October 2020 Newsletter

by | Oct 2, 2020 | AVC Newsletter

This Month…

  • The Principles of Federalism: Still Alive, But Barely: A digest of 11 Federalism-focused news stories and opinion pieces.
  • Heritage: ‘Congress Must Address the National Debt’
  • Federal Bureaucrats Spend Billions in Year-end Binges
  • A Call for Rebuilding Trust in American Leadership
  • State Legislators Often Do Not Have Primary Challenges
  • ‘Revive Five’ says Attorney/Author
  • Special Conference for State Legislators Set for Dallas
  • New Book: UNMASKED2020

The Principles of Federalism: Still Alive, But Barely –
Over this past year a large portion of US citizens has been impacted by various forms of civil unrest, often triggered by growing belief that local, state and federal governance is less and less responsive to the voice of everyday people.

Part of that problem stems from local and state leaders ignoring their powers under America’s Constitution, and relinquishing powers and decision-making to the national government.  America’s founders intentionally divided governance powers under a system called “federalism.”  What follows is a reflection of what is being done to restore federalism.

  • On September 17 – Constitution Day – a large number of state legislators and civically-active citizens from across the US participated in a webinar called Restoring the American Voice.  The special presentation was hosted by the State Legislators Article V Caucus and Path to Reform.

The main presenter, retired Utah legislator Ken Ivory, focused on the principles of federalism on which the US Constitution is based, and how this country needs to return to those principles to give Americans a stronger voice.  Those who missed the webinar can see it HERE.  The hosts will present another webinar on Tuesday, November 17, 8 PM Eastern time.  Watch for the November edition of this newsletter for details.

  • Also on Constitution Day the Editorial Board of The Virginian-Pilot Daily Press (Norfolk, VA) published an editorial entitled On Constitution Day, a plea to make federalism ‘more perfect’.

The editorial made the point that [t]he lines of [governance] authority have been blurred and we do not talk about it much.  We hardly talk about it at all, in fact.”  The editors commented that “since the 1932 election of Franklin Roosevelt election and the post-Second World War rise of the national security state, there’s been no serious doubt about the dominance of the federal government.”

They concluded by saying [w]e can do better.  Really.  In the spirit of Constitution Day, we should … Get this sorted out better.”  Read the editorial HERE.

  • That same day The Joplin Globe (MO) published a piece by county prosecuting attorney/columnist Will Lynch.

Lynch made the point that after the Sept. 17, 1787 signing of the Constitution, “delegates Alexander Hamilton and James Madison, along with John Jay, wrote and published the 85 Federalist Papers under the collective pseudonym ‘Publius’ to promote its ratification by the states.”  Among other things, those papers warned against factions, defended the checks and balances outlined in Constitution, and explained the federalist character of a democratic republic.  Read that column HERE.

  • The Gainesville Sun (FL) also marked Constitution Day with a piece entitled It is time for Americans to reclaim their power by Sandy Clements.

About America’s founders and the Constitution they drafted, Clements observes, [a]s a product of imperfect human beings, [the original Constitution] was seriously flawed in important respects.”  But, says Clement, “To their credit, the founders had recognized their fallibility and provided a mechanism in the Constitution to correct its errors, Article V.”   Read the article HERE.

  • Chris Maisano recently wrote a lengthy piece in Jacobin Magazine entitled Why We Should Care About American Federalism, espousing the idea that federalism is bad for America.  He claims “we desperately need fundamental changes to the country’s constitutional order.”

Maisano asserts that “From its inception American federalism has primarily been a strategy of conflict management, an institutional filter intended to dilute the exercise of popular rule.  It has been one of the most effective means of protecting established interests and one of the leading engines of inequality in American life,” going on to say, “the fragmentation and competition it encourages has been nothing short of disastrous.”

The author drones on, listing his reasoning why all governing should come from the federal level.  While most thoughtful state legislators will sharply disagree with Maisano, his piece is worth reading just to see the rationale of today’s anti-federalists.  Read it HERE.

  • Morgan Liddick, a former member of the US Foreign Service and a long time college professor, wrote a piece for the Summit Daily (Summit County, CO) that suggests it was because of a significant level of respect for federalism by the current national government that most responses to COVID-19 were left to individual states.  He concludes that such a federalism-based approach was good.  Maisano (above) said it was bad.

Liddick says, “American federalism has many advantages.  It allows states to learn from one another what works best or not at all.”

He points to eloquent arguments for the principles of federalism made in the Federalist Papers.  In Federalist 45 Madison argues that [t]he state governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former,” wherein he points to establishment of the primacy of the states in his Constitutional view.  Read Liddick’s column HERE.

  • It was said above that there is “a significant level of respect for federalism by the current national government.”  But that is not true for every department of the current federal government.  In early September Ilya Somin wrote for The Volokh Conspiracy about the federal government’s Center for Disease Control (CDC) announcement that it was implementing a national “Eviction Moratorium.”

He said, “It’s a power grab that could undermine federalism and separation of powers, and imperil property rights.”  Read his article HERE.

  • On September 16 Lavarr Webb of the UtahPolicy blog wrote a piece addressing the question Does federalism work in a crisis?  The writer weighs the pros and cons of top-down vs. state control of situations like COVID-19.

