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Nobody Cares About Federalism

[ 79 ] March 15, 2012 |

The latest reminder.

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  1. c u n d gulag says:

    If only there were a “kelo” of consistency in Conservative thought…

  2. DrDick says:

    Support for “state’s rights” by conservatives simply reflects their view that it is easier to bribe or intimidate state and local governments into getting their way.

  3. mds says:

    I sighed and said “What else is new?” as I wended my way through the article, until I hit this at the end:

    Just to underline the hypocrisy, consider § 9(1)(A)(iv) of the Act. There’s an exception to the prohibition on taking private property for “economic development”: “use as an aqueduct, flood control facility, pipeline, or similar use.” (Emphasis added.)

    See, occasionally I get lulled into thinking it’s not physically possible for the GOP to go any lower, and then they specifically exempt Keystone XL and any of its potential brethren from their oh-so-principled defense of property rights. I doff my hat to their breathtaking mendacity.

    • mark f says:

      The whole Keystone argument is so amazingly stupid. The small-government property rights mob is angry that the president didn’t use the power of the federal government to confiscate several thousand miles of privately-owned land and hand it over to a Canadian company that wanted to ship oil to China without paying export duties. But it would’ve pissed off some tree-huggers!

      • joe from Lowell says:

        without paying export duties

        Is that what this is about? Canada has export duties and the US doesn’t (or doesn’t for foreign oil transshipped through the US)?

        I’ve never been able to get a good answer to the question “Why don’t they just refine it in Canada and ship it from west coast ports?”

        • mark f says:

          As I understand it the oil was always intended for China, but all or certain ports in Louisiana are duty-free.

          • DrDick says:

            It was always destined for China and they wanted to go through Houston because it already has the infrastructure in place to handle the transshipment of oil, as well as a good deep sea port which can accommodate the largest oil tankers. There are no Canadian ports which can currently do so.

            • joe from Lowell says:

              There are no Canadian ports which can currently do so.

              I am not a dredging engineer, but is building a pipeline from the Canadian border to Houston really a smaller job than expanding a port to handle oil tankers?

              • You’d have to pretty much make a new port. The obvious port to handle such things is in Downtown Vancouver. It would never fly politically.

                • joe from Lowell says:

                  Now you’ve made my city planner instincts kick in.

                  The active industrial port shouldn’t be in downtown. They should do what they did with Stapleton Airport in Denver: close the old, hemmed-in port, build a big new one outside of town, and use the land to make Vancouver an even better city than it is now. Urban waterfront land is an incredible resource for a city, while being in downtown is actually detrimental for the port.

                  Sure, it would be a big job, but they could sell off a ton of expensive land – waterfront land, in the heart of a city – to pay for it.

                • It’s pretty interesting to game it out, but it’s not just a question of cool land use (which the city has done a pretty remarkable job with, making my life sadly expensive) but there are salmon runs all over the place, and the government management of those stocks has been awful…bringing oil into the mix is not going to happen, and it would boggle my mind to think it could be pushed past the locals here. And that, again, still involves getting a pipeline across big fucking mountains and through hierarchies of government, some of which have a lot of rights.

                  Still, it’s kinda fun to poke through Google Earth and see where a port could go.

                • DrDick says:

                  There are apparently a lot of issues regarding shoals and currents and the like that make the Canadian Pacific generally unsuitable for this kind of operation, but I am not an expert n this.

            • mark f says:

              That’s good info; thanks.

        • BigHank53 says:

          Yep: we need to subsidize the construction of a risky pipeline so a corporation can pay fewer taxes! All the profit is private and all the risk socialized, just like the baby Ayn Rand wanted, and you don’t want her to start crying.

        • redrob64 says:

          Joe, shipping the oil from BC ports will require building a pipeline across the Rocky Mountains and across First Nations lands. Both technical and legal problems far beyond what TransCanada figured they faced on the Great Plains with a Republican majority in the House.

          • joe from Lowell says:

            OK, then why not Churchill?

