• Home
  • National Debt Will Force Devolution of Power to the States

National Debt Will Force Devolution of Power to the States

William L. Kocacs

November 2023

National Debt Will Force Devolution of Power to the States

Part II:  Series on Devolving Power to the States

As the spending minuet plays out between the House and Senate over appropriations, supplemental spending for wars, and government shutdowns, a wall of debt is being built around the Congress. With an estimated $45 trillion national debt by 2030 and interest payments exceeding a trillion a year, reality will force our lawmakers to stop spending. One of their first cuts will be to reduce and eventually eliminate the $1.2 trillion Congress gives to states as a bribe to operate federal programs that the federal government, many times, has no authority to operate. This occurrence will be the beginning of the devolution of power to the states.

How did the federal and state governments get into this bind? More importantly, how do they get out of debt?

The answer is clear: if it’s constitutional to increase federal power, it must also be constitutional to decrease it. This flexibility allows the federal government to return to the states the powers taken from them over the past eighty years. Devolution of power will be the lynchpin that keeps a de facto bankrupt Union together.

The growth of the federal government has been the only unifying ambition of Congress, presidents, and the courts since the dawn of the Republic.

The expansion of federal power started with Chief Justice Marshall’s 1819 decision in McCulloch v. Maryland. Marshall not only solidified all the federal government’s enumerated powers, he broadly applied the ‘necessary and proper clause’ to establish sweeping implied and incidental federal powers. He indicated no phrase in the Constitution limits the use of these implied powers.

His decisions elevated the Supreme Court to being the final arbiter of constitutional issues. By skillfully combining the Constitution’s enumerated powers with its implied powers, Marshall designed a governing structure with few limits on federal power short of a revolution.

While the Supreme Court approved the accumulation of massive federal power early in the Republic, it took until the 1940s for the court to erase the Tenth Amendment and state powers from the Constitution.

The demise of the Tenth Amendment arose when the Department of Labor sought to regulate local wages. States argued wage regulation was not an enumerated federal power in the Constitution. Therefore, such power rested with the states. Unfortunately for the states, a unanimous Supreme Court in United States v Darby (1941) held the Tenth Amendment was merely a “truism” since the substance needs to be 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 authority to regulate local wages under the Commerce Clause.

The ever-expanding Commerce Clause.

Using its expansive interpretation of the Commerce Clause, the Supreme Court sanctioned the massive growth of what has become the Administrative State. It transformed a country that practiced federalism (a system of governance in which two levels of government control the same territory) into a nation of federal rule. Over eighty years, Congress enacted thousands of laws and over 200,000 regulations that reach almost every activity and product in the nation.

Between 1937 and 1995, the Supreme Court did not strike down a single law expanding federal power. In 1995, it finally struck down a congressional enactment involving gun possession in a schoolyard and another case involving violence against women, finding both to be intrastate, not interstate, commerce. After minimally limiting federal power, the Supreme Court returned to rubber-stamping all future congressional enactments.

Gaps in federal power over states were filled by bribing states to pursue national priorities.

A Brookings study on state budgets noted, “In 1900, states and localities raised $1.75 for every $1 of federal revenue. They performed all government activities except national defense, foreign relations, [federal] court proceedings, and postal services.” While the federal government made grants to the states in this period, those grants generally subsidized existing state programs.

Since the Great Depression, Congress enacted many new social programs, some of which it did not have the constitutional authority to implement. To overcome its constitutional limits, Congress raised federal taxes to generate sufficient funds to make grants to states to incentivize them to implement federal wishes. By 1960, there were 132 state grant programs. Today, federal grant programs range between 1,000 to 1,300. In 2021, these grant programs  cost the federal government $1.2 trillion annually. The federal government taxes the American public to pay for the grants it makes to the states to have federal wishes implemented.

According to the Bureau of Census, federal grants to states in FY 2020 represent 35.9% of state revenues. While states accept these grants, they come with federal handcuffs. Compliance with many federal mandates often distorts state priorities by displacing local programs that may be more significant to the state’s citizens than the federal programs. Receipt of federal funds can require states to provide matching funds, comply with federal regulatory mandates, and increase personnel for program management.

States are beginning to resist oppressive federal regulation.

