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Montana Lawmakers and Others Flex Their States' Rights Muscles

4 years ago
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Montana Gov. Brian Schweitzer has never been shy about giving the federal government a piece of his mind. But the new state legislature is taking it a step further. It is considering a dozen bills that aim to nullify various federal laws within Montana's borders -- bills Schweitzer considers "un-American."

Montana certainly isn't alone in challenging Washington. In the wake of health care reform passed a little less than a year ago and midterm elections that installed conservatives at all levels of government, the states' rights movement is enjoying a Renaissance. The recharged anti-federal culture can be found in several statehouses -- from Olympia to Des Moines to Tallahassee -- that are considering similar bills that try to override the federal government.

In Montana, Schweitzer, a Democrat, has questioned not only the intent of such legislation brewing in the Republican-dominated legislature, but the sources of many of the bills here and elsewhere.

"These nullification bills aren't just sprouting up naturally state by state," Schweitzer said in an interview. "These notions are cooked up, conjured up and handed down as talking points and bill language that are passed to legislatures around the country."

Schweitzer didn't mention specific sources, but Michael Boldin, director of the Los Angeles-based Tenth Amendment Center, takes responsibility for many of the anti-health care bills. "There are 11 states that have taken our model legislation and introduced it verbatim or a modified version," he said.

Upwards of 19 statehouses are poised to consider bills that would invalidate the Patient Protection and Affordable Care Act, but in Montana nullification fervor has spread beyond health care. One proposal would make it a crime to enforce federal firearms laws on any gun manufactured in the state. Another would invalidate the Endangered Species Act. A third would strip the Environmental Protection Agency's ability to regulate greenhouse gas emissions.

"We have a bill that would be on Colbert if it wasn't real," Schweitzer said of House Bill 382, which, in his words, would have established "an 11-person commission to review all the federal laws and decide which ones we want to follow." That bill was voted down 57-42, but had it become law, Schweitzer said the commission would have had "more power than the president of the United States or the Supreme Court."

As a two-term Democrat in a state known for its strong libertarian streak, Schweitzer earned his popularity in no small part by bucking Washington, D.C. Shortly after his 2005 election, he called on the Pentagon to return Montana's National Guard troops deployed in Iraq so that they could help fight wildfires at home. Three years later, he led a public charge against the Real ID Act and told NPR that the best way to deal with the federal government is "to just tell them to go to hell and run the state the way you want to run your state."

Recently, Schweitzer squared off twice with the Department of the Interior. First he blocked plans for federal and state authorities to slaughter 500 wild bison to contain possible cases of the disease brucellosis and told the agency to find a better solution. He followed that with a letter to Interior Secretary Ken Salazar informing him of Montana's plans to disobey federal laws protecting endangered wolves because the animals were hunting and harassing livestock and elk herds. In both cases, the governor put his state's interests above what he saw as impractical federal laws.

Montana's House Majority Leader, Republican Tom McGillvray, sees his caucus' nullification attempts in similar terms. "We are independent states," he said, "and sometimes when federal law is so onerous, you have to say 'Wait a minute, this thing is going overboard.'"

He acknowledges the bills don't have much chance of becoming law, yet believes the effort is worth it.

"I'm sure the governor will probably veto them if they get through the Senate," he said. "Even if they are vetoed, the statement has been made that sometimes the federal government gets too heavy-handed," McGillvray said.

Jim Lopach, a University of Montana political science professor, said the distinction between Schweitzer and McGillvray may be more a matter of degree than of substance. "The governor has absolutely been a states' rights advocate in the past, but I don't think he ever claimed the right of the state to nullify federal law." Defying Washington on something like wolf management is, Lopach said, an act "closer to civil disobedience."

Schweitzer sees a distinction between his executive pioneering and the legislature's current actions. The so-called nullificationists, he said, have no "logical, coherent legal argument."

"I've spoken to a few [legislators], and what you get is a lot of gobbledegook and quoting from the Magna Carta, stuff that legal experts say means nothing. It's like they are using random words from law school in no particular sequence."

Schweitzer pointed to the unprecedented number of bills -- 92 -- that the Montana legislature's own legal department has marked as legally or constitutionally questionable.

"This session we have a lot of new legislators, and a lot of legislators who have certain ideas of what the Constitution says and how it works," said Susan Byorth Fox, the five-year director of the state's nonpartisan Legislative Services Division. Fox said that every session brings a number of legally questionable bills from lawmakers who "want to be bold. But "it's never happened to this extent," she said.

Despite the passionate motives behind nullification bills, constitutional scholars like Lopach are in near-unanimous agreement: nullifying federal law at the state level is a long shot at best.

Schweitzer isn't even sure of the objective.

"It's difficult to access their motives," he said. "What is the natural sequence of events when you do this, when you say you no longer want to be part of the Union? If we are going to secede, are they going to close Malmstrom Air Force Base and shut down the intercontinental missiles?"

McGillvray called nullification a responsibility. "It's incumbent on us to carry out bills that represent our constituents' concerns," he said. As to the charge that the efforts are "un-American," he objected strongly. "It is patriotic to question and challenge the function of the law. That's what judicial review is all about."

