Tenth Amendment Center: Idaho Bill Would Reject Federal Education Funding, Nullify Mandates in Practice

From Tenth Amendment Center

...from Tenth Amendment Center

BOISE, Idaho (Jan. 31, 2018) – A bill introduced in the Idaho House would gradually eliminate all federal education funding for grades K-12. Passage of the bill would set the stage to nullify many federal education mandates.Rep. Ronald Nate (R-Rexburg) introduced House Bill 413 (H413) on Jan. 25. The legislation would limit the amount of federal funding taken by the state for K-12 education, gradually eliminating it altogether. Under the proposed law, the state would limit the amount of federal education funding to $300 million in 2019. Each subsequent year, the amount would be reduced by another $40 million. By 2027, Idaho would no longer rely on federal funding for any of its K-12 education appropriations.

“Once attained, Idaho will retain its education freedom by not allowing federal funding for any of its future grades K-12 education appropriations.”

By rejecting all federal funding, Idaho would free itself from many federal mandates. As a 2005 U.S. Department of Education website put it, “There are no unfunded federal education ‘mandates.’ Every federal education law is conditioned on a state or other grantee’s decision to accept federal program funds.”

Simply put, rejecting the funds empowers the state to reject the mandates.

The vast majority of federal education money flows through the Elementary and Secondary Education Act. To receive this funding, states must meet a wide range of requirements. Title I is the best know federal program. Federal requirement tied to Title I funding include set academic standards for core subjects,  annual assessments of student proficiency based on federal standards, state reporting requirements, and specific mandates to improve low-performing schools.

If Idaho rejects federal funding, it will be able to ignore these federal mandates and requirements, and set its own state standards without interference. Some federal mandates would remain in place, primarily relating to equality and access through the Disabilities Education Improvement Act (IDEA) and the McKinney-Vento Homeless Assistance Act Passage. There are also various privacy and health-related regulations not tied to funding. Even with these regulations still in place, HB413 would take a huge step toward reasserting state and local control over education in Idaho.

COMMON CORE

Even with the passage of H413, some federal strings could potentially remain in place due to Idaho’s participation in Common Core.

Common Core was intended to create nationwide education standards. While touted as a state initiative through the National Governors Association (NGA) and the Council of Chief State School Officers (CCSSO), the U.S. Department of Education was heavily involved behind the scenes. Up until recently, the DoE tied the grant of waivers from the No Child Left Behind Act to the adoption of Common Core, using the standards as powerful strings to influence state educational policy. The Every Student Succeeds Act passed by Congress in 2015 now prohibits the DoE from attempting to “influence, incentivize, or coerce State adoption of the Common Core State Standards … or any other academic standards common to a significant number of States.”

Eliminating federal funding would likely minimize any federal leverage relating to Common Core. Nevertheless, it is still imperative for each state to adopt its own standards. With a “national system” in place, the feds could once again use these standards to meddle in state education at any time. Just as importantly, one-size-fits-all standards simply don’t benefit children. State and local governments should remain in full control of their own educational systems.

WHAT’S NEXT

H413 was referred to the House Ways and Means Committee where it will need to pass by a majority vote before moving forward in the legislative process.

Mike Maharrey
January 31, 2018 at 01:07PM

Tenth Amendment Center: Oklahoma Bill Would Allow Customers to Opt Out of Smart Meters, Undermine Federal Program

From Tenth Amendment Center

...from Tenth Amendment Center

OKLAHOMA CITY, Okla. (Jan. 31, 2018) – A bill introduced in the Oklahoma House would allow customers to opt out of installing “smart meter” technology on their homes and businesses without penalty. Passage of this bill would enable Oklahomans to protect their own privacy, and it would take a step toward blocking a federal program in effect.

Rep. Dale Derby (R-Owasso) prefiled House Bill 2872 (HB2872). The legislation would ensure utility customers can easily opt-out of smart meter programs.

Smart meters monitor home energy usage in minute detail in real time. The devices transmit data to the utility company where it gets stored in databases. Anybody with access to the data can download it for analysts. Without specific criteria limiting access to the data, these devices create significant privacy issues. Smart meters can also be used to remotely limit power usage during peak hours.

HB2872 would require utility companies to offer an option for standard mechanical metering. They would also have to provide notice before installing smart meters and provide an opt-out option with no cost or penalty. The would also be required to remove a smart meter at the customer’s request at no cost.

Privacy Concerns

The proliferation of smart meters creates significant privacy concerns. The data collected can tell anybody who holds it a great deal about what goes on inside a home. It can reveal when residents are at home, asleep or on vacation. It can also pinpoint “unusual” energy use, and could someday serve to help enforce “energy usage” regulations. The ACLU summarized the privacy issues surrounding smart meters in a recent report.

“The temptation to use the information that will be collected from customers for something other than managing electrical loads will be strong – as it has been for cell phone tracking data and GPS information. Police may want to know your general comings and goings or whether you’re growing marijuana in your basement under grow lights. Advertisers will want the information to sell you a new washing machine to replace the energy hog you got as a wedding present 20 years ago. Information flowing in a smart grid will become more and more ‘granular’ as the system develops.”

The privacy issues aren’t merely theoretical. According to information obtained by the California ACLU, utility companies in the state have disclosed information gathered by smart meters on thousands of customers. San Diego Gas and Electric alone disclosed data on more than 4,000 customers. The vast majority of disclosures were in response to subpoenas by government agencies “often in drug enforcement cases or efforts to find specific individuals,” according to SFGate.

