Federalism
CONSTITUTION DAY—AN ASSESSMENT OF OUR FEDERAL GOVERNMENT
Guest opinion: Representative Merrill Nelson
(Published in Deseret News September 16, 2019)
On September 17, we commemorate “Constitution Day,” 232 years since the signing of our Founding Document—a piece of parchment, housed under armed-guard in the National Archives, which guarantees our individual freedoms. How? By dividing and separating the governing power of the people, with checks and balances in each governing body, to prevent the accumulation, usurpation, or abuse of power by those entrusted to exercise it. The states created the federal government to perform limited, listed national functions, while all other powers were reserved to the states and the people. How are we doing in our annual check-up?
The conflict over funding a border wall illustrates the disarray of the federal government. Congress refuses to address our broken immigration system, so the President invoked the National Emergencies Act to fund the wall out of the defense budget. Congress complains to the federal courts, but has only itself to blame for ceding too much power to the President. Congress threatens to revoke the power, but that would require passing a law, which Congress has difficulty doing. And even if passed, the President would likely veto it. Power, once lost through delegation or usurpation, is difficult to regain.
This conflict highlights an all-too-familiar pattern: Congress delegates power to the Executive Branch, and the President makes law and policy through executive orders and administrative rules, whether on foreign policy, immigration, international trade, public lands, environmental protection, or any other issue. Congress complains of executive action, but takes no meaningful action to control it, with the same effect as barking dogs chasing a speeding executive limousine. The reality is that Congress has lost control of the Executive Branch. Meanwhile, Congress continues uncontrolled spending on programs to ensure re-election—mounting a national debt that will crash our economy.
A country governed by unelected bureaucrats and judges is not what our Founders intended in crafting our Constitution. Our Founders envisioned a limited federal government, with Congress making law, the President executing the law, and the Judiciary interpreting the law—leaving the vast exercise of government power to the states, including matters of health, education, morals, public safety, marriage, family, life, and death. The federal government, with a budget four times the size of all state budgets combined, has grown too big, too powerful, too expensive, and too inefficient. Over the past several decades, government power has shifted from the states to the national government, and from Congress to the President and the courts. This accumulation of power “in the same hands” is “the very definition of tyranny.” (Madison, Federalist 47) Both political parties are at fault, and all of us should be concerned.
Some may say, “So what?” But the clear result is loss of individual liberties that limited government is intended to preserve. When we face restrictions on our freedoms to speak and associate on college campuses, or freedom to worship, or freedom to provide or obtain education and health care, or to use our land or sell our goods and services, or freedom to establish public policy as states, we realize the federal government has amassed too much power. While some in Congress, like Senator Mike Lee, are trying to address the problem, most ignore it. As candidates line up to replace Congressman Rob Bishop, who is also a champion of federalism, I hear little discussion of federal overreach. We’ve grown numb to our condition.
Recently, I attended a national conference of state legislators where we discussed the loss of federalism—the constitutional balance of federal and state government power. I noted that one remedy is found in Article V of the Constitution, which authorizes the states, rather than Congress, to propose amendments to the Constitution to limit federal power and spending, such as granting states a collective check on federal law. Another legislator responded that “the Constitution is not broken and doesn’t need to be fixed.” That is true, my friend, but the federal government is broken, and we must use the Constitution to fix it. Power must be checked by a “rival power.” (Hamilton, Federalist 28) Our role, as a people and as state legislators, is to “erect barriers,” in the form of constitutional amendments, to check federal power and restore state sovereignty. (Hamilton, Federalist 85) This obligation requires our united best efforts and reliance on all available lawful remedies. We owe that to our Founders, to future generations, and to the God who made us free.
“Oh, America—Have We Wrought Thee A King?”
(Published in Deseret News July 2, 2017)
“A republic—if you can keep it.” The words of Benjamin Franklin ring down through the 230 years since the signing of our Constitution in response to an anxious bystander’s question, “What have we got—a republic or a monarchy?” Our Founders, as students of history and patriots in the war for independence, eschewed a monarchy. George Washington, in rejecting the proposal near the end of the war that he be made a king, wrote that “[n]o occurrence in the course of the war has given me more painful sensations.” Thomas Paine also dismissed the notion of a monarch: “But where, says some, is the King of America? I’ll tell you. Friend, he reigns above.” And many of us share the faith that this is a choice land of liberty on which there shall be no kings.
