaps even bigger than what's happening in Arizona -- given the anti-Washington mood that prevails.

No one relishes the thought of such a confrontation, but unless something soon gives -- either the states or the feds -- that seems to be the path we're walking. On this issue, wolf-impacted states feel as if they've given all they can, and more. For every inch they've given, a mile has been taken. And if the fur must fly, it might as well fly over this issue.

The Federal Railroad

It seems that Amtrak isn't the only federal railroad Americans have to worry about.

A Colorado man faces a possible life sentence for engaging in an activity he believed was legal under state law -- growing medicinal marijuana in his Denver-area home -- yet a federal judge ruled yesterday, at the urging of federal prosecutors, that Christopher Bartkowicz is barred from using that as a legal defense. That means that anyone in Colorado who the feds want to charge with drug violations they can charge with drug violations, and that the rules of the game will be rigged in the prosecution's favor. Jurors won't get to hear a compelling and plausible explanation for why Coloradans are using or cultivating medical marijuana -- because it's permitted by our state Constitution. Bartkowicz may go to prison, possibly for life, without having an opportunity to explain and defend his actions, in a proceeding that seems more like kangaroo court, or a Stalinist show trial, than something one associates with the American justice system.

This has become more than just a case about medical marijuana. It's now about whether "equal protection under the law" means anything when state law comes into conflict with federal law -- and whether arrogant federal prosecutors and judges can rig the outcome in their favor.

Read more about the Bartkowicz case in yesterday's column by the Denver Post's Vince Carroll, who is no fan of medical marijuana yet nonetheless understands the injustice being done.

Suthers is All Over the Map on States' Rights

Kudos to Colorado Attorney General John Suthers for announcing that he'll join with a number of other states in suing to block ObamaCare health coverage mandates. But where's that fighting spirit when it comes to defending Colorado's right to go its own way on medical marijuana legalization?

The voters of Colorado ten years ago approved partial legalization, for medical purposes, but the federal Drug Enforcement Administration still is raiding dispensaries and grow operations in the state, superimposing federal drug control laws on Coloradans, without a peep of protest from Suthers. It appears the AG's stance on states' rights is selective and situational -- "political" instead of principled, in short. If it's a federal encroachment he's politically opposed to, he'll fight it. But when it comes to the medicinal use of marijuana, a state-sanctioned activity which Suthers opposes, the feds are free to run roughshod over Colorado.

Republicans could be on the vanguard of the neo-federalist revival taking place in some parts of the country, as the revulsion to what's happening in Washington grows. But in order to have any credibility on the issue, party leaders will have to show more consistency and determination than they have been in applying these principles. The test of credibility isn't in evoking states' rights selectively, when it's the politically popular thing to do, as with ObamaCare. Credibility comes from taking such stands when the issue at hand is politically controversial, even within one's own party, as with Cannabis-Care.

How about a little more consistency, and credibility, Mr. Attorney General?

State of Rebellion

Finally, a use of eminent domain I actually might approve of: story link.

"In Utah, a move to seize federal land

Long frustrated by Washington's control over much of their state, Utah legislators are proposing a novel way to deal with federal land -- seize it and develop it.The Utah House of

Representatives last week passed a bill allowing the state to use eminent domain to take land the federal government owns and has long protected from development. The state wants to develop three hotly contested areas -- national forest land in the Wasatch Mountains north of Salt Lake City, land in a proposed wilderness area in the red rock southwestern corner of the state, and a stretch of desert outside of Arches National Park that the Obama administration has declared off-limits to oil and gas development.

Supporters argue that provisions in the legislation that granted Utah statehood allow it to make such a land grab. They also hope to spark a showdown in the Supreme Court that would rearrange the balance of power between states and the federal government.

Some legal experts say the effort is unlikely to succeed, but Republican state Rep. Chris Herrod, one of the authors of the bill, said the state had little choice."I love America, and I'm a peaceful guy," Herrod said, "but the only real option we have is rebellion, which I don't believe in, and the courts."

The eminent domain proposal is among the most audacious yet in a state accustomed to heated battles over the two-thirds of its land owned by the federal government. This is the state, after all, where local officials bulldozed their own roads through Grand Staircase-Escalante National Monument, tore down signs barring off-roading in Canyonlands National Park and, with funding from the statehouse, spent years unsuccessfully defending those actions in federal court."

The L.A. Times story strikes just the sort of tone one expects from a green-leaning reporter who parachutes in from the coast, to wonder at the yahoos in "Fly-Over Country." But I'm rooting for the yahoos on this one.

Sagebrush Rebellion Shows Signs of Life

Wyoming would seem to have a lot in common with Colorado, when you look at it on the map. It's directly to our north and about evenly split between mountains and plains. People there wear cowboy boots. Some even still work as cowboys. Both states are home to an endangered species called the Preble's meadow jumping mo . . . . oops . . . . correction: the mouse is endangered in Colorado but not in Wyoming.

But one thing Wyoming still has that Colorado seems to have lost is the wild and rebellious spirit of the old West.

It's hard to imagine a good old-fashioned sagebrush rebellion breaking out in the "new" Colorado. But the desire to be free from Washington's suffocating embrace still burns in the hearts of Wyomingites, judging from the batch of neo-federalist bills under consideration by legislators there.

I've written before about my admiration for Gov. Dave Freudenthal, a Democrat who isn't afraid to buck Washington when it's in the state's best interests. During his state of the state speech Monday, he accused the federal government of trying to "regulate everything." "The states need to be more than empty vessels whose job it is to execute federal policy," said Freudenthal. "And the only way you're going to do that is to take it very delicately and go in and try to re-establish the balance between the federal government and the states."