“Mark Toney, executive director of the Utility Reform Network watchdog group, said the sheer number of data disclosures made by SDG&E raised the possibility that government agencies wanted to sift through large amounts of data looking for patterns, rather than conducting targeted investigations.”

No Smart Meter, No Data

Refusing to allow a smart meter on your property is the only sure-fire way to ensure your energy use data won’t fall into the hands of government agents or private marketers, or end up stored in some kind of government database. Passage of HB2872 would make opting out a legal option for Oklahomans and give them control over their own privacy.

Impact on Federal Program

The federal government serves as a major source of funding for smart meters. A 2009 program through the U.S. Department of Energy distributed $4.5 billion for smart grid technology. The initial projects were expected to fund the installation of 1.8 million smart meters over three years.

The federal government lacks any constitutional authority to fund smart grid technology. The easiest way to nullify such programs is to simply not participate. HB2872 would make that possible. If enough states pass similar legislation, and enough people opt out, the program will go nowhere.

We’ve seen a similar opt-out movement undermining Common Core in New York. Opting out follows a strategy James Madison advised in Federalist #46. “Refusal to cooperate with officers of the Union” provides a powerful means to fight back against government overreach. Such actions in multiple states would likely be effective in bringing down federal smart meter programs.

WHAT’S NEXT

HB2872 will be officially introduced when the regular session begins Feb. 5. It will then be referred to a committee where it must pass by a majority vote before moving forward in the legislative process.

Mike Maharrey
January 31, 2018 at 12:58PM

Tenth Amendment Center: Arizona Bill Takes on Federal Militarization of Police and the Surveillance State

From Tenth Amendment Center

...from Tenth Amendment Center

PHOENIX, Ariz. (Jan. 31, 2018) – A bill introduced in the Arizona Senate would require law enforcement agencies to get local government approval before acquiring or using military equipment or surveillance technology. Passage of the legislation would set the stage to limit the surveillance state, along with the impact of federal programs that militarize local police.

Sen. Juan Mendez (D-Tempe) along with five Democrat cosponsors, introduced Senate Bill 1430 (SB1430). The legislation would require Arizona law enforcement agencies to get approval from the government body that oversees it before funding, acquiring or deploying military or surveillance equipment. As part of the approval process, the law enforcement agency would be required to develop an impact report, make it publically available and submit it to its local government body. The report would have to include a large amount of information including how the equipment would be used, how the department would ensure the protection of civil liberties, and in the case of surveillance, how the data would be stored, shared and protected.

SB1430 would apply both to the well-known 1033 program, along with any other military surplus program operated by the federal government. The legislation covers an extensive list of military items including manned aircraft; unmanned aerial vehicles; wheeled or tracked armored vehicles, including mine-resistant and ambush-protected vehicles; tactical vehicles and vessels; command and control vehicles; firearms and ammunition with a caliber of .50 caliber or higher; firearms and ammunition under .50 caliber, other than service weapons, and ammunition therefor, issued to local police officers; bayonets; grenade launchers; grenades, including stun and flash-bang grenades; explosives and pyrotechnics; silencers; breaching apparatuses; riot batons; helmets and shields; long-range acoustic devices; night vision devices; and camouflage uniforms. It also covers surveillance technology such as cell site simulators, ALPR’s, surveillance cameras, and social media monitoring software.

Police departments often obtain military and surveillance equipment from the federal government in complete secrecy. Requiring local government approval would bring the process into the open and provide an opportunity for concerned residents to stop the acquisition through their local representatives.

FEDERAL SURPLUS AND GRANT MONEY

Through the federal 1033 Program, local police departments procure military grade weapons.Police can also get military equipment through the Department of Homeland Security via the (DHS) “Homeland Security Grant Program.” In 2013, DHS gave more than $900 million in counterterrorism funds to state and local police. According to a 2012 Senate report, this money has been used to purchase tactical vehicles, drones, and even tanks with little obvious benefit to public safety. And, according to ProPublica, “In 1994, the Justice Department and the Pentagon-funded a five-year program to adapt military security and surveillance technology for local police departments that they would otherwise not be able to afford.”

In August 2017, President Trump issued an executive order that gave a push to local police militarization. Trump’s action rescinded an Obama-era policy meant to provide greater transparency and oversight around the Department of Defense 1033 program and other federal resources that provide military weapons to local police.

SB1430 would stop police from getting military equipment without local government approval.This would ensure accountability and transparency, and create a foundation for the public to stop their local police from obtaining this type of gear.

Impact on Federal Programs

Local police also have access to a mind-boggling array of surveillance equipment. As it now stands, many law enforcement agencies can obtain this high-tech, extremely intrusive technology without any approval or oversight. The federal government often provides grants and other funding sources for this spy-gear, meaning local governments can keep their purchase “off the books.” Members of the community, and even elected officials, often don’t know their police departments possess technology capable of sweeping up electronic data, phone calls and location information.

Information collected by local law enforcement undoubtedly ends up in federal databases. The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, local data collection using ALPRs, stingrays and other technologies create the potential for the federal government to track the movement of millions of Americans, and obtain and store information on millions of Americans, including phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

The federal government encourages and funds surveillance technology including ALPRs, drones and stingrays at the state and local level across the U.S. In return, it undoubtedly gains access to a massive data pool on Americans without having to expend the resources to collect the information itself. By requiring approval and placing the acquisition of spy gear in the public spotlight, local governments can take the first step toward limiting the surveillance state at both the local and national level.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. This represents a major blow to the surveillance state and a win for privacy.

