God bless Texas

June 21, 2011

…for telling the federal government to take their incandescent light-bulb ban and shove it:

Texas could soon be in a position to turn the lights off on a federal plan to phase out certain light bulbs.

State lawmakers have passed a bill that allows Texans to skirt federal efforts to promote more efficient light bulbs, which ultimately pushes the swirled, compact fluorescent bulbs over the 100-watt incandescent bulbs many grew up with.

The measure, sent to Gov. Rick Perry for consideration, lets any incandescent light bulb manufactured in Texas – and sold in that state – avoid the authority of the federal government or the repeal of the 2007 energy independence act that starts phasing out some incandescent light bulbs next year.

“Let there be light,” state Rep. George Lavender, R-Texarkana, wrote on Facebook after the bill passed. “It will allow the continued manufacture and sale of incandescent light bulbs in Texas, even after the federal ban goes into effect. … It’s a good day for Texas.”

The Natural Resources Defense Council, a New York-based environmental group, is calling on Perry to veto the bill.

I suspect Perry will sign the bill, since it would be popular given the increasingly “small l” libertarian mood of the country these days, and those folks would be Perry’s core audience in a presidential run. The article goes on to quote an NRDC spokesman arguing that the bill cannot be implemented in a practical manner (What? They can’t build a light bulb plant in Texas?) and that it wouldn’t be in the “best interests” of Texans.

How… patronizing and condescending. We can’t let people decide for themselves what kind of lighting is best, after all. That’s better left to bureaucrats and panels of experts. That’s the “progressive way.”

To which I reply,  “go Texas!” 

Anyway, this law poses interesting constitutional issues, and I fully expect it to wind up in the courts. There’s the much-abused Commerce Clause, which has been stretched into near-meaninglessness to allow Washington to do whatever it wants. If the federal Energy Independence and Security Act of 2007 rests even in part on regulating interstate commerce (i.e., because the bulbs are manufactured in one state and shipped to another), then strict constructionists could argue that, since the economic activity (manufacturing and sale) takes place within one state, Congress has no power to regulate it. Under the 10th amendment, therefore, the power to do so is reserved to the states, and Washington can take a hike.

Given the legal history of Commerce Clause interpretation, and especially with horrible precedents such as Wickard v Filburn, I doubt this argument would win, but it sure would be interesting to watch. I will note, however, that a refining of the Commerce Clause to clearly prohibit Congress from regulating intra-state activity is one of the amendments in Professor Randy Barnett’s proposed Bill of Federalism.

Meanwhile, I may be looking at a quick trip to Texas to pick up a case of 100-watts.

via The Jawa Report

(Crossposted at Sister Toldjah)


Abusing the Constitution: health care and the case of the Commerce Clause

August 26, 2010

While we rightly agree to abide by the decisions of the Supreme Court as the final arbiter of what is and isn’t constitutional (barring changes via amendment), that doesn’t mean all its decisions are correct, or that its errors are without consequence. Among the more famous errors of the Court, consider Dred Scott v Sandford, which upheld fugitive slave laws; Plessy v Ferguson, which upheld segregation in state law; Buck v Bell, which upheld state laws mandating forced sterilizations; Korematsu v United States, which permitted the forced internment of Japanese-Americans during WWII; and the recent Kelo v City of New London, which made a mockery of the 5th Amendment’s takings clause.

So, it should come as no surprise that another bad Court decision, Wickard v Filburn, is at the heart of the Federal government’s vast expansion of its power via an upside-down interpretation of the Commerce Clause. In the following short video essay, Reason.TV looks at the Commerce Clause, the expansion of federal power its abuse enabled, and frames it via interviews with two legal scholars: Erwin Chereminsky, Dean of the UC Irvine Law School and an advocate of the “living Constitution,” and John Eastman, Professor of Law at Chapman University and a constitutional originalist. I think you’ll find it worth the ten minutes:

I think for anyone who understands that the Constitution is a document intended to limit the Federal government’s powers, Chereminsky’s arguments are almost frightening. (Side note: Professor Eastman ran for the Republican nomination for state attorney general in the last election; I voted for him and I’m sorry he didn’t win.)

