Newspaper column: Free speech issues ‘on the ballot’ in Nevada

The right to free speech includes the right to not be compelled to speak.

That includes not being required to pay dues to a union whose political views might be different from yours, not being required to advertise abortion availability at your faith-based pregnancy counseling service, not being required to use your cake baking talent to create a special cake or your flower arranging expertise for a gay wedding.

All of these have come down from a closely divided U.S. Supreme Court in the closing days of this year’s court calendar.

This past week, the court ruled that public employees could not to be forced to pay dues to unions with which they might not agree.

“The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech,” wrote Justice Samuel Alito in the 5-4 opinion. “We have held time and again that freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.’”

Public employee unions that advocate higher wages that require higher taxes are intrinsically political.

Just the day before the court ruled, again 5-4, that a California law that required pro-life, religious-oriented unlicensed pregnancy centers to place extensive disclaimers in their ads and on billboards telling people about abortion services was an unconstitutional impingement on free speech.

“Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them” wrote Justice Clarence Thomas in the majority opinion. “One of those services is abortion — the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions — at the same time petitioners try to dissuade women from choosing that option — the licensed notice plainly ‘alters the content’ of petitioners’ speech.”

A little more than a week earlier in a 7-2 ruling the court held Colorado could not force cake shop owner to make a special cake for a gay wedding.

Shortly thereafter. the court remanded a Washington case involving a florist who declined to arrange flowers for a gay wedding, citing the Colorado ruling.

The state of Nevada, under the direction of Attorney General Adam Laxalt, had joined in both the public employee union case and the California abortion law case on the winning side.

Laxalt’s office put out a press release about the California law ruling stating: “The ruling, which rests exclusively on free speech grounds, does not affect abortion providers; it neither requires them to change their practices nor infringes on their ability to provide abortions. The Supreme Court correctly held that compelling private organizations to promote the government’s preferred message under those circumstances is inconsistent with the First Amendment. This is an important holding ensuring that the government cannot simply force private speakers with whom it disagrees to also promote the government’s preferred message, especially when there are other ways for the government to promote its own message without interfering with private speech.”

Republican Laxalt’s Democratic opponent for governor in November, Steve Sisolak, put out a statement reported by The Nevada Independent saying, “I believe that women deserve access to all of their options when it comes to their reproductive health care. I still have concerns over the lack of information given by these crisis pregnancy centers and the harm it can cause.”

Sisolak continued, “As governor, I will fight to protect a woman’s constitutional reproductive rights and her consistent access to comprehensive care. Adam Laxalt has shown repeatedly that he will pursue an anti-choice agenda that will roll back the clock on women’s rights and bring Nevada down a dangerous path.”

This has nothing to do with abortion rights and only to do with speech rights.

This point was lost on Democratic Rep. Jacky Rosen who is running for Republican Dean Heller’s Senate seat. She sent out an email saying, “Deceiving women about their health care options is an attack on women’s fundamental reproductive freedom, and I will continue to stand against this Administration’s attacks on women’s rights and access to health care. Nevadans support a woman’s right to make these personal decisions.”

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Supreme Court hears free speech case

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Free speech includes the right to be silent

The right to free speech includes the right to not be compelled to speak.

That includes not being required to pay dues to a union whose political view might be different from yours, not being required to advertise abortion availability at your faith-based pregnancy counseling service, not being required to use your cake baking talent to create a special cake or your flowing arranging expertise for a gay wedding.

All of these have come down from a closely divided U.S. Supreme Court in a matter of days.

Today the court ruled that public employees could not to be forced to pay dues to unions with which they might not agree. Justice Samuel Alito writes in the 5-4 opinion:

The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech. We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” … The right to eschew association for expressive purposes is likewise protected. … (“Freedom of association … plainly presupposes a free­dom not to associate”) … (“[F]orced associations that burden protected speech are impermissible”). As Justice Jackson memorably put it: “If there is any fixed star in our constitutional constella­tion, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Just the day before the court ruled, again 5-4, that a California law that required pro-life, religious-oriented unlicensed pregnancy centers to place extensive disclaimers in large fonts and in as many as 13 languages in their ads and on billboards telling people about abortion services was an unconstitutional impingement on free speech. The ruling overturned a 9th U.S. Circuit Court of Appeals ruling.

