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.

Newspaper column: Gun law backers too wily for their own good

The backers of a 2016 ballot initiative to create a state law requiring criminal background checks for all private party gun sales — something not required by federal law — are asking the courts to fix a fatal flaw that they themselves created.

Failure to comply with the Background Check Act requirement would carry a penalty of up to a year in jail and a $2,000 fine — if it were enforceable.

The measure, Question 1 on the November ballot, passed with a mere 50.45 percent of the vote, failing in every county except Clark.

The initiative backers — in order to avoid having a fiscal note saying what the mandatory background checks would cost taxpayers, something that might cost votes — wrote the new law to say that those in involved in a private gun sale must contact a licensed gun dealer to conduct a background check and: “The licensed dealer must contact the National Instant Criminal Background Check System [NICS], as described in 18 U.S.C. § 922(t), and not the Central Repository, to determine whether the buyer or transferee is eligible to purchase and possess firearms under state and federal law …”

The Central Repository is handled by the Nevada Department of Public Safety and uses NICS data as well as state and local data to run background checks required by federal law and those sought voluntarily by private gun sellers.

After the initiative passed the FBI was twice asked if would conduct the private sale background checks for the state, but refused, saying state law “cannot dictate how federal resources are applied.”

Attorney General Adam Laxalt’s office issued an opinion saying the law is unenforceable since the state could not force the federal government to perform the background checks and the law specifically prohibits the state from doing so.

The lawsuit filed earlier this month on behalf of three individuals names Gov. Brian Sandoval and Laxalt as defendants. The suit asks the court to force Sandoval to enforce the background check law or, in the alternative, to sever any portion of the law that is invalid or unenforceable. In other words, rewrite the law that the voters so narrowly approved.

Like most laws the Background Check Act contains a severability clause that states if any portion of the law is found invalid or unconstitutional that should not affect the law as a whole because that part could be excised. But the section that the suit seeks to remove was placed there specifically to avoid incurring cost to the taxpaying voters. Without that section the election outcome might well have been different.

On the day the suit was filed Laxalt sent an opinion to the governor telling him that he has the authority to again ask the FBI to conduct private sale backgrounds, but that the request would be “unique and unprecedented” and might jeopardize the state’s current status in which it conducts all federally required and voluntary private sale background checks.

In the December opinion declaring the Background Check Act unenforceable, Bureau Chief Gregory Zunino pointed out that the state-run background checks are in fact superior to those run through just the federal database.

“Because background checks run through Nevada as the Point of Contact incorporate data from both NICS and Nevada’s own state records, the process as currently administered by the Department ensures that persons legally barred from firearms possession do not circumvent the bar simply because the FBI may lack records that Nevada possesses, like mental-health records, records of domestic violence, misdemeanor criminal records, arrest reports, and restraining orders,” Zunino noted. “By having Nevada serve as the Point of Contract, a wide net is cast. The FBI recently suggested, for instance, that the lack of Point of Contact program in South Carolina played a role in Dylan Roof acquiring a gun before murdering nine congregants at a church in Charleston, South Carolina.”

It should be noted that the gunman who fired into a country music concert from the 32-second floor of the Mandalay Bay killing 58 and injuring about 500, obtained his dozens of weapons legally, passing all required background checks in Nevada and several other states.

The initiative was a futile gesture at best, but the backers outsmarted themselves by trying to hide its true cost from the voters.

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: Commerce tax is unnecessary and burdensome

Gov. Brian Sandoval has been crying about a paper cut as though it were an amputation.

Ever since Attorney General Adam Laxalt stated that he would run for governor next year and one of his platform positions would be the repeal of the 2015 commerce tax, Sandoval has been lobbing brickbats, even though Laxalt suspended his campaign announcement just hours after the Mandalay Bay shooting massacre that left 58 dead and about 500 injured at an outdoor country music concert.

“Anyone supporting a repeal of the Commerce Tax must explain to Nevada’s children, families and businesses which education initiatives will be cut if it is eliminated,” Sandoval wailed in a statement reported by the website Nevada Independent. “Will they cut gifted and talented programs, end all-day kindergarten, eliminate special education resources, decrease literacy programs that help students read by third grade, cut autism funding, stop career and technical education, and get rid of technology in schools grants? Any discussion of eliminating this revenue source must include answers about where in the budget they will cut.”

The commerce tax is a tax on gross receipts on all businesses grossing more than $4 million a year. It has different tax tables for 27 different industries — ranging from a low of 0.056 percent for mining to a high of 0.362 percent for rail transportation — and there are 67 different tax brackets. It is costing businesses untold millions to comply with all the paperwork needed to enforce and collect the tax and the state must spend millions to enforce tax compliance.