            • joe from Lowell says:

              Or a Canadian Great Lakes port?

              • Linnaeus says:

                The nearest Canadian Great Lakes port to the Alberta oil fields is probably Thunder Bay, and I don’t know if they have the facilities to handle oil shipments. To get it to a larger port, a pipeline would have to cross the Canadian Shield, and that’s a huge challenge. Even then, the size of the ships that can traverse the St. Lawrence Seaway is limited, so the oil would still have to be transferred to larger ships at some point.

                And there are probably First Nations lands along the way even for a pipeline going to the Great Lakes, though I don’t have a map handy.

                • joe from Lowell says:

                  I don’t know if they have the facilities to handle oil shipments.

                  I am not a dredging engineer, but is building a pipeline from the Canadian border to Houston really a smaller job than expanding a port to handle oil tankers?

          • DrDick says:

            Plus none of the Canadian Pacific ports can handle the large oil tankers.

            • mds says:

              The processing and shipping infrastructure already exists at the Gulf Coast, and most of the pollution risk and the abuse of eminent domain can be assumed by another country entirely. What’s not to like, from the point of view of the Harper government?

          • bobbyp says:

            Keystone pipeline costs estimated at $7billion. To go to another port site from Alberta would probably be some odd billion(s)for a shorter pipeline + port development costs–easily more billions.

            So taking into account the business costs and the political costs…the route they chose makes a certain amount of sense I would guess.

    • joe from Lowell says:

      Yeah, that was pretty special.

      Maxine Waters cosponsored this bill?

      • mds says:

        Eh, she has some legitimate concerns about the usual targets of urban renewal, “economic development,” and the like. And she’s probably in favor of aqueducts and flood control measures. But yes, sloppy to let a loophole like “pipelines” through, and foolish to think that anything good could come of cooperating with the current House GOP. At least she’s not a “states’ rights” hypocrite, though.

    • BradP says:

      That’s not hypocrisy.

      For example, Richard Epstein (with the Cato Institute) listed four categories of public takings in order of difficulties of justification.

      The second category he listed dealt specifically with eminent domain that went from private party to private party when significant and insurmountable holdout problems prevented public access to some good.

      He argued that not only did the New London project not meat this requirement, but that New London didn’t even have a sensible analysis of the public benefit provided. The Kelo v. New London set a standard for “economic development” that was so broad that there was no distinguishing between legitimate public access concerns, and the government just stepping in to screw over one party for the benefit of the other.

      It is not hypocrisy to explicitly lay out the standards.

      And I don’t believe for a second that you actually disagree with that exception.

      • mds says:

        For example, Richard Epstein (with the Cato Institute) listed four categories of public takings in order of difficulties of justification.

        Alas, Richard Epstein (with the Cato Institute) does not yet have the power to unilaterally make law in Connecticut. Especially retroactively. So since the text of the Fifth Amendment doesn’t establish those categories of justification, the relevant local and state laws of Connecticut didn’t establish those categories of justification, and Supreme Court precedent doesn’t establish those categories of justification, how is it meaningful to invoke standards that were invented by Richard Epstein (with the Cato Institute) in the context of a flagrant attempt to override states’ rights by the same people who throw tantrums over federal pollution regulations? Because if one of his tiers with adequate justification is “seize farmland and vital aquifers for a foreign company’s environmentally-destructive US-tax-avoiding means of funneling oil to China,” then I’m even less interested in his opinions on New London’s abuse of power.

  4. Clintonesque says:

    I think everyone, both left and right, understands the necessity of abridging private property rights for necessary public works such as easements for electical, water works, other utilities, etc.

    But when you use the full force of government to force private property owners out so that Jerry Jones can build a new one billion dollar Cowboys football stadium, a private business and not a public good, it becomes a problem.

    • rea says:

      But when you use the full force of government to force private property owners out so that Jerry Jones can build a new one billion dollar Cowboys football stadium, a private business and not a public good, it becomes a problem.

      Not everything that’s bad policy is unconstitutional, though.