Justice Clarence Thomas wrote in the majority opinion:

Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion — the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions — at the same time petitioners try to dissuade women from choosing that option — the licensed notice plainly “alters the content” of petitioners’ speech.

A little more than a week ago in a 7-2 ruling the court held the Colorado Civil Rights Commission was inconsistent in its rulings relating to issues of the First Amendment’s guarantee of free exercise of religion and free speech.

Writing for the majority, Justice Anthony Kennedy noted that on at least three occasions the state Civil Rights Commission held that bakers who refused to create cakes with images that conveyed disapproval of same-sex marriage did so lawfully.

“The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection,” Kennedy wrote. “The Commission ruled against (Masterpiece Cakeshop owner Jack) Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.”
Shortly thereafter the court remanded a Washington case involving a florist who declined to arrange flowers for a gay wedding, citing the Colorado ruling.
The state of Nevada, under the direction of Attorney Adam Laxalt, had joined in both the public employee union case and the California abortion law case on the winning side.
Laxalt’s office put out a press release about the California law ruling stating: “The ruling, which rests exclusively on free speech grounds, does not affect abortion providers; it neither requires them to change their practices nor infringes on their ability to provide abortions. The Supreme Court correctly held that compelling private organizations to promote the government’s preferred message under those circumstances is inconsistent with the First Amendment. This is an important holding ensuring that the government cannot simply force private speakers with whom it disagrees to also promote the government’s preferred message, especially when there are other ways for the government to promote its own message without interfering with private speech.”

Republican Laxalt’s Democratic opponent for governor in November, Steve Sisolak, put out a statement reported by The Nevada Independent saying, “I believe that women deserve access to all of their options when it comes to their reproductive health care. I still have concerns over the lack of information given by these crisis pregnancy centers and the harm it can cause.”Sisolak continued, “As governor, I will fight to protect a woman’s constitutional reproductive rights and her consistent access to comprehensive care. Adam Laxalt has shown repeatedly that he will pursue an anti-choice agenda that will roll back the clock on women’s rights and bring Nevada down a dangerous path.”

This has nothing to do with abortion rights and only to do with speech rights.

This point was lost on Democratic Rep. Jacky Rosen who is running for Republican Dean Heller’s Senate seat. She sent out an email saying, “Deceiving women about their health care options is an attack on women’s fundamental reproductive freedom, and I will continue to stand against this Administration’s attacks on women’s rights and access to health care. Nevadans support a woman’s right to make these personal decisions.”

Lame-duck Democratic Rep. Ruben Kihuen sent an email saying, “It is disappointing that today’s Supreme Court decision will allow unlicensed facilities to continue misleading women about the health care services they provide. No woman seeking accurate information about her health care options should be lied to, shamed, or denied access to basic medical care. This ruling is a huge setback in our nation’s fight to protect and advance women’s rights and will make it harder for women to access the health care services they need. We must continue fighting to ensure that every woman has the right to make her own health choices and has access to the full range of options.”

Laxalt’s political campaign sent out an email crowing about the two most recent court ruling and rubbing Sisolak’s nose in it:

The Supreme Court has reaffirmed that the government cannot force Nevadans to advocate political positions against their beliefs. We know Steve Sisolak disagrees. Steve said it was “shameful” when Adam visited a Nevada pregnancy care center, and he favors zero restrictions on abortion — a position to the left of most Nevada Democrats. He is benefiting from the government union in this case, AFSCME, that is running over a million dollars in attack ads against Adam right now — attack ads that PolitiFact has called “false.”

These were great victories for free speech. Adam protected pregnancy care centers from a radical California law that would have forced these pro-life centers that offer care for pregnant women to advocate for policies they disagree with. Adam protected workers from being forced to give up their wages to a government union that pays for political lobbying and advertising that they may disagree with.

Steve Sisolak’s fringe agenda is being exposed. This is a great week for freedom of speech in Nevada, and a terrible week for Steve Sisolak’s radical political machine.

Anti-abortion activists celebrated outside the Supreme Court on Tuesday. (Reuters pix via NYTimes)

 

Newspaper column: Why education spending should be cut

Teachers are walking out of classrooms in Colorado and Arizona, demanding higher salaries and more education funding. Lawmakers are rushing to meet their demands.