More than a few states are now resisting implementing federal programs they do not want to administer or are not being fairly compensated for managing.

State frustration with implementing federal programs started with the conflict over sanctuary states and cities during the Trump administration. Over three hundred states and cities refused to enforce federal immigration laws even though they accepted federal grant monies for law enforcement associated with these programs.

The federal-state conflict, however, is over more than Sanctuary cities. Twenty-three states and the District of Columbia have legalized marijuana, notwithstanding it is illegal under federal law.

Additionally, some federal programs only cover a fraction of the implementation cost. States implement approximately 96% of federally delegated environmental programs but only receive 28% of the cost of implementation. At some point, states will refuse to implement the unwanted or underfunded federal programs, or the feds will increase state funding. Making this decision will depend on the financial situation of the federal government.

Federal deficits will be the catalyst to stop state funding.

Complicating state dissatisfaction with the federal grant programs is the federal government’s financial mess.

The federal government’s interest payments for FY 2022 are $475 billion. CBO projects that net interest costs could total $640 billion in 2023 and soar to $1.4 trillion in 2033. The combination of increasing national debt and soaring interest payments on the debt will cause interest payments alone to exceed the total amount of all grants made to states. The federal government will need to find hundreds of billions of dollars annually to service the increased debt, or it will need to find budget reductions, such as state program grants, to remain in the same financial position as today.

The conflicting trends of states not wanting to implement specific federal programs and the federal government not having sufficient money to fully compensate the states for implementing its programs will start the debate over which federal programs should be administered and by whom.

The federal government’s inability to fund state programs will be the catalyst that drives the states to eliminate the implementation of those programs and spark more freedom to implement programs sought by their citizens. Hence, devolution of power will begin.

William L. Kovacs has served as senior vice president for the U.S. Chamber of Commerce, chief counsel to a congressional committee, and a partner in law D.C. law firms. His book Reform the Kakistocracy is the winner of the 2021 Independent Press Award for Political/Social Change. He can be contacted at [email protected]

Part I:  Fix a Government Too Big to Govern: Devolve Power to the States.

  • Home
  • Politics Will Destroy 200 Years of Expanding Voting Rights

Politics Will Destroy 200 Years of Expanding Voting Rights

William L. Kovacs

September 2020

Politics Will Destroy 200 Years of Expanding Voting Rights

Politicians have voting “ass-backward.” They believe voting is about them and their exalted role as our “rulers.” They believe voters are cheap commodities that pay taxes so the government can give their money to its friends.

It is highly likely that politicians will screw up the 2020 presidential election. Republicans want us to vote early (by mail) and often (in-person). Democrats want to mindlessly flood the U.S. with blank ballots that can be completed by anyone. Both sides believe chaos works to their advantage.

Nothing can be further from the truth! Voting is too important to be determined by politicians.

Voting is for citizens to choose fellow citizens to operate their government for the sole benefit of citizens. Voting is the only tool a citizen has to control a government with massive powers that can be used against us.

In the 2020 elections, officials may be unable to count all the mail-in ballots before the electoral college voting deadline of December 14, 2020. Lawsuits will challenge millions of ballots for every minor deviation, e.g. smudges, signatures looking different than ten ago when one registered. These challenges will all be in the name of a “fair election.”

Perhaps Democrats believe Biden can be selected president by the 2021 House of Representatives. The Republicans may believe a repeat of 2000 elects Trump, since only the nine members of the U.S. Supreme Court vote. Whoever is selected, elected or ordered to be president will be perceived illegitimate by at least half the country. Worse, citizens’ belief in the integrity of the voting process will be destroyed. Such harm will rot the nation!

A brief history of voting places its importance in perspective

The right of citizens to vote is merely a cryptic mention in the text of the Constitution, requiring the House of Representatives “…be chosen every second year by the people of the several States.” Initially, citizens did not vote for Senators; they were elected by state legislatures. Citizens still do not vote for the president, that is the job of the electors selected by state legislatures. Judges were never elected; they are political appointees.

The U.S. Supreme Court explains, the Constitution “does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote.” Politicians and courts determine who is qualified.

“The U.S. Constitution did not originally define who was eligible to vote, allowing each state to determine who was eligible.” After several centuries of living under our Constitution, we the people are still expanding the list of “qualified voters.”

