Nebraska legislators seek to assert state sovereignty
By Martha Stoddard
LINCOLN — At least three Nebraska lawmakers want to send a message to the federal government:
Butt out of state business.
Next year they will see if a majority of their colleagues agrees.
The senators are working on resolutions asserting Nebraska's sovereignty under the 10th Amendment of the Constitution.
Nebraska wouldn't try to secede from the union under their proposals but would go on record objecting to federal laws that they say go beyond constitutional authority.
“My goal here is to shine light on the fact that the federal government is overstepping its bounds,” said State Sen. Tony Fulton of Lincoln. “We would be making a statement on behalf of Nebraska.”
The tension between states' rights and federal authority has been a repeated theme in U.S. history, starting with arguments among the founding fathers.
The struggle turned bloody when Southern states seceded, citing states' rights on the question of slavery, and the Civil War ensued.
Critics say the current measures amount to little more than political posturing — passing resolutions doesn't mean that states refuse to comply with federal law or send back federal funds that come with mandates.
State Sen. Bill Avery of Lincoln said the proposals sound disturbingly similar to the states' rights arguments made in defense of racial segregation and laws blocking blacks from voting.
“The history of this movement is rife with racism in the name of states' rights,” he said. “I'm not saying that the people making the case now are racist, but I don't think Nebraska needs to be getting in bed with these kinds of resolutions.”
Colleagues denied links to that history. Fulton, an Asian-American, said he has no intention of promoting racism or segregation.
Interest in states' rights is spreading as the federal government has taken over businesses, mandated driver's license security measures and proposed a public health care program.
Seven states passed resolutions this year affirming their sovereignty, and resolutions were introduced in 30 others. Some states have filed lawsuits or taken legislative action to challenge federal laws.
In Iowa, State Senate Republican leader Paul McKinley of Chariton offered a resolution this year calling on the federal government to “cease and desist” in issuing mandates that go beyond what the 10th Amendment allows. The body's Democratic majority has kept the resolution alive but bottled up in committee.
The movement's rise followed the election of President Barack Obama. Most of its supporters, though not all, can be found in conservative camps, such as libertarian talk-show host Glenn Beck and his conservative Web site. The states passing resolutions all voted Republican in the 2008 presidential election.
Online petitions urge Nebraska's state lawmakers to act.
“Either states can use the Constitution to maintain the power they have always had, or they can give it up,” said Gregory Boyle of Omaha, who started one online petition this spring.
A constitutional scholar questions the effectiveness of legislative resolutions and legal challenges.
“This is an outlet for those who are worried that the federal government will take over everything,” said Mark Kende, director of the Drake University Constitutional Law Center in Des Moines.
Richard Duncan, a constitutional law professor at the University of Nebraska College of Law, said legislative resolutions send valuable political messages even with no legal weight.
“It's kind of a nice warning that people are growing tired of the size of the federal government,” he said.
Under the 10th Amendment, states and citizens retain all powers not specifically given to the federal government.
Sovereignty supporters argue that the federal government has overstepped those bounds on matters such as endangered species protection and seat belt laws. Others say the Constitution, as interpreted by courts from the 1800s on, gives the federal government broad authority.
Fulton and Sens. Mark Christensen of Imperial and Ken Schilz of Ogallala are researching possible resolutions.
“I absolutely don't like where our government is going right now,” Christensen said.
Among his complaints are the mandates attached to federal stimulus funds and the new national health care proposals.
Fulton listed federal control of General Motors and mandates imposed on schools under the 2001 No Child Left Behind law.
“I'm not saying that every interaction with the federal government is bad,” he said. “I'm saying that some are over the line.”
Schilz's concerns include a proposal to extend the Clean Water Act to all bodies of water.
None of the three Nebraska lawmakers is ready to advocate giving up most federal funds to avoid the accompanying mandates, although Christensen supported the governor's decision to reject some unemployment stimulus money because of the strings attached.
Speaker of the Nebraska Legislature Mike Flood of Norfolk said he wasn't sure whether he would back a resolution, though he supports states' rights.
“Every day in the Legislature,” Flood said, “it seems we deal with issues where the federal government has its tentacles, either on the policy or the money or both.”
South Dakota's GOP whip, State Rep. Manny Steele, introduced his state's successful resolution. Steele said change will occur if enough states follow sovereignty measures with legal challenges to federal authority.
Some challenges have already popped up, on both conservative and liberal issues.
Montana, for example, passed a law this year asserting that guns made, sold and used in the state are exempt from federal laws and taxes. The law's chief backers said they hoped it would trigger a court battle.
Arizona lawmakers put a measure on the 2010 ballot that would exempt residents from a federal health care plan.
On the liberal front, Massachusetts cited the 10th Amendment in filing suit against a federal law barring recognition of same-sex marriages.
And six states sided with a California woman who argued to the U.S. Supreme Court that states had the power to legalize medical marijuana. The court ruled for the federal government in the 2005 case.
Kende questioned the states' chances of prevailing, saying the federal government won all cases from 1937 to 1995, although its record has been mixed since.
Courts already have upheld the practice of attaching strings to federal funds, Duncan said.
No matter the result of the court cases, states can make a difference through political pressure, said Michael Boldin, founder of the Tenth Amendment Center in Los Angeles. The howls that greeted a George W. Bush-era law increasing driver's license requirements, for example, forced the federal government to rethink that law.
“With each state,” Steele said, “we gain power.”