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  • U.S. vs TX, Forget Invasion, It’s the Tenth Amendment

U.S. vs TX, Forget Invasion, It’s the Tenth Amendment

William L. Kovacs

May 2024

U.S. vs TX, Forget Invasion, It’s the Tenth Amendment

Litigation between Texas and the United States over Texas’s right to defend itself by securing its border with Mexico from the onslaught of illegal immigration addresses momentous yet unexplored constitutional issues. Can Texas defend itself? Can the federal government force Texas to absorb the financial and social cost of illegal immigration?

While U.S. Supreme Court precedent finds these types of disputes non-justiciable political questions to be resolved by Congress, there is legal precedent under the Tenth Amendment that likely shifts the responsibility for and cost of illegal immigration from Texas to the federal government.

Has Texas been invaded? Texas hangs its cowboy hat on two provisions of the Constitution, Article I, section 10 (“Compacts clause”) and Article IV, section 4 (“Guarantee Clause”). The Compacts Clause prohibits states from engaging in war unless the state is invaded or “in such imminent danger as will not admit of delay.” The Guarantee Clause mandates that the United States guarantee each state a Republican form of government and “protect each of them [states] against invasion.

The Keyword in both clauses is “invade,” or derivations of the term.

The few etymologists dissecting these terms conclude that millions of illegals entering the U.S. is not an invasion. A study by The Tenth Amendment Center traces the term from the first English dictionary in 1755 to the present. The term “invasion” has been consistently characterized as a foreign military power equipped with weapons intending to commit physical violence against another country.

A Texas Public Policy Center study, “The Meaning of Invasion Under the Compact Clause of the U.S. Constitution” (2022) study concluded that when the Constitution was drafted, the term “invade” involved two core concepts: entry and enmity (intent to act in armed conflict). The Foundation’s definition of invasion includes state and non-state warfare that seeks to” overthrow the lawful sovereignty of the state.” Under this reasoning, cartel activities could be an “invasion” if Texas can establish violent intent to challenge its sovereignty.

The Supreme Court has been reluctant to address cases involving the Compact and Guarantee Clauses. In Luther v. Borden, 1849, the court was asked to determine the lawful claimant to the Rhode Island government due to an insurrection. The court held the Guarantee Clause is a legislative power residing in Congress; therefore, it is a non-justiciable political question.

In 1912, corporations in Oregon argued that a state law authorizing initiatives and referendums violated the Guarantee Clause since it allowed a popular vote, which is contrary to a Republican form of government. The Supreme Court again held the issue to be a political question. In 1956, Congress delegated its powers to resolve violent conflicts to the President.

In 2023, Texas sought to void Department of Homeland Security (“DHS”) enforcement guidelines. Texas argued that by prioritizing the arrest and removal of noncitizen suspected terrorists, DHS violated federal law by not arresting and removing a more significant number of illegal immigrants. The court dismissed the case for lack of standing since DHS did not prosecute any of the states litigating the issue.

To avoid defeat, Texas could assert its Tenth Amendment rights: “powers not delegated to the U.S. by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people.” While the Supreme Court generally dismisses 10th Amendment cases by finding implied constitutional powers to support almost all federal actions, it has recognized limits to federal power over states.
In a 1992 case, New York vs. U. S., the Supreme Court chiseled a Tenth Amendment path for states to defeat claims of federal authority. In that case, Congress enacted legislation mandating that states dispose of all low-level nuclear waste generated within the state or take title to all the waste, including liability for its long-term disposal.

The court held that while Congress had the authority under the Commerce Clause to regulate low-level nuclear waste, it only had the power to regulate the waste directly. As such, Congress sought to commandeer New York’s legislative process, a power that violates the 10th Amendment.

The Federation for American Immigration Reform estimates that illegal immigration costs states $116 billion annually and Texas $13.4 billion annually.

Similar to New York v. U.S., the federal government is de facto commandeering state legislative and appropriation processes by making states responsible for the cost of managing federal immigration policy. While the Supreme Court may view controversies under the Compacts and Guarantee clauses as non-justiciable, it cannot avoid federal actions forcing states to assume the massive cost of illegal immigration. If the federal government has the sole power to regulate immigration, as it claims, it must exercise such power directly and pay for it.