Voting is really a question of power – if one can vote, one can influence how the government works. Since the beginnings of this nation, those possessing the legal right to vote fought to preserve their power to rule by preventing others from securing the right to vote.

Initially, only white men with a certain amount of property could vote. Beginning in the 1820s property requirements began to recede for all white men, including white immigrants. After the Civil War, the 13th, 14th, and 15th Amendments to the Constitution abolished slavery and guaranteed citizenship to all born or naturalized citizens.

These rights were short-lived in that after the election mess of 1876 (Tilden v. Hayes), Democrats traded the presidency away for the removal of northern troops in the South, thereby disenfranchising free blacks through poll taxes, literacy tests, Jim Crow laws, Black Codes and military-style hate armies such as the White League, Red Shirts, and the KKK.

In the late 1880s, Native Americans were gradually given citizenship and the right to vote. In the 1920s women secured the right to vote. In the 1940s Chinese immigrants were given citizenship and the right to vote.

In the 1960s, with the enactment of new Civil Rights laws, many of the restrictions on black voting were made illegal. Eventually, with the draft and the war raging in Viet Nam, the 26th Amendment to the Constitution was ratified giving citizens 18 to 21 years of age the right to vote. The chant at the time was “Old enough to fight, old enough to vote.”  In 1986 citizens living overseas on military bases were given the right to vote.

The struggle for voting rights continues

The struggle to secure the right to vote continues today over access to polling stations, long lines and limited hours to vote, the security of mail-in ballots, voter identification, accommodations for the disabled, seniors, the homeless, felons, and for minorities, especially in poorer communities.

Historically, it is the government that restricts voting. Voting is a struggle because it is immensely important to those holding the power to rule us. The outcome of voting determines who will make and enforce our laws, the amount of tax we pay and who pays, who gets services, who goes to jail, and who remains free for committing the same “crime”.

How voters feel about government and what they can do about it

Polls tell us 71% of likely voters believe the U.S. is on the wrong track. Yet, in 2016 only 139 million citizens out of 250 million citizens of voting age, a 55.7% turnout. That means 111 million eligible voters did not care enough about what the government is doing to vote. The low percentage turnout shows disrespect to all who fought over the centuries to secure for us, the right to vote. These non-voters are invisible citizens at a time when every citizen must be counted.

To all eligible voters – be relevant – Vote in the 2020 election. Minimize the tendency of government to screw up the election by taking time to follow the directions, if voting by mail, and vote as early as you can to take the stress of the system. Urge your neighbors to vote. Be a poll watcher. Citizens, always keep in mind – if you do not vote for the government you want, politicians will impose on us what they want.

  • Home
  • Hong Kong, Indian Tribes: Governments Rule by Force, Not Law

Hong Kong, Indian Tribes: Governments Rule by Force, Not Law

William L. Kovacs

July 2020

Hong Kong, Indian Tribes: Governments Rule by Force, Not Law

The events of the summer of 2020 bring issues of justice, inequality, racism, and civil rights to national attention. President Trump and Congress took strong action against China for violating its 1997 agreement with the United Kingdom to protect Hong Kong’s freedoms for fifty years, under the “One country, two systems” agreement. Unfortunately, the U.S. ignores the many broken treaties signed with Native Americans. It is estimated the U.S. entered into more than 500 treaties with native Americans and it breached all of them in some way.

Also in July 2020, the U.S. Supreme Court, in McGirt v. Oklahoma, recognized the Creek Nation’s ownership rights to almost half the state of Oklahoma. The McGirt decision along with a 1980 decision in U.S. v. Sioux Nation, awarding the Sioux Nation compensation for lands illegally taken in 1877, raises the question of whether the U.S. has acted as bad or worse than China in taking land from native Americans by military force. Fortunately, the cases open avenues for the U.S. to remedy wrongs.

The common denominator between Hong Kong, Creek Nation, and the Sioux Nation, is the willfulness of sovereigns to violate the rights of people by unilaterally withdrawing treaty obligations, to accumulate more power.

China does not pretend to respect the rights of those living under its control. President Trump claims the U.S. is exceptional. He is certainly willing to call China on its abuse of rights. He now has the opportunity to prove the U.S. respects the rights of native Americans.