Here in Nevada all the candidates for governor are kowtowing to the demand for more education funding.

Republican Attorney General Adam Laxalt has declared, “We must continue to move forward, not backward, in the areas where we’ve made great strides. In particular, Nevada policymakers have implemented a series of programs designed to address a critical area — improving early literacy. I’ll continue to champion these promising new programs. I pledge that under my leadership, these programs and our entire public education system will be properly funded — we will never go backwards from our current levels of education spending. I repeat: I will not scale back public education funding.”

His Republican opponent Treasurer Dan Schwartz has said he wants to find a way to wrest the $750 million in tax money earmarked for a Raiders football stadium and redirect it to fund education.

Democratic candidates and currently Clark County Commissioners Steve Sisolak and Chris Giunchigliani have both called for more education spending.

“Every child in Nevada deserves the opportunity to succeed and that starts with strong public schools,” Sisolak states on his campaign website. “Steve supports investing in Nevada schools so they have the resources to provide a safe and effective learning environment for all of our kids. He believes that in order to strengthen our schools we need to raise teacher salaries and lower classroom sizes.”

On her website Giunchigliani declares, “Every Nevada child deserves an opportunity to get a quality public education, regardless of their zip code, parents’ salary or ethnicity. As a public school special education teacher for 30 years, I know the difference a quality public education can make in a child’s life. But too many of our kids are in underperforming schools and we’ve failed to bring urgency to this issue. One of my top priorities as governor will be to fix the school funding formula. We need to increase educators’ salaries and reduce class sizes.”

Recently Clark County School Board members held a press conference calling on the governor to call a special session of the Legislature in order to raise taxes to increase education spending. Board member Carolyn Edwards was quoted by the press as saying, “We need to be able to pay our teachers and our employees the raises they deserve.”

Juxtapose that quote against the fact that in January Education Week magazine’s annual “Quality Counts” survey of state-by-state K-12 education ranked Nevada 51st among the 50 states and the District of Columbia. Only 31 percent of Nevada fourth graders are proficient in math and reading. The raises they deserve?

Pardon us for allowing a heretic to sound a sour note in the choir, but George Mason University economics professor Bryan Caplan has just published a book that — gasp! — says education funding should be cut, because the vast majority of it is wasted. The book is called “The Case Against Education: Why the Education System Is a Waste of Time and Money.”

Caplan estimates that our government agencies alone spend $1.1 trillion in tax money a year on education. That is $3,600 for every person in the country, not every student, every person. He estimates that half of the money doesn’t buy our students any enhanced skills, but merely something he calls “signaling.”

Caplan contends that a high school or college diploma does not mean someone has learned much of anything worthwhile — other than rudimentary literacy and numeracy — but instead signals to potential employers that one is capable of spending long hours doing stultifying menial tasks and conforming to expectations.

To buoy his claims about the inadequacy of the American education system, Caplan cites the General Social Survey of adults that asked 12 elementary true-false science questions. Only 60 percent could answer correctly, when 50 percent should be possible by merely guessing.

“Accounting for guessing, the public’s scientific illiteracy is astonishing,” Caplan writes. “Barely half of American adults known the Earth goes around the sun. Only 32% know atoms are bigger than electrons. Just 14% know that antibiotics don’t kill viruses. Knowledge of evolution barely exceeds zero; respondents would have done better flipping a coin.”

Perhaps there are better things on which we could spend a half a trillion dollars a year.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

 

Newspaper column: States cry foul over California egg law

California law requires cage sizes for chickens, eve for imported eggs.

Californians want chickens to be able to stretch their wings, no matter how much it stretches the cost of eggs.

Back in 2008 those animal-loving folks to the west of Nevada approved a ballot initiative that required the size of cages for egg-laying hens in that state to be increased by about 75 percent by January 2015. Failure to comply with the law was punishable by a $1,000 fine and 180 days in the county lockup.

But as January 2015 approached, the egg farmers in California started to squawk, saying complying with the law would cause their eggs to cost at least 20 percent more to produce than eggs imported from other states, putting them at a competitive disadvantage.