Lawmakers passed the commerce tax at Sandoval’s urging as part of his $1.5 billion tax increase, even though the voters in November 2014 rejected a commerce tax at the ballot box by 79 percent to 21 percent.

In May the Economic Forum, which is tasked with estimating state general fund revenues so lawmakers can dodge blame for overestimating, found the state would rake in $140 million more than anticipated this year. The commerce tax raised a mere $190 million, meaning that with just a $50 million nip and tuck in the budget the tax could be eliminated and the budget balanced.

It should be further noted that the general fund budget grew 12.3 percent over the previous two years, while inflation amounted to 2.5 percent. Since 2011 the state general fund budget has grown by 32.3 percent, while inflation amounted to 7.9 percent.

Sandoval, who is term-limited and may not seek re-election, continued his tirade at a meeting in Las Vegas this past week where he told reporters, “I think if somebody’s going to make a proposal like that, they’ve got to stand in a schoolroom with a room full of parents and teachers and be able to explain who they’re going to cut.”

He asked rhetorically whether the cuts would be special education, gifted and talented, technology or something else.

Apparently no one pointed out to him that Nevada has increased K-12 public school funding by 80 percent per pupil, adjusted for inflation, over the past four decades, during which student test scores have actually fallen slightly.

Might other things besides education be trimmed? Might the growth in overall state spending ever be curbed?

Didn’t lawmakers just agree to spending $750 million in tax money to build a domed football stadium? Hasn’t the state doled out $1.7 billion in tax credits to Tesla, Amazon, Switch and other billion-dollar companies?

If Sandoval is so concerned about priorities, he could look at the total budget.

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.

Editorial: Federal judge dismisses overtime rule change

A Texas federal court judge has struck down a rule change by Obama’s Labor Department that would have cost employers $1.2 billion a year by requiring overtime for an additional 4.2 million workers — or in reality, however many workers actually still had jobs after the costs were imposed.

The legal challenge was spearheaded by Nevada Attorney General Adam Laxalt on behalf of 21 states and a number of business entities.

The overtime rule change would have increased the minimum salary level for employees exempt from overtime — due to being engaged in executive, administrative or professional duties, so-called EAP workers — from $23,660 a year to $47,476.

U.S. District Judge Amos Mazzant of Sherman, Texas, this past week ruled the salary qualification increase violated the clear intent of Congress when it passed the Fair Labor and Practices Act in 1938, which established minimum wages and required time-and-a-half overtime pay for hourly workers who work more than 40 hours a week. EAP employees were exempted from overtime requirements.

Judge Mazzant wrote, “This is not what Congress intended with the EAP exemption. Congress unambiguously directed the Department to exempt from overtime pay employees who perform ‘bona fide executive, administrative, or professional capacity’ duties. However, the Department creates a Final Rule that makes overtime status depend predominately on a minimum salary level, thereby supplanting an analysis of an employee’s job duties.”

He said nothing in the law allows the Labor Department to make salary rather than an employee’s duties determinative of whether an employee should be exempt from overtime pay.

“I applaud Judge Mazzant’s decision to permanently invalidate this Obama-era overtime rule that would have imposed millions of dollars of unfunded liabilities on the States and resulted in a loss of private sector jobs as well as onerous financial and regulatory burdens on small businesses in Nevada and around the country,” said Laxalt in a press release. “My office is proud to have led the charge towards a final ruling that brings clarity, certainty and closure to the business community and government alike.”

Additionally, Nevada’s senior Sen. Dean Heller, who has been challenging the overtime rule since it was proposed, put out a press release stating, “The former Obama Administration’s expansion of the federal overtime rule would have devastated Nevada’s business owners and job creators. Since the rule was issued last year, I have been strongly concerned about its impact because it would fundamentally change how employers compensate their workers, reducing Nevadans’ work hours and benefits. I’m pleased to see that a federal judge acknowledged the regulation’s harmful consequences and ruled it invalid today.”

Heller also commended Laxalt for leading the fight against the overtime rule change.

In addition to Nevada, the other states challenging the overtime rules were Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, Texas, Utah and Wisconsin. Missouri, Colorado, Montana and Wyoming filed friend of the court briefs backing the challenge.

In June, Trump’s Labor Department announced that it too wants salary level to count in deciding who is eligible for overtime pay, but it did not endorse the Obama administration’s salary level. The Labor secretary should heed Mazzant’s reasoning and the clear language of the law as it is currently written. If any changes are contemplated, they must be voted on by Congress.

This effort on behalf of Nevada’s state and local government employers, as well as countless businesses was well worth the time, effort and expense to save jobs and businesses.

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.