Federalism

Everyone says The Civil War decided once and for all that the individual States could do nothing against an overreaching Federal Government. Whatever the Feds want, I’m good with it, says the States.

Does anyone think that in today’s emotional environment the Federal government is going to wage domestic war? As a culture, we can’t hurt the feelings of a delusional male who thinks he is a female. States that openly allow pot sales against Federal law suffer no repercussions. No one is going to fight a war against the citizens of a State because they don’t follow the Federal line.

What they would do is stop some Fed swag. No highway money. Companies would withdraw business. Entertainers would refuse to concert there.

Perhaps the states would assert what pressure they could against the Feds. Stop local banks from remitting income tax collections until the Feds honor their legal obligations. Stop cooperating with Federal law enforcement. Execute no Federal warrants, particularly for Federal tax issues. Stop all cooperation with Federal police authorities. Require the Federal government to explicitly authorize with a statute anything it wants to impose on the States (the supremacy clause provides that Federal law superceeds State law but says nothing about Federal regulations or administrative dictates). EPA directives, not Federal law, IRS regulations, not Federal law, etc.

Here’s the key. I have learned that the best way forward is often to not ask permission and then litigate afterwards. The best way is often to do and let the other party litigate if it thinks you are prohibited. Many of these questions are unclear. If you ask, “May
I,” it might take years. If the States do several of these things, and the Feds have to exert force or litigate , the entire State / Federal balance of power would shift rapidly.

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