Rebellion in the states

by Frank DuBois

    What is going on in our states? They seem to be standing up on their hind legs and protecting their sovereignty.
    Twenty-five states have passed resolutions or laws to nullify the REAL ID Act, and fifteen states have passed medical marijuana laws. Originally passed in Montana, fifteen states this year are considering the Firearms Freedom Act which states that any firearms made and retained in-state are beyond the authority of Congress to regulate under the commerce clause. This year nineteen states have either passed or are considering the Health Care Freedom Act, which in effect nullifies any federal health care bill in that state.
    So what is this nullification stuff and how does it affect us in the West?
    Many will recall the Sagebrush Rebellion. The tipping point for the Western States was the 1976 passage of FLPMA, which changed official government policy from disposal to retention. There were also many restrictions being placed on access and use of federal lands. The Carter administration and Congress had placed 37.8 million acres of land in parks, wilderness areas, wildlife refuges and other categories that banned or curtailed commercial development. Another 104 million acres were placed off-limits in Alaska. Private landowners were denied access to their property surrounded by federal lands. "This vast federal holding means we are not our own landlords," said Colorado Governor Richard D. Lamm. "We cannot control our own destiny."
    Many new restrictions were placed on livestock grazing. Ranchers were told what type, the number and when and where livestock could graze. Onerous restrictions were also placed on range improvements. At the time, New Mexico rancher Charlie Lee was quoted in U.S. News & World Report as saying, “"When the feds take control to that extent, the ranch operator is no longer necessary - he's a federal government caretaker."
    The reaction to this took the form of both civil disobedience and legal challenges. Irate Alaskans burned an airplane belonging to the National Park Service. In one widely reported event, Gerald Chaffin was forced to burn his home of 10 years near Midwest, Wyo., after the Bureau of Land Management determined it was located on federal land. BLM officials said the house was illegally built 47 years ago. Even though Chaffin and his wife were the third owners, he was ordered to remove all traces of the house or face an 18-month prison sentence and a $6,000 fine. Being unable to pay for its removal, Chaffin doused the house with gasoline and set it on fire.
    On the legal front, Nevada, New Mexico, Washington, Wyoming, Utah and Arizona passed laws laying claim to millions of acres of federal land inside their borders and Alaska set up a special Statehood Commission. There were two legal theories underpinning these claims. First was the Equal Footings Doctrine which said the western states were not admitted to the union on an equal footing with the original colonies; i.e. they weren’t sovereign over all the lands within their boundaries. The other was a breach of trust claim. The feds were to hold these lands in trust until disposed of. When retention become the policy there had been a breach of the trust.

Historian Thomas E. Woods, Jr writes on this point, “if the federal government has the exclusive right to judge the extent of its own powers, warned James Madison and Thomas Jefferson in 1798, it will continue to grow – regardless of elections, the separation of powers and other much-touted limits on government power.”

But nullification, or state interposition, is different. The term was first introduced into political discourse by Thomas Jefferson in the Kentucky Resolutions of 1798. Nullification starts with the self-evident point that a federal law that is unconstitutional is void and of no effect. There was nothing new about this. For example Alexander Hamilton had earlier written in Federalist #78, “there is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.”     Jefferson and James Madison took this one step further. They asserted the feds didn’t have a monopoly on constitutional interpretation and that the parties to the federal compact, the states , could declare a law unconstitutional and refuse enforcement. Historian Thomas E. Woods, Jr writes on this point, “if the federal government has the exclusive right to judge the extent of its own powers, warned James Madison and Thomas Jefferson in 1798, it will continue to grow – regardless of elections, the separation of powers and other much-touted limits on government power.” In a controversy between a state and the feds, you have one agency of the federal government ruling on the power of another agency of the same government.
    Let’s say I’m a judge and thus authorized to rule on controversies between parties. If there was a controversy between you and another party, you both would appear before me and I would issue a ruling. Also, though, if there is a controversy between you and me I would rule on that too. Sound fair? That’s the position the states find themselves in today so no wonder they have turned to nullification as the “rightful remedy”.
    So how is this playing out on federal lands in the West?
    Utah has passed a law, H.B 143, which “authorizes the state to exercise eminent domain authority on property possessed by the federal government unless the property was acquired by the federal government with the consent of the Legislature and in accordance with the United States Constitution Article I, Section 8, Clause 17.” Also in Utah is H.B. 76 which creates a Constitutional Defense Council for the state and S.B. 221 to provide for a “State of Utah Resource Management Plan for Federal Lands” and H.J.R. 39 which urges “Congress to relinquish all right and title of the public lands in the State of Utah currently managed by the Bureau of Land Management and transfer title and jurisdiction to the State of Utah.”
    Similar eminent domain bills were introduced in Montana and New Mexico.
    The Endangered Species Act and especially wolves have drawn a lot of attention in the states. Montana is considering nullification of the ESA. In Idaho there is a bill “To provide for the rescission of any cooperative agreements with the United States regarding wolves, directing the discontinuance by state agencies of all wolf recovery efforts” and “directing the removal by the Idaho Fish and Game Department of all wolves reintroduced from their progeny…” In February, Montana Governor Schweitzer wrote to Secretary Salazar, “First, for Montana's northwest endangered wolves (north of Interstate 90), any livestock producers who kill or harass a wolf attacking their livestock will not be prosecuted by Montana game wardens. Montana Department of Fish, Wildlife, and Parks (FWP) wardens will be directed to exercise their prosecutorial discretion by not investigating or citing anyone protecting their livestock. Further, I am directing FWP to respond to any livestock depredation by removing whole packs that kill livestock, wherever this may occur.”
    There are many more examples I could share. Suffice it to say that nullification and nullification-like legislation and administrative action is alive and well in the West.
    Many mainstream legal scholars dispute nullification, usually citing the Supremacy Clause of the Constitution. Perhaps, though, they should read that clause more carefully. It states, “This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.” Proponents of nullification say that any law made in pursuance thereof must be constitutional, and that the Supremacy Clause only applies to constitutional laws.
    The interesting thing about nullification is you don’t have to win in court to carry the day. Take the examples of the REAL ID Act and medical marijuana laws previously mentioned. So many states have refused to implement the REAL ID Act that the feds keep moving back the implementation date -- in practical terms nullifying the law. The same is true for the 15 states who have enacted a medical marijuana law, and who in spite of a recent Supreme Court decision, continue to operate their programs unimpeded by federal authorities.
    It remains to be seen whether the states and their citizens will keep pushing back against the feds. But if they do, maybe this column has given you a little background on this and previous attempts at restoring a balance.
    Until next time, keep that constitution in your saddle bags, be a nuisance to the devil and don’t forget to check your cinch.

Frank DuBois was the NM Secretary of Agriculture from 1988 to 2003, is the author of a blog: The Westerner (http://thewesterner.blogspot.com/) and is the founder of The DuBois Rodeo Scholarship.

Published in the May issue of the New Mexico Stockman