For the people of Tombstone, Arizona, democracy means the right to choose whether to die of thirst or burn to death as the town’s reservoir runs dry. Well, actually, if Tombstone’s residents had a say in the matter, they wouldn’t have to do either. They would vote to take advantage of the twenty-five freshwater springs in the nearby Huachuca Mountains that the city owns outright. But the federal government has assumed the power to decide when, if ever, Tombstone will get its water, and the residents have no control over that decision.
Tombstone’s problems began in June 2011, when a fire in the mountains, followed by monsoons, damaged the town’s water pipeline, shutting off the flow from the mountain springs. The city was forced to rely on its 1.2-million-gallon reservoir, which, by August, was running dry. Governor Jan Brewer declared an emergency and freed up some state money to repair the pipeline. Tombstone officials got permits from all the necessary government agencies—except the United States Forest Service, which had to sign off because much of the work would have to take place in a federally protected wilderness.1
Eventually, city officials got tired of waiting for the Forest Service to act, so they sent workers with an excavator up to Miller Canyon and started to clear out a reservoir. That’s when they found out that the Forest Service wasn’t merely being slow to approve the repairs; to the contrary, the service actively opposed the repairs. Federal rangers threatened to have them arrested if they did not immediately remove the excavator. According to the rangers, the Wilderness Act of 1964 prohibits the use of “mechanized” equipment in the protected area—and they were not about to make an exception to save one measly town. One of the rangers told Tombstone’s mayor, Jack Henderson, that if he didn’t agree with the Forest Service, “I suggest you call Barack Obama.” As Henderson later told CNN, “That’s when I began to get a sense of the smugness we were dealing with.”
So city workers put away the excavator and came back with a wheelbarrow. Again the rangers turned them back, arguing that even a wheelbarrow constitutes forbidden “mechanized” equipment—because it has a wheel.
Then the town sent people up the mountain with picks and shovels—no wheels. They managed to get a makeshift pipeline working with water from two of the town’s twenty-five springs. A few more months and Tombstone might have secured its water supply with a durable pipeline. But then the Forest Service blocked the work again, saying that even manual labor might disturb the nests of Mexican spotted owls, some of which had been sighted in the mountains above the pipeline.
In the meantime, Tombstone had sued the federal government for the right—which shouldn’t be controversial—to fix its own springs, pipeline, and reservoirs in the name of self-preservation. Tombstone’s legal argument was based on the Tenth Amendment—namely, that its ability to preserve the lives and property of its residents by repairing its municipal water supply is a traditional government function reserved to the states, even when it involves federal land. After all, the Supreme Court has previously held that states retain the power to regulate behavior on federal lands to further environmental goals (California Coastal Commission v. Granite Rock Co., 1987). If the states can intervene on federal land to protect owls, why not to protect people?
Unfortunately, Tombstone lost at the trial court, and on appeal—the federal appeals court issued a mere three-paragraph decision saying that Tombstone had failed to raise any “serious questions” under the Tenth Amendment. The town’s survival, therefore, remains at the tender mercy of the Forest Service. Lest there be any doubt about the Forest Service’s priorities, consider an exchange that took place at the trial. Tombstone’s lawyer asked a Forest Service supervisor: “Sir, just tell me: What is more important? Owls or people?” The supervisor refused to choose favorites between the species, simply saying that “we have to balance” both. But as this book goes to press, the owls still have the advantage: the US government continues to block Tombstone’s efforts to access its own water.2 “While federal administrators fiddle,” says the Cato Institute, “Tombstone literally burns or at least dries up.”
What About Local Self-Government?
Tombstone’s plight is not unusual in places like Arizona, where the national government owns 42 percent of the land. The situation is worse in other states. In Idaho, for example, 62 percent of the land is owned by the federal government; in Utah, it’s 67 percent. The prize goes to Nevada, where 81 percent of the state’s landmass is federal property.3 Admittedly, these areas were once federal territories, but with statehood the federal government was supposed to relinquish the land.
