Tenth Amendment Center: Maryland House Flips the Constitution Upside Down

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...from Tenth Amendment Center

Yesterday, the Maryland House passed a bill saying they’d legalize hemp as soon as the federal government (or other federal law)  “delegates authority over industrial hemp to the states.”

They felt so strongly about this provision they included it two times one section of the bill:

The Maryland Department  of Agriculture shall notify the Department of Legislative Services within 5 days after the effective date of a federal law delegating authority to the states or authorizing the farming, possession, processing, and sale of industrial hemp. If a federal law does not take effect on or before October 1, 2030, this Act shall be null and void without the necessity of further action by the General Assembly.

They’ve flipped the constitution upside down. The people of the states delegate power to the feds, not the other way around.

Additionally, this dispels two myths:

1. So-called “liberal” states are happy to defy the feds when it comes to cannabis.
2. With 91 Democrats and 50 Republicans in the House – and only one NO vote – “only democrats would take this view of the Constitution, totally ignoring the 10th Amendment.”  Actually they’re all bad.

Michael Boldin
March 02, 2018 at 01:32PM

Tenth Amendment Center: A Behind the Scenes Look at the Legislative Process

From Tenth Amendment Center

...from Tenth Amendment Center
I thought you all might be interested in a little glimpse behind the scenes at what goes into moving a bill successfully through a state legislature.  On Feb. 28, the Michigan Senate passed the Fourth Amendment Protection Act. The House passed the bill last month. Now it has to go back to the House for…
Mike Maharrey
March 02, 2018 at 10:47AM

Tenth Amendment Center: Rhode Island Bill Would Require Judicial Order for Stingray Spying, Hinder Federal Surveillance

From Tenth Amendment Center

...from Tenth Amendment Center

PROVIDENCE, R.I. (March 1, 2018) – A bill introduced in the Rhode Island House would require a judicial order for the use of “stingrays” to track the location of phones and sweep up electronic communications. Passage of the bill would not only protect privacy in the state, but would also hinder one aspect of the federal surveillance state.

Rep. Blake Filippi (I-36), along with four Republican cosponsors, introduced House Bill 7754 (H7754) on Feb. 28. The legislation would help block the use of cell site simulators, commonly 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.

H7754 would require law enforcement agencies to obtain a judicial order before using a stingray device based on the same requirements currently in place for trace/trap devices and pen registers. A judge could authorize the use of a stingray device if police show the information they hope to collect is relevant and necessary to an ongoing criminal investigation – the same criteria currently in place to authorize a wiretap of a landline phone. Under the current law governing pen registers and trace/trap device, law enforcement agents must provide the judge with specific information designed to protect innocent people.

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 H7754 would represent a major blow to the surveillance state and a win for privacy.

WHAT’S NEXT

At the time of this report, H7754 had not been referred to a committee. receives a committee assignment, it will need to pass by majority vote before moving forward in the legislative process.

Mike Maharrey
March 02, 2018 at 10:44AM

Tenth Amendment Center: Today in History: Articles of Confederation Adopted

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...from Tenth Amendment Center

On Mar. 1, 1781, the states adopted the Articles of Confederation, putting into operation the first constitution of the United States.

Primarily written by prominent Pennsylvania lawyer John Dickinson, the Articles of Confederation was an attempt to establish a confederated union in the United States. Prior to the Articles of Confederation, the Continental Congress had little power to create actual policy, and most decisions came in the form resolutions. Even still, real political power rested with the American states individually.

While the document was approved by the delegates in 1777, it did not go into effect until 1781 because of a notable holdout. Maryland refused to ratify the Articles as long as Virginia maintained a huge western land claim. When Virginia agreed to a western cession of land that including areas north of the Ohio, which later became the Northwest Territory, Maryland agreed to enter the union and the Articles went into operation.

