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Federalism: Case for Reinvigorating State's Rights
There is an ongoing battle over the proper size and role of the federal government, especially as it relates to conflicts with state governments over legislative authority. Conservatives believe that state and local governments should be empowered to handle local issues such as healthcare, education, immigration, and many other social and economic laws.
Original Constitutional Roles
There is little question that the current role of the federal government far exceeds anything ever imagined by the founders and has clearly taken over many roles originally designated to individual states.
The founding fathers, through the U.S. Constitution, sought to limit the possibility of a strong centralized government and in fact gave the federal government a very limited list of responsibilities. Simplified, the founders thought that the federal government should handle issues that it would be difficult or unreasonable for states to handle such as the maintenance of military and defense operations, negotiating with foreign countries, creating currency, and regulating commerce with foreign countries. Ideally, individual states would then handle all most matters that they reasonably could. The founders even went further in the U.S. Constitution’s Bill of Rights to prevent the federal government from grabbing too much power.
Benefits of Stronger State Governments
One of the clear benefits of a weaker federal government and stronger state governments is that the needs of each individual state are more easily managed. Alaska, Iowa, Rhode Island, and Florida are all very different states with very different needs, populations, and values.
A law that may make sense in New York might make little sense in Alabama. For example: Some states have determined it is necessary to prohibit the use of fireworks due to an environment that is highly susceptible to wild fires. Other states have no such problems and have laws that allow fireworks. It would not be valuable for the federal government to make one standardized law for all states prohibiting fireworks when only a handful of states need such a law in place. State control also empowers states to make tough decisions for their own well-being rather than hope that the federal government will see the states’ problem as a priority.
A strong state government also empowers citizens in two ways. First, state governments are far more responsive to the needs of the residents of their state. If important issues are not addressed, then voters can hold elections and vote in people they feel are better suited to handle the problems. However, if an issue is only important to one state and the federal government has authority over that issue, then they have little influence to get the change they seek as they are but a small part of a larger electorate. Second, empowered state governments also allow individuals to choose the state that best fit their own personal values. Families and individuals are able to choose states that either have no or low income taxes, or states with higher ones. They can opt for states with weak or strong guns laws, with restrictions on marriage or without them, and so on. Some people may prefer to live in a state that offers a wide range of government programs and services, others may not. But just as the free market allows individuals to pick and choose products or services they like, so to can they choose a state that best fits their lifestyle. An over-reaching federal government limits this option.
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After keeping an eye of the states for a few years, that's one thing I admire about attorney general Paxton and governor Greg Abbott. Of course I shouldn't dis the Republicans in Texas who are fighting the good fight.
It is the citizens who should be the final arbiter when it comes to annexing not the city or it's bureaucrats. Keep us updated Larry.
AG Paxton Joins West Virginia and Three Other States in Supreme Court Brief to Protect Second Amendment Rights
Tuesday, July 25, 2017 – Austin
“The Fourth Circuit interpretation places an unlawful burden on Second Amendment rights. The Constitution plainly guarantees law-abiding citizens the right to bear arms, whether through open or concealed carry,” said Attorney General Paxton. “We must ensure the Court continues to protect the constitutional rights of law-abiding citizens.”
Right to Work Laws in the Courts — An Update
Raymond J. LaJeunesse July 24, 2017
Right to Work laws, which prohibit requirements that workers pay union dues as a condition of employment, have been enacted in twenty-eight states and the territory of Guam. Since my last blog on this subject, dated February 22, 2017, the constitutionality of another state Right to Work law has been upheld by a federal appellate court. On July 12, 2017, the United States Court of Appeals for the Seventh Circuit rejected two union arguments: (1) that Wisconsin’s private-sector Right to Work law is preempted by the National Labor Relations Act to the extent that the state law prohibits forcing workers to pay dues or fees to unions for collective-bargaining purposes to keep their jobs, and (2) that, if not thus preempted, the law effects an unconstitutional taking of union property without just compensation in violation of the Fifth Amendment. The Seventh Circuit followed its own earlier decision in Sweeney v. Pence, 767 F.3d 654 (7th Cir. 2014) (2-1 decision), which upheld Indiana’s “substantively identical” Right to Work law. The court noted that the union “points to no intervening developments in statutory, Supreme Court, or even intermediate-appellate-court law between Sweeney and today that undermine Sweeney’s validity.”.
In the meantime, other union lawsuits challenging the constitutionality of the Idaho, Kentucky, West Virginia, and Wisconsin Right to Work laws continue, with all but West Virginia’s law still enforceable. Oral argument in the state court case against the Wisconsin private-sector law was held in the Wisconsin Court of Appeals on May 2, 2017, and the State’s appeal of the preliminary injunction against West Virginia’s law is set for September 5, 2017, in the West Virginia Supreme Court.
Updated brief summaries of these cases are available from NRTW.
AG Paxton Joins 15-State Coalition in Filing Amicus Brief to Uphold the Congressional Review Act
Monday, July 31, 2017 – Austin
Texas Attorney General Ken Paxton recently joined a coalition of 15 states filing an amicus brief in the U.S. District Court for the District of Alaska in the case of Center for Biological Diversity v. Ryan Zinke and Department of the Interior, defending the constitutionality of the Congressional Review Act (CRA).
Enacted by Congress in 1996, the CRA is a critical tool that helps to restore to Congress the ability to write federal policy by congressionally reviewing recently passed administrative rules at the change in administrations. Congress has used the CRA at least 14 times this year to eliminate unlawful and burdensome rules created during the last six months of the Obama administration. If the CRA is declared unlawful, these harmful and unlawful regulations may well go back into effect.