In rejecting a monarchy, what the Founders gave us was a compound republic: 1) a federal government with listed, limited powers separated among legislative, executive, and judicial branches, each with checks on the powers of the other two; and 2) pre-existing state governments possessing all other governing powers delegated by the people. This division and separation of powers was intended to prevent the accumulation of power in one body or person.
Today, however, despite the best of intentions, our nation has drifted from its constitutional moorings of a republic toward the rocky shoals of a monarchy. Congress has delegated its lawmaking authority to hundreds of federal agencies that are directed and controlled by the President. The President appoints administrators, dictates public policy, directs administrative regulations, and decides which laws to enforce or ignore. When the law is deemed inadequate or unwise, the President issues executive orders to expand or alter the law. Congress appears unable or unwilling to check this expansion of executive power. The result is almost unfettered power in the presidency, federal domination of the states, and the loss of liberty of the people.
A few examples, among many, illustrate this dramatic shift of power from the people’s representatives to the President. 1) Antiquities Act. Past presidents abused this law by ignoring local interests and indiscriminately locking up millions of acres in Utah. With Congress unable to repeal or revise the Act, the States and the people are left to petition the President for relief. 2) Clean Power Plan. The prior president issued an executive order targeting coal-fired power plants. Congress failed to check this usurpation, so the states and the people petitioned the current president to reverse the order. 3) Religious Liberty. The President was recently hailed by various religious leaders for his executive order barring enforcement of federal laws on contraception coverage and political involvement by churches. 4) Paris Climate Accord. The President rescinded the prior president’s agreement with other nations to limit the use of fossil fuels.
Congress, the states, and the American people watch from the sidelines cheering or jeering the actions of the President depending on their respective views of public policy. But no one “wins” when we are governed by an unchecked executive--whether titled “King” or “President.” We the People should not have to kneel and bow before the President to beseech him for our rights as Americans. The President does not make law or “dispense” rights like kings of old. Our rights are inherent and inalienable—secured by our Constitution and the rule of law.
Our remedy is to restore the constitutional balance of powers by two means. First, Congress must perform its constitutional role to check the usurpations of the executive branch, either directly or through the states. As a state legislator, I applaud the Task Force on Intergovernmental Affairs, chaired by Rep. Rob Bishop, to restore “the proper balance of power between the federal government and states, . . . and eliminate unnecessary regulatory burdens facing communities across the nation.” The Utah Legislature also supports the resolution by Rep. Bishop to amend the Constitution giving states the power to repeal executive orders and regulations.
Second, the states must exercise their own power under Article V of the Constitution to initiate an amendment restoring their proper role to check usurpations of the federal government. As LaVarr Webb recently wrote in support of this remedy: “Balanced federalism should not be a Republican issue or a Democratic issue. . . . It has to do with balance in the federal system. It is about states having a co-equal place in the federal system with structural tools to push back against the federal government when a consensus among states exists to do so.” The only way to check power is with a rival power.
As Thomas Jefferson observed, “Our peculiar security is in the possession of a written constitution. Let us not make it a blank paper by construction.” In other words, let us not jeopardize our liberty by ignoring our constitutional protections. We must repudiate any semblance of a monarchy and work to “keep” our republic.
RESTORING FEDERALISM AND FREEDOM
REPRESENTATIVE MERRILL NELSON
(February 22, 2017)
Most people would agree that the federal government has exceeded its constitutional bounds-that it is too big, too intrusive, and too expensive. Congress functions as a national legislature, far beyond its "few and defined" powers, to encroach on those reserved to the states and the people. Examples include education, health care, and various criminal laws. Even more intrusive, however, are the more than four hundred federal agencies created by Congress that issue thousands of regulations controlling every aspect of our lives, from our air and water to our farms and factories. The Executive Branch now chooses which laws to enforce and issues its own laws through executive orders and administrative rules. And the federal courts now routinely decide matters of public policy historically reserved to the states, including life, marriage, and morality.
In short, we have lost the balance of federalism--that apportionment of powers between the federal and state governments--so carefully crafted by our Founders. Our state laws contain over 500 references to controlling federal law. Federal agencies now overlap and control our state agencies with thousands of federal regulations. And how are we controlled? With the lure of federal dollars, which now comprise over 25 percent of our state budget. Utah, of course, is not unique. The carefully-limited federal government created by the states now has an annual budget three times the size of all 50 states combined! Of course, most of that spending is based on debt that now exceeds $20 trillion! The federal government dominates the states with its laws, regulations, courts, agents, and blandishments. The creature has become our master.