The Creek Nation decision arises out of a jurisdictional dispute as to whether a native American Indian can be tried in state court for a crime committed on the reservation? Oklahoma prosecuted Jimcy McGirt in state court on felony charges. McGirt argued that since the crime was committed on the reservation, Oklahoma did not have jurisdiction over the crime. Oklahoma argued it has jurisdiction since the reservation was disestablished by federal actions. The Supreme Court needed to determine whether the Creek Nation reservation still existed to determine McGirt’s rights.

The historical significance of the laws governing the Creek Nation reservation is monumental. The tribe was forced by the military in the early 1830s to leave its ancestral lands in Georgia and Alabama and to re-locate in new lands in the west. As part of the new treaty, the U.S. “solemnly agreed” that the new lands would be “secure forever” and that “no state… shall ever pass laws for the government of such Indians.” This forced re-location is best known as the “Trail of Tears.”

To determine the status of the Creek Nation reservation, the court reviewed the 1833 Treaty that established the boundaries of the reservation and the many actions of federal and state governments to coerce or defraud the Creek Nation to abandon their reservation, so it would revert to the government.

The Court noted that when it comes to tribal relations, Congress has the authority to breach its own promises to Native Americans, including divesting reservation land and diminishing its boundaries. In fact, Congress can do about whatever it wants to native Americans, but it must be explicit in what it seeks to do. Moreover, in the 190 years of conflict over its land, the Creek Nation “would not, under any circumstances, agree to cede any portion of their lands.”

The Supreme Court made it clear, “If Congress wishes to withdraw its promises, it must say so. Unlawful acts performed long enough…are never enough to amend the law.” As to the Creek Nation, Congress did not clearly state the reservation was disestablished. Therefore, ownership of the territory, subject to the treaty, rests with the Indians.

In Sioux Nation, like in Creek Nation, the tribe never ceded its territory to the U.S., nor accepted the compensation awarded it by the Supreme Court for the illegal taking. The dispute of ownership of federal lands continues after 153 years.

Specifically, The Fort Laramie Treaty of 1868 provided that “No treaty for the cession of any portion or part of the reservation…shall be of any validity or force as against the said Indians, unless executed by at least three-fourths of all the adult male Indians…”

The decision to abandon U.S. treaty obligations and take the land of the Sioux Nation was first made by President Grant (not Congress), in 1875, by allowing settlers to occupy the territory. Only after the treaty obligations were de facto abandoned did president Grant form a commission to deal with the Sioux Nation.

The Indian Commission drafted a new “treaty” in advance of meeting with the Indians. The Indian Commission made it clear the U.S. would stop providing rations (food) to the Indians unless the new “treaty” was signed. Approximately ten percent of the Sioux male Indians signed the agreement, notwithstanding that the Treaty of Laramie, could not be changed unless ratified by three-fourths of the male, Sioux Indians.

The Indian Commission sent the revised “treaty” to Congress, which ratified it as the 1877 Act.

By ratifying the 1877 Act, Congress merely ratified an agreement between the Indian Commission and ten percent of the needed Indian parties. In short, Congress ratified nothing.

Since the ruling in Creek Nation is the latest and most definitive Supreme Court holding on the taking of Indian lands, the standard for Congress withdrawing such treaties is an Act of Congress that clearly states the treaty is withdrawn. This did not occur in either case. As the court notes in Creek Nation, no matter the illegal activity, or coercive efforts by the U.S., such acts “are never enough to amend the law.”

The 1877 Act, merely ratifies an agreement between an Indian Commission and a small subset of the Sioux tribe. Clearly Congress made a mistake that caused the Sioux Nation to suffer for over a century. The larger issue, however, – will the U.S. recognize the Sioux Nation as the owner of the land it never relinquished? If not, how does our breach of treaty obligations differ from China? Both countries took territory and abolished rights?

The U.S. has an opportunity to remedy a long-standing wrong. It is rare when these opportunities arise. Such an opportunity should not be missed. Congress could easily reaffirm the Treaty of Laramie of 1868 and with the president’s signature, the U.S. would perform an exceptional act.