“Time and again, we’ve seen federal rules cause unjustifiable harm to Texas and other states,” Attorney General Paxton said. “The Congressional Review Act provides an efficient procedure Congress can use to stop federal overreach and block onerous regulations. There is something unconstitutional in this area: federal agencies wresting power to write laws away from Congress. The CRA restores the Constitution’s separation of powers. If the CRA is unconstitutional, then the constitution is unconstitutional.”
Wisconsin Attorney General Brad Schimel and Georgia Attorney General Chris Carr co-led the amicus brief. They were joined by Attorney General Paxton along with his counterparts from Alabama, Arizona, Arkansas, Indiana, Kansas, Louisiana, Missouri, Nebraska, Nevada, Oklahoma, South Carolina, and Utah.
To view a copy of the Congressional Review Act amicus, click here: http://bit.ly/2tpmQoZ
South Dakota: Initiated Constitutional Amendment would require judges recuse for campaign contributions; new State Government Accountability Board would have power over judges
A proposed South Dakota constitutional amendment, currently circulating for signatures, could require the state’s judges to recuse in cases involving campaign contributors.
In 2016 voters in the state passed IM 22, amending state statutes related to campaign finance and lobbying laws. While approved by voters, the legislature effectively rewrote and overturned the measure during its 2017 session.
In June proponents of IM returned with a new proposal, this time a constitutional amendment, that includes some of IM 22’s provisions and several new ones, including one focused on judges.
Under Section 11 of the proposed constitutional amendment
A judge shall avoid the appearance of bias, and shall disqualify himself or herself in any proceeding in which monetary or in-kind support related to the judge’s election or retention creates an appearance of bias to a reasonable person.
Circuit judges in South Dakota are subject to non-partisan elections, while South Dakota Supreme Court judges are appointed via a merit/commission based system and subject to yes/no retention elections.
In addition the legislatively created State Government Accountability Board would be replaced with a new board of the same name with the power to investigate both legislators and judges, including the power to adopt rules of ethics that would be binding on judges and to investigate judges for violations of those ethics or existing ethics/corruptions statutes. Moreover, the Board would have the power to impose sanctions on judges.
The initiative requires 27,741 signatures to be gathered and submitted to the secretary of state by November 2017 to appear on the November 2018 ballot.
Tuesday, August 8, 2017 – Austin
Attorney General Ken Paxton urged the U.S. Court of Appeals for the 5th Circuit to overturn a district court decision that blocked Texas from cutting off state Medicaid funding to Planned Parenthood. The injunction was issued in spite of the evidence of raw, unedited footage from undercover videos showing a willingness by Planned Parenthood officials to traffic in fetal body parts and manipulate the timing and method of abortions.
“Planned Parenthood practices constitute serious breaches of medical and ethical standards,” Attorney General Paxton told the 5th Circuit in a legal brief. “They justify the Inspector General’s decision to terminate Texas Planned Parenthood affiliates’ Medicaid agreements, on the basis that these entities are not ‘qualified’ providers under the Medicaid Act.”
“Texas acted to cut off major taxpayer funding for Planned Parenthood because of its repugnant conduct,” Attorney General Paxton said. “Clear indications of Planned Parenthdood’s adjustment of abortion procedures to procure and sell fetal body parts for research should be enough to reverse a district court’s egregious ruling.”
In December 2016, the Texas Health and Human Services inspector general removed Planned Parenthood from the state’s Medicaid program for the video footage of actions that “violate generally accepted medical standards” and for making false statements to law enforcement. Planned Parenthood receives approximately $3.1 million in state Medicaid funding annually.
View the brief here: http://bit.ly/2vBfmD4
View the undercover videos here: http://bit.ly/1faSttB
Tuesday, August 8, 2017 – Austin
Attorney General Ken Paxton led a 16-state coalition filing a friend-of-the-court brief with the U.S. Supreme Court on Friday in support of Wisconsin’s redistricting maps that were drawn in full compliance with traditional redistricting principles. The outcome of the case could affect elections across the country.
Last year, a panel of three judges in Gill v. Whitford ruled 2-1 that Wisconsin’s 2011 redistricting plan was unconstitutional. That decision was the first from a federal court in more than 30 years to reject a voting map as partisan gerrymandering.
“Never has the U.S. Supreme Court disallowed a legislative map because of partisan gerrymandering, and it surely can’t find fault with Wisconsin’s, which is lawful, constitutional and follows traditional redistricting principles,” Attorney General Paxton said.
In ruling for the plaintiffs in the Wisconsin case, the three-judge panel accepted a fundamentally flawed mathematical formula known as the “efficiency gap” that attempts to measure the level of proportional representation in legislative maps. In his amicus brief, Attorney General Paxton wrote that the formula “does not actually measure vote dilution or distribution in reality, but simply the deviation from a statewide proportional votes-to-seats ratio masked by an additional mathematical formula.”
Texas is joined in the Supreme Court amicus brief by the attorneys general from Alabama, Arizona, Arkansas, Georgia, Indiana, Kansas, Louisiana, Michigan, Missouri, Nevada, Ohio, Oklahoma, South Carolina, Utah and West Virginia.
View the amicus brief here: http://bit.ly/2vJTtkx
A federal judge dismissed Texas Attorney General Ken Paxton's request to dub the state's new "sanctuary cities" ban constitutional on Wednesday — but the legal battle isn't over yet.
Can Secession Only Be Approved by a Constitutional Amendment? Yes
Does the Constitution Permit the Blue States to Secede?
With Permission, Perhaps; Unilaterally, No
By MICHAEL C. DORF