Freedom Line Blog

Here at the Center for Individual Freedom, we broadly favor the federalist and Tenth Amendment concept of states’ rights and individual liberty, as our name suggests.

Both principles are implicated in an emerging debate at the Congressional level.  Namely, proposed new legislation that would prohibit all 50 states and their citizens from allowing online poker and other gaming as they see fit.  That would upend states’ historical right to regulate gaming, and it would obviously mean yet further intrusion of federal power into individual Americans’ right to freely make their own entertainment choices and choose how to spend their own dollars.

Without getting to deep into the weeds, the Wire Act of 1961 was originally enacted to address interstate sports betting via telephone, partly an effort to fight organized crime in that domain.  In 2013, the Justice Department determined that the Wire Act is inapplicable to non-sports Internet wagering, based upon relevant caselaw and legislative history.  That confirmed that other forms of online poker and gaming remain properly in the realm of individual states to legislate.  It also accorded with the Fifth Circuit Court of Appeals, the highest court to consider the question, which had determined in 2002 that the Wire Act addresses sports gambling only.

On that reasoned basis, multiple states have authorized online poker and various other forms of Internet wagering for citizens within their own borders, with many more considering similar moves.

Unfortunately, that’s where the ill-advised new proposed federal legislation comes in.  The so-called Restoration of America’s Wire Act (H.R. 4301 in the House and S. 2159 in the Senate), which wouldn’t “restore” the Wire Act to its original meaning but rather significantly expand its reach contrary to the Fifth Circuit and Justice Department rulings, aims to impose a de facto prohibition on online gaming in all 50 states and thereby increase federal regulatory power.  Proponents claim that the new bill would protect children and problem gamers, but the more realistic consequence would be shutting down existing law-abiding companies and driving commerce toward criminal sites and unaccountable overseas entities less interested in restricting minors or problem gamers.

The better option is to maintain existing law, which rewards law-abiding domestic companies and ensures greater safety and security.  And as noted above, the proposed legislation would grossly violate the concepts of state sovereignty, free-market principles and individual consumer freedom.  The last thing we need right now is even more federal regulation of states and legal commerce, particularly within the flourishing Internet sector.

Conservatives, libertarians and Americans of every other political persuasion should therefore oppose the so-called Restoration of America’s Wire Act, and contact their Senators and Representatives to demand the same.

The libertarian-leaning Tenth Amendment Center is doing a double service for people interested in how to fight federal government overreach at the state level.

(Note: Before explaining further, I want to say that I do not endorse all of the views at TAC. The point here is to highlight how one group within the larger conservative movement is finding a way to work within the system to enact constructive alternatives.)

The first service is providing an easy-to-access list of model legislation to use at the state level.  Any limited government activist with an internet connection and a printer can get readymade bill language that a sitting state representative or senator can introduce.  The topics range from preserving Second Amendment gun rights to refusing to cooperate with ObamaCare, with issues like the Constitutional Tender Act in between.

After a piece of model legislation is introduced, TAC then delivers its second service: Tracking the progress of its bills across the fifty states.  For example, since January 2013, nine states have introduced at least one element of TAC’s ObamaCare refusal law.  So far, twenty-three states have introduced TAC bills protecting gun rights, and another three have passed the measure out of at least one legislative chamber.

Some of the model legislation comes from experts in the field like the American Legislative Exchange Council (ALEC), while others look to be homegrown with TAC.  Whatever their provenance, limited government conservatives should get energized by the fact that concerned citizens are finding ways to stem the tide of federal overreach – even if you’d never hear about it from the mainstream media.

Here at the Center for Individual Freedom, we recently launched a State Sovereignty Project that aims to encourage states to resist Washington’s encroachment on their constitutionally-protected powers. While resisting federal overreach is, in and of itself, a worthy pursuit, it becomes even more valuable when the states then use that freedom to enact major public policy innovations.

As I’ve noted here before, one of the areas where that charge is being met with the most vigor is in education reform, where a handful of Republican governors are transforming the way we think about public schools. One of the leading lights of this crusade has been Indiana’s Mitch Daniels, who successfully pushed legislation providing for the sweeping use of school vouchers in the Hoosier State. As a recent profile by The Economist notes, he’s getting results:

The voucher scheme, potentially the biggest in America, was set up a year ago as part of a big package of educational reforms led by Indiana’s governor, Mitch Daniels, and his superintendent of schools. These include teacher evaluations that take student performance into account, giving school heads more autonomy and encouraging the growth of charter schools. Jeanne Allen, president of the Centre for Education Reform, a Washington-based advocacy group, says the reforms are unique because Indiana has looked at education reform in its “totality”, rather than taking a piecemeal approach as many other states have done.