William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. His previous book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. He can be contacted at [email protected]

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  • Offset Cap & Trade Compacts with a Reliable Energy Compact

Offset Cap & Trade Compacts with a Reliable Energy Compact

William L. Kovacs

March 2023

Offset Cap & Trade Compacts with a Reliable Energy Compact

The green climate zealots have successfully formed two interstate Compacts consisting of twelve states to address the climate change issue through a cap-and-trade system. While many conservatives believe these compacts are shining examples of state overreach, excessive regulation, and wasteful subsidies, these same conservatives are silent on solutions. Last week, the state of Utah enacted an energy security law that could serve as the foundation for a Reliable Energy Interstate Compact of States (“Reliable Energy Compact”).

Led by Representative Ken Ivory and Senator Derrin Owens H.B. 45, Utah’s Energy Security Law requires the state to ensure the reliable production and distribution of energy for its citizens by promoting the use of energy resources, including fossil fuels, generated within the state.

On the electricity delivery side, it requires a reliable energy system that can supply continuous electricity at the proper voltage, frequency, and resiliency to withstand sudden or unexpected disturbances. This provision is a brilliant idea to ensure that any increase in the use of renewable energy is accompanied by the needed battery storage and transmission capacity, so the electricity generated can be continuously distributed by the grid. (This issue has been ignored by the federal government.) The legislation also promotes the development of a secure supply chain from resource extraction to energy production and consumption.

Utah’s goal is energy independence and affordable energy for its citizens.

Considering that the Biden administration, without any specific legal authority, is attempting to shut down all fossil fuel production in ten years and is pushing the growth of renewable energy beyond the limits of its storage and distribution capabilities, there is a need for new energy management ideas.

The policies contained in H.B. 45 make too much sense to remain in one state. While Utah will share its ideas through the literature, and educational conferences, a more effective option might be the formation of a regional Interstate Compact. These compacts are effectively used by environmental groups. It is time for conservatives to use them to promote their policies.

Interstate compacts are cooperative actions between states to advance specific policy issues. The compacts can be congressionally approved or non-congressionally approved agreements between states to take specific actions.

Formal, congressionally approved compacts with other states are established under Article I, sec.10, cl 3 of the U.S. Constitution. These formal state compacts range from boundary disputes to lotteries, river management, drivers’ licenses, to multi-state tax matters. Ballotpedia provides a list of approved compacts from 1785 to 2014.

The Southern States Energy Compact is a workable example of the formal, congressionally approved Compact. It has eighteen members and was created to encourage economic development among its member states through the improvement of energy, environmental, and technology policies.

Not all Compacts need to be approved by Congress. While the text of the Compacts Clause reads as if all compacts must be approved by Congress to be valid, the U.S. Supreme Court has not endorsed this reading. The Supreme Court has “…adopted a functional approach in which only interstate compacts that increase the political power of the states while undermining federal sovereignty require congressional consent.”

Relying on the court’s functional approach, nine states in the Northeast and Mid-Atlantic, and three west coast states, formed regional compacts to address climate change concerns. They set up state cap-and-trade systems. It does not interfere with federal power since there is no authority to create such systems under federal law.

The difficulty with the formal approach is that in a divided Congress and with an administration hostile to all energy sources except green energy, it is unlikely Democrats would formally approve such an effort. Conversely, it is unlikely that the Democrats could secure the votes to disapprove of an informal energy compact, especially in light of the environmentalists’ cap-and-trade compacts.

A Reliable Energy Compact, like the environmentalists’ cap and trade compacts, would be formed to ensure local citizens have the energy they can afford. Such a compact would not, in any manner by changing any political balance within the U.S. or even be contrary to any federal law since there is no federal law that prohibits the development of a state from using its resources to produce reliable and affordable supplies of energy.

Within the mountain states region, Utah would likely find receptive members in Wyoming, Montana, North Dakota, South Dakota, Oklahoma, and Idaho. While the Reliable Energy Compact would not interfere with any federal law, it would stand as a competitive policy in the marketplace to the environmentalists’ cap-and-trade compacts.

