• Home
  • State Legislatures: The Last Guardians of the Republic (V)

State Legislatures: The Last Guardians of the Republic (V)

William L. Kovacs

September 2021

State Legislatures: The Last Guardians of the Republic (V)

This Part V of “Can the U.S. Unite, if not, How Does it Divide? discusses the options available to states to restrain the continuing amassment of federal power by diminishing the role of states and citizens in the Union. As discussed in Part IV, our Constitution designates state legislatures as the last guardians of the Republic. Failing collective state action, individual states can protect the personal liberties of their citizens.

Collective state action can reduce federal power

The governing framework of the U.S. is“…federalism … a system of government in which powers are divided among two levels of government of equal status.” Within this structure, power is balanced between the three branches of the federal government and between states and the federal government. This power-sharing arrangement is designed to prevent any constitutional entity from gaining power beyond what the Constitution grants.

Unfortunately, for a century and one-half, all three branches of the federal government have accumulated power at the expense of the states. To control this federal overreach, Article V of the Constitution delegates to State legislatures the right to amend the Constitution by calling for a Constitutional Convention.

While a Constitutional Convention has never been approved by the states, it is a viable option. Under Article V, upon application of the legislatures of two-thirds of the several states, (34), Congress must call a Convention for the purpose of proposing amendments to the Constitution. If the Convention’s proposals are ratified by three-fourths of the states, those Amendments become part of our Constitution, notwithstanding the objections of the federal government.

This state convention process cannot be denied, vetoed or regulated by Congress, the president, or the governors of the respective states. The Convention is totally controlled by the selected delegates. If state legislatures believe that a massive, overreaching, debt-ridden, dysfunctional federal government is not operating within the framework of our Constitution, it is their duty to act.

If the states fail to call a Convention, or the federal government thwarts the process, individual states have other options to control federal overreach

If a Constitutional Convention fails, or the federal government obstructs it, individual states can protect the liberties of their citizens. All state actions to protect liberty must be peaceful and non-violent, otherwise, they give the federal government the excuse it needs to crush states and citizens as “enemies of the state,” and impose martial law.

State Actions to challenge Federal overreach and preserve state sovereignty

States acting individually or as a group of states, have several peaceful ways to protect personal liberties from federal overreach. The greater the number of states participating in the freedom-seeking effort, the greater the chance of its success. If the 20 – 27 so-called “red” states acted together, they will have the leverage to seriously negotiate over the scope of federal power. The primary options:

Non-Cooperation: Martin Luther King used non-violence and non-cooperation to secure equal justice, for all, in the U.S. Gandhi used these tactics to challenge the British Empire. States wanting a smaller federal government and to protect the constitutional rights of their citizens, could, as a group, voluntarily take a non-cooperation stance on federal programs.

Presently, states and local governments participate in 2200 federal programs and administer most major, domestic programs, e.g., hazardous waste, water pollution, labor, education, child nutrition. These grant programs allow the federal government to induce states to implement federal programs that could not be enacted by Congress. The states would merely refuse to administer any federal programs. Since the federal government cannot commandeer a state’s resources, the federal government would have to administer federal law in the non-cooperating state. While the states may lose the federal funds associated with these programs, the states would no longer have to administer programs that are costing them substantially more money than they receive.

The federal government certainly could administer a few of its programs in a few states, but if all the “red” states joined together and refused to cooperate on a large number of programs, the federal government would need to negotiate with the states on a power-sharing arrangement if it wanted those programs administered.

State Personal Liberty laws: From the founding of the Republic to the Civil War, abolitionists persuaded states to enact Personal Liberty Laws to protect fugitive slaves. These laws were grounded on the principle that states could protect individuals within their borders. To avoid the federal supremacy clause rendering inconsistent state laws void, the States enacted laws making it difficult for bounty hunters to capture fugitive slaves by denying them state resources, e.g., bounty hunters could not hold fugitive slaves in local jails, and the imposition of high court costs to secure the “legal transfer” of a fugitive slave substantially reduced the value of the bounty.

Today, to maneuver around the Supremacy Clause, states would enact laws expanding the civil rights of those living in a state.  A few current examples. Washington State. has enacted stronger protections against warrantless searches than the federal constitution. Eight blue states and hundreds of cities have enacted Sanctuary laws to protect immigrants from federal prosecution. One state is proposing to prohibit federal law enforcement officers from arresting or detaining individuals solely on the basis of a civil immigration detainer. On the “red” side of the ledger, there are three states and over 230 counties in 19 states that have enacted Sanctuary laws to protect the constitutional rights of gun owners.

