Wednesday, February 16, 2005

Dear Federal Government

Sincerely take a long walk on a short pier


It seems that Montana is in the process of telling the federal government that the regulating beast that it has become had better stop now!
Lawmakers in the Montana House of Representatives collectively thumbed their noses at the federal government Monday by approving two bills exempting guns from federal regulations and driver's licenses from national standardization requirements.

The bills by Reps. Diane Rice, R-Harrison, and Roger Koopman, R-Bozeman, do different things but are driven by the same concern: the erosion of personal liberties by the federal government.
Koopman said Monday his gun bill, House Bill 366, would inspire a home-grown industry of gun-makers who produce firearms to be sold in Montana. It also sends a message reaffirming states' rights.
Seems that Montana have been reading the tenth amendment.
The powers not delegated to the United States by the Constitution, norprohibited by it to the States, are reserved to the States respectively,or to the people.
While the constitution is rather direct in what the federal powers are the legal side of it is rather confusing.
In 1941, the Court came full circle in its exposition of this Amendment. Having returned four years earlier to the position of John Marshall when it sustained the Social Security Act\27\ and National Labor Relations Act,\28\ it explicitly restated Marshall's thesis in upholding the Fair Labor Standards Act in United States v. Darby.\29\ Speaking for a unanimous Court, Chief Justice Stone wrote: ``The power of Congress over interstate commerce `is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.' . . . That power can neither be enlarged nor diminished by the exercise or non- exercise of state power. . . . It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attended the exercise of the police power of
the states. . . . Our conclusion is unaffected by the Tenth Amendment which . . . states but a truism that all is retained which has not been surrendered.''\30\
Translation. "exercised to its utmost extent" means that federal government can regulate pretty much anything. Now I am not saying this is correct. I am saying that is what the law says.

There is some hope in a ruling in New York of all places.
The Court's 1992 decision in New York v. United States,\65\ may portend a more direct retreat from Garcia. The holding in New York, that Congress may not ``commandeer'' state regulatory processes by ordering states to enact or administer a federal regulatory program, applied a limitation on congressional power previously recognized in dictum\66\ and in no way inconsistent with the holding in Garcia. Language in the opinion, however, sounds more reminiscent of National League of Cities than of Garcia. First, the Court's opinion by Justice O'Connor declares that it makes no difference whether federalism constraints derive from limitations inherent in the Tenth Amendment, or instead from the absence of power delegated to Congress under Article I; ``the Tenth Amendment thus directs us to determine . . . Whether an incident of state sovereignty is protected by a limitation on an Article I power.''\67\ Second, the Court, without reference to Garcia, thoroughly repudiated Garcia's ``structural'' approach requiring states to look primarily to the political processes for protection. In rejecting arguments that New York's sovereignty could not have been infringed because its representatives had participated in developing the compromise legislation and had consented to its enactment, the Court declared that ``[t]he Constitution does not protect the sovereignty of States for the benefit of the States or State governments, [but instead] for the protection of individuals.'' Consequently, ``State officials cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.''\68\ The stage appears to be set, therefore, for some relaxation of Garcia's obstacles to federalism-based challenges to legislation enacted pursuant to the commerce power
So there may be a good argument that the laws that may pass in Montana are simply feel good laws, or the beginning of a large legal fight to stop the regulatory power of the federal government controlling everything by their dismisal of the tenth amendment.

These are some interesting times we live in people. That's all I have to say.

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