Under the Articles, each state retained “its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” In the Confederation, the states entered into “a firm league of friendship with each other” for the purposes of “their common defense, the security of their liberties, and their mutual and general welfare.” The framework intended to collectivize foreign policy, commerce, and war for the first time.

The government was funded through a requisition system, wherein requisitions – taxes apportioned by state population – were assigned to the individual states. While some states paid the allocated sums, some states were delinquent or did not pay at all. Because the Articles lacked a real enforcement mechanism, enforcement of the requisitions was entirely up to the state governments.

In addition, there was no regulatory power of trade between the states. During this timeframe, states enacted high measures of protectionism to support domestic manufactures. Some states, such as Pennsylvania and New York, also maintained a substantial economic advantage over others by taxing goods leaving ports of commerce.

The Articles expressly permitted paper money on both a state and national level. During the 1780s, a paper money calamity unfolded in the states. The Continental currency had become worthless and the states passed debtor-friendly paper money laws that inflated the currency and punished creditors. This created widespread economic ruin, as wealth holdings were subjected to the cruelest imaginable tax.

Almost all significant powers of the government under the Confederation – including war, treaties and alliances, coinage, and requisitions – required the approval of nine states. Embracing true federal axioms, each state was represented in Congress by a single vote, regardless of the number of delegates sent to Congress. State quorums required two delegates, and no state could be represented by more than seven members.

By 1787, many were willing to concede that the lack of a law enforcement mechanism, insufficient taxing power, and the nine-state barrier to policy, and the 13-state requirement to amend the constitutional system were facets that required possible adjustment. A convention was called to convene in May, which later became known as the Philadelphia Convention, with the purpose of proposing amendments to the Articles of Confederation.

Dave Benner
March 01, 2018 at 03:02PM

Tenth Amendment Center: Podcast: The Second Amendment Wasn’t For Hunters

From Tenth Amendment Center

...from Tenth Amendment Center

The recent school shooting in Florida has reignited the debate on guns.

In this episode of Thoughts from Maharrey Head, I wade into the fray and tackle a common myth related to the Second Amendment – this strange idea that it was never intended to allow people to own military weapons. Actually, that’s exactly what it was intended to do.

Take a listen and I’ll explain.

You can subscribe to Thoughts from Maharrey Head for free on iTunes. Just click HERE.

SHOW NOTES AND LINKS

The Second Amendment – Shall Not Infringe

The 2nd Amendment Militia

An Examination into the Leading Principles of the Federal Constitution

“Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, (Sir William Keith) who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia. [Here Mr. Mason quoted sundry passages to this effect.] Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The general government ought, at the same time, to have some such power. But we need not give them power to abolish our militia.” – George Mason, Virginia ratifying convention

“[W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.” – Letters from a Federal Farmer

Mike Maharrey
March 01, 2018 at 02:52PM

Tenth Amendment Center: Florida Senate Committee Passes Bill to Expand Healthcare Freedom

From Tenth Amendment Center

...from Tenth Amendment Center

TALLAHASSEE, Fla. (March 1, 2018) – On Tuesday, a third and final Florida Senate committee unanimously passed a bill that would help facilitate healthcare freedom outside of government regulatory schemes.

Sen. Tom Lee (R-Brandon) prefiled Senate Bill 80 (SB80) on Aug. 9. The legislation specifies that direct primary care agreements (sometimes called medical retainer agreements) do not constitute insurance, thereby freeing doctors and patients from the onerous requirements and regulations under the state insurance code. The bill also stipulates that a primary care provider or an agent of a primary care provider is not required to obtain a certificate of authority or license under the Florida Insurance Code to market, sell, or offer to sell a direct primary care agreement.

SB80 also includes provisions defining direct primary care agreements and establishing modest requirements.

On Tuesday, the Senate Appropriations Committee passed SB80 by a 20-0 vote. It previously passed the Senate Health Policy Committee 8-0 and the Senate Banking and Insurance Committee 10-0.

A Similar bill passed the House in January.