So, California lawmakers passed a law saying that any eggs sold in that state had to comply with the state cage size requirements.

From January 2015 to January 2016 the price of eggs in the U.S. shot up more than 10 percent, according to the Consumer Price Index, though the prices have dropped since.

But now Nevada and a dozen other states are crying foul and asking the U.S. Supreme Court to wring the neck of the California egg law because it violates the Constitution’s Commerce Clause and a federal law requiring uniform standards for eggs sold in interstate commerce.

According to the 109-page lawsuit, the California regulations are costing egg consumers nationwide more than $350 million a year.

In announcing several weeks ago that Nevada was joining the legal challenge, Attorney General Adam Laxalt declared, “This is yet another example of California’s unreasonable and over burdensome regulations affecting everyday Nevadans. By forcing out-of-state egg producers to modify their production facilities to comply with one state’s eccentric preferences, California has inflated egg prices for every consumer in the nation, including in Nevada. We are asking the Supreme Court to limit California’s ability to set unreasonable and unique agricultural standards that affect other states like Nevada, while doing little to help further any tangible concerns in California.”

The other states involved are Alabama, Arkansas, Indiana, Iowa, Louisiana, Missouri, Nebraska, North Dakota, Oklahoma, Utah and Wisconsin. All have Republican attorneys general except Iowa.

According to the suit, California produces about 5 billion eggs a year and imports another 4 billion from other states, greatly affecting the interstate egg market.

The lawsuit quotes a 1979 U.S. Supreme Court case on the significance of the Commerce Clause to the nation’s founders. That opinion stated: “The few simple words of the Commerce Clause — ‘The Congress shall have Power … To regulate Commerce … among the several States …’ — reflected a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation. … The Commerce Clause has accordingly been interpreted by this Court not only as an authorization for congressional action, but also, even in the absence of a conflicting federal statute, as a restriction on permissible state regulation.”

The suit further quotes the federal law that states for “eggs which have moved or are moving in interstate or foreign commerce, no State or local jurisdiction may require the use of standards of quality, condition, weight, quantity, or grade which are in addition to or different from the official Federal standards …”

As the suit clearly argues, that law “preempts any contrary state or local laws under the Supremacy Clause, both expressly and impliedly.”

The California law is blatantly protectionist in its design. In urging the governor to sign the law the California Department of Food and Agriculture stated: “This will ensure a level playing field for California’s shell egg producers by requiring out of state producers to comply with the state’s animal care standards … Without a level playing field with out-of-state producers, companies in California will no longer be able to operate in this state and will either go out of business or be forced to relocate to another state.”

A panel of the 9th U.S. Circuit Court of Appeals has ruled in California’s favor, so it is up to the Supreme Court to unscramble this mess.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: Nevada challenges California’s sanctuary cities

This past summer Nevada joined with other states in challenging a California federal judge’s decision to block President Trump’s executive order that would deny some federal funding for sanctuary cities, saying that such cities near Nevada pose a threat to public safety.

The judge sided with Santa Clara County, the city of San Francisco and other jurisdictions who argued that taking away federal funds from cities that do not cooperate with federal immigration enforcement could be unconstitutional.

With the case now going to the 9th U.S. Circuit Court of Appeals, Nevada Attorney General Adam Laxalt has again joined with other attorneys general to file a friend-of-the-court brief.

“It is common sense that dangerous felons should not be released into neighborhoods, and that law enforcement must work together for public safety,” Laxalt was quoted as saying in a press release announcing the filing. “Sanctuary cities in California pose a danger to neighboring states like Nevada by making it easier for those not lawfully in this country and with violent criminal histories to evade law enforcement and travel out of state. What’s more, these cities undermine the rule of law and prevent cooperation between federal and local officials.”

The filing points out that one of the states seeking to overturn the judge’s ruling, West Virginia, is near Baltimore, which has adopted sanctuary city policies and is the source of illegal drugs that spill into West Virginia. “Sanctuary policies deprive jurisdictions of important tools that could assist with preventing such out-of-state drug trafficking,” the brief argues.

Days after taking office President Trump signed an executive order directing federal agencies to deny certain federal funding to cities and jurisdictions that “willfully refuse” to comply with federal immigration laws, but a federal judge blocked the order.