COMMAND AND CONTROL

Arming ‘peace officers’ like they’re ready to occupy an enemy city is totally contrary to the society envisioned by the Founders. They’ve turned ‘protect and serve’ into ‘command and control.’

In the 1980s, the federal government began arming, funding and training local police forces, turning peace officers into soldiers to fight in its unconstitutional “War on Drugs.” The militarization went into hyper-drive after 9/11 when a second front opened up – the “War on Terror.”

By making it more difficult for local police to get this military-grade gear and surveillance technology, and ensuring they can’t do it in secret, it makes them less likely to cooperate with the feds and removes incentives for partnerships. Passage of these bills would take a first step toward limiting police militarization in Massachusetts.

WHAT’S NEXT

At the time of this report, SB1430 had not been referred to a committee. Once it has a committee assignment, it will need to pass by a majority vote before moving forward in the legislative process.

 

 

Mike Maharrey
January 31, 2018 at 12:56PM

Tenth Amendment Center: Rhode Island Right to Try Act Would Reject Some FDA Restrictions on Terminal Patients

From Tenth Amendment Center

...from Tenth Amendment Center

PROVIDENCE, R.I. (Jan. 31, 2018) – A bill introduced in the Rhode Island House would nullify in practice some Food and Drug Administration (FDA) rules that deny access to experimental treatments by terminally ill patients.

Rep. Joseph McNamara (D-Warwick) introduced House Bill 7294 (H7294) with four bipartisan co-sponsors. The legislation would allow terminally ill patients access to medicines and treatments not yet given final approval for use by the FDA.

The bill is named the “Neil Fachon Terminally Ill Patients’ Right To Try Act Of 2018.” Fachon was diagnosed with diffuse intrinsic pontine glioma, a brain stem tumor that took his life in February 2017. He had to go to court to guarantee access to experimental medical treatments banned by the FDA. HB7294 would eliminate headaches for terminally-ill patients in receiving care that could save or extend their lives.

“The one thing everyone tries to hold onto is hope — hope that the individual will get well, hope that some procedure will lead to a cure,” Rep. McNamara said. “I want Rhode Island to do all it can to give these people hope. I want Rhode Island to give terminally ill patients the ‘right to try’ anything that might help them. Access to experimental treatments will provide terminally-ill patients with the fundamental right to control the decisions relating to their own medical care.”

The Federal Food, Drug, and Cosmetic Act prohibits general access to experimental drugs. However, under the expanded access provision of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 360bbb, patients with serious or immediately life-threatening diseases may access experimental drugs after receiving express FDA approval.

H7294 would create a process to bypass the FDA expanded access program and allow patients to obtain experimental drugs from manufacturers without first obtaining FDA approval. This procedure directly conflicts with the federal expanded access program and sets the stage to nullify it in practice.

Many states have already passed reforms similar to H7294, and the results show that the impact of Right to Try isn’t merely theoretical.

Since the Texas Right to Try law went into effect in June 2015, at least 78 patients in the Lone Star State have received an experimental cancer treatment not allowed by the FDA. While the FDA would have allowed these patients to die, Houston-based oncologist Dr. Ebrahim Delpassand continued their treatment through the Texas law. (Watch a video about Dr. Delpassand here.)

These bills protections for healthcare providers with a prohibition against revoking a license or issuing sanctions based on recommendation or issuance of investigational treatments. In addition, lawsuits against physicians who comply with terms specified in H7294 are prohibited.

Thirty-eight states have approved Right to Try. Although these laws only address one small aspect of FDA regulation, they provide a clear model that demonstrates how to nullify federal statutes that violate the Constitution. The strategy narrows the influence of nullification to limited aspects of the law itself, which has proven to be very effective.

“Americans shouldn’t have to ask the government for permission to try to save their own lives,” said Darcy Olsen, president of the Goldwater Institute. “They should be able to work with their doctors directly to decide what potentially life-saving treatments they are willing to try. This is exactly what Right To Try does.”

The Right to Try Act is a no-brainer. When someone is on their deathbed, the fact that FDA regulations would let them die rather than try, has got to be one of the most inhumane policies of the federal government. Every state should take action to nullify the FDA like this.

NEXT UP

H7294 must pass the House Health, Education and Welfare Committee before it can receive consideration in the full House.

Shane Trejo
January 31, 2018 at 12:53PM

Tenth Amendment Center: Federalist 21: Hamilton’s Plea for Power

From Tenth Amendment Center

...from Tenth Amendment Center

EDITOR’S NOTE: The following is the 21st in a series of articles giving an introduction to the Federalist Papers, a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay promoting the ratification of the United States Constitution.

In Federalist #21, Alexander Hamilton pivots from a general discussion relating to the “insufficiency of the present confederation to preserve the Union” and makes a direct plea for more centralized government power.

In the previous three Federalist essays, James Madison argued that allowing the states to retain too much autonomy, coupled with a weak central government, would ultimately lead to internal divisions and strife that would undermine the system. He turned to historical examples including the Amphictyonic and the Achaean leagues in ancient Greece, the German Confederation and the United Netherlands to highlight the deficiencies of political confederations that lack strong central authority.

In Federalist #21, Hamilton gets specific and focuses on three defects he sees in the Articles of Confederation that “have hitherto disappointed our hopes from the system established among ourselves.”

“To form a safe and satisfactory judgment of the proper remedy, it is absolutely necessary that we should be well acquainted with the extent and malignity of the disease,” he wrote.

The proper remedy Hamilton had in mind was a stronger central authority. In his view, a more “energetic” national government was necessary to address three key problems under the articles.