    • joe from Lowell says:

      What about when you take the vacant land and dilapidated, empty buildings owned by some corporate entity so that the Redevelopment Authority can build an office building and some stores?

      You can’t base your decision on constitutional questions on how sympathetic you find one or the other side a specific case.

    • catclub says:

      Also note that the article mentions 42 states which have dealt with it. So, in principle, Jerry Jones will no longer get those sweet deals in those states.
      Somehow I suspect they will likely soon renege when the stakes are high enough, so Jerry Jones and his ilk will get those deals again. Prolly by calling a stadium a pipeline of money into Jerry Jones wallet.

      Heh, Maybe I should become a corporocrat legislator.

  5. Incontinentia Buttocks says:

    As you say, Scott, this should be news to nobody.

    But it does raise an interesting question: why isn’t there more mocking of those who claim fealty to federalism in our public discourse?

    Like budget balancing, it’s fairly obvious to any careful observer that nobody cares about federalism.

    But….

    1) The hypocrisy of phony fiscal conservatives is at least a pretty standard liberal talkingpoint. Not so the hypocrisy of the states rights crowd.

    2) While virtually nobody actually cares about budget balancing, there’s a bipartisan consensus among “serious” “centrists” that we really ought to care. Many complaints about phony fiscal conservatism are thus (at least implicitly) calls for non-hypocritical fiscal restraint (unfortunately). Pointing out the phoniness of federalism, on the other hand, reveals the emptiness of the concept itself. This makes it a much better talkingpoint even than the phoniness of the fiscal conservatism of the right.

  6. Rarely Posts says:

    One can reasonably argue that eminent domain is more justified when its necessary to create a continuous right-of-way for transportation, utilities, etc (though I don’t necessarily agree). The basic criticism that the right doesn’t care about federalism at all still holds.

    This statute also highlights another form of right-wing hypocrisy-they don’t care about judicial restraint in favor of the democratic process at all. The phrase “economic development” is incredibly vague and subject to numerous interpretations (somewhat similar to “public use”), so this statute basically is a way to take decision-making out of the hands of local and state elected officials and put it into the hands of a judiciary given very little guidance and incredible latitude.

    Moreover, I don’t think that “both sides do it” is nearly as true on the judicial restraint issue as many would contend. The commerce clause cases are a great example. Liberal justices regularly voted to uphold laws that likely don’t align with their personal beliefs (Raich, possibly Lopez, etc.). In contrast, Justice Scalia appears willing to vote based solely on his preferred policy outcome. I’d argue that Bush v. Gore is another classic example, but since they acknowledged it in their opinion, I don’t think it really requires an argument.

  7. mds says:

    As I understand it, the majority opinion in Kelo was “The Takings Clause is very vague, local and state governments are usually much closer to these issues, the precedents for granting wide latitude stretch back to the early Nineteenth Century, and we don’t think it should become the Supreme Court’s job to routinely adjudicate eminent domain cases from on high. So we leave this to state and local governments, who naturally can pass laws clarifying and restricting the proper uses of eminent domain, which Connecticut has never bothered to do.” Once filtered through conservative / schmibertarian dumbfuckery, this transmogrified into “SCOTUS says all levels of government can seize your property for any reason whatsoever,” with the Court’s conservative wing hailed by internet libertarians for asserting the right of federal courts to interpose themselves at will in local property disputes. Yeah, straight out of Tucker, that is. On this decision, “judicial restraint” went from the free-floating “judges ruling the way I like” all the way to “meaning the exact opposite of what it’s supposed to.”

  8. BradP says:

    Sometimes its like you don’t even try, Scott.

    Libertarian sorts don’t prefer federalism because they believe state’s rights is an end-all. They prefer federalism because the public can be more aware of and more active in local and state government workings.

