IF THERE’S A POSTER CHILD for Washington micromanaging, it might just be the Environmental Protection Agency. Businessmen and women under the iron fist of this green bureaucracy must surely wonder just how the planet survived prior to President Nixon’s creation of the Agency in 1970. The air and water have been improving for decades, but the EPA’s relentless intrusion only seems to grow.1 That’s one reason for Governor Perry’s ire. While the EPA has put Texas in the federal agency’s crosshairs, citing an insufficient pollution permitting process, the state points to a twenty-two percent drop in ozone between 2000 and 2008.2 This detail has fallen on deaf ears.
Of course this is not just about Texas or ozone. In California, the U.S. Fish and Wildlife Service has nearly bankrupted agriculture in the San Joaquin Valley as a result of their “biological opinion,” protecting the delta smelt by diverting massive amounts of water to the ocean.3 Though the tiny creature is found only in California, it was somehow awarded interstate protection under the Endangered Species Act.
The mother of all federal mandates is undoubtedly the EPA’s “endangerment finding” on so-called greenhouse gases. At the behest of a minority of states, the Supreme Court overturned a lower court opinion by ruling, under the Clean Air Act of 1970, that the EPA has the power to regulate carbon dioxide as a pollutant, though the “greenhouse gas” was never contemplated as a pollutant when the law was passed.4
Consequently, the Agency is now set to implement the most sweeping regulations in United States history, imposing drastic energy limits upon the states by dictating all manners of fuel efficiency on their residents-even down to the kind of light bulbs they may use.5 If Congress passes similar legislation, such as the American Clean Energy and Security Act, the costs for energy consumers have been estimated at nearly a trillion dollars.6 States are so fearful of the regulations that a number of them, including Texas and Virginia, are devising ways to challenge the EPA’s authority to dictate such a policy on carbon dioxide.
The sad lesson is this: by granting arbitrary enforcement powers to a myriad of federal agencies, the government has turned the average citizen into an environmental criminal. Hysteria over so-called “environmental tobacco smoke,” for example, led Congress to pass the Family Smoking Prevention and Tobacco Control Act, thus granting the Food and Drug Administration power to control personal smoking habits.7 “The antithesis of the rule of law,” as one observer wryly noted, “is not anarchy, but a tyranny of laws.”8
The federal green brigade seems incapable of understanding the positive correlation between a nation’s wealth and a cleaner environment. As an economy grows, it can afford more regulations and associated costs. Of course the inverse is true as well. If you want to stifle economic growth, slapping on more and more rules does the trick. That’s one reason why China and India were so vehemently opposed to the drastic global warming regulations pushed by activists at the failed climate summit in Copenhagen in 2009. These are the activists that we now know included the very United Nations panel that member countries rely on for their public policy data.9
Where this will end is anyone’s guess. After all, if one assumes that most pollution is, by definition, interstate, the same theoretical rationale for federal regulations would inevitably lead to some form of global governance-unless you believe the evils of pollution obey national borders. The environmental endgame, and what seems desirable by so many green advocates, is global enforcement. American sovereignty may be in the proverbial crosshairs.
Environmentalism is certainly one of the most pronounced federal intrusions into our daily lives, but far from the only one. The 2008 Federal Register, which documents all federal regulations, has now reached almost 80,000 pages according to the Competitive Enterprise Institute.10 Regulatory costs are now over one trillion dollars annually, and “the annual outflow of roughly 4,000 final rules has meant that well over 40,000 final rules were issued during the past decade.”11 The federal tax code alone now totals over nine million words, ten times more than the Holy Bible.12 Compliance costs are now estimated to be near $300 billion annually, above and beyond an estimated $1.5 trillion in federal taxes paid.13
Criminal justice is also getting into the act. Though the Constitution mentions only three federal crimes, “Congress has enacted over 4,000 federal crimes.”14 They cover everything from the “air you breathe, the water you drink, the size of your toilet tank, the water pressure in your shower, the words you can speak under oath and in private, how your physician treats your illness, what your children study in grade school, how fast you can drive your car, and what you can drink before you drive it are all regulated by federal law.”15 Under the 1,000-page, $33 billion, 1994 Crime Bill, the majority of crimes involving a firearm have effectively become federal offenses.16
Former Attorney General Edwin Meese is fond of saying, “Let’s not make a federal case out of it,” but that is exactly what we have done.17 Our new national motto more closely resembles “There ought to be a law.” An American Bar Association task force that Meese chaired in 1999, as well as a similar report authored by Chief Justice William Rehnquist the year before, warned of the dangers of “duplicative prosecutions at the state and federal levels for the same course of conduct,” i.e., double jeopardy.18 That is much less a problem when federal prosecutions are restricted to only those cases where there is an enumerated federal interest.