According to Michigan Capitol Confidential, by removing a third party payer from the equation, medical retainer agreements help both physicians and patients minimize costs. Jack Spencer writes:

“Under medical retainer agreements, patients make monthly payments to a physician who in return agrees to provide a menu of routine services at no extra charge. Because no insurance company stands between patient and doctor, the hassles and expense of bureaucratic red tape are eliminated, which have resulted in dramatic cost reductions. Routine primary care services (and the bureaucracy required to reimburse them) are estimated to consume 40 cents out of every dollar spent on insurance policies, so lower premiums for a given amount of coverage are another potential benefit.”

This represents the kind of cost control Obamacare promised but failed to deliver. In 2015, Tom Woods interviewed a Kansas doctor who utilizes the direct primary care model. Dr. Josh Umbehr’s practice demonstrates the cost savings possible when doctors are unfettered from the bureaucratic health insurance system.

Under Obamacare, regulations define such programs as a primary care service and not a health insurance plan, and current IRS policy treats these monthly fee arrangements just like another health plan.

A FIRST STEP

At this point, it doesn’t look like Republicans will repeal or even reform Obamacare, and the changes to the ACA proposed by the GOP would have arguably made things worse. Even with the penalty for not buying health insurance repealed by the Republican tax plan, all other Obamacare rules and regulations remain in place. Regardless, state actions can help completely bring down the Affordable Care Act, or any national healthcare plan the Congress comes up with in the future.

Oftentimes, supporters of Obamacare criticize opponents for not having any alternative. Direct primary care offers one.

These direct patient/doctor agreements allow a system uncontrolled by government regulations to develop. It makes doctors responsive to patients, not insurance company bureaucrats or government rule-makers. Allowing patients to contract directly with doctors via medical retainer agreements opens the market. Under such agreements, market forces will set price for services based on demand instead of relying on central planners with a political agenda. The end result will be better care delivered at a lower cost.

By incentivizing creative healthcare solutions, the market will naturally provide better options, such as the Surgery Center of Oklahoma, This facility operates completely outside of the insurance system, providing a low-cost alternative for many surgical procedures.

A more open healthcare marketplace within a state will help spur de facto nullification the federal program by providing an affordable alternative. As patients flock to these arrangements and others spurred by ingenuity and market forces, the old system will begin to crumble.

Passage of SB80 would take the first step toward healthcare freedom in Florida and would create a stepping stone to further action to nullify the onerous Affordable Care act. Once in place, Floridians could take further steps to fully extricate themselves from Obamacare for good.

For more information on a plan to nullify the PPACA, click HERE.

WHAT’S NEXT

SB80 Now moves to the Senate floor for debate and a vote.

 

 

Mike Maharrey
March 01, 2018 at 02:44PM

Tenth Amendment Center: Obamacare: Will States do the Job that Congressional Republicans Have Failed to Do?

From Tenth Amendment Center

...from Tenth Amendment Center

For years, Republicans in Congress promised they would get rid of Obamacare. We’re still waiting. Now it’s looking more and more like pressure and concrete action from the states might just accomplish with D.C. politicians wouldn’t.

In January, Idaho Gov. Butch Otter and Lt. Gov. Brad Little signed an executive order authorizing insurance companies doing business in the state to offer less costly plans that do not comply with all of the Obamacare mandates and requirements. Little said the executive order “effectively ends Obamacare for many Idahoans.” I went even further, arguing that the move would take a big step toward nullifying the unconstitutional Affordable Care Act in the state. Not a lot of people seem to disagree with this assessment.

But the big question was whether or not insurance companies would step up and actually offer plans in defiance of Obamacare regulations.

The answer to the question appears to be yes.

According to a Fox News report, Blue Cross of Idaho plans to begin offering new Obamacare non-compliant options as early as April.

“What Idahoans want is a stable, functional market,” Blue Cross of Idaho CEO Charlene Maher, said in a statement. “The current marketplace is not affordable for middle-class families. … Our Freedom Blue plans bring more choices and lower prices to consumers.”