This debate isn’t just academic, as the video points out: rather, it is of immediate urgency as  Congressional Democrats and the Obama Administration try to justify their statist health care plan and its individual mandate under the Commerce Clause. It also shows why Wickard, the foundation of Congress’ metamorphosis into Leviathan, needs overturning, whether through the Court in upcoming cases, or via a constitutional amendment that refines the meaning of the Commerce Clause.

If limited government is to have any meaning at all, this hole the Left has exploited must be plugged.

LINKS: More from Hot Air. Justice Scalia criticizes the theory of the living Constitution.

(Crossposted at Sister Toldjah)


State legislatures revolt against ObamaCare mandates

February 2, 2010

Interesting:

Although President Barack Obama’s push for a health care overhaul has stalled, conservative lawmakers in more than two-thirds of the states are forging ahead with constitutional amendments to ban government health insurance mandates.

The proposals would assert a state-based right for people to pay medical bills from their own pocketbooks and prohibit penalties against those who refuse to carry health insurance.

In many states, the proposals began as a backlash to Democratic health care plans pending in Congress. But instead of backing away after a Massachusetts election gave Senate Republicans the filibuster power to halt the health care legislation, many state lawmakers are ramping up their efforts with new enthusiasm.

The moves reflect the continued political potency of the issue for conservatives, who have used it extensively for fundraising and attracting new supporters. The legal impact of any state measures may be questionable because courts generally have held that federal laws trump those in states.

Lawmakers in 35 states have filed or proposed amendments to their state constitutions or statutes rejecting health insurance mandates, according to the American Legislative Exchange Council, a nonprofit group that promotes limited government that is helping coordinate the efforts. Many of those proposals are targeted for the November ballot, assuring that health care remains a hot topic as hundreds of federal and state lawmakers face re-election.

Legislative committees in Idaho and Virginia endorsed their measures this past week. Supporters held a rally at the Pennsylvania Capitol. And hearings on the proposed constitutional amendments were held in Georgia and Missouri. The Missouri hearing drew overflow crowds the day after Obama urged federal lawmakers during his State of the Union address to keep pressing to pass a health care bill. The Nebraska Legislature plans a hearing on a measure this coming week.

Supporters of the state measures portray them as a way of defending individual rights and state sovereignty, asserting that the federal government has no authority to tell states and their citizens to buy health insurance.

There’s an argument to be made that requiring private citizens to buy a product as a matter of law violates both the Ninth and Tenth Amendments of the Bill of Rights. The Ninth protects “unenumerated rights,” that is, those not specifically mentioned in the Constitution but still derived from natural law, while the Tenth specifies that powers not explicitly granted to the Federal government under the Constitution are retained by the states and the people. The argument over how to interpret these amendments and the proper balance of the roles of the federal and state governments is one of the oldest in American political history, going back to the Constitutional Convention itself.

I’m not an expert, but my guess is that an argument under the Ninth would be that the freedom to decide which products to purchase, if any, falls under the right of the individual to be sovereign over his property, including his money and his own person. Under the Tenth, it could be argued that, since the commerce in health insurance does not cross state borders*, Congress has no power under the Constitution to regulate it, and that state laws barring an individual mandate are therefore valid. Also, since no power to command the purchases of the people was granted, Congress has no authority.

*(I wonder if the Right is opening a can of worms by calling for interstate commerce in health insurance, since then Congress could regulate it under the Commerce Clause…)

I think an argument under the Tenth is probably correct; I have no idea about the Ninth, which, as I understand it, is rarely invoked in US law. Regardless, since I vehemently oppose socialized medicine and, in particular, ObamaCare, I hope these acts by state legislatures withstand constitutional scrutiny.

On the other hand, they do remind me uncomfortably of the Nullification Crisis

RELATED: A very good book on the Bill of Rights, with a chapter on the Ninth amendment.

UPDATE: I should point out that the Virginia Senate, which is dominated by Democrats, is one of the bodies voting to tell the Fed to stuff it.