The problem became so acute by the late 1990s that “forty percent of the federal criminal provisions enacted since the Civil War became law in just the last three decades.”19 And one reason, according to Messrs. Meese and Rehnquist, is Congressional grandstanding when it comes to high-profile media cases.
Consider the tragic affair of Terri Schiavo in 2005. The press coverage of a helpless women’s plight was, to say the least, heartrending. Who would advocate for a disabled woman whose life was being jeopardized by a detached husband who had already moved on with his life and whose zeal to pull her feeding tube bordered on the obsessive? Certainly a fair question. And yet, through years of litigation (and against the wishes of her parents) the courts of justice in Florida refused to intervene and stop what was, according to her husband (the legal guardian), a previously stated desire to end her own life.
So Congress did. By granting special legislation giving the federal courts the task of reviewing Terri Schiavo’s tragic predicament, politicians from both sides of the aisle actually weakened the life support system for the republic. The ability to regulate behavior between citizens of the same state has always resided with the several states, for good or ill.
Proponents of the Schiavo intervention would exploit the same vehicle that big-government liberals used to override state law: the “due process” clause of the Fourteenth Amendment, which prohibits any state from depriving “any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” and, as we shall see, has been the source of so much federal mischief.20 There are, no doubt, procedural restrictions on what states may do when prosecuting criminal defendants, but the law itself was to remain with the states. Proponents in Congress (though they wanted to go much further) say the final legislation that passed with the president’s last-minute signature was procedural in nature and was not a scrutinizing of the substance of the law, only the fairness of the hearings. In that regard, it was unlike the substantive “due process” litmus test used by activist courts to strike down actual state law.
But, as opponents of the legislation pointed out, “if Congress were authorized to reopen every state court decision involving a potential procedural due process claim...then there would be absolutely no finality to state court judgments in this country.”21 Even conservative judge Stanley F. Birch castigated Congress and the administration for overstepping its bounds by demanding a federal review of the case “in a manner squarely at odds with our Founding Fathers’ blueprint.”22
Terri Schiavo was being persecuted by her husband, not the state-to which the constitutional rights of habeas corpus and others are meant to apply. Michael Schiavo, not Terri, was in fact the in the case because in the eyes of the plaintiffs, Terri Schiavo’s parents, he was responsible for their daughter’s rights being violated. So how could Congress or the federal courts assert a “due process” claim on behalf of a victim who was not a party to the litigation? For that and other reasons, the state court found that Florida family law was relatively clear on the issue of spousal rights in the absence of a written directive, and upheld the high standard for injunctive relief.
Many Americans believe (as do I) that what happened to Ms. Schiavo was simply wrong. But Congress has little, if any, role in such affairs. Family and criminal law involving state citizens has long been established as within the purview of the respective states, providing they don’t have runaway courts. But there can hardly be a “due process” claim for the failure of the state legislature to sufficiently protect someone. If so, Congress and the federal courts will be telling the states which laws to pass for every circumstance. Look at it this way: had it been the wish of Terry Schiavo’s parents to pull the tube, against that of her husband, it’s likely the same court rulings would have saved her life. What we appear to have witnessed is a valid court decision, but based on bad state law.
There is a larger issue here: relying on federal judges who preside over a much larger territory runs the risk of doing for the country what one errant state judge may have done for Florida. That would threaten many more Terri Schiavos, not to mention our republican model of divided government. In the final analysis, it is the law in Florida that should be changed to protect innocent life in this circumstance, not the Constitution.23
It was simply not the framer’s design to involve Congressional action in routine criminal cases, especially when previous avenues to the federal bench have been rebuffed.24 In most murder cases, the defendant is charged by state authorities. That is as it should be if you’re at all concerned about the consolidation of prosecutorial power. Article IV, Section 4, even requires an “application” by the states for federal protection as it pertains to domestic (not in the modern-day sense between spouses, but events within a nation) violence.25 As Chief Justice John Marshall declared in Cohens v. Virginia, Congress simply does not possess the power to “punish murder committed within any of the states,” and it is “clear that Congress cannot punish felonies generally.”26
Marshall was merely following the wishes of Madison, et al., who had warned against a federal role for everything from religion to education to welfare, “in short, everything, from the highest object of state legislation down to the most minute object of the police.”27 That’s why the federal government’s judicial power extends to those limited cases where a diversity of parties exists that transcends state borders. In fact, preventing the concentration of power in a national authority is what distinguishes the American criminal justice system from a police state. Federalism has always been the sine qua non of limited government because it offers the only real safety valve from an overreaching government: the ability to flee.