…

The Indiana scheme has allayed fears that vouchers will not reach their target audience of low-income families. In the first year about 85-90% of children receiving them have come from households that qualify for free school lunches. Moderate-income families can receive a voucher with a lower value. … Indiana’s philosophy of promoting choice has also extended to making it possible for students to apply to any public school—including those outside the school district in which the child lives. And some signs suggest greater choice is having a positive effect in Indiana. For one thing, some public schools have started to compete for students. They are advertising their educational prowess directly to parents, through billboard signs on highways, mailing campaigns and clothes carrying slogans. Schools are trying to make themselves more attractive to students, for example by buying iPads.

All well and good, but we can already hear the skeptics saying that competing for students isn’t the same as generating better results. Well …

The reforms have had already phenomenal results, according to Mrs Allen. Tony Bennett, the superintendent of public instruction in Indiana, arrived in 2009. Every student performance indicator has improved he says and over the last two years the state has ranked second in the country for achievement on college-level courses taken in high school. Graduation rates from high school are at an all-time high.

Competition is working intra-state in Indiana. Now, it falls to federalism to get it to work inter-state. If the Hoosier State keeps up the progress, it won’t be long before the nation’s education laggards start to realize that they could improve their results by following Indianapolis’ lead. No such comparisons would have been possible had education reform been imposed top-down from Washington. That’s one more reason to defend the Tenth Amendment.

Well, that didn’t take long.  On the day after Rick Perry for President speculation gained new momentum with two of his longtime political aides bolting Newt Gingrich’s campaign, the liberal media is attacking the Texas Republican governor for coordinating a “day of prayer and fasting” for national healing in Houston on August 6.

Putting aside the arguments for and against Perry’s event, the more the media explains Perry’s commitment to an evangelical Christian worldview, the more social conservative primary voters in Iowa are sure to perk up.  Moreover, Perry is already considered the first-in-the-nation-governor to pick up the Tea Party mantle of limited government, so perhaps those flinty New Englanders in New Hampshire’s first-in-the-nation-primary might take a look at a guy who takes the 10th Amendment seriously.

But what about foreign policy?  Let’s just say that as a former Air Force fighter pilot from Texas, Perry should have no trouble articulating something pleasing to pro-military Republican voters.

As with Sarah Palin, the mainstream media doesn’t seem to realize that highlighting Perry’s conservatism actually makes him more attractive to Republican voters.  So go ahead, journos!  Keep knocking Perry for being a social, fiscal, and national security conservative.  It only helps grow the brand.

Yesterday, 60 members of the House Republican majority endorsed a bill that would “deregulate” health insurance purchases by allowing consumers to buy plans across state lines.  The idea is to let companies compete on a national scale, spreading the risk and lowering premiums.  The bill is gaining support as a free market counterargument against ObamaCare’s one-size-fits-all regulation of health insurance.

There is a caveat.  In order to liberalize the insurance market, the GOP-sponsored bill must take away the states’ power to regulate insurance.  The reason insurance plans cost different amounts in different states is because individual states have different regulatory schemes.  Those schemes are the product of public policy decisions hammered out at the state level.  Importantly for 10^th Amendment limited government types, the plan to “deregulate” the health insurance market comes at the expense of state sovereignty.

Ironically, the only way the House Republicans’ answer to ObamaCare gets passed is through an expansive reading of Congress’ ability to regulate interstate commerce “among the states.”  Members of Congress will (or at least should) have to struggle with which conservative principle they value more in this instance: the free market or federalism.  In a certain sense, federalism grants to states a public policy monopoly over all issues not expressly contained in the text of the U.S. Constitution.  That monopoly drives up prices for consumers in states with costly regulations.  Theoretically, if people want to pay less for health insurance, they could move to a state with less costly regulations.

Ideas like federalism have consequences.  As the Tea Party-flavored House GOP boards the ship of state, it will be interesting to see which crate of principles the revolutionaries toss over.

H/T: Los Angeles Times

On today’s Foundry blog at the Heritage Foundation there is a crisp analysis of the cost-cutting decisions being weighed by states threatened with billions in rising health care costs under ObamaCare.  With a massive, mandatory expansion of Medicaid rolls beginning in 2014, state budget writers are seriously considering dropping out of the Medicaid program in order to avoid bankrupting their treasuries.