In what universe can anybody claim that a state like Nevada enjoys democracy when its citizens and legislature have no direct say over the management of 80 percent of its territory? Democracy means that the citizens of a community have a meaningful voice in shaping their own destinies. That’s not exactly a radical idea: it’s the principle of self-determination, endlessly parroted by the United Nations in documents such as Resolution 1514, which declares that self-determination means the right of “all peoples” to “freely pursue their economic, social and cultural development.” In American Society: How It Really Works, the notably left-wing professors Erik Olin Wright and Joel Rogers equate freedom—“the capacity to make choices over one’s life”—with democracy—“the capacity to participate in the effective control over collective choices that affect one’s life as a member of a wider society” (emphasis mine).4 Thus, say the professors, “in a democracy, decisions which affect our common fate and common interests should reflect the collective will and choices of equal citizens rather than powerful elites.” The reference to “powerful elites” may have been intended to capture corporate titans, bankers, and other liberal bogeymen, but why shouldn’t it apply just as forcefully to national groups like the Sierra Club and their unelected enablers in the federal bureaucracy?
The Constitution itself guarantees to each state a “Republican form of government” (Article IV, Section 4). The text does not define what a “republic” is, but James Madison considered the distinguishing feature of a republic to be a government operated by persons “appointed, either directly or indirectly by the people” (Federalist no. 39). In other words, a “republican” government is one in which the leaders are directly accountable to the people they serve.
Compare that ideal with the situation in Nevada, where 80 percent of the territory is controlled by 535 politicians in Washington (only six of whom directly represent the citizens of the state), and by unelected federal bureaucrats and judges, and where 80 percent of its natural resources—and tax base—are off-limits to the citizens who need them.
Nevada’s status as a de facto colony of Washington is typified by the case of Wayne Hage, a cattle rancher whose family farm had been in operation since the days when Nevada was still a territory. In 1991, the federal Bureau of Land Management (BLM) arbitrarily shut off Hage’s access to grazing lands and water rights (some of which had vested as long ago as 1866)—evidently all part of some personal grudge harbored by two federal employees. There was nothing that state or local officials could do except to wait for the matter to work its way through the courts. When a federal court finally ruled, in 2013, that the two BLM employees had engaged in an illegal “conspiracy” to deprive the Hages of their vested rights, Wayne Hage was completely vindicated. Unfortunately, he was also dead, having waited more than two decades for his day in court.5
Local self-government has yet to arrive in the American West. Not that Eastern opinion leaders are overly concerned; the idea of Westerners (other than Californians) governing themselves is inherently distasteful to them. If only Tombstone, or the Hage ranch, had been located in Tibet—then they would have had the elites’ sympathy. According to a statement issued by the Dalai Lama’s supporters, and published on a variety of websites, the Tibetan region of China lacks “genuine autonomy” because its own local government cannot make decisions on such issues as “environmental protection” and “utilization of natural resources.”6 Shouldn’t the same considerations weigh in favor of “genuine autonomy” for Nevada?
In fact, the argument for Nevada is even stronger. The US federal government has no constitutional authority to create an inland empire under its exclusive control; to the contrary, the Founding Fathers went to a lot of trouble to prevent that from happening. Under the Constitution, Congress’s exclusive control extends to only (1) the District of Columbia, and (2) other places “purchased by the consent of the legislature of the state . . . for the erection of forts, magazines, arsenals, dockyards, and other needful buildings” (Article I, Section 8). In other words, the federal government was not meant to be a big landlord outside the federal district. How did it end up owning 28 percent of the land in the United States? The short answer is: by flouting the law.
After the ratification of the Constitution, each new state was admitted to the Union under an “enabling act”—that is, a congressional guarantee that the new state would be placed on an “equal footing” with the original thirteen states. A critical part of that equal footing was an express promise that all of the federal lands in the state “shall be sold” expeditiously, with 5 percent of the proceeds going to the state, and the land thereafter becoming part of the state’s permanent tax base. That’s how it worked in the Eastern states, where today only about 4 percent of the land remains under federal control.