This competition between radically divergent energy policies will allow the citizens of the nation to observe comparative benefits and costs in real-time and on real people. Such a comparison will assist the American people in distinguishing fact from propaganda. For far too long, the environmental community has controlled the public space with unworkable, expensive ideas. It is time for conservatives to place their ideas into the public square to be tested alongside the claims of the environmental community.

Let the better policy win!

William L. Kovacs, author of Reform the Kakistocracy, winner of the 2021 Independent Press Award for Political/Social Change, and served as senior vice president for environment, technology & regulatory affairs at the U.S. Chamber of Commerce.

 

 

 

 

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  •    A “Civil” Civil War, for Now    

   A “Civil” Civil War, for Now    

William L. Kovacs

September 2021

   A “Civil” Civil War, for Now    

This Part IV of “Can the U.S. Unite, if not, How Does it Divide? discusses actions taken by states to resist federal diminishment of state sovereignty. For now, it’s a “Civil” Civil War but if the federal government continues to trample on state sovereignty, the conflict could lose its civility.

In just eight months Biden issued 52 Executive Orders, 92 Proclamations, and 26 Presidential Memoranda. The federal government is literally swallowing whatever is left of state sovereignty. Many of the so-called “red” states are now fighting back. As of August 4, 2021, there were 13 multi-state lawsuits against Biden administration policies for encroaching on state sovereignty. The disagreements are broad:

Texas sues the Biden administration over the release of illegal aliens within Texas and staging the transfer of these illegals using Texas transportation facilities and local communities for housing and health care.

Texas, joined by Arizona, sues the Biden administration for halting the already approved, partially funded construction of the border wall to protect the border states.

Missouri and eleven other states sue the Biden administration over Biden’s Executive Order that unilaterally asserts the power to dictate specific values for the social cost of greenhouse gases as a way to regulate climate change without congressional approval.

Louisiana and Wyoming and twelve other states sued the Biden administration for arbitrarily halting new oil and natural gas leases on federal lands.

Montana and twenty-three states sued the Biden administration to force reinstatement of the canceled Keystone Pipeline, which had already been permitted.

West Virginia and twelve other states sued the Biden administration over the provisions in the $1.9 trillion relief package limiting the ability of states to reduce taxes using federal pandemic money.

Twenty-Five Red States are opting out of the $ 300 a month extra unemployment weekly bonus as a disincentive to work.

At least three states have banned and twelve more are proposing to ban the teaching of Critical Race Theory (“CRT”) in public schools. CRT teaches students that race is central of their education. The Biden administration is implementing it through a Department of Education grant program.

South Dakota established a “Committee on Neutralization of Federal Laws” to review whether proposed federal laws or regulations are constitutional.

Even local governments are seeking ways to promote freedom from federal overreach. Sixty-seven Florida counties are proposing the adoption of a Bill of Rights Sanctuary Ordinance. Two counties in Nevada are proposing to become “Constitutional Counties” where the local sheriffs will protect the constitutional rights of citizens from federal overreach.

While lawsuits proceed over many years, the southern border remains open, allowing millions of illegal aliens into the country.  Oil pipelines remain closed while gas prices skyrocket and the president begs OPEC to produce more foreign oil. Biden’s new climate regulations impose billions of new costs on consumers. CRT will be taught in more and more public schools. High inflation is draining income from average citizens. Finally, the federal government prints unlimited amounts of dollars while ignoring our $30 trillion national debt.

Domestic conflicts distract Biden from protecting the nation from harm

While Biden is waste deep in domestic fiascos, the world turns an evil eye to the U.S.  Biden’s hasty withdrawal from Afghanistan leaves the U.S open to horrific outcomes. Afghanistan is being ruled by powers hostile to us and maybe subsumed by civil war. Finally, China, Russia, Iran, or North Korea, will likely test our feeble president in some far-off area of the world, e.g., the South China Sea, Ukraine, or Syria.

Under Biden, the U.S. is beginning a decades-long decline, similar to the decline of Great Britain. At some point it is likely the U.S. will settle into a state of equilibrium, just as happened to Great Britain. The U.S. will still be a major country, like Great Britain, France, or Germany, but it will lose the title of “world superpower.” The sun will set on the U.S. empire unless the federal government recognizes it cannot address every whim of the nation. It must prioritize what is most important – security of the nation and a sound economy.