The most widespread use of Personal Liberty Laws is found in the states that have legalized marijuana, a substance still considered illegal under federal criminal law. Recreational use is legal in 11 states. Thirty-five states have legalized it for medical use. Only five states follow federal law. These states prove states cannot be forced to implement federal law. If the federal government wants marijuana laws implemented in forty-six states, it will have to do it itself.

Today, the federal government’s threats to individual liberties center around restricting free speech, religious freedom, freedom of association, right to trial by jury, and to confront one’s accuser. State Personal Liberty Laws could be enacted to enlarge federal constitutional protections. It would be difficult for the federal government to attack state laws that expand the constitutional rights of citizens?

States might also prohibit the federal government from warrantless spying on American citizens in their states, filing false documents to mislead a court or prohibit federal constitutional and human rights abuses by imprisoning citizens, with only scant evidence, for long periods, without a trial and placing them in solitary confinement in what is now referred to as DC Gitmo. All of these actions are violations of federal law but the federal government ignores the crimes it commits so it can gain more domination over citizens. States can stop federal abuse of law.

As states restrict illegal federal practices, it would become more difficult for federal officials to carry out illegal activities in these Free States. New types of Personal Liberty Laws are needed to protect citizens in the 21st century, just as they protected fugitive slaves from bounty hunters.

Promote small business: The federal government for decades has favored big business in its tax and trade policies, the lax antitrust enforcement, and during the pandemic it allowed big business to remain open while shuttering small businesses or imposing overly restrictive regulations on them. To counter-act this federal favoritism, states could direct most of their purchasing too small businesses as a way of promoting competition with the larger companies that use their massive pricing power and federal favoritism, to destroy small businesses.

Citizens in these Free States could boycott woke big businesses: Citizens in the Free States could boycott products and services made by U.S. businesses that demand or indoctrinate their employees into wokeness, manufacture products in China using slave labor, assist China to violate the privacy of U.S. citizens or deny “objectionable” individuals the right to use publicly available social media.

Through non-cooperation with over-reaching federal laws, by enacting state Personal Liberty Laws, and challenging abusive business practices fostered by the federal government, citizens of Free states have the opportunity to live in states that protect freedom. These challenges will place a spotlight on federal overreach as well as the ability of citizens to achieve freedom. The more states that promote freedom, the greater the possibility of freedom for all Americans.

The federal government will not on its own, restrain its thirst for power. It will take state action to preserve the Republic.

Links to Parts I, II, III, IV  

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.

  • Home
  •    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.

  • Home
  • Feds Diminish State Sovereignty to Secure Unchecked Power (58) (Part III of V)

Feds Diminish State Sovereignty to Secure Unchecked Power (58) (Part III of V)

William L. Kovacs

August 2021

Feds Diminish State Sovereignty to Secure Unchecked Power (58) (Part III of V)

Part III of the series “Can the U.S Unite? If not, How Does It Divide?” addresses how the federal government, over a century and a half, amassed power by diminishing state sovereignty. It achieved this outcome by systematically manipulating the vagueness of the Constitution to eliminate the few constitutional restraints on its power. Now as the sole ruler of the nation, the lack of any check on federal power is resulting in national decline.

States retain the Constitutional right of self-government until feds diminish it

While the North’s victory in the Civil War settled the supremacy of the Federal government over states on the issues of civil rights, the right to vote, and the application of the Bill of Rights to the actions of states, the federal government has dramatically expanded its powers over states and persons using other vague provisions of the Constitution never intended for the federal amassing of power.

What is so frightening about the accumulation of federal power is our Founders believed the Constitution granted only limited powers to the federal government. Unfortunately, from the beginning of the Republic, all three branches of the federal government, realized  “The Constitution of 1788 contained very few specific restrictions on the ways in which the power of the national government could be exercised against its people.” As the power of the federal government expanded, the power of the states and citizens was reduced.

So, while the U.S. Supreme Court may hold a state does not lose its distinct and individual existence, or its right of self-government by being part of the Union, such belief is a pure illusion. Other than the rights protected by the Bill of Rights and the three Civil War Amendments, the only other protections citizens have against the federal authority are those given us by legislation, and those protections can easily be repealed by Congress, ignored by the Executive or struck down by the courts.