Can anyone imagine Bill Ritter saying that?

Whether we can "delicately" re-establish this balance is doubtful, in my view. Uncle Sam won't release his grip on Western states without a saloon-style brawl. But some Wyoming legislators seem intent on backing-up the governor's rhetoric with action.

From the AP:

CHEYENNE -- The Wyoming House of Representatives is taking the first steps toward possibly telling the federal government to back off on a range of states' rights issues, from gun control to endangered species management.

A few House members, however, warn that Wyoming shouldn't seek too much independence from a federal system that serves as a significant source of state income.

Rep. Pete Illoway, R-Cheyenne, is the main sponsor of House Joint Resolution 2. It would call on Congress to stop enacting mandates beyond the powers granted to it in the U.S. Constitution. The resolution lists federal laws such as the Endangered Species Act, the Clean Water Act and federal land management statutes as failing to make that cut.

The House voted 50-8 on Tuesday to clear Illoway's resolution for introduction. It takes a two-thirds vote to introduce non-budget matters in the current legislative session.

"Maybe somebody will start to listen to see that the states' rights are being taken away," Illoway said after the House vote, adding that other states have enacted similar measures. "That's really what we tried to do, to say, 'Come on, you're taking away what the Constitution gave to us . . ."

So what's on the agenda?

HB-28, the "Wyoming Firearms Freedom Act," would "provide that firearms that are made and sold within Wyoming would be exempt from federal regulations," reports the AP. House Joint Resolution 5 calls on Congress "to stop abridging states' rights, including gun rights." HB-47 "would direct the Wyoming Attorney General to consider legal action against the federal government over federal agency environmental review proceedings or endangered species issues including wolf management in the state," reports the AP.

Can anyone imagine a majority of Colorado legislators supporting such bills?

Utah legislators are also showing a little of the old piss and vinegar. Last week, the House approved a measure that would make skepticism the state's official position vis-a-vis climate change. It also urges Washington not to pursue cap-and-trade or other carbon control schemes. Beehive State legislators also have picked a fight with Uncle Sam on Second Amendment issues, approving a bill that would exempt firearms manufactured in Utah from federal gun rules.

Best yet, a group of county officials are pushing a trio of bills that would approve the taking of federal land in Utah through eminent domain. Reports the Deseret News:

"A pair of Utah County Republican lawmakers want to shepherd a trio of bills using eminent domain to wrest control of public lands they say are tied up by an out-of-balance, out-of-control federal bureaucracy.

The sponsors, with unanimous support voiced Wednesday by a legislative appropriations committee, not only want to tap some School and Institutional Trust Lands Administration land for development, but also yank back some of the parcels of oil-rich land withdrawn by Interior Secretary Ken Salazar a year ago this month.

Rep. Ken Sumsion, R-American Fork, and Rep. Chris Herrod, R-Provo, said the groundswell of the states' rights movement means the time is ripe for the battle, which they envision playing out before the U.S. Supreme Court.

Citing a quote by Alexander Hamilton, Herrod said it is time to sound the alarm on behalf of the people and be the mouthpiece of discontent. "People in Utah are discontent," he said. "We want to be in control of our destiny."

Naturally, a few ninnies worry that showing a little independence, a little defiance, could lead to federal retaliation and cost the states federal funds -- it's the long green leash that keeps so many of them from straying.

"I agree we have a problem," one Utah official said in reference to federal hegemony over the West. "It is out of balance, and it is out of control, and something needs to be done. … But we work with [the Feds] all the time. The last thing I want to do is get on their short side. … If you are going to take out the king, make sure you do it in the first shot."

Rep. James Byrd, a Democrat from Cheyenne, is afraid Wyoming's access to mineral deposits on federal lands might be jeopardized, and its federal road funding might go away, if it doesn't "work with" the federal government. "So, we have to be careful as to how we phrase things and what positions we take in opposition to the federal government," Byrd told the Casper Star-Tribune.

What a sad day we live in as Americans, and how far we've drifted from the nation's original design, when elected state leaders feel they need to tiptoe around, whispering like UN diplomats, for fear that they'll anger and enrage the sleeping giant in Washington.

Boo Radley Abandons the Bench

It's back to Walden Pond for David Souter. But can anyone say he'll be missed? How can you miss an apparition? How can you miss a phantom?

Souter was hyped at confirmation as an Abe Lincoln-like figure, but he actually seems to have more in common with Boo Radley. At least Abe Lincoln went to the theater (much to his eventual regret). Souter wouldn't fly on an airplane. He didn't give interviews or use a personal computer. He ate his apples core and all. He never unpacked after relocating to Washington. The only time he made news was by getting mugged. If Obama values continuity in a replacement, perhaps he should pick J.D. Salinger.

Souter's judicial legacy is just as illusive. He made as lasting a mark as a jurist as his hush puppies made padding up the court's marble steps for 20 years -- none, as far as I can tell. Little will change if the president picks a "liberal" replacement, since George Bush Sr. got sold a bill of goods with the "conservative" Souter. His bona fides were touted by Warren Rudman. That should have been a red flag.

Souter consistently voted with the activist faction -- including on the outrageous Kelo ruling, which had property rights activists back in New Hampshire trying to seize his farm through eminent domain, so they could convert it into a Bed and Breakfast (and make a point about the monster that decision unleashed). The effort failed, unfortunately, so Souter has a home to return to.

He did resemble "honest Abe" in at least one respect: he recognized virtually no limits to the expansion of federal power, at the expense of the states. But that, too, made him unexceptional on the Supreme Court and among most colleagues on the federal bench.

Justice Souter, we hardly knew ye. Yet somehow, we aren't racked with regrets.