Why does any of this matter? As long as we have food on the table and a car in the garage, why does it matter if we are governed from our state capitol or Washington-by legislators or federal administrators? The answer is one word-liberty-for ourselves and our posterity. Justice Anthony Kennedy observed: "Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. State sovereignty is not just an end in itself. Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power. . . . Federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake."
In short, unchecked growth of federal power-without a countervailing state power-restricts individual liberty and threatens tyranny. For example, without a state check on its power, the federal government may: 1) dictate school curriculum, testing, lunch menus, and transgender use of bathrooms and locker-rooms; 2) prohibit mining and burning of coal; 3) regulate ditches and canals as "waters of the U.S."; 4) revoke accreditation of colleges whose standards are not "politically correct"; 5) force private religious employers to provide contraceptive services; 6) dictate over-time pay in private employment; 7) revoke tax-exemptions for nonconforming religious beliefs; 8) protect wildlife that damages property or threatens domestic livestock; 9) force one-size-fits-all health care plans; 10) limit use of public lands; and so forth. Unchecked federal power is not only oppressive, but a distant central government is less efficient, less responsive, and more expensive.
So, what remedy do we have to restore the proper balance of federalism and protect individual liberty? Our Founders foresaw the potential problem and provided a remedy in Article V of the Constitution, governing the amendment process. Recognizing that Congress would never act to limit its own power, and that the only effective check on federal power is a rival state power, the Founders provided a fail-safe remedy to the states. On application of two-thirds of the states, Congress "shall call a Convention for proposing Amendments, which . . . shall be valid . . . as Part of this Constitution, when ratified by . . . three fourths of the several States." By this means, Alexander Hamilton wrote, "We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority." (Federalist 85.)
The Utah House of Representatives has approved a resolution (HCR3), joining several other states in calling for an amendment convention to limit the power and jurisdiction of the federal government. The resolution awaits Senate approval. Some groups oppose this constitutional remedy, fearing that a convention of states will harm the Constitution. However, the harm has already been done. We seek only to repair and restore the Constitution to protect our individual liberty. No physician would deny a prescribed remedy to a dying patient for fear of the outcome. Our Founders provided the remedy to preserve liberty-now is the time to use it. I urge continuing support of this vital cause.
CONSTITUTION DAY—AN ASSESSMENT OF OUR FEDERAL GOVERNMENT
Guest opinion: Representative Merrill Nelson
(Published in Deseret News September 16, 2019)
On September 17, we commemorate “Constitution Day,” 232 years since the signing of our Founding Document—a piece of parchment, housed under armed-guard in the National Archives, which guarantees our individual freedoms. How? By dividing and separating the governing power of the people, with checks and balances in each governing body, to prevent the accumulation, usurpation, or abuse of power by those entrusted to exercise it. The states created the federal government to perform limited, listed national functions, while all other powers were reserved to the states and the people. How are we doing in our annual check-up?
The conflict over funding a border wall illustrates the disarray of the federal government. Congress refuses to address our broken immigration system, so the President invoked the National Emergencies Act to fund the wall out of the defense budget. Congress complains to the federal courts, but has only itself to blame for ceding too much power to the President. Congress threatens to revoke the power, but that would require passing a law, which Congress has difficulty doing. And even if passed, the President would likely veto it. Power, once lost through delegation or usurpation, is difficult to regain.
This conflict highlights an all-too-familiar pattern: Congress delegates power to the Executive Branch, and the President makes law and policy through executive orders and administrative rules, whether on foreign policy, immigration, international trade, public lands, environmental protection, or any other issue. Congress complains of executive action, but takes no meaningful action to control it, with the same effect as barking dogs chasing a speeding executive limousine. The reality is that Congress has lost control of the Executive Branch. Meanwhile, Congress continues uncontrolled spending on programs to ensure re-election—mounting a national debt that will crash our economy.
A country governed by unelected bureaucrats and judges is not what our Founders intended in crafting our Constitution. Our Founders envisioned a limited federal government, with Congress making law, the President executing the law, and the Judiciary interpreting the law—leaving the vast exercise of government power to the states, including matters of health, education, morals, public safety, marriage, family, life, and death. The federal government, with a budget four times the size of all state budgets combined, has grown too big, too powerful, too expensive, and too inefficient. Over the past several decades, government power has shifted from the states to the national government, and from Congress to the President and the courts. This accumulation of power “in the same hands” is “the very definition of tyranny.” (Madison, Federalist 47) Both political parties are at fault, and all of us should be concerned.