    Ron Paul in response to New Kelo:

    The Kelo case also demonstrates that local government can be as tyrannical as centralized government. Decentralized power is always preferable, of course, since it’s easier to fight city hall than Congress. But government power is ever and always dangerous, and must be zealously guarded against. Most people in New London, Connecticut, like most people in America, would rather not involve themselves in politics. The reality is that politics involves itself with us whether we like it or not. We can bury our heads in the sand and hope that things don’t get too bad, or we can fight back when government treats us as its servant rather than its master.

    If anything, the Supreme Court should have refused to hear the Kelo case on the grounds that the 5th amendment does not apply to states. If constitutional purists hope to maintain credibility, we must reject the phony incorporation doctrine in all cases — not only when it serves our interests. The issue in the Kelo case is the legality of the eminent domain action under Connecticut law, not federal law. Congress can and should act to prevent the federal government from seizing private property, but the fight against local eminent domain actions must take place at the local level. The people of New London, Connecticut could start by removing from office the local officials who created the problem in the first place.

    • Scott Lemieux says:

      f anything, the Supreme Court should have refused to hear the Kelo case on the grounds that the 5th amendment does not apply to states. If constitutional purists hope to maintain credibility, we must reject the phony incorporation doctrine in all cases — not only when it serves our interests.

      The important thing to remember is that Ron Paul is the candidate of civil liberties!

      • rea says:

        the Supreme Court should have refused to hear the Kelo case on the grounds that the 5th amendment does not apply to states.

        WTF? You mean, Ron Paul thinks states can confiscate your property without paying for it? That’s a “libertarian” position?

      • BradP says:

        Really, Scott?

        You link to an article that contains this:

        In fact, since the decision, at least 34 states have passed legislation to restrict or ban taking private property by eminent domain for economic development projects. In all, more than 40 states now have such laws. It’s almost a textbook case of federalism at its best, in fact: states grappling with issues of property, economics, and liberty, and contriving local solutions that suit local conditions.

        And yet you still can’t take a break from beating that old “Support of Federalism = Opposition to Civil Rights” drum?

        I mean, you ignore the arguments of the most well-known federalist-leaning legislator, that legislator applied the same rationale he applies for just about everything, that prescription seems to work out acceptably even to you, and you can’t even extend a shred of credit.

        How does this not show that local and state governments, when left to their own devices, can defend the disadvantaged from the powerful?

        Certainly if your ironclad view of the relationship between civil liberties and federalism held true, then there would be no explanation for the 40 plus states that have stepped up to fight eminent domain abuse.

    • joe from Lowell says:

      OK, Ron Paul gets credit for having a legitimate, principled federalism stance. You might have noticed, though, that Ron Paul is a bit of an outlier in his caucus.

      • BradP says:

        100% agree with you on that.

        But it seems in Scott’s world, there are only liberals and piss-whining conservative politicians/pundits.

        • joe from Lowell says:

          You gotta admit, he’s about 99% right.

          • BradP says:

            Yeah, he basically is when it comes to mainstream discourse.

            It leaves me in a bit of a weird spot, though, where I feel like I need to defend my own beliefs, when someone is really attacking a bastardized version of my beliefs. I’m always either angry at being lumped in with idiots, or providing a tedious explanation of why I differ from the idiots.

            So my confrontational interactions are always a little detached from my actual opinion of the content of the posts of the blog.

            And the content, btw, is superb across the board.

            • But government power is ever and always dangerous, and must be zealously guarded against.

              Especially if you think you might be required to serve soup to a black person.

              • DrDick says:

                Or provide healthcare services to women. There is absolutely nothing “principled in Paul’s federalism. He is, in fact, the poster child for my statement at the top of the thread.

                • joe from Lowell says:

                  Uh….the two examples here – civil rights in places of public accommodation, and a regulation requiring health care plans to cover contraception – are cases in which Ron Paul opposes the use of federal government power.

                  You just cited two cases of Ron Paul opposing federal power as evidence that his opposition to federal power in unprincipled.

                • Holden Pattern says:

                  I think DrDick’s point is that Ron Paul’s federalism seems to coincide very closely with the “states’ rights” arguments advanced by the most retrograde elements of the Southern Planter Aristocracy.