He says, “The founders intended ‘ambition to counteract ambition’. The tension between the levels of government is designed to prevent either from gaining too much power, thus preserving freedom for citizens and thwarting tyranny.”

“Personally,” says Webb, “I think that federal-state and state-local government tension is healthy and necessary, even in a crisis. States and local governments are bulwarks against federal tyranny.  A crisis can’t become an excuse for the federal government to consolidate even more power.  One-size-fits-all federal mandates simply don’t work.  I prefer even a somewhat chaotic, fragmented approach to national crises to a federal government that runs roughshod over state and local governments and does not take into account local and regional differences.”  Read his piece HERE.

  • On September 10 The Fulcrum carried an article by Gregg Girvan entitled Reimagining the sharing of government authority in the time of COVID.  Girvan looked at the uneven levels of lockdown during the COVID-19 pandemic and suggests “a centuries-old constitutional debate keeps raging about the central question of federalism: What is the balance of powers among the local, state and national governments?”

Girvan offers several good, practical ways states and the national government can work in tandem to prepare for and deal with times of crisis, but that requires states having a reasonably united voice at the planning table.  Conference of state legislators anyone?

He says, “While centralization of power to fight a pandemic may seem appealing, we must resist the urge to plunge headfirst. The message is clear: Our system of federalism need not be vilified, but rather leveraged to take on the pandemics of the future.”  Read his thoughts HERE.

  • On September 15 Governing (an affiliate of e.Republic) carried a column by Donald F. Kettl entitled A Forum for Federalism That’s Sorely Missed.

Kettl reports that “A small band of federalism fans has been plotting for some time to bring the old Advisory Commission on Intergovernmental Relations [ACIR] back to life. There seems to be little hope they’ll be able to re-create the old tunes, but the effort is a worthy one: We need the kind of forum the ACIR provided as much as ever.”

The ACIR closed down in 1996, and Kettl says fans of federalism have been debating how to bring it, or something like it, back ever since.  He continues, “We’re no doubt much poorer for the loss of the ACIR.  But its death decades ago — and the failure to bring it back to life since — is a sign of the widening divide between the  federal government and the states, and among the states themselves, that no single organization can bridge. It sure would be healthy, though, to have a forum in which to debate these questions — and a common language, fueled by a pool of rich data, with which to have the conversation.”  Read the column HERE.

  • On September 2 the Wallowa County Chieftain (Enterprise, OR) carried a story entitled On Liberty: Local problems best solved locally.  The story dealt primarily with issues surrounding state vs. federal control/management of forests.  Again, federalism is proposed as the source of solutions.

The writer notes, “The concept of federalism was central to our founding and exemplifies the United States’ high regard for regional, local and individual diversity, which is widely varied but also capable of unity.  Federalism is the bedrock upon which federal (or central) government and state/municipal governments achieve harmony and cultivate optimal conditions in which individuals can thrive.  It limits the power of the central government and gives equal footing to state governments because each state is unique; policies that work in one state often don’t apply to other states.  Additionally, the larger the scope of a program or policy, the more difficult it is to implement, and the more risky it is because its potential failure will impact a larger group of people.”

He points out that [t]he 10th Amendment of our own Constitution explicitly lays out the division of power, stating, ‘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.’”  Read the piece HERE.

Heritage: ‘Congress Must Address the National Debt’ –
New Report Shows Why Congress Must Address National Debt Is the headline on a piece by David Ditch and Rachel Greszler in the September 9 edition of The Daily Signal (Heritage Foundation).

Their article focuses on an updated Congressional Budget Office (CBO) budget projection for the fiscal year ending this month.  It is CBO’s first full update that includes the fiscal impacts of COVID-19.  They say the report demonstrates how America’s fiscal health has “gone from bad to worse.”

They report that “the deficit for 2020 is expected to reach $3.3 trillion, or over $25,000 per household.  As a share of the economy, this deficit is the largest since World War II.”

The charts they include in their detailed report suggest that through 2030, the combined annual deficits are projected at just under $13 trillion.  They conclude, “Considering that the current gross debt is $26.7 trillion, the per-household share would stand at about $275,000 just 10 years from now.” 

They warn “Rising debt with no viable plan to curb it puts America at risk of a financial crisis,” and “the longer policymakers delay, the larger the consequences become.”  They call on lawmakers “to take a serious reckoning of the federal budget.  Failure to do so could result in moving directly from a health crisis to a fiscal crisis.”  Read their report HERE.

Federal Bureaucrats Spend Billions in Year-end Binges –
On September 8 The Center Square published a report entitled Federal bureaucrats spent $91 billion in a year-end 2019 shopping spree, by Bethany Blankley, reporting on findings by the government watchdog group Open the Books.

While the report covered 2019 federal government abusive spending, it indicates what probably took place again last month.  Highlighted were 642,567 transactions, or roughly 21,418 expenditures per day made by federal government agencies during September 2019.  Rather than lose the money allocated to the agencies by Congress by returning it to the US Treasury Department, the agencies spent the money.