Some may say, “So what?” But the clear result is loss of individual liberties that limited government is intended to preserve. When we face restrictions on our freedoms to speak and associate on college campuses, or freedom to worship, or freedom to provide or obtain education and health care, or to use our land or sell our goods and services, or freedom to establish public policy as states, we realize the federal government has amassed too much power. While some in Congress, like Senator Mike Lee, are trying to address the problem, most ignore it. As candidates line up to replace Congressman Rob Bishop, who is also a champion of federalism, I hear little discussion of federal overreach. We’ve grown numb to our condition.
Recently, I attended a national conference of state legislators where we discussed the loss of federalism—the constitutional balance of federal and state government power. I noted that one remedy is found in Article V of the Constitution, which authorizes the states, rather than Congress, to propose amendments to the Constitution to limit federal power and spending, such as granting states a collective check on federal law. Another legislator responded that “the Constitution is not broken and doesn’t need to be fixed.” That is true, my friend, but the federal government is broken, and we must use the Constitution to fix it. Power must be checked by a “rival power.” (Hamilton, Federalist 28) Our role, as a people and as state legislators, is to “erect barriers,” in the form of constitutional amendments, to check federal power and restore state sovereignty. (Hamilton, Federalist 85) This obligation requires our united best efforts and reliance on all available lawful remedies. We owe that to our Founders, to future generations, and to the God who made us free.
“Oh, America—Have We Wrought Thee A King?”
(Published in Deseret News July 2, 2017)
“A republic—if you can keep it.” The words of Benjamin Franklin ring down through the 230 years since the signing of our Constitution in response to an anxious bystander’s question, “What have we got—a republic or a monarchy?” Our Founders, as students of history and patriots in the war for independence, eschewed a monarchy. George Washington, in rejecting the proposal near the end of the war that he be made a king, wrote that “[n]o occurrence in the course of the war has given me more painful sensations.” Thomas Paine also dismissed the notion of a monarch: “But where, says some, is the King of America? I’ll tell you. Friend, he reigns above.” And many of us share the faith that this is a choice land of liberty on which there shall be no kings.
In rejecting a monarchy, what the Founders gave us was a compound republic: 1) a federal government with listed, limited powers separated among legislative, executive, and judicial branches, each with checks on the powers of the other two; and 2) pre-existing state governments possessing all other governing powers delegated by the people. This division and separation of powers was intended to prevent the accumulation of power in one body or person.
Today, however, despite the best of intentions, our nation has drifted from its constitutional moorings of a republic toward the rocky shoals of a monarchy. Congress has delegated its lawmaking authority to hundreds of federal agencies that are directed and controlled by the President. The President appoints administrators, dictates public policy, directs administrative regulations, and decides which laws to enforce or ignore. When the law is deemed inadequate or unwise, the President issues executive orders to expand or alter the law. Congress appears unable or unwilling to check this expansion of executive power. The result is almost unfettered power in the presidency, federal domination of the states, and the loss of liberty of the people.
A few examples, among many, illustrate this dramatic shift of power from the people’s representatives to the President. 1) Antiquities Act. Past presidents abused this law by ignoring local interests and indiscriminately locking up millions of acres in Utah. With Congress unable to repeal or revise the Act, the States and the people are left to petition the President for relief. 2) Clean Power Plan. The prior president issued an executive order targeting coal-fired power plants. Congress failed to check this usurpation, so the states and the people petitioned the current president to reverse the order. 3) Religious Liberty. The President was recently hailed by various religious leaders for his executive order barring enforcement of federal laws on contraception coverage and political involvement by churches. 4) Paris Climate Accord. The President rescinded the prior president’s agreement with other nations to limit the use of fossil fuels.
Congress, the states, and the American people watch from the sidelines cheering or jeering the actions of the President depending on their respective views of public policy. But no one “wins” when we are governed by an unchecked executive--whether titled “King” or “President.” We the People should not have to kneel and bow before the President to beseech him for our rights as Americans. The President does not make law or “dispense” rights like kings of old. Our rights are inherent and inalienable—secured by our Constitution and the rule of law.
Our remedy is to restore the constitutional balance of powers by two means. First, Congress must perform its constitutional role to check the usurpations of the executive branch, either directly or through the states. As a state legislator, I applaud the Task Force on Intergovernmental Affairs, chaired by Rep. Rob Bishop, to restore “the proper balance of power between the federal government and states, . . . and eliminate unnecessary regulatory burdens facing communities across the nation.” The Utah Legislature also supports the resolution by Rep. Bishop to amend the Constitution giving states the power to repeal executive orders and regulations.