A few examples tell the story of the incredibly shrinking power of state sovereignty and their ability to protect the freedom of citizens.

Direct Election of Senators: Perhaps the most significant change in the federal/state relationship, other than the Civil War Amendments to the Constitution, is the direct election of Senators, adopted in 1913 by the XVII Amendment to the Constitution. Prior to 1913 state legislatures elected Senators. While the direct election of Senators is a democratic change, it dramatically changed the power structure of the nation.  A Senator elected by a state legislature is accountable to the state. Senators elected by the people are independent, representing themselves, their political party, and large financial contributors. For Senators elected by the people, service to their state is merely a pleasant, fleeting campaign thought on the road to the “presidency”.


The Irrelevant Tenth Amendment: Our Founding Fathers believed the national government was one of the limited powers, having only those specifically granted it by the Constitution. Therefore, powers other than those enumerated in the Constitution, rest with States or the people. To enshrine this belief, the X Amendment to the Constitution reads “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

While the federal government remained small in size and authority, the power of states was not frequently questioned. When the federal government sought, during the Great Depression, to greatly expand its powers to implement the New Deal, the limits of federal power became a Constitutional issue. The question of the extent of federal power first arose when the Department of Labor sought to regulate wages. States argued wage regulation was not enumerated in the Constitution, therefore, it was not a federal function since, under the X Amendment, such power rested with the states. Unfortunately for the states, a unanimous Supreme Court, in United States v Darby, (1941) stripped all meaning from the X Amendment. The court held the X Amendment was merely a “truism” since the substance needs are determined by what powers are delegated to the federal government from any part of the Constitution.  In Darby, the court held the federal government has the constitutional power to regulate wages under the Commerce Clause. This holding ignited the massive expansion of federal power.

The Ever-Expanding Commerce Clause: Using the powers granted under the Commerce Clause of the Constitution, “to regulate Commerce with foreign nations, among the several states, and with the Indian tribes,” the Supreme Court sanctioned the massive growth of what has become the Administrative State. The federal government can now reach almost every activity in the nation, i.e., labor, environment, securities, even children’s toys, and the treatment of animals. The federal government issued 190,000 new regulations (which are laws) between 1976 – 2017 and passed so many new federal laws, no one knows how many.

The Supreme Court did not strike down a single federal law expanding federal power between 1937 to 1995. In 1995 it finally struck down a congressional enactment involving the possession of a gun in a schoolyard. The question was whether one gun so sufficiently impacted commerce that the federal government could regulate it. The court found, that the possession of a gun, did not substantially impact interstate commerce. The Supreme Court struck down another case involving violence against women, as being intrastate, not interstate, commerce in nature. After minimally limiting federal power, the Supreme Court returned to rubber-stamping all future congressional enactments.

Any gaps in the feds power over the states were easily filled by bribing states

Whatever state activities the federal government cannot regulate through the Commerce Clause, Congress can reach by using its tax and spend powers under the Constitution. By placing conditions on the grants, it makes to states, the federal government can entice states to do whatever federal business it wants done in order to receive federal money.

Prior to the pandemic, the federal government made $533 billion in grants to states in 2018, about 30 % of state budgets, to implement federal programs. With federal Pandemic funding flowing into state budgets, by hundreds of billions of dollars, States are now under more federal control than ever before.

Only a few superficial limits on federal power over states

It appears there are only two marginal limitations on the extent of federal power over states. First, the feds cannot regulate purely local activity however, even this limitation is questionable. The Supreme Court has even found the production of agricultural products grown for personal consumption during the depression and marijuana grown for personal medicinal use, have cumulative impacts on commerce, as such could be subject to federal regulation.

A second limitation on federal power, it cannot commandeer state personnel or resources for federal purposes. To get around this limitation, the federal government merely bribes states with tax dollars likely sent to DC by the states.

Since Darby eliminated any federal respect for states, all three branches of the federal government abandoned any belief that states are sovereigns and capable of self-government. By working together, the three branches of our government, have manipulated the Constitution to expand federal power at the expense of state power. The result is a federal government free of all checks on its power.

As state sovereignty is constantly being diminished by the feds, some states are fighting back. Part IV will discuss how the states are fighting back. This state resistance raises two questions – how long can a “Civil,” Civil War continue? and what are the options for states crushed by federal power to regain some sovereignty?

Links to:  Part I and Part II