1. The national government could not enforce its own laws.
2. The national government could not intervene in the affairs of the states to protect them from being overthrown or destroyed by internal divisions.
3. The national government could not effectively collect revenue.

Hamilton called the general government’s inability to enforce its laws a “palpable defect of the subsisting confederation.”

“The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode. There is no express delegation of authority to them to use force against delinquent members.” [Emphais added]

Here we see the underlying theme of this essay. Hamilton wanted to shift power away from the individual states to the general government. In his view, the central authority lacked the ability to control the states. He seems to have in view a national system with the states subservient to the general government.

The other two weaknesses in the confederation Hamilton identified stem from this general lack of power.

The second “imperfection” in the current federal plan Hamilton addressed was “the want of a mutual guaranty of the State governments.” Essentially, he believed the national government should have the power to step in to repel “domestic dangers which may sometimes threaten the existence of the State constitutions.”

“Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Union to the friends and supporters of the government.”

Hamilton bolstered his point with a reference to Shays’ Rebellion in Massachusetts. Revolutionary War veteran Daniel Shays was one of the leaders of an uprising sparked by state and local enforcement of tax collections and judgments for debt. There was unrest in several states, but it was most pronounced in Massachusetts. In January 1787, Shay and his men marched on the United States’ Armory at Springfield. The Massachusetts militia crushed the attempt to take the armory and seize weapons, and ultimately routed the rebels, but the incident created widespread panic.

Events in Massachusetts served as one of the catalysts for the Philadelphia Convention. George Washington saw the disquiet in Massachusetts as a sign that a stronger general government was necessary. In a letter to Henry Lee, Washington wrote, “You talk, my good sir, of employing influence to appease the present tumults in Massachusetts. I know not where that influence is to be found, or, if attainable, that it would be a proper remedy for the disorders. Influence is not government. Let us have a government by which our lives, liberties, and properties will be secured, or let us know the worst at once.”

Hamilton played on fears stirred up by Shays’ Rebellion to agitate for a stronger national government. Ostesnsibly, he would have marched federal troops into Massachusetts to quell the unrest. This is in fact what Hamilton advised several years later during the so-called Whisky Rebellion.

Hamilton rounded out his list of deficiencies in the Articles of Confederation with a discussion of tax collection. Hamilton believed it was imperative that the general government have the power to levy its own taxes. He argued there was no way to fairly assess tax quotas on the states, as was the process under the Articles.

“This inequality would of itself be sufficient in America to work the eventual destruction of the Union, if any mode of enforcing a compliance with its requisitions could be devised. The suffering States would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some States, while those of others would scarcely be conscious of the small proportion of the weight they were required to sustain. This, however, is an evil inseparable from the principle of quotas and requisitions.

“There is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them.”

Hamilton spent the last few paragraphs of the essay arguing that the national tax burden would be light and should primarily be collected through consumption taxes.

Many of the Federalist essays are devoted to allaying fears that the proposed Constitution would empower the general government to such a degree that it would swallow up the states. They focus primarily on the limits of national authority under the Constitution. But in Federalist #21, we see shadows of Hamilton’s real goal. He wants a powerful central government that can extend its power into the states. Despite all of the promises to the contrary in the other Federalist essays, Hamilton ultimately got what he wanted.

 

Mike Maharrey
January 31, 2018 at 12:45PM

Tenth Amendment Center: Off to the Races: Nullification Season Off to a Quick Start

From Tenth Amendment Center

...from Tenth Amendment Center
Nullification season is off to a quick start this year. There are already a number of bills that have moved forward. That’s a good sign this early in state legislative sessions. A couple of bills stand out. A Kentucky bill to limit warrantless drone surveillance passed the House on Jan. 18. Last year, a similar…
Mike Maharrey
January 31, 2018 at 11:17AM

The Federal Budget Process in 11 Minutes

Click the graphic to the left and watch the video so you can learn about the Federal Budget Process. Specifically according to the U.S. Constitution, how is the budget process supposed to work? Drafting and passing a U.S. budget has become a complicated process for the Legislative and Executive branches of the U.S. Government. Has […]

The post The Federal Budget Process in 11 Minutes appeared first on KrisAnne Hall.

Read the full article at krisannehall.com January 31, 2018 at 11:46AM

Tenth Amendment Center: Mississippi Bill Would Take Another Step Toward Rejecting Federal Gun Control

From Tenth Amendment Center

...from Tenth Amendment Center

JACKSON, Miss. (Jan. 30, 2018) – A bill filed in the Mississippi Senate would build on the foundation of legislation signed into law in 2016 and block state enforcement future federal gun control regulations in the state.

In 2016, Gov. Phil Bryant signed legislation into law that removed conceal carry licensing requirements, allowing Mississippians to carry concealed firearms without a permit. The law also set the foundation to reject and end new federal gun control regulations and executive orders in the state.

No federal executive order, agency order, law not enrolled by the United States Congress and signed by the President of the United States, rule, regulation or administrative interpretation of a law or statute issued, enacted or promulgated after July 1, 2016, that violates the United States Constitution or the Mississippi Constitution of 1890 shall be enforced or ordered to be enforced by any official, agent or employee of this  state or a political subdivision thereof.

A bill introduced for the 2018 session would build on this foundation and prohibit specific state cooperation with enforcement of future federal gun control laws.