Second, the states must exercise their own power under Article V of the Constitution to initiate an amendment restoring their proper role to check usurpations of the federal government. As LaVarr Webb recently wrote in support of this remedy: “Balanced federalism should not be a Republican issue or a Democratic issue. . . . It has to do with balance in the federal system. It is about states having a co-equal place in the federal system with structural tools to push back against the federal government when a consensus among states exists to do so.” The only way to check power is with a rival power.
As Thomas Jefferson observed, “Our peculiar security is in the possession of a written constitution. Let us not make it a blank paper by construction.” In other words, let us not jeopardize our liberty by ignoring our constitutional protections. We must repudiate any semblance of a monarchy and work to “keep” our republic.
RESTORING FEDERALISM AND FREEDOM
REPRESENTATIVE MERRILL NELSON
(February 22, 2017)
Most people would agree that the federal government has exceeded its constitutional bounds-that it is too big, too intrusive, and too expensive. Congress functions as a national legislature, far beyond its "few and defined" powers, to encroach on those reserved to the states and the people. Examples include education, health care, and various criminal laws. Even more intrusive, however, are the more than four hundred federal agencies created by Congress that issue thousands of regulations controlling every aspect of our lives, from our air and water to our farms and factories. The Executive Branch now chooses which laws to enforce and issues its own laws through executive orders and administrative rules. And the federal courts now routinely decide matters of public policy historically reserved to the states, including life, marriage, and morality.
In short, we have lost the balance of federalism--that apportionment of powers between the federal and state governments--so carefully crafted by our Founders. Our state laws contain over 500 references to controlling federal law. Federal agencies now overlap and control our state agencies with thousands of federal regulations. And how are we controlled? With the lure of federal dollars, which now comprise over 25 percent of our state budget. Utah, of course, is not unique. The carefully-limited federal government created by the states now has an annual budget three times the size of all 50 states combined! Of course, most of that spending is based on debt that now exceeds $20 trillion! The federal government dominates the states with its laws, regulations, courts, agents, and blandishments. The creature has become our master.
Why does any of this matter? As long as we have food on the table and a car in the garage, why does it matter if we are governed from our state capitol or Washington-by legislators or federal administrators? The answer is one word-liberty-for ourselves and our posterity. Justice Anthony Kennedy observed: "Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. State sovereignty is not just an end in itself. Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power. . . . Federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake."
In short, unchecked growth of federal power-without a countervailing state power-restricts individual liberty and threatens tyranny. For example, without a state check on its power, the federal government may: 1) dictate school curriculum, testing, lunch menus, and transgender use of bathrooms and locker-rooms; 2) prohibit mining and burning of coal; 3) regulate ditches and canals as "waters of the U.S."; 4) revoke accreditation of colleges whose standards are not "politically correct"; 5) force private religious employers to provide contraceptive services; 6) dictate over-time pay in private employment; 7) revoke tax-exemptions for nonconforming religious beliefs; 8) protect wildlife that damages property or threatens domestic livestock; 9) force one-size-fits-all health care plans; 10) limit use of public lands; and so forth. Unchecked federal power is not only oppressive, but a distant central government is less efficient, less responsive, and more expensive.
So, what remedy do we have to restore the proper balance of federalism and protect individual liberty? Our Founders foresaw the potential problem and provided a remedy in Article V of the Constitution, governing the amendment process. Recognizing that Congress would never act to limit its own power, and that the only effective check on federal power is a rival state power, the Founders provided a fail-safe remedy to the states. On application of two-thirds of the states, Congress "shall call a Convention for proposing Amendments, which . . . shall be valid . . . as Part of this Constitution, when ratified by . . . three fourths of the several States." By this means, Alexander Hamilton wrote, "We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority." (Federalist 85.)
The Utah House of Representatives has approved a resolution (HCR3), joining several other states in calling for an amendment convention to limit the power and jurisdiction of the federal government. The resolution awaits Senate approval. Some groups oppose this constitutional remedy, fearing that a convention of states will harm the Constitution. However, the harm has already been done. We seek only to repair and restore the Constitution to protect our individual liberty. No physician would deny a prescribed remedy to a dying patient for fear of the outcome. Our Founders provided the remedy to preserve liberty-now is the time to use it. I urge continuing support of this vital cause.