By the time the Western states were coming into the Union, however, our old friends the Progressives were in charge. They decreed that federal agencies must be created to manage the lands in the new states. “The widely-held belief of the day,” according to Holly Fretwell, a policy analyst, “was that an elite group of experts could dispassionately use science to determine best resource use, and . . . align management to provide for those uses.”7 Yet again we see the imposition of central government control in the name of “science.” And you know that science has finally triumphed when the federal government declares the wheel to be a dangerously mechanized innovation.
Predictably, once Congress created federal bureaus whose very existence depended upon federal land ownership, the government lost all interest in selling its land—never mind the legal requirement that the land “shall be sold.” Not only did the government hold on to the land, but it forbade economic development on huge swaths of it. In 1976, Congress gave up the pretense that it was ever going to sell its Western possessions by passing the Federal Land Policy and Management Act (FLPMA), which declares “it is the policy of the United States that the public lands be retained in Federal ownership, unless . . . it is determined that disposal of a particular parcel will serve the national interest.” Note how the presumption of sovereignty has been turned on its head. The framers had assumed that public lands would be held by the states, and the burden was on Congress to establish a national need to acquire federal land. Now the burden falls on those trying to persuade Congress to dispose of federal lands. In the late 1970s, following passage of the FLPMA, politicians throughout the West staged protests that became known as the “Sagebrush Rebellion.” Nevada and Utah passed laws asserting state title to public lands, but those laws were ultimately struck down by federal courts. With at least five states actively seeking title to their public lands, there is still hope of bringing democracy to the American West.
One-Man Rule, Not Cool
Another undemocratic aspect of federal land management is the immense power it places in the hands of a single person: the president. This has been the case since the Progressive Era’s Forest Reserve Act, which gave the president the unilateral power to set aside federal lands as public reservations. Teddy Roosevelt used his powers under that law so enthusiastically that Congress passed another law forbidding him to make further reservations in six Western states without congressional approval. Having just been told by the people’s representatives to stop reserving Western land, TR set aside an additional 30 million acres during the ten days before the bill became law.8 How’s that for government by the people?
Rule by executive order is a problem that extends far beyond the question of land management and into the most sensitive areas of domestic policy. That’s not to say that all executive orders are illegitimate. As the chief executive and commander in chief, the president has every right to issue written instructions to the employees of the executive branch and the armed forces. The problem is that American presidents find it increasingly handy to use executive orders as a means of achieving domestic policy goals that cannot be achieved by democratic means. In the summer of 1998, for example, when President Clinton failed to push his domestic legislation through Congress, he launched a series of executive orders to get around Congress. His aide Paul Begala—whom we last saw cheering the federal government as the greatest force for good in human history—had a similarly stirring defense of executive orders: “Stroke of the pen. Law of the land. Kind of cool.”9
Clinton certainly wielded the presidential pen with flair. In 1996, he unilaterally established the Grand Staircase-Escalante National Monument in Utah, setting aside 1.7 million acres of land—an area more than twice the size of Yosemite—with no advance consultation with local residents. In 2013 congressional testimony, John Jones, a Democratic commissioner from Carbon County, Utah, was still fuming over Clinton’s Grand Escalante order as a “cowardly, infamous act” that devastated the local economy, shut off development of the nation’s cleanest low-sulfur coal supply, and had triggered such an exodus of residents that the school system was about to shut down. Jones concluded: “One man’s signature changed our lives completely.”10 Kind of cool, huh, Paul?