Sen. Chris McDaniel (R-Ellisville) introduced Senate Bill 2732 (SB2732) on Jan. 15. The legislation would bar any state agency, department or political subdivision of the state, and their employees, from planning, implementing, assisting with, participating in, enabling or cooperating with “any federal law, rule, regulation or order created or effective on or after January 1, 2018, if the law, rule, regulation or order attempts to:

(a)  Ban or restrict ownership of a semiautomatic firearm or any magazine of a firearm;

(b)  Require any firearm, magazine or other firearm accessory to be registered in any manner; or

(c)  Confiscate a firearm, magazine or other firearm accessory from law-abiding Mississippi citizens.

SB2732 would effectuate the law passed last year by defining specific acts the state must refuse to enforce.

EFFECTIVE

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states can nullify in effect many federal actions. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from the states.

Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.

“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in federal gun control, states can help bring these unconstitutional act to their much-needed end.”

Some gun rights supporters argue that such a measure is “unnecessary” because it addresses a nonexistent problem with a Republican Congress and an NRA-backed president. This ignores the fact that the current administration won’t remain in power forever. And as we saw in the wake of the Las Vegas shooting, Republicans suddenly become open to gun control when the political pressure heats up after a tragedy.

LEGAL BASIS

SB2732 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

WHAT’S NEXT

SB2732 was referred to Senate Judiciary (Div. A) Committee where it will need to pass by a majority vote before moving forward in the legislative process.

Mike Maharrey
January 30, 2018 at 12:56PM

Tenth Amendment Center: Oklahoma Bill Would Ban Warrantless Stingray Spying, Hinder Federal Surveillance

From Tenth Amendment Center

...from Tenth Amendment Center

OKLAHOMA CITY, Okla. (Jan. 30, 2018) – A bill prefiled in the Oklahoma Senate would ban the warrantless collection of electronic data and the use of “stingrays” to track the location of phones and sweep up electronic communications in most situations. Passage of the bill would not only protect privacy in the Sooner State, it would also hinder one aspect of the federal surveillance state.

Sen. Nathan Dahm (R-Broken Arrow) prefiled Senate Bill 1274 (SB1274). The legislation would prohibit law enforcement agencies from obtaining the metadata, stored data or
transmitted data of an electronic device without a search warrant issued by a court upon probable cause. Under the proposed law, police would have to get a warrant before obtaining electronic data from service providers. It would also help block the use of cell site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.

HB1274 would allow warrantless electronic data collection with the informed and affirmative consent of the owner or user of the electronic device, and in accordance with judicially recognized exceptions to the warrant requirement.

Under the proposed law, any data collected on persons not named in the warrant would have to be destroyed within 24 hours, and could not be used, copied or disclosed for any purpose.

At the time of a report in May 2016, at least two Oklahoma law enforcement agencies had acquired or used devices to track and collect information from cellphones. That number is likely higher since these devices are often obtained and used in secret.

IMPACT ON FEDERAL SURVEILLANCE PROGRAMS

The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.

Defense attorney Joshua Insley asked Cabreja about the agreement.

“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.

“Yes,” Cabreja said.

As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”

The experience of a Pinellas County, Florida, man further highlights the shroud of secrecy around the use of stingray devices, along with the potential for abuse of power inherent in America’s law enforcement community.

The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.

Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal databases.

The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of SB1274 would strike a major blow to the surveillance state and would be a win for privacy.

WHAT’S NEXT

SB1274 will be officially introduced on Feb. 5. It will then be referred to a committee where it will need to pass by a majority vote before moving forward in the legislative process.

Mike Maharrey
January 30, 2018 at 12:48PM

Tenth Amendment Center: California Senate Passes Bill Banning Federal Immigration Agents from Schools and State Buildings; Enforcement Questions Remain

From Tenth Amendment Center

...from Tenth Amendment Center

LOS ANGELES, Calif. (Jan. 30, 2018) – Yesterday, the California Senate passed a bill that would ban federal immigration officers from schools and state buildings unless they have a warrant. But questions remain on how the state could enforce it should it become law.

Introduced by Sen. Ricardo Lara (D-Bell Gardens) and 16 co-sponsors, Senate Bill 183 (SB183) “would prohibit federal immigration enforcement agents, officers, or personnel from entering a building owned and occupied, or leased and occupied, by the state, a public school, or a campus of the California Community Colleges, to perform surveillance, effectuate an arrest, or question an individual therein, without a valid federal warrant.”

The bill also seeks to “limit the activities therein of federal immigration enforcement agents, officers, or personnel with a warrant to the individual who is the subject of the warrant.”

Earlier this month, the Senate Public Safety committee passed the bill by a vote of 5-2. Yesterday, the full Senate passed it by a vote of 28-7.

RAISING THE STAKES

Seen by many supporters as a compliment to the recently enacted “California Values Act,” a new law that opponents refer to as the “sanctuary state” bill.

Under a long-standing legal doctrine known as the “anti-commandeering doctrine,” the federal government is not authorized to require states or local governments to help implement federal acts or regulatory programs. Although its origins come from James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” the doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US (1997) serves as the cornerstone. In it, Justice Scalia wrote for the majority:

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

Additionally, in the 1842 Prigg v. Pennsylvania case, the Court held that while the federal Fugitive Slave Act could not be physically impeded by states, they simply weren’t required to help the federal government capture runaway slaves and return them to bondage in the South.

The California Values Act puts this doctrine into practice by banning state and local governments from providing material support or resources to the enforcement of federal immigration law in most situations. But SB183 raises the stakes beyond a passive refusal to assist through an active prohibition on the activity of federal agents.

“Federal immigration officials are creating a climate of fear that undermines the fundamental institutions of California’s democracy,” said Lara. “Senate Bill 183 guarantees a safe environment so students can attend classes, parents can pick up their children from school, and people can report crimes or go to court without the terror of being targeted by federal agents based on their immigration status.”