Granted, it’s outrageous that the liberal elites running Washington, D.C. are forcing state governments to spend more of their taxpayers’ money on health care.  After all, the States didn’t get to vote on ObamaCare.  But too often in this debate there’s a simple – though difficult – solution that up until now hasn’t been mentioned.

Opt out.  The only way the federal government can dictate spending and policy decisions to the states is if the states agree to the terms.  Those terms are buried in the fine print of federal programs that condition receipt of federal money on compliance with federal policies.  Like dramatically increasing Medicaid rolls.

Though opting out of Medicaid will be difficult because it also means losing the matching funds that come with it, the renewed control over a state’s budget should give state legislators much more room to maneuver during this era of dwindling tax receipts.  Governments, like individuals, need options.  Opting out of Medicaid is an important first step to regaining state sovereignty.

As a former staff member in the Texas House of Representatives, I have an interest in news that the chamber may be headed for conservative leadership.  This morning, Rep. Ken Paxton (R-McKinney) announced his bid to unseat current Speaker Joe Straus (R-San Antonio).  If successful, Paxton would be the third Republican Speaker in under three years, since Straus ascended to power by beating former Speaker (and my old boss) Tom Craddick (R-Midland) in 2009.

What does an intra-party fight in one of the reddest states in America mean for citizens outside the Lone Star State?  Plenty.

Texas is already the exemplar of low-tax, low-regulation state government.  Moreover, because the legislature only meets for 140 days every two years, Texas government has not had a chance to weigh in legislatively on issues like Arizona’s approach to illegal immigration and Virginia’s response to block implementation of ObamaCare.  With the kick-off of the legislative session next January, a more conservative Republican House majority will be able to make some big statements about the power of the 10^th Amendment in our federal system.

That is, if the House is run by a true conservative.  Stay tuned…

In today’s Wall Street Journal constitutional law professor Randy Barnett makes an intriguing connection between the anti-government anger of millions of Americans and a currently accepted legal theory that may overturn ObamaCare’s individual mandate.

He notes that twice in the 1990s, the high court struck down federal mandates against state governments—one requiring legislatures to pass laws dealing with the transport of nuclear waste, and one mandating that police conduct background checks on gun buyers—saying they amounted to unconstitutional “commandeering” under the 10th Amendment. That amendment is usually thought of as protecting states’ rights, but note the final four words: “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.”

“What is the individual mandate?” Mr. Barnett says. “I’ll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn’t there a rule of law preventing that? Because it’s never been done before. What’s bothering people about the mandate? This fact. It’s intuitive to them. People don’t even know how to explain it, but there’s something different about this, because it’s a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That’s all we commandeer the people to do. This is a new kind of commandeering, and it’s offensive to a lot of people.”

Kudos to Barnett for providing a legal rationale for the frustration felt by millions of Tea Party activists.  Hopefully, swing voter Justice Anthony Kennedy is listening.

Every once in a while, a commentator freezes a sentiment and perfectly describes it’s importance for the moment.  Daniel Henninger does that in his Wall Street Journal column today.  Taking the similar, yet unconnected strands of the Tea Party movement, constitutional challenges to Obamacare, and the widespread interest in the dormant power of the 10^th Amendment, he weaves together a simple warning letter to the Progressives running Washington and the MSM: a national referendum on the size of government is coming.  Expand at your peril.

The Founding Fathers deliberately included in the Bill of Rights the Tenth Amendment, which 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.”

This notion of federalism, or “states’ rights,” was obviously a core tenet of our Constitution and one that provided the reassurance necessary for ratification.

MSNBC’s Chris Matthews, however, suggests that this vital, fundamental aspect of the Constitution is merely code for slavery, segregation or racism amongst those inconvenient Tea Partiers.  During his February 9 “Hardball” broadcast, Matthews reacted to those such as Republican Texas Governor Rick Perry and fellow Republican candidate Debra Medina who seek to reclaim greater federalist balance by angrily asking, “who is this, John Calhoun?!?!”

You recall John Calhoun, that early-18th century Vice President from South Carolina who supported slavery.  According to Matthews, advocating simple Tenth Amendment concepts is tantamount to advocating slavery, apparently.  Matthews proceeded to quote Martin Luther King, Jr. for any of his loyal viewers who failed to comprehend his oh-so-subtle Calhoun reference.

This is the same Chris Matthews, of course, who fawns over Barack Obama by describing the thrill that runs through his leg when listening to another teleprompted speech, and who childishly attempts to slur Tea Party activists by referring to them as “tea baggers.”

We’ve come a long way from states’ rights proponents James Madison and Thomas Jefferson to Chris Matthews and Keith Olbermann.  Still believe in Darwinism?