President Obama has used an expansive definition of executive powers to run an alternative Congress out of the White House. When he could not win on immigration reform, Obama stretched the concept of prosecutorial discretion to exempt millions of illegal immigrants from the reach of federal law. When Obama failed to get gun control or campaign finance laws through Congress, he tried to achieve the same results by executive order. Unable to pass education reform, Obama effectively created his own educational policy by granting more than half the states “conditional” waivers from the provisions of the No Child Left Behind Act—but at the cost of states’ agreeing to the administration’s education policy, including the “Common Core” curriculum. When Republicans try these tactics, it’s known as the “imperial presidency.”
Rein In the Rogue Bureaucrats
The doctrine of “preemption”—when federal rules displace state laws on the same subject—poses a serious threat to states’ rights, as we’ve seen in the Supreme Court’s efforts to strike down state regulations of railroads during the Progressive Era, as well as more recent controversies, such as the federal government’s alleged monopoly over marijuana regulation. But preemption also threatens democracy since it involves a small group of Washington decision-makers overriding the will of democratically elected state legislatures. It was bad enough in the old days, when preemption came from Congress, but now federal agencies play the dominant role in asserting federal preemption.11 The validity of state laws lies in the hands of executive branch mandarins who will never have to justify their actions to ordinary voters.
The US Supreme Court, instead of standing up for democracy, has endorsed the trend toward rule by executive agency. In 2011, the court held that in disputes over the preemptive effect of federal rules the key factor is not the Constitution, not the Congressional Record, but the statements of the federal agency itself (Williamson v. Mazda Motor of America, Inc.). Justice Stephen Breyer, the principal author of the majority opinion in Williamson, argued that it was only “practical” to defer to federal bureaucrats because they are “most likely to know what 40,000 pages of agency record actually mean.” In effect, the court encouraged federal agencies to bury their decisions beneath mountains of turbid prose so as to maintain their interpretive monopoly.
Perhaps the most elegant solution to federal overreaching is the Repeal Amendment, a proposal championed by the law professor Randy Barnett. The Repeal Amendment would allow two-thirds of state legislatures to repeal any federal statute or regulation. In May 2011, Utah representative Rob Bishop attracted twenty-two cosponsors for the proposal, but like all amendments, it’s a long shot. Therefore, in chapter 12, I’ll review some of the more readily achievable ideas for arresting the regulatory rampage coming from Washington, including legislation that would codify Ronald Reagan’s federalism executive order.
Make Politics Less Expensive
The one tactic that will not solve Washington’s democracy deficit is simply transferring power from the civil service back to Congress. First of all, it would never last. Congress creates and funds federal agencies, so it will always have the ability to stick bureaucrats with the politically difficult decisions. But more fundamentally—and I think my liberal friends will be with me on this one—Congress does not faithfully represent the wishes of the people. “The average congressional district now contains 647,000 persons,” observes the writer (and former staffer to Senator Daniel Patrick Moynihan) Bill Kauffman. “How is anything like representative government possible on such an enormous and impersonal scale?”12
Good question. Given the expense of campaigning for federal office, most senators and representatives “effectively represent national special interests” according to a recent analysis.13 That charge is often hurled at Republicans, but it is equally true of Democratic politicians, who rely on labor unions, trial lawyers, environmental groups, and left-wing political action committees to fund their campaigns. And it feeds a vicious cycle: expanding federal power means expanding your national constituency. As the law professor Steven Calabresi puts it: “Pass a national speed limit, collect a donation from the insurance companies. Pass a national drinking age, collect a donation from Mothers Against Drunk Driving. Every breach of the constitutional fabric becomes a new fundraising opportunity and new television spot.”14
The influence of money in national politics is a common liberal refrain. But while liberals have correctly diagnosed the problem, the proposed remedy is a little odd. Mainstream liberals would let Congress keep all of its existing powers—and add new ones, to boot—but would restrict the ability of certain groups to engage in political speech, as we saw in the Obama administration’s response to the Supreme Court’s Citizens United decision. By penalizing people who choose to speak through corporations and conservative groups, the thinking goes, we can remove all vestiges of corruption in politics and let the people’s voice be heard.