ENFORCEMENT

However, SB183 contains no mechanism for enforcement, and the question remains as to how Lara or his cosponsors intend to ensure federal compliance with the state law.

“Are they planning on suing every federal immigration agent who doesn’t follow California restrictions on their activity, or are they hoping that local law enforcement will arrest them” asked Michael Maharrey, communications director for the Tenth Amendment Center. “They should expect federal agents to merely ignore this should it pass as law, as the federal government has long-held the position that while states don’t have to participate in federal enforcement actions, they can do nothing to physically impede them, even in cases where federal agents admitted to committing crimes while doing so,” he continued.

While Barack Obama was president, a number of republican state legislators took a similar approach on issues important to their conservative politics.  Bills were introduced to criminalize federal agents attempting to enforce the Affordable Care Act, environmental regulations and more.  All were quickly voted down or were never even given a committee hearing. More notably, however, Missouri Senate Bill 613 (SB613) sought to ban the use of state resources to enforce federal gun control measures in 2014. It passed both houses, but provisions in the bill that included criminal charges for federal agents caused significant backlash and ultimately resulted in the bill failing to pass into law.

It remains to be seen how SB183 will be received going forward.

NEXT UP

SB183 now moves to the state Assembly, where it will first be assigned to a committee for further consideration.

Michael Boldin
January 30, 2018 at 12:16PM

Tenth Amendment Center: Tenther Tuesday Episode 24: Nullification Season Successes

From Tenth Amendment Center

...from Tenth Amendment Center

This is the 376th day the GOP Congress has failed to repeal Obamacare. But the feds have expanded their power on numerous other fronts, including a new federal program that will tap into data that will track millions of people’s locations using their license plates. But as Michael Boldin and Mike Maharrey explain in this episode of Tenther Tuesday, state action can stop your information from ending up in these databases. They also discuss some early nullification season successes. A number of bills that have moved forward in several states over the last week. These include legislation to expand health freedom, to undermine the Federal Reserve’s monopoly on money, to nullify federal hemp prohibition and to get government out of marriage.

WATCH

SHOW LINKS

JOIN TAC, Support the Constitution and liberty: http://tenthamendmentcenter.com/members

ICE is now getting access to license plate tracking data

Rhode Island ALPR bill

Florida Health Freedom

Alabama Sound Money

Indiana Hemp

Alabama Marriage

Idaho to Allow Insurance Policies Not Compliant with Obamacare

 

Mike Maharrey
January 30, 2018 at 11:54AM

Tenth Amendment Center: Alaska Bill Would Ban Resources for Federal Marijuana Prohibition Enforcement

From Tenth Amendment Center

...from Tenth Amendment Center

JUNEAU, Alaska (Jan. 29, 2018) – A bill introduced in the Alaska House would ban the state from using resources to help the federal government enforce marijuana prohibition laws against people who are in compliance with the state law legalizing marijuana for medical purposes.  Passage into law would greatly impact the federal government’s ability to continue its enforcement efforts in the state.

Introduced by Rep. Adam Wool (D-Fairbanks) and cosponsored by Reps. Scott Kawasaki (D-Fairbanks) and Harriet Drummond (D-Anchorage), House Bill 300 (HB300) would ban state or local government employees from taking actions that “enforce or aid in the enforcement of federal criminal laws involving marijuana that are inconsistent with state law.”

In short, if a person or business is following Alaska’s medical or recreational marijuana laws, the federal government would not be able to count on any support for enforcement actions against them.

Last year, the California Assembly passed a similar bill over strong opposition from law enforcement lobby groups. The vote was 41-33. A similar bill has been filed in Arizona as well.

The Alaska bill is a proposal to amend current law that bans the use of state and local resources to aid in the implementation a federal act that would “infringe on a person’s right, under the Second Amendment to the Constitution of the United States, to keep and bear arms,” or to “deny a person a right to due process, or a protection of due process, that would otherwise be available to the person under the Constitution of the State of Alaska or the Constitution of the United States.”

IN EFFECT

Medical marijuana has been legal in Alaska since 1998. Recreational marijuana was approved by voters in November, 2014. FBI statistics show that law enforcement makes more than 90% of marijuana arrests under state, not federal law. By ending state enforcement of any federal prohibition that is legal under state law, HB300 would essentially sweep away most of the basis for over 90 percent of marijuana arrests in the state.

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effectively method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from the states.

Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.

Partnerships don’t work too well when half the team quits. By withdrawing all resources and participation in federal marijuana prohibition schemes, the states can effectively bring them down.

If HB300 is passed into law, the federal government would find marijuana prohibition against businesses and consumers nearly impossible to enforce in Alaska.

LEGAL BASIS

Provisions withdrawing state and local enforcement of federal law in HB300 rest on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program.

The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US (1997) serves as the cornerstone. In it, Justice Scalia wrote for the majority:

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

Additionally, in the 1842 Prigg v. Pennsylvania case, the Court held that while the federal Fugitive Slave Act could not be physically impeded by states, they simply weren’t required to help the federal government capture runaway slaves and return them to bondage in the South.

 

NEXT UP

HB300 has been assigned to the House Community & Regional Affairs Committee, where it will need to pass by a majority vote before moving forward.  Supporters of the bill are strongly encouraged to call each member of the committee (contact info here) and politely, but firmly, request a YES vote on HB300.

Michael Boldin
January 29, 2018 at 07:51PM

Tenth Amendment Center: George Washington’s First State of the Union.