Adam Andrzejewski, CEO and founder of Open the Books was quoted as saying, “As the federal debt approaches $27 trillion, it’s time to end Washington’s use-it-or-lose-it spending culture.  Ending this wasteful phenomenon would go a long way toward generating big savings, changing the culture of taxpayer abuse, and winning the public’s trust.”  Read the report HERE.

A Call for Rebuilding Trust in American Leadership –
A recent edition of Colorado Politics carried a piece by John Brackney and Paul Jacobson entitled Rebuilding trust in our leadership.

Talking about how US citizens have responded to the current pandemic, they say “This episode demonstrates that the societal change we need will likely come from the state and local levels and not from Washington, DC.  At the very least, folks in Washington can learn a few things from what is happening in the states.”

They contend, “One of the key lessons is that we need leaders who will put partisan concerns aside and act in the best interests of the country.  We also need a government that we can trust.  Unfortunately, leadership and trust are sorely lacking. The toxicity emanating from Washington has poisoned our politics and shaken our faith in institutions.”

They talk about a new initiative called FixUS that they work with, a group which they believe can “reverse the trends of declining trust and deteriorating leadership.”  They say, “The communities best positioned to recover from our present crises are ones in which governments and their leaders have earned the confidence of their constituents.”  Read their story HERE.

State Legislators Often Do Not Have Primary Challenges –
Ballotpedia produces a lot of great, timely information for office-holders and American citizens.  Their Annual State Legislative Competitiveness Report, updated on September 15, had some interesting facts and figures.

That report included the observation that [t]his year, 79.6% of incumbents ran unopposed and advanced to the general election without a primary challenge.  This is a higher rate than in 2018 (78.1%) and 2016 (79.4%), but lower than in 2014 (79.9%).” Read their report HERE.

‘Revive Five’ says Attorney/Author –
[T]he Supreme Court has become the Constitution. Through judicial interpretation, the Supreme Court has gained the power, essentially, to rewrite the Constitution as it sees fit.  And the Court’s revisions cannot be reversed or challenged,” says New York attorney and prolific author James W. Lucas in an opinion piece published recently by American Greatness.

The headline to his piece summarizes his position: The Solution to Radical Judges Is to Revive Article V.  No, Lucas is not proposing a constitutional amendment dealing with SCOTUS tenure.  Rather, he is making a case that the Constitution’s amendment provision – Article V – needs to be amended.  He believes if the process were more workable “It could also act as a psychological brake on the judicial amendment of the Constitution.”

Lucas contends that the Constitution’s framers intended that constitutional change come about through the democratic political process of amendment, but that process was designed for a country with 1/100th today’s American population, and needs to be modified.

He points out that [t]he United States Constitution is now the most difficult charter to amend in the world, and it shows.”  He suggests that “A few simple adjustments to Article V … could re-energize the amendment process.”

Lucas believes [a] content-neutral reform of the amendment process could attract bipartisan support in our time when many long for national unity on something.  And it would enable ‘We The People,’ not five unelected and unaccountable judges, to have the last word once more on our fundamental national law.”  Read his thoughtful piece HERE.

Special Conference for State Legislators to be Held in Dallas –
The Pro Family Legislative Network’s 16th annual state legislators’ conference will be held in Dallas, Texas on November 12-15, 2020.  This year the conference will include a special track for state legislators who are interested in introducing resolutions in their state that promote federalism, the Tenth Amendment, and Article V.  Details about the conference are available HERE.

Some scholarships (worth up to $1,000 each) are available to state legislators who are interested in participating in this federalism-focused track.  For more information on the federalism-focused track and the scholarships, contact Kevin Lundberg by clicking HERE.

A Good Related Read
The COVID-19 pandemic has had unexpected impacts on governmental decision-making.  For the most part, the federal government has avoided issuing mandates relative to handling health issues and “lockdowns.”  Rather (again… for the most part) federal authorities have issued “guidance,” and left the actual related decision-making to governors.

Some governors have stepped up to the plate with extraordinary leadership while consulting with their legislative leadership.  Sadly, some governors have used this federalism moment to demonstrate their zeal for dictatorial power.  Such has been the case in Colorado.

In response, several Colorado state legislators and former legislators got together and published a book entitled UNMASKED2020, subtitled “Colorado’s Radical Left Turn and a Warning to America.”

While the book deals with many radical pieces of legislation adopted during the 2019 session and the early stages of the 2020 session, it focuses most on the mid-March (and frequently renewed) Governor-issued declarations of a public health emergency, numerous on-going state-wide shut-down orders, a ten-week legislative recess, and nightly riots on the Colorado Capitol grounds which continued for weeks.

Find both a paperback and Kindle editions of the book HERE.


Wise Words from a Modern Day Judge…

“The liberties protected by the Constitution are not fair-weather freedoms — in place when times are good but able to be cast aside in times of trouble.”
“There is no question that this country has faced, and will face, emergencies of every sort. But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment. The Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.”
– Words of US District Judge (Western Pennsylvania) William Stickman IV in his September 14, 2020 ruling striking down Pennsylvania Governor Tom Wolf’s May 11 order closing all “non-life sustaining businesses” to combat the COVID-19 pandemic.