Under the new rules outlined by Idaho Department of Insurance Director Dean Cameron in January, insurers can now cap their own costs at $1 million a year per individual and can charge customers separate out-of-pocket maximums for different services. insurers can also offer plans that deny coverage for pre-existing conditions for up to 12 months unless the customer had continuous prior coverage. Insurers will no longer be required to cover pediatric dental or vision care. Although they must offer at least one plan with maternity and newborn coverage, other plans can exclude those benefits. Under the new rules, insurance carriers can also charge people more for these stripped-down plans based on where they live, their health history and their age.

These noncompliant plans will not qualify for any Obamacare subsidies. Any company doing business in Idaho still must offer ACA compliant policies.

In effect, the Idaho Department of Insurance has simply stopped enforcing certain aspects of Obamacare. It will no longer penalize carriers for offering plans that don’t comply with federal law – as long as they comply with state law. This would leave enforcement of ACA mandates completely in the hands of the federal government.

It remains unclear if the feds will challenge Idaho’s move. According to an email written by the insurance commissioner, there is concern that the federal Centers for Medicare and Medicaid Services could penalize insurance providers as much as $100 per insured, per day for noncompliant plans. Whether the agency could effectively investigate, impose and collect this fine with its limited resources and no state cooperation remains questionable. Blue Cross of Idaho is apparently willing to take that chance.

In fact,  the Trump Administration may not even want to challenge the state’s move. There are some indications that it will not. Little told Fox News he doubts anyone other than Department of Health and Human Services has legal standing to challenge the policy, and that such a move by the Trump administration seems unlikely, given the federal government is also moving to offer more low-cost plans.

Officials in other states are reportedly watching with interest. South Dakota Gov. Dennis Daugaard told Fox News he likes what Idaho is doing.

“I know that prior to the ACA we had a lot of different health products available in the marketplace. And I think the national government, through the ACA, tried to set some minimal standards. In some ways, that’s good for the consumers, but in other ways it limits choice. So, if Idaho is trying to provide more choice points that provide less coverage for less cost, again if it’s another item on the menu that consumers can choose with awareness, then I see that as a good thing.”

If other states follow Idaho’s lead, it will become even more difficult for the federal government to impose its will. We’ve seen a similar dynamic unfold with marijuana legalization. As more and more states simply ignore federal prohibition, federal enforcement actions become less viable. They simply lack the personnel and resources. The feds also don’t have the political will to crack down hard when public opinion strongly opposes them. We’ve seen this over the last few years as more and more people have embraced legalization. Would Trump really be willing to push back hard against states trying to create economically sustainable alternatives to Obamacare mandates?

Obamacare was predicated on state cooperation. By ending state actions that support the ACA and refusing to enforce any of its mandates, a state can make it nearly impossible to run Obamacare within its borders. The federal government never intended to run the healthcare system alone, and ultimately, it can’t do it without state help. We’ve already seen the difficulties created for the Act by the number of states that simply refused to set up exchanges for the federal government.

“The federal government can barely manage running a website,” Tenth Amendment Center Executive Director Michael Boldin said.

This follows James Madison’s advice for states and individuals in Federalist #46. He advised a “refusal to cooperate with officers of the Union” when states engage in unwarrantable acts.

Judge Andrew Napolitano noted that if a number of states were to refuse to participate with the ACA in a wholesale fashion, that multi-state action would “gut Obamacare.”

it will gut ObamaCare because the federal government does not have the resources or the wherewithal […] to go into each of the individual states.”

This strategy 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. U.S. 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.”

How all of this plays out remains to be seen. But if multiple states begin to simply ignore Obamacare, refuse to enforce it and create frameworks for better healthcare delivery within their borders, Obamacare will ultimately collapse like the house of cards it is.

Mike Maharrey
March 01, 2018 at 05:47AM