From Tenth Amendment Center

...from Tenth Amendment Center

On January 8, 1790, President George Washington delivered the very first Annual Message to a Joint Session of Congress (now known as the State of the Union address), in the Senate chamber of Federal Hall in New York City.

The address fulfilled Article II, Section 3, Clause 1 of the U.S. Constitution, which states that the President, “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”

Here’s more on the original SOTU from Washington’s Mount Vernon estate:

Before tomorrow’s #SOTU address, learn about the very first #StateOfTheUnion: https://t.co/8N3NFUUvrL pic.twitter.com/09JbFdyYs3

— Mount Vernon (@MountVernon) January 29, 2018

Michael Boldin
January 29, 2018 at 05:14PM

Tenth Amendment Center: Oklahoma Bill Would Eliminate Marriage Licenses, Nullify Federal Control in Practice

From Tenth Amendment Center

...from Tenth Amendment Center

OKLAHOMA CITY, Okla. (Jan. 29, 2018) – A bill filed in the Oklahoma House would end government licensing of marriages in the state, effectively nullifying in practice both major sides of the contentious national debate over government-sanctioned marriage.

Rep. Todd Russ (R-Cordell), filed House Bill 3454 (HB3454). The legislation would end the issuance of state marriage licenses. Instead, the state would record certificates of marriage after a marriage has contracted by a formal ceremony solemnized in front of at least two witnesses. Marriages not contracted by a formal ceremony would be acknowledged by filing an affidavit of common law marriage with the court clerk.

The bill would replace all references to marriages “licenses” in state law with “certificates.” The legislation would not invalidate any marriage licenses issued prior to the bill being passed.

Any entity requiring proof of identity or marital status shall accept a certified copy of the marriage certificate or affidavit of common law marriage that has been filed with the court clerk. Any reference in the Oklahoma Statutes requiring a marriage license as proof of identity or marital status shall be interpreted to include a marriage certificate or affidavit of common law marriage executed on or after November 1, 2018.

The bill is similar to House Bill 1418, a bill Russ introduced last year. It failed to garner a public hearing in the Judiciary Civil and Environmental Committee.

PRACTICAL EFFECT

HB3454 would accomplish two things.

First, it would render void the edicts of federal judges that have overturned state laws defining marriage. The founding generation never envisioned unelected judges issuing ex cathedra pronouncements regarding the definition of social institutions like marriage and the Constitution delegates the federal judiciary no authority to meddle in the issue. Marriage is a realm clearly left to the state and the people.

Second, the bill would get the state government out of defining marriage entirely as well, ending the squabble between factions that seek to harness the power of the state, thereby taking the burden off government officials who may be torn between what is legally required of them and their religious convictions.

The intent or motives behind this bill are a moot point. By removing the state from the equation, no one can force another to accept their marriage, nor can they force another to reject that person’s own beliefs regarding an institution older than government.

“Licenses are used as a way to stop people from doing things,” said Michael Boldin of the Tenth Amendment Center. “My personal relationship should not be subject to government permission.”

HISTORICAL BACKDROP

As a 2007 New York Times op/ed points out, for centuries marriage was a private affair.

“For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity. For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.

In fact, the use of state marriage licenses for many years was a way of preventing people from entering into interracial marriages. Later, the NYT story recounts, the licenses became necessary in order to subsidize the welfare state.

“The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.”

Something that is rarely considered by those seeking to control the state’s definition of marriage is that a marriage license means a citizen requires the permission of their government before they can get married. A person cannot drive a vehicle, aside from limited circumstances, without a license. A person cannot practice law without a license, nor can they engage in medical care.

Put another way, marriage is not a right or a religious institution, but a privilege the state grants us if we meet the conditions put upon us.

Consider this: In the same way a driver can lose their license if they break certain traffic laws, a man or woman, theoretically, could one day find their marriage license revoked for breaking certain “marriage” rules, whether it pertains to child rearing or their religious and political convictions.

Christopher Wesley, an associated scholar at the Mises Institute, wrote that “marriage is most endangered when it rests in the coercive hands of the State.”

WHAT’S NEXT

HB3454 will be officially introduced when the Oklahoma legislature opens its 2018 session on Feb. 5. At that time, it will be referred to a committee where it must pass by a majority vote before moving forward in the legislative process.

TJ Martinell
January 29, 2018 at 05:06PM

Tenth Amendment Center: Washington Committee Passes Bill to Reform Asset Forfeiture Laws; First Step to Address Federal Loophole

From Tenth Amendment Center

...from Tenth Amendment Center

OLYMPIA, Wash. (Jan. 29, 2018) –  Last week, a Washington state House committee passed a bill that would improve the state’s asset forfeiture laws and set the stage to close a loophole that allows state and local police to circumvent more strict state forfeiture laws by passing cases off to the feds.

Rep. Matt Shea (R-Spokane Valley) and Rep. Roger Goodman (D-Kirkland) introduced House Bill 2718 (HB2718) on Jan. 12. The legislation would take several steps to reform Washington’s asset forfeiture laws. While the state could still seize assets without a criminal conviction, HB2718 would increase protection for property owners and place the burden of proof squarely on prosecutors. HB2718 would make several changes to current asset forfeiture law, explicitly providing that the burden of proof is on the seizing agency; allowing prevailing claimants to recover attorneys’ fees, expenses, and damages for loss of use of property; requiring that, when ordered to return property, the seizing agency return it in the same or substantially similar condition as when seized; and making all seizing agencies subject to detailed reporting requirements.