Perhaps the document has been misinterpreted for so long that social conservatives are now willing to use it to the advantage of their own agenda. But after Schiavo, will it not be more difficult to express justifiable indignation at, say, the recent explosion of federal hate crimes statutes that were passed in honor of the late liberal lion, Senator Edward Kennedy?
The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act was signed into law by President Barack Obama as part of a defense appropriation bill in 2009.28 The legislation’s eponymous martyr was a gay University of Wyoming student murdered in a state without a hate crime statute on the books. Matthew Shepard thus became a national symbol for proponents of federal hate crime legislation.29 Though many states already had such laws pertaining to assaults motivated by different kinds of malice (not just its intensity), Senator Kennedy led the Democratic effort to expand current federal law to include sexual orientation and gender.
But federal hate crime laws are no more justified than the Schiavo intervention was. And they raise disturbing questions about freedom of expression by attempting to judge state of mind, and not just prove it. Ironically, the same liberal who decries flag burning legislation on the grounds that burning a flag should not be judged on the basis of the underlying motive seems to have no hesitancy in doing the same for criminal behavior. What many fear next is prohibiting the thought or expression itself.
There is also the issue of equal justice when criminal punishment depends on the ethnicity or behavior of the victim, thus seeming to elevate the value of one life over another. The Georgia Supreme Court held that state’s overly broad hate crime law unconstitutional precisely due to prison sentences that were greater “because of bias or prejudice.”30 And if empowering courts to judge the kinds of criminal malice isn’t problematic enough, the idea of is.31
Often, big-government advocates point to the supremacy clause as a facile justification for more federal law. It states that the “Constitution and the Laws of the United States which shall be made in pursuance thereof...shall be the Supreme Law of the Land..,” but note the qualifier, “in pursuance thereof...”32 McColluch v. Maryland helped to establish federal supremacy, but only when federal law is within its legitimate sphere.33 During oral arguments in a case calling for the confinement of sexual predators, Justice Scalia was forthright when he stated, “There is no constitutional power on the part of the federal government to protect society from sexual predators.”34 Even the power to craft legislation that is “necessary and proper” is valid only when the law is “within the scope of the Constitution.”35 Perhaps the Constitution demands that principle should trump fear.
Let’s remember that prosecutorial indiscretion from a central authority was something the British had employed to cower the colonists; consequently, the framers were fearful of a one size-fits-all criminal code bringing all Americans under the jurisdiction of a federal aristocracy. Jefferson had proclaimed that Congressional “acts which assume to create or define or punish crimes other than those so enumerated in the Constitution are altogether void and of no force.”36 Moreover, he declared, “The power to create, define, and punish such other crimes is reserved, and of right appertains solely and exclusively to the respective states, each within its own territory.”37
Madison, Hamilton, and Jefferson, who held differing views on the new central government, were in agreement on how the states-and not the federal government-should protect their citizens from one another in most internal matters. Hamilton, the poster boy for a more energetic central government, declared that, “The administration of private justice between citizens of the same state...all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.” 38 Madison proclaimed those powers “reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”39
The founders’ belief in a central government with strictly limited jurisdiction reflects their colonial experience. That’s why the Constitution is explicit on the matter. If the federal government were to have unlimited plenary power, there would hardly be a need for Article 1, Section 8, that specifically sets out legislative authority.40 This view held sway well into the twentieth century before it came under attack.41
There have been a few recent exceptions where the high court thankfully toyed with the idea of limiting the concentration of power in Washington. Though little has changed the overall trend, in Kimel and Garrett the Court rediscovered the Eleventh Amendment-granting states “immunity not only from suits in federal court by outsiders, as the amendment expressly says, but also from suits by the federal government and by citizens of the states itself.”42
The justices said that Fourteenth Amendment challenges to state regulations must rise to the level of the framers’ intent to overrule state sovereignty. McDonald notes Justice Anthony M. Kennedy’s majority opinion, saying, “Our federalism requires that Congress treat the states in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the nation.”43 The fact that the rulings were greeted with such surprise was an indication of how far we have drifted from original intent.