                  It’s not that Ron Paul is a federalist, so much as he’s a conservative who thinks that federalism is the way to get what he wants.

                • You just cited two cases of Ron Paul opposing federal power as evidence that his opposition to federal power is unprincipled.

                  In a practical sense the principle is pretty silly if you’re cool with local government doing X but you go crazy if the feds do X. It’s a giant bowling ball of a principle that can easily make a hash of any other principle you have.

                • DrDick says:

                  Holden is correct and Paul’s support of states’ rights exactly corresponds to his perception of the ability to impose his desired, very retrograde Southern conservative, policies. He is on record as opposing both civil rights protections in general (not just federal protection) and abortion as a general principle. It is not a stretch to think he also opposes birth control.

                • BradP says:

                  It is not a stretch to think he also opposes birth control.

                  He has gone on the record many times (and I know I have mentioned here before) in support of birth control including the morning after pill.

            • joe from Lowell says:

              It leaves me in a bit of a weird spot, though, where I feel like I need to defend my own beliefs, when someone is really attacking a bastardized version of my beliefs.

              I so know what you’re talking about, from my past life.

              You love HUGO CHAVEZ! Why do you liberals always support the use of coercive force by the government regardless of context?

      • R Johnston says:

        Ron Paul gets credit for having a legitimate, principled federalism stance.

        Anti-abortion legislation seriously disagrees.

        Ron Paul believes in petty theocratic dictatorships at the state level. To the extent that federal power can be used to enable such, he’s all for it at the expense of states’ “rights.” States don’t have the right to treat people like human beings according to Ron Paul.

    • Paul Campos says:

      Congress can and should act to prevent the federal government from seizing private property

      I thought Congress was the federal government, and that it seizes property via the 5th Amendment.

      But apparently property rights are so sacred that even the Constitution isn’t allowed to violate them.

    • liberal says:

      They prefer federalism because the public can be more aware of and more active in local and state government workings.

      That’s an empirical claim for which there’s very little evidence.

      • djw says:

        Indeed, the empirical evidence is reasonably strong in the opposite direction.

      • BradP says:

        Sweden, the liberal gem, has been remarkably successful in decentralization.

        Its health, education, labor, and electoral systems are as decentralized as any in Europe and far more so than the US, and each of them are very successful.

        • DrDick says:

          But it is also quasi-socialist and not at all libertarian, so it has some chance of success.

          • BradP says:

            But it is also quasi-socialist and not at all libertarian, so it has some chance of success.

            That is also not true.

            Despite high tax rates (although the top national income tax rate I believe is only 15%) Sweden is one of the least economically regulated countries in the world.

            It even puts an emphasis on school choice, independent schools, and markets in educations:

            Independent schools and funding

            During the 1990s, the terms “school choice” and “independent schools” (in the context of preschool, compulsory school and senior high school) became established, and schools now operate in an open market.

            The number of independent schools in Sweden is growing, and a choice of schools is seen today as a right. Each child is allocated the funding for an education, from preschool up to and including senior high school. In this way, the Swedish government supports the establishment of independent schools.

            http://www.sweden.se/eng/Home/Education/Basic-education/Facts/Education-in-Sweden/

            It is not the socialism that keeps a strong Swedish social cohesion going, but a commitment to handling the social welfare on a local level, with only broad guidelines coming down from the central government.

            • DrDick says:

              It would appear that your heroes over at the Mises Institute strongly disagree.

              Given their high and heavily progressive taxes, very strong and generous social welfare system, universal healthcare, and free (or heavily subsidized) higher education, and similar programs, they are indeed quasi-socialist. A couple of exceptions like you cite will not change the fact that they are a democratic socialist country, though getting somewhat less so recently.

        • How the hell are Swedish elections more decentralized? Unlike in the US, national elections are (as they should be) held under national law and overseen by a national commission.

        • IM says:

          Uttermost nonsense. Like the other scandinavian countries sweden is highly centralized with no state or regional governments. Hell, even France nowadays is more decentralized.

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