The House Justice Committee approved HB2718 by a 12-1 vote.

The reporting requirements include provisions relating to federal asset forfeiture. This would set the stage to close a loophole that allows state and local police to get around more strict state asset forfeiture laws in a vast majority of situations. This is particularly important in light of a new policy directive issued last July by Attorney General Jeff Sessions for the Department of Justice (DOJ).

FEDERAL LOOPHOLE

A federal program known as “Equitable Sharing” allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption.The new DOJ directive reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.

Law enforcement agencies often bypass more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.

Until recently, California faced this situation.The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state closed the loophole in 2016.

Including federal forfeitures in the reporting requirements will shed light on equitable sharing and potentially generate the awareness necessary to pressure policymakers into closing the loophole. This could be done by passing legislation prohibiting state and local police from passing cases off to the feds in most situations. We recommend the following language.

1.  A law enforcement agency or prosecuting authority may not enter into an agreement to transfer or refer seized property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint taskforce or by other means for the purposes of forfeiture litigation and instead must refer the seized property to appropriate local or state prosecuting authorities for forfeiture litigation under this chapter unless the seized property includes U.S. currency in excess of $100,000.

2. This paragraph preempts laws by township, municipal, county and other governments in the state which regulate civil and criminal forfeiture.

As the Tenth Amendment Center previously reported the federal government inserted itself into the asset forfeiture debate in California. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

While HB2718 only makes modest reforms and does not directly address equitable sharing, we view it as a solid foundational step.

WHAT’S NEXT

HB2718 now moves to the House Appropriations Committee where it must pass by a majority vote before moving forward in the legislative process.

Mike Maharrey
January 29, 2018 at 05:02PM

Tenth Amendment Center: Utah Bill Would Expand Raw Milk Sales, Important Step to Nullify Federal Prohibition Scheme

From Tenth Amendment Center

...from Tenth Amendment Center

SALT LAKE CITY, Utah (Jan. 29, 2018) – A Utah bill would expand raw milk sales in the state. Passage into law would take an important step toward rejecting a federal prohibition scheme in effect.

Sen. David Hinkins (R-27) and Rep. Marc Roberts (R-67) introduced Senate Bill 108 (SB108) January 23. The legislation would expand existing laws relating to raw milk sales from producer to consumer in the state. Under the proposed law, a milk producer would be able to sell up to 120 gallons of raw milk to consumers without meeting stricter requirements under the current law, providing certain conditions are met:

• • The raw milk is for household use, not resale
  • The milk is sold where it is produced and within nine days of its production.
  • The milk bottle includes the warning “This raw milk has not been licensed or inspected by the state of Utah. Raw milk, no matter how carefully produced, may be unsafe.”

The proposed law would also allow the sale of raw milk from a mobile refrigerated truck where the raw milk is maintained at 41 degrees Fahrenheit or a lower temperature, or at a farmer’s market.

Under the current law, raw milk sales are only allowed on the farm, or from a retail store owned by the producer under strict guidelines. Passage of SB108 would relax requirements for small producers, and expand the legal sales. This would allow the raw milk market in Utah to grow.

According to nofamass.org, “With a growing demand for raw milk, and a decreasing number of raw milk dairies, many consumers are unable to purchase this product.”

Impact on Federal Prohibition

FDA officials insist that unpasteurized milk poses a health risk because of its susceptibility to contamination from cow manure, a source of E. coli.

“It is the FDA’s position that raw milk should never be consumed,” agency spokeswoman Tamara N. Ward said in November 2011.

The FDA’s position represents more than a matter of opinion. In 1987, the feds implemented 21 CFR 1240.61(a), providing that, “no person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized.”

Not only do the feds ban the transportation of raw milk across state lines, they also claim the authority to ban unpasteurized milk within the borders of a state.

“It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well,” FDA officials wrote in response to a Farm-to-Consumer Legal Defense Fund lawsuit against the agency over the interstate ban.

The FDA clearly wants complete prohibition of raw milk and some insiders say it’s only a matter of time before the feds try to institute an absolute ban. Armed raids by FDA agents on companies like Rawsome Foods back in 2011 and Amish farms over the last few years also indicate this scenario may not be too far off.

Legislation like SB108 takes a step toward nullifying this federal prohibition scheme.

As we’ve seen with marijuana and industrial hemp, an intrastate ban becomes ineffective when states ignore it and pass laws encouraging the prohibited activity anyway. The federal government lacks the enforcement power necessary to maintain its ban, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere. This increases when the state actively encourages the market and nullifies federal prohibition in effect.

We’ve seen this demonstrated dramatically in states that have legalized industrial hemp. When they authorized production, farmers began growing industrial hemp, even in the face of a federal ban. Despite facing the possibility of federal prosecution, some growers were still willing to step into the void and begin cultivating the plant once the state removed its barriers.

In the same way, removing state barriers to raw milk consumption, sale and production would undoubtedly spur the creation of new markets for unpasteurized dairy products, no matter what the feds claim the power to do.

It could ultimately nullify the interstate ban as well. If all 50 states allow raw milk, markets within the states could easily grow to the point that local sales would render the federal ban on interstate commerce pointless. And history indicates the feds do not have the resources to stop people from transporting raw milk across state lines – especially if multiple states start legalizing it. Growing markets will quickly overwhelm any federal enforcement attempts.

UP NEXT

SB108 has been referred to the Senate Natural Resources, Agriculture, and Environment Committee, where it will need to pass by a majority vote before it can advance to the full Senate.

TJ Martinell
January 29, 2018 at 11:47AM