Virginia joins states in anti-federal government bills

By Paige Winfield Cunningham on March 8, 2010
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Virginia delegates are shaking their fists at the federal government by adding to a crop of anti-government legislation sprouting around the country.

A bill aiming to duck out of federal healthcare reform has been approved by Virginia’s general assembly, while similar legislation has been filed in at least 30 other states, according to the Washington-based nonprofit American Legislative Exchange Council. The Virginia House and Senate, along with Gov. Bob McDonnell, are poised this week to approve a final version of the bill, which says citizens cannot be required to have medical insurance.

But that’s not the extent of the anti-federal initiatives. Dozens of states are trying to assert independence from the U.S. government by resisting regulation of firearms, commerce and currency.

Supporters of the bills say they’re defending states’ rights under the 10th Amendment of the U.S. Constitution, which reserves those powers not expressly granted to the federal government for the states.

The Virginia House has approved bills aimed at protecting firearms and commerce within the state.

Sponsored by Del. Bill Carrico, R-Independence, the Firearm Freedom Act “protects firearms, accessories and ammunition manufactured and kept in Virginia from federal regulation.” According to legislative aid Stewart Higley, Carrico wrote the legislation after being contacted by Gary Marbut—a Montana activist who is encouraging states to follow the lead of his own state.

Marbut helped to write a parallel act in Montana, which was signed by the Democratic governor last year and became law on October 1. That same day, Marbut filed a federal lawsuit—with the help of six attorneys working pro bono—to challenge all federal regulation of firearms that remain within state lines.

The lifelong gun owner said he’s wanted to challenge the federal government’s power for a long time and intends to take his case all the way to the top, if he’s able.

“We want to get to the Supreme Court,” Marbut said. “We want the Supreme Court to overturn a half-century of precedent. But we’re not kidding ourselves; it’s going to be an uphill climb.”

Marbut says his work is “plowing the ground” for similar laws to spread through the U.S. Since Montana’s success, Tennessee and Utah have followed suit and only a governor’s signature is needed in Wyoming and South Dakota—which approved its bill on Thursday. Eighteen other states have introduced the legislation according to Marbut.

In Virginia, the bill passed the House 70-29. Its main idea—to resist federal control of goods produced in-state—is shared by another bill patroned by Del. Mark Cole, R-Spotsylvania. Cole’s bill states that the 10th Amendment gives Virginia freedom from federal regulation of goods “manufactured in, sold in and consumed in Virginia.”

Cole said he wrote the bill out of a concern that the federal government is overstepping its constitutional boundaries. He said he’s received support for the bill that he thinks is prompted by citizens’ worries about federal spending and nationalized healthcare. States need to start responding to the concerns, he said.

“Over the years, the federal courts and Congress have expanded their reach and authority to the extent where the 10th Amendment is essentially meaningless,” Cole said. “I think states need to start looking at that and start coming up with plans to reassert themselves.”

But Cole agrees the legislation raises constitutional issues. Both his bill and the Firearms Freedom Act were given a “grey” cover by the Virginia Division of Legislative Services, indicating that there’s a good chance they could be unconstitutional.

While a grey cover isn’t automatic death to a bill, it does mean that the drafter, an attorney and the director all agree that it’s constitutionally dubious, said Deputy Director Bill Cramme. Bills that receive the grey cover usually carry a constitutional challenge that would have to be based on a court ruling, he said. He said it’s rare that grey cover bills become law, but he does see it happen occasionally.

But this year’s anti-federal legislation is the most he has ever seen, Cramme said. It’s the first time in the same year he’s seen legislators push a several bills resisting federal power.

“This is the first year I’ve seen a group of these come through,” Cramme said. “It’s kind of unusual, seems like it’s bubbled up finally.”

While the chiefly Democratic opposition wasn’t enough to halt the bills in the Republican-controlled House, they would face tough resistance if given a hearing in the Democrat-led Senate.

Like Virginia, other states are passing their own anti-federal measures.

In Idaho, there’s an effort to gain control of currency. Republicans have introduced a measure to allow the use of gold and silver in addition to dollars issued by the U.S. Federal Reserve Bank. State legislators are also considering bills that would preempt federal identification legislation that could affect state driver’s licenses, challenge control of federally-held land and call for the national debt to be eliminated in 55 years.

Cole introduced a similar resolution in Virginia, calling for the U.S. to balance its budget, but he said the bill is stalled in committee after being passed by the House.

On Wednesday, Wyoming joined nine other states whose legislatives chambers have passed a resolution that simply affirms the sovereignty of states under the 10th Amendment. In the past year, Alabama, Utah, Alaska, North Dakota, South Dakota, Oklahoma, Idaho, Louisiana and Tennessee have all passed similar resolutions, according to the Tenth Amendment Center—a Washington-based nonprofit that advocates for limited government.

The outcrop of anti-federal government bills is akin to states trying to secede from the union during Civil War times—but this time in the area of public policy, said A. Lee Fritschler, a professor at George Mason University’s School of Public Policy. But he believes supporters will likely just end up butting their heads against decades of court precedent that favors federal over state authority.

And, practically speaking, no one would really want to produce or buy goods that don’t meet federal safety regulations, Fritschler said. He said that producers prefer one national regulation instead of state-by-state regulation, while consumers want to be assured that products are safe.

“It’s a statement of protest, and it’s interesting in that respect, but pragmatically one would think it’s not going to go very far,” Fritschler said. “When people get down to it and try to implement it and try to live with it…it could be really quite damaging.”

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