Lopez and Morrison, a few years earlier, were also welcome if not brief attempts at restoring constitutional integrity. In United States v. Morrison, the Court held that Congress had no power to pass the 1994 Violence Against Women Act. Chief Justice Rehnquist reiterated that the Fourteenth Amendment allowed Congress to regulate state action only, not “the actions of private persons” in civil cases.44 Citing the first tests of the Fourteenth Amendment in 1883, the chief justice’s majority opinion endorsed “the enduring vitality of the Civil Rights Cases and Harris,” which declared the amendment barred state discrimination, not that of private individuals.45
The majority was equally convincing in United States v. Lopez, writing that Congress had also overstepped its authority by regulating private actions of a non-economic nature.46 As we shall see in a later chapter, however, the multitude of laws restricting private action remain firmly in place as long as they can somehow be tied to “commerce,” no matter how inconsequential the economic activity might be “among the several states.”47 Because of this, and contrary to some legal handwringing at the time, these rulings were hardly sweeping in their effect.
See the Pacific Research Institute’s annual Index of Leading Environmental Indicators, 14th edition (2009) <http://liberty.pacificresearch.org/docLib/20090414_Env_Index_09.pdf>. (Accessed January 2010)
Ana Campoy, “EPA Tangles with Texas in Battle Over Air Quality,” The Wall Street Journal, 21 November 2009, A4. “Our results speak louder than bureaucratic meddling,” was the quote from the governor’s spokesperson, citing the drop in ozone.
“California’s Man-Made Drought,” The Wall Street Journal, 2 September 2009, www.opinionjournal.com http://www.opinionjournal.com/ (Accessed September 2009)
Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).
http://www.startribune.com/templates/fdcp?1268856099576 (Accessed June 2010) The 2007 Energy Independence and Security Act starts phasing out the incandescent light bulb in 2012 in favor of the “energy efficient” (and more expensive) compact fluorescent bulb. Local legislators say the federal law shouldn’t apply to bulbs made and consumed in one state and have introduced state bills to that effect.
www.texaspolicy.com/pdf/2009-09-PP25-ACES-khw.pdf. (Accessed December 2009) Congressional Budget Office estimate cited by the Texas Public Policy Foundation, 2009.
Rita Rubin, “FDA Announces Tobacco Restrictions,” USA Today, 19 March 2010
Robert J. Ernst, III, “The Real Environmental Crisis: Environmental Law,” Imprimis Vol. 23, No. 5, May 1994.
http://www.examiner.com/x-11224-Baltimore-Weather-Examiner~y2009m11d30-Climategate-Penn-State-Professor-Mann-under-investigation (Accessed March 2010) Global warming proponents at Britain’s Climate Research Unit at the University of East Anglia as well as Penn State’s Earth System Science Center have been investigated for activities surrounding manipulation of data and the peer review process included in the 2007 Intergovernmental Panel on Climate Change since 2009.
Clyde Wayne Crews, “Ten Thousand Commandments 2009,” Competitive Enterprise Institute, <http://cei.org/issue-analysis/2009/05/28/ten-thousand-commandments> (Accessed January 2010)
Ibid.
Steve Forbes, Flat Tax Revolution (Washington: Regnery Publishing Inc., 2005).
See Tax Foundation, http://www.taxfoundation.org/research/show/1962.html. (Accessed> January 2010)
Andrew Napolitano, “Most Presidents Ignore the Constitution,” The Wall Street Journal, 29 October 2009.
Ibid.
“You Have the Right to Remain Funded,” Wall Street Journal, 24 August 1994, A10.
Edwin Meese, III, “The Dangerous Federalization of Crime,” The Wall Street Journal, 22 February 1999.
Ibid.
Ibid.
See Fourteenth Amendment to the United States Constitution, ratified 1868.
Opposition brief filed by Michael Schiavo, Schiavo v. Schiavo, (04A825) United States Supreme Court, 2005.
Stephen Henderson, “Conservative Judge Blasts Bush, Congress for Role in Schiavo Case,” Knight Ridder/Tribune Information Services. 30 March 2005.
Stephen Henderson, “Conservative Judge Blasts Bush, Cruzan v. Director, Missouri Dept. of Health 497 U.S. at 289 (J. O’Connor, concurring) Ironically, the Supreme Court has ruled that there is an inherent “liberty interest in refusing unwanted medical treatment...including the artificial delivery of food and water” may actually tie up such efforts at providing sustenance through state law.