Devolving federal power to the states is necessary.

If the federal government can admit it needs help to manage a massive nation, many states would seriously embrace as much self-governance as possible so their citizens can enjoy as much freedom as possible, including freedom of speech and religion, protection from crime, fewer federal regulations, limited government and lower taxes. A few options are:

Congress can just “do it.” Congress, on its own, at any time, could transfer many of the domestic functions it amassed in the last century, back to the states. A few options are:

Negotiations with states. Congress could negotiate with the states over which of the 2200 federal assistance programs the states can best manage without federal involvement and then transfer those programs to the states.

Re-constitute the Joint Committee on Reduction of Non-Essential Federal Expenditures operated between1941 to 1974. Its sole purpose was to recommend to Congress ways to reduce the massive federal government created by WWII.   If Congress wants a rational decision-making process for determining what programs to devolve to the states, it could re-establish this Committee.

Enact a Base Realignment and Closure Commission (“BRAC”) that applies to general appropriations. Using the BRAC structure, Congress could apply the same approach to all recommended reductions as a means of reducing political support for unneeded programs. The Commission would recommend and Congress would approve or disapprove.

Congress could simply not fund unauthorized laws. Thousands of laws expire and are never reviewed or separately reauthorized. Instead, Congress merely deems all these laws to be reauthorized. In the FY 2019 appropriations, Congress funded 971 expired laws at a cost of $307 billion. If  Congress has so little interest in certain laws that it will not even review the viability of the law, why should it fun them?

Congress mandates agencies identify and eliminate unnecessary expenditures. Every agency should be required to eliminate unneeded programs. Each agency would recommend a fixed percentage reduction in expenditures. All recommendations must be addressed by the agency.  This program reduction effort will eliminate hundreds of billions of dollars in appropriations, create government efficiency, and eliminate regulatory duplication.

If the federal government refuses to devolve power to the states, states could form Compacts to develop, implement or eliminate programs in lieu of federal programs

Enter into Formal Compacts with other States under Article I, sec.10, cl 3, with the Consent of Congress. While these compacts are generally used to manage multi-state matters such as rivers between two or more states, or interstate air pollution, they could be used to establish uniform, multi-state programs, desired by the states, and implement them in lieu of federal programs, e.g., criminal justice, welfare, health care, job training, labor reform.

Enter into Informal Compacts with other states. If Congress declines to approve the formal Compacts, states could informally organize to address issues of concern. For example, nine states in the Northeast and Mid-Atlantic, and three west coast states, formed regional compacts to address climate change concerns. These states enacted programs that were substantially different from federal statutory programs. States could form a Compact of Free States to protect free speech, religion, right of association, and free enterprise. Moreover, they could informally establish joint litigation teams to wage a well-financed, legal war against federal overreach. Without congressional approval, the states would merely work together on a voluntary, informal basis.

If the federal government devolves powers to the states, it will have more time and resources to focus on the primary federal issues of security and the economy.

If the federal government rejects devolving power and participating in federalism, it sends a strong message to the states that its goal is amassing power, not governing for the benefit of citizens. This rejection also tells freedom-loving states and their citizens, the U.S. will only become more authoritarian. At that point the states must explore mechanisms to confront absolute federal power; that is Part V.

Links to Parts I, II, III

William L. Kovacs, author of Reform the Kakistocracy: Rule by the Least Able or Least Principled Citizens, Winner of the 2021 Independent Press Award for Social/Political Change. Former senior vice president, U.S. Chamber of Commerce.

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  • States Seek Permanent Democratic Presidential Rule

States Seek Permanent Democratic Presidential Rule

William L. Kovacs

March 2020

States Seek Permanent Democratic Presidential Rule

This article is not about the 2020 election. It’s about a more serious effort by the Democratic party to permanently control the presidency. The effort has a non-threatening name “The National Popular Vote Interstate Compact,” (“NPV”).

Under NPV, a state, by agreement with other states in the compact, awards all its electoral votes to the presidential candidate who wins the popular national vote, notwithstanding who wins the popular vote in the respective states. The compact goes into effect when the states controlling the majority of electoral votes (270 electoral votes) join the compact.