The current brief states, “Sanctuary jurisdictions can cause harm to neighboring States by making it easier for people who are not lawfully in this country and have committed civil or criminal offenses to evade law enforcement and travel out-of-state.”

The brief also counters the argument that denying federal funds for failing to voluntarily cooperate in immigration law enforcement is unconstitutional by pointing out the case of South Dakota v. Dole. In that case the Supreme Court held that it is constitutional for Congress to withhold federal funds from states that failed to raise the legal drinking age to 21.

The brief also notes this issue is not just an executive order by the president but is merely an instruction to enforce the law as passed by Congress.

“The Tenth Amendment prohibits the federal government from commandeering States by forcing them to administer a federal regulatory regime or conscripting state officers to do the same,” the brief explains. “But that is not what Congress did. Rather, the Order provides States with voluntary inducements to comply with federal law. And for its part, the Act simply displaces or preempts state laws that prohibit localities or local law enforcement officials from voluntarily communicating with federal officials, with a goal to further the comprehensive federal immigration regime. Congress thus acted within its enumerated powers and under the Supremacy Clause to preempt state laws that stand as obstacles to the creation of this uniform policy.”

Laxalt notes that all 17 currently elected county sheriffs have consistently opposed sanctuary-city policies. “Today, in the vast majority of cases, an individual must be arrested for committing a crime and booked into a jail or detention facility before Nevada law enforcement agencies check whether the individual is sought by federal immigration authorities and, if so, alert those federal authorities. Sanctuary-city policies that prohibit this communication allow violent offenders to be released back into the community,” his press release states.

We appreciate the attorney general sticking up for the rule of law and the safety of Nevadans.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Lisa Benson cartoon

Newspaper column: Nevada should challenge constitutionality of federal pot law

A week ago the Trump administration rescinded a series of Obama administration memos instructing federal prosecutors to back off enforcing federal marijuana laws in states that have legalized it, sending legal pot businesses into a dither, including those in Nevada.

Attorney General Jeff Sessions said he would leave it up to federal prosecutors to decide what to do when state law clashes with federal drug law. Justice Department officials said the previous administration’s stance allowed states to flout federal law.

Nevada Attorney General Adam Laxalt sent out an email saying his office is reviewing the change in the Justice Department’s stance on federal pot law enforcement and evaluating the ramifications for the state

“Although I opposed the Question 2 ballot initiative proposing the legalization of recreational marijuana in Nevada, I also pledged to defend the measure were it approved by the voters,” Laxalt stated. “Since Questions 2’s enactment, my office has vigorously defended it against two related lawsuits that threatened to slow or even halt the implementation of the law, and has further assisted with the formulation and adoption of regulations to allow dispensaries to commence sales of recreational marijuana within just six months of the law’s enactment. My office has expeditiously facilitated the implementation of the law in the face of considerable uncertainty about the status of federal enforcement activity.”

We suggest that the state’s attorney do what attorneys do: Sue.

The states aren’t flouting federal law, Congress is flouting the Constitution. If it took a constitutional amendment to allow Congress to make alcohol illegal during Prohibition, the same should be true for marijuana.

The 10th Amendment clearly states, “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.” Nowhere does the Constitution grant that power to Congress.

In fact, the divided Supreme Court decision upholding Congress’ power to ban marijuana is an absurdity constructed from a fatuity and makes a mockery of the principles of federalism.

In the case of Gonzales v. Raich, the high court found that Congress had the power under the Commerce Clause to prohibit a person from growing marijuana for her own consumption because it could affect interstate commerce. The court cited as precedent the New Deal-era case of Wickard v. Filburn, which said a farmer who grew wheat for his own consumption affected interstate commerce because, if he had not done so, he would’ve had to purchase wheat, thus affecting the market and price for wheat.

Thus the court essentially erased any distinction between interstate and intrastate commerce or even no commerce at all. Whatever the imagination can conjure.

 In his dissent in the pot case, Justice Clarence Thomas fumed, “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.”

Thomas added, “This makes a mockery of (James) Madison’s assurance (in Federalist Paper No. 45) to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’”

Justice Sandra Day O’Connor also raised the issue of federalism, writing in dissent in Raich, “Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.”