Hamilton, “Federalist 81,” The Federalist Papers, 439.In this way, federalism and separation of powers are the flip sides of the same coin. The Schiavo case had been previously appealed to the federal courts and denied, so may Congress act when the judiciary has not? As Hamilton said, “A legislature, without exceeding its province, cannot reverse a determination once made in a particular case, though it may prescribe a new rule for future cases.”
See U.S. Constitution, Article IV, Section 4. 1787.
Edward Conrad Smith, The Constitution of the United States with Case Summaries, Tenth Edition, (New York: Harper Row, 1975) 99. That remains the case as there are only federal laws concerning the murder of government officials, not a general statute.
http://www.constitution.org/je/je4_cong_deb_12.htm. (Accessed February 2010) Madison, often referred to as the Father of the Constitution, in debate on the Cod Fishery Bill, granting bounties.
The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. Public Law 111-84 National Defense Authorization Act for Fiscal Year 2010. National Archives and Records Administration.
20/20, ABC News Corp., November 26, 2004. According to ABC News, the Shepard murder may not have been solely a “hate crime,” but a drug-related mugging gone bad, as well.
Bill Rankin, “Ruling Overturns State Hate Crime Law,” Atlanta Journal Constitution 26 October 2004.(Accessed November 2009)
Apprendi v. New Jersey (99-478) 159 N.J. 7, 731 A. 2d 485, United States Supreme Court, 2000.The Supreme Court has upheld “hate crime” legislation (See 1993’s Wisconsin v. Mitchell) and, while it did not directly address a hate crime statute in Apprendi v. New Jersey, it did rule that enhancing a criminal sentence on the basis of a bias finding must be proved to a jury beyond a reasonable doubt. It also ruled that allowing a judge to increase a sentence on only a preponderance of evidence would be a violation of due process.
United States Constitution, Article VI, 1787.
Smith, The Constitution, McColluch v. Maryland (1819).
Review & Outlook, “Predators and the Constitution,” The Wall Street Journal, 19 January 2010, http://www.opinionjournal.com (Accessed February 2010).
Smith, The Constitution, McColluch v. Maryland (1819) 66, 67.
Thomas Jefferson, Draft Kentucky Resolutions “http://etext.lib.virginia.edu/jefferson/ quotations/index.html”, 1798. ME 17:380, Charlottesville (VA): University of Virginia Library, Electronic Text Center; 1995; c1999. (Accessed January 2010)
Ibid.
Hamilton, “Federalist 17,” The Federalist Papers, 86, 87.
Madison, “Federalist 45,” The Federalist Papers, 252.
To be sure, the Constitution does explicitly grant federal power in Article 1, Section 8, but for only those items mentioned, such as bankruptcy law, patents, and regulating interstate commerce. See United States Constitution.
Smith, The Constitution, 101. Justice Louis Brandeis noted in the 1938 Erie Railroad v. Tompkins decision that matters not governed by the federal government were state concerns, and he even went on to say, “there is no federal general common law.”
McDonald, States’ Rights, 233. See Kimel v. Florida Board of Regents 528 U.S. 62 (2000) and Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).
Ibid.
Rehnquist’s majority opinion in United States v. Morrison, 529 U.S. 598 (2000).
Ibid. The Civil Rights Cases turned out to be historically prescient. During the era of Jim Crow, the real impediment to black progress lay in state-sponsored discrimination. A number of businesses wished to serve and employ blacks in the early twentieth century but were effectively barred from doing so by “legislation that forced the segregation of blacks and whites.” As economist Don Boudreaux stated, “Jim Crow itself was government power.” <http://stossel.blogs.foxbusiness.com/2010/05/25/fire/-john-stossel/print/> (Accessed June 2010).
The Court struck down the Gun Free School Zone Act of 1990 as exceeding the federal government’s power to regulate economic activity under the Commerce Clause. United States v. Lopez, 514 US 549 (1995).
Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). Traditionally there had been no federal protection for the infringement of civil rights in private affairs. Succinctly, the federal government was to prohibit state-sponsored discrimination via the Fourteenth Amendment, and the states were left to regulate the affairs between private individuals. But in Heart of Atlanta Motel, the Supreme Court upheld federal anti-discrimination laws pertaining to “public accommodations” as an extension of Congress’ power to regulate interstate commerce, however “local,” due to its “effect upon that commerce.”