And judicial review is almost certainly where the entire dust up is headed. The Supreme Court has been called The Umpire of Federalism, and Lopach said it earned that nickname for good reason. In recent years the court's moderate and conservative voices have "pushed the idea that the states have a core of sovereignty that the government cannot invade," Lopach said.

But, he added, "it is ultimately up to the court to chart out the boundaries of that core sovereignty."
Filed Under: Health Care Reform

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Within the next four decades, According to the U.S. census bureau projections, the ethnic makeup of this country will have changed. Anglos will be in a minority. With one man one vote their power will be diminished and they know it. They want to be governed by one of their own. The gale winds of such thinking are now coming to the surface as shown by their attitude with this president. They deny it but to no avail. Taken to a possible conclusion why be a part of the US if you decide you will decide which of its laws to obey? Why not leave and form your own nation? Maybe this is just a reaction to our present state of affairs but if it is it's a poor precedent to set. It's interesting to say the least.

February 26 2011 at 3:03 PM Report abuse +1 rate up rate down Reply

This is just Montana being Montana, and that's a good thing. I am pleased to see that the long-nullified Tenth Amendment is coming back into vogue, though. Federal power needs a balance to it, especially when Washington uses its bureaucrats to legislate what Congress won't pass... on Second Amendment issues, for example, lead shot is one issue currently getting the EPA end-around treatment.

February 26 2011 at 12:26 PM Report abuse +3 rate up rate down Reply

DONNA, I would be more than happy to rely on my friends, family members and neighbors in the event that an emergency strikes. I think we have all seen the type of help that FEMA has to offer when catastrophe hits! I have a lot more faith in my friends and family than I do in the federal government. Texas nor any other state really needs the feds holding their hands at this point. All the federal government is doing at this point is dragging each of us down with them.

February 26 2011 at 10:49 AM Report abuse +4 rate up rate down Reply

And how does Montana feel about having their federal funding cut off? They're asking for it!

February 26 2011 at 10:45 AM Report abuse rate up rate down Reply

I agree, let them pick and choose what is the right thing for that individual state. Like Arizona, Georgia, and Texas, but when things go wrong like an outbreak of tornados, flooding, hurricanes, and who knows what else, they are on their own.

February 26 2011 at 9:06 AM Report abuse +10 rate up rate down Reply
1 reply to Donna's comment

I would be more than happy to rely on myself, my family members & my neighbors instead of FEMA. I think we have all seen the so-called help that the federal government offers. I have a lot more faith in my friends & family than I have in the federal government!

February 26 2011 at 10:44 AM Report abuse +6 rate up rate down Reply

I like the ideas of Montana. Seems they are getting tired of the federal goverment like every other tax payer.

February 26 2011 at 9:05 AM Report abuse +10 rate up rate down Reply
John Vilvens

Nullification would be like the president picking what laws he will inforce, that right he is doing that. If Obama can pick what laws he will inforce why should states have to follow the laws?

February 26 2011 at 6:44 AM Report abuse +10 rate up rate down Reply

Secession is an idea whose time might have come back. This nation has become so diverse that it is now a climate of divisiveness. I support peaceful secession for any state that would like to leave the union. A civil war is NOT NECESSARY. Let us simply agree to disagree.

February 26 2011 at 2:15 AM Report abuse +6 rate up rate down Reply

The last time Montana had people like these all together in the same house -- it was the Freeman standoff in Jordan, MT. Now, they're legally elected -- and what's more alarming is that people voted for them. What was really sad was getting my ballot and seeing so many republicans running UNOPPOSED this last year.

They had a bill to establish paramilitaries to help out when there are emergencies -- complete with their own flags, insignia, and guns? Really? When the river's flooding and you need to sandbag, who cares what you're wearing?

What they're calling a jobs bill is a revision of our workers comp laws - reducing benefits to claimants. They introduced a bill which would have barred anyone from receiving unemployment benefits unless they had worked for 52 weeks - with only 7 days off - prior to filing their claim. (That would have wiped out all those construction workers who can't find road construction work in the wintertime, wouldn't it). Thankfully, there are still a few grownups around -- but it is shocking to see the vote counts on these bills.

They also had a bill allowing people to carry guns in bars and banks! What could possibly go wrong there? What's going to happen to liability insurance rates for bars once they can't stop people from coming in armed? And then they introduced 17 different bills about drinking and driving and then the Republican head of the Judiciary committee is caught with an open container of beer during the session!

Guns, beer, and nullification laws -- and yep, a birth certificate law as well for the 2012 election -- that's the legacy of the Montana 2011 Republican-dominated legislature. Thank God we have Schweitzer - who is man enough to call it like it is and stand up to them -- but I cringe thinking about what 2012 will bring and we get a new governor -- and probably a Republican.

I would bet if you ask the Republicans who is the most influential person forming their political views -- it would be Glenn Beck -- and now we're seeing what his screwed-up world view has done to his followers.

February 25 2011 at 11:22 PM Report abuse -12 rate up rate down Reply

I like Schweitzer. He has his state's interests in the forefront of everything he does. Some of the legislators, however are simple on power trips similar to what is going on in WI. None of this is going to end very well for any of us.

February 25 2011 at 10:55 PM Report abuse -6 rate up rate down Reply

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