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States flex their muscles in opposition of federal government
BY KIRK JOHNSON
NEW YORK TIMES
03/21/2010

http://www.stltoday.com/stltoday/news/stories.nsf/nation/story/811F5699BE1084FE862576EC000D2105?OpenDocument

Missouri House members approved on Tuesday a state constitutional amendment that seeks to block a government mandate to buy health insurance.

The plan would ban penalties or fines from being levied against individuals and employers in Missouri who opt out of insurance and pay directly for their own health care. Under the plan, Medical providers could not be penalized for accepting direct payments for health care.

But the vote represents more than opposition to the federal health care reform plan. It is part of a wave of anti-federalist sentiment sweeping across the nation.

Whether it's a 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.
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On Wednesday, Idaho Gov. C.L. "Butch" Otter, a Republican, signed a measure requiring the state attorney general to sue the federal government if residents are forced to buy health insurance.

Similar legislation is pending in 37 other states, but the revolt isn't just over health care.

Earlier this month, Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law 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.

And in Utah, lawmakers embraced states' rights with a vengeance in the final days of its legislative session. 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 Rep. 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 on March 11.

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 such as 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. 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."

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 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 federal law is supreme and that if there's a conflict, federal law prevails," said 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."

But Otter, Idaho's governor, said he believed any future lawsuit from his state had a legitimate shot of winning, despite what the naysayers said.

"The ivory tower folks will tell you, 'No, they're not going anywhere,'" he said. "But I'll tell you what, you get 36 states, that's a critical mass. That's a constitutional mass."

The Associated Press contributed to this story.

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