This effort is a few states shy of ratification and so far, avoids congressional review or approval.

Whether we like it or not, our Constitution is a very malleable document. It can be manipulated by those seeking power over us. Since its ratification, political parties have manipulated it to obtain control over us. The NPV is merely an extension of those efforts.

Political parties are not mentioned in our Constitution. They are groups of individuals who organize to take control of our government by winning elections.

For the first century and a half, political parties had limited powers.  Professor Brian Porto, in “The Constitution and the Ballot Box” explains that while political parties organized a few years after the founding of our country, it was not until the 1912 elections, that the two major parties feared losing control of government to minor political parties. That year, Teddy Roosevelt’s Bull Moose party received more votes than the Republican and the Socialists won several congressional seats and over 1,200 local offices. State legislatures, to protect the two major parties, enacted laws making ballot access difficult for third-party candidates.

By limiting ballot access, the two major parties established a power sharing arrangement in which the two groups, a Republican party or Democratic party, would control, or share control of the governments across the U.S. With such control, the two major parties perpetually determined what laws are enacted, who receives government benefits and how commerce is regulated.

The effectiveness of the arrangement is astonishing. David Nir, in an article in the Daily Kos, estimates there are 519,682 elected officeholders in the United States. From scant party statistics, about 350 of these offices were won by third-party or Independent candidates. All other offices are held by the two major parties. A calculation places the third-party competitors’ share of the political market at 0.0006754%. The two major parties’ control 99.993% of elected offices.

Now comes NPV, that if ratified, and upheld by the courts, will end the two parties’ power sharing arrangement by creating one-party presidential rule.

As of February, 2020, the NPV has been adopted by 15 states and District of Columbia, representing 196 electoral votes. The ratifying states are Democrat strongholds (MD, NJ, Il, HA, WA, MA, DC, VT, CA, RI, NY, CT, CO, DE, NM, OR). Four of these states ratified in 2019.

Seventy-four more electoral votes are needed for ratification, which is possible. The measure is still active in states having 101 electoral votes and controlled by Democrats or could swing Democratic: VA (13), NC (15), WI (10), GA (16), MN (10), NH (4), AZ (11), MI (16), NV (6).

If the Democrats secure ratification, they bind every compact state to cast all votes for the presidential candidate winning the popular vote. The Democrats would no longer need to campaign nationwide, they only need to win NPV states to win the presidency.

Once Democrats gain control of the presidency in this manner, the electoral college is defunct. The NPV changes the electoral structure of the Constitution from a candidate needing to win a majority of the electoral vote, to one needing only the largest percentage of an undifferentiated, nationwide, popular vote.

If Democrats win the White House in 2020, it is likely they pick up the remaining electoral votes needed to ratify NPV.  The constitutionality of the NPV will be up to the Supreme Court. Unfortunately, the Constitution has conflicting provisions.

Article II of the Constitution vests state legislatures with plenary power to appoint the number of electors equal to the number of electoral votes the state can cast. There is no further constitutional or federal statutory clarification on how electors are to vote. In fact, our founding fathers viewed the electoral college as a group of wise-men having a final check on the voters.

Conversely, Article I, section 10, of the Constitution, prohibits states from entering into compacts with other states, without the consent of Congress. While the literal reading of this clause appears to mandate the consent of Congress, the Supreme Court narrowed the need for congressional approvals to situations “tending to the increase of political powers in states, which may encroach upon or interfere with the just supremacy of the United States.”

While it is likely the Supreme Court strikes down the NPV as a fundamental change in our constitutional framework, letting the conflict get that far is a massive risk for the country. The consequences of NPV need to be explored before it is “ratified” and a presidential election is in doubt.

Action: Congress needs to hold hearings on NPV to understand the limits of state power under the Compacts clause, and the scope of power held by presidential electors.

Congress needs also to explore the social, economic, and political impacts of NPV on the union.

If Congress finds NPV violates the Compact clause, it should reject it before ratification.

Organizations supporting federalism, free markets and individual liberty should start educating citizens on this issue.

This article was first published in The Libertarian Republic, March 12, 2020.