Actually, there’s a better way to go about this. Instead of trampling on the First Amendment, how about enforcing the Tenth Amendment? Put power in the hands of state legislators, city councilors, and county commissioners—none of whom needs the National Rifle Association or the AFL-CIO to bankroll their election campaigns. And citizens don’t need a high-priced lobbyist to gain access to their local officials. As the late New York mayor Ed Koch once said, “If you don’t like the president, it costs you 90 bucks to fly to Washington to picket. If you don’t like the governor, it costs you 60 bucks to fly to Albany to picket. If you don’t like me—90 cents [the price of a subway token at the time].”15
Let Communities Set Their Own Priorities
The rise of conditional federal grants and crossover sanctions is yet another assault on democracy because the point of such measures is to coerce states into doing things that their voters do not want, or at least would not be willing to pay for themselves. The pressure is usually irresistible. In the aggregate, states depend on federal funding for 35.5 percent of their revenue. In Mississippi, the most dependent state, federal aid comprises 49 percent of all state revenues. Even in the least dependent state, Alaska, the federal government provides nearly a quarter of all revenues. Federal aid, as Neal McCluskey, a scholar at the Cato Institute, puts it, is “the mighty tool that Washington uses to make states do its unconstitutional bidding—taking tax dollars from state citizens whether they like it or not, and forcing states to follow federal rules to ‘voluntarily’ get some of the money back.”16 Most Americans are probably unaware of the basic dynamic of federal coercion.17
Worse yet, most federal aid programs (and all of the really big ones) require states to match all or part of the federal grant—and thus, to get the federal dollars, the state has to spend its own money. And once a state is locked into a program, it generally has to go along when Congress decides to expand it. In practical terms, this means that federal aid programs crowd out other spending priorities at the state and local level, be they “education or pothole repair,” says John Kincaid, a federalism expert at Lafayette College—a conclusion he says is firmly based on “empirical data.”18
Already state spending on healthcare (Medicaid and Medicare) has surpassed spending on education, the next-biggest recipient of federal funding (“Hurrah,” says Michael Greve, a professor at George Mason University, “the entitlement state has begun to eat its own.”).19 With entitlement programs on a path to consume 75 percent of all federal grant programs by 2020, education funding will be further squeezed. Sit back and watch: whereas the teachers unions used to blame the Pentagon for hogging all the federal dollars, they now have to blame the healthcare unions and AARP.
What Congress ought to do is easy enough to describe: phase out all conditional grant programs, cut federal taxes proportionately, and let state and local governments decide what to do and how to pay for it. Surely each state would continue to maintain welfare programs, public schools, and good roads—but why not let the states divvy up the money as they see fit? Such a policy is sometimes referred to as “turn-back,” as in “turning back” responsibility to the states.
This won’t be easy, given Washington’s resistance to decentralization, particularly among the Democratic Party establishment. Proposals like Medicaid block grants—which preserve today’s federal funding stream but liberate states from micromanagement—are considered “untested” and “hazardous” by the Obama administration.20 Apparently, it is better to stick with Medicaid’s rigid national fee structure, which has turned away so many potential providers that low-income people chronically fail to get the care that the law promises.21
Even in state capitals there is fear of change: in 2011, seventeen Democratic governors wrote to congressional leaders to oppose Medicaid block grants—with Washington’s governor, Christine Gregoire, writing separately to the Wall Street Journal vowing to fight “any congressional effort to impose Medicaid as a block grant.” It’s an odd spectacle to behold: elected governors fighting against the “imposition” of flexibility.
Why are governors like Christine Gregoire afraid of being forced to govern? It’s because state flexibility means state competition—and competition means hard work and long hours for state politicians. Rough sledding for them, perhaps, but that’s why they get paid the big bucks. The virtue of states’ rights is not that it makes life easy for politicians; rather, it is that interstate competition will make life better for citizens—as we’ll see in the next chapter.