This article was first published in medium.com on July 22, 2020





  • Home
  • Mt. Rushmore, Broken Treaty: Trump Can Fix 143 year Wrong

Mt. Rushmore, Broken Treaty: Trump Can Fix 143 year Wrong

William L. Kovacs

July 2020

Mt. Rushmore, Broken Treaty: Trump Can Fix 143 year Wrong

Mr. President, in your July 3rd Mount Rushmore speech, in the Black Hills of South Dakota, you exclaimed we are “…the most just and exceptional nation ever to exist on earth.” You have an opportunity to prove it. Honor the 1868 Treaty to re-establish a Sioux Nation Reservation (“Sioux”) on the sacred lands taken from them by military force.

President Obama supported this effort. You have a chance to close, perhaps the largest real estate deal in history.

Your speech was heavy on exceptionalism but avoided mention of the illegal seizure of Sioux lands 143 years ago, a fact recognized by the U.S. Supreme Court in 1980.

The talk about “witnessing a merciless campaign [by protesters] to wipe out our history, defame our heroes, erase our values, …, and unleash a wave of violent crime in our cities, was expected. You called the protestors the “…very definition of totalitarianism,” proposing ten years in jail for anyone damaging national monuments. You made your point, but please do not forget the violence the U.S. inflicted on the Sioux when it wanted their land for passage, gold, timber, and cattle grazing.

As Paul Harvey said – “And now the rest of the story.”

To end the Indian Wars, the federal government and the Sioux negotiated the Treaty of Fort Laramie (1868), pledging to cease the war between the parties forever. The U.S. pledged that the Sioux Nation (parts of North Dakota, South Dakota, Wyoming, Nebraska, and Montana) would be set apart for the absolute and undisturbed use and occupation of the Indians.

The Indians pledged safe travel through their territory, peace and that if any “bad men among the Indians shall commit a wrong or depredation upon the person or property… subject to the authority of the U.S., the Indians shall deliver the wrongdoer to the U.S.”

After ratification, gold was discovered in the Black Hills. Americans demanded to open the territory for settlement. Additionally, the final construction of the Union Pacific Railroad increased travel through the territory.

More settlers and travelers led to clashes between tribes, leading to open hostilities. In 1876, President Grant secretly allowed settlers to move into Indian territory. Grant unilaterally ordered the removal of certain tribes from the territory. In 1877, open war broke out, and the U.S. government annexed the lands protected by the treaty.

From 1877 to 1980, Congress offered money to settle with the Indians, but the Sioux Nation never accepted being forcibly deprived of their lands.

In 1923 the Sioux filed suit in the Court of Claims, but the case was dismissed in 1942. Between 1946 and 1958, Indian claims commissions attempted to determine compensation, and the Court of Claims finally awarded $17. 5 million to the Sioux Nation but without interest from the date of seizure in 1877. The Sioux refused the money.

Litigation continued until 1980 when the Supreme Court ruled since there was a taking of tribal property, there was an “… implied an obligation on the government’s part to make just compensation to the Sioux.” The Supreme Court held that obligation consisted of the $17.5 million Court of Claims damage award, plus interest from the taking date, about $1.5 billion today. The Sioux again refused the money.

Throughout a century of proceedings, the U.S. viewed the taking as an eminent domain proceeding to be settled by money. The Sioux Nation, never relinquished claim to the territory, considering the seizure as a violation of U.S. treaty obligations.

This stalemate is untenable in a democratic society. While the Fifth Amendment of our Constitution requires “just compensation” for the taking of property; it also requires that before the property can be taken, the owners must be extended due process. The Sioux never received due process before the U.S. seizing its property.

The U.S. alternative would be to claim the territory under the right of conquest, extinguishing all Indian rights. This doctrine would merely confirm what happened. The right of conquest was legal in 1868, but presently, it is illegal and perhaps a war crime under Nuremberg Principles. Not a good political move.

President Trump, you can prove the U.S. is still exceptional by abandoning ownership claims to Sioux territory. Most of the land is still sparsely inhabited. Moreover, since the U.S. owns 47% of the west, other adjoining lands may substitute for highly populated areas in the territory.

Resolving this dispute with the Sioux may be the largest real estate deal in history. It will also right a tremendous wrong.

This article was first published in medium.com