With the court now more originalist in its composition, the arguments of Thomas and O’Connor might hold sway in a constitutional challenge of the federal marijuana law, should Laxalt and the attorneys general of the states that have legalized pot press the matter.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Newspaper column: Constitution stretched to the breaking point

A Utah prairie dog peeks out of an artificial burrow after arriving at a remote site in the desert, some 25 miles away from Cedar City, Utah. (AP pix via WSJ)

If words can mean anything anyone says they mean, then words are meaningless. That is what the 10th U.S. Circuit Court of Appeals has done with the Commerce Clause of the Constitution.

The appellate court overturned a federal judge who found that the Commerce Clause does not give Congress the power under the Endangered Species Act (ESA) to regulate a species that exists only within the boundaries of one state and has no commercial value whatsoever — specifically the Utah prairie dog.

Nevada has joined with Utah and 21 other states to ask the U.S. Supreme Court to strike the circuit court ruling, saying that if the ruling stands “then Congress has virtually limitless authority, and the Tenth Amendment is a dead letter,” as well as the concept of federalism. (prairiedogamicusbrief)

If Nevada is to have any control over any economic activity within its borders, which include numerous endangered and threatened species, it is vital that the high court reverse this Constitution-rendering exercise in legerdemain.

The circuit court judges stretched the meaning of the Commerce Clause — which gives Congress the power to regulate interstate commerce in order to promote commerce by preventing interstate tariffs — to include anything Congress could imagine in its wildest flights of fantasy.

“We conclude that Congress had a rational basis to believe that regulation of the take of the Utah prairie dog on nonfederal land is an essential part of the ESA’s broader regulatory scheme which, in the aggregate, substantially affects interstate commerce,” the circuit court ruled, without any hint as whether that conclusion was at all rational rather than delusional sophistry.

The judges dived further into base speculation by stating, “‘ESA’s drafters were concerned by the “incalculable” value of the genetic heritage that might be lost absent regulation,’ as well as observing that the majority of takes of species ‘result from economic activity …’” Might that incalculable value be zero? Species became extinct before mankind arrived on the scene.

The amicus brief filed by the attorneys general of 23 states paraphrased the 10th Amendment in the Bill of Rights by stating, “The Framers correctly concluded that both restraints – separation of powers and federalism – are necessary to preserve individual liberty and avoid tyranny. So powers not given to the federal government are reserved for the States and the people. But federalism serves its purposes only if the federal-state interplay remains properly balanced. That means courts must ensure that the federal government operates only within its enumerated powers so the States can function within their proper spheres.”

Adding insult to constitutional injury is the fact the state of Utah was actually doing a better job of protecting the prairie dog population than the U.S. Fish and Wildlife Service.

The Fish and Wildlife rules made it a federal crime to “take” the Utah prairie dog — which means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect — without first obtaining time-consuming and expensive federal permits. Meanwhile, the burrowing prairie dogs were damaging parks, sports fields, airports and cemeteries and preventing the construction of homes and businesses. Especially hard hit is the small college town Cedar City.

During the time after the federal judge blocked the Fish and Wildlife rules the state of Utah spent a considerable amount of money to move the prairie dogs from population centers to remote and safer conservation areas, allowing the population to boom from a low of 24,000 in 1984 to an estimated 80,000 today.

The original lawsuit was brought by 200 private property owners calling themselves People for the Ethical Treatment of Property Owners. They were represented by the Pacific Legal Foundation (PLF), which litigates on behalf of personal liberty and property rights.

“For decades, the federal government’s harmful Utah prairie dog regulation has prohibited residents of Cedar City from doing things that most of us take for granted in our own communities,” PLF attorney Jonathan Wood is quoted as saying in a press release. “They have been blocked from building homes, starting small businesses, even protecting playgrounds, an airport, and the local cemetery from the disruptive, tunneling rodent.

“The Commerce Clause has long been a source of federal mischief, but the Supreme Court has never allowed it to be stretched this far,” Wood noted. “With their prairie dog regulation, federal bureaucrats have asserted control over local activities that are not interstate commerce, do not affect interstate commerce, and are not necessary to any federal regulation of interstate commerce.”

If the words of the Constitution are so malleable, it has no meaning and Congress is our dictator.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.