There was a time when the phrase “states’ rights” was code for trampling on the rights of individuals. That was during the great 20th Century civil rights battles, when many states asserted they had the right to prevent some citizens from enjoying rights like voting and eating in the restaurants of their choice.
But the states’ rights argument has been essentially turned on its head under a U.S. Supreme Court decision and a series of federal administrations that have tried to allow citizens – and some wild animals – fewer rights than California and other states want to give them.
Add in environmental issues, where this state leads the fight for tough cutbacks on greenhouse gas emissions and mitigation of worldwide climate change while the national government pushes the doctrine that federal laws and decisions should always take precedence over state decisions.
This federal position is part of a consistent Bush administration effort to increase presidential powers over those of Congress and the judiciary in addition to eclipsing the states. The pattern under the current President Bush has been to seek more powers at home – from electronic surveillance to exemptions from congressional oversight – while allowing the power and influence of the nation to diminish steadily abroad, best evidenced by the weakness of the U.S. dollar. Worth about 1.3 euros when Bush took office, the dollar now brings about half that, as one euro costs $1.54 or more at current rates.
Part of that Bush effort runs counter to a longtime legal doctrine that since the days of Chief Justice John Marshall’s early 19th Century Supreme Court has never allowed states to grant fewer rights than the federal government, but always lets them allow more.
This didn’t stop either Bush or predecessor Bill Clinton from sending federal agents to raid medical marijuana grower cooperatives and arrest medipot users and their caregivers even after Californians and voters in other states voted to legalize this use of the weed.
Meanwhile, even where a federal law (the Clean Air Act of 1970) specifically allows California to set stricter air pollution laws than other states because of its special smog problems, the current administration has defied this state and 16 others that want to follow its example, refusing to grant a usually-routine waiver allowing enforcement of new greenhouse gas standards.
Not a special California problem, asserted the head of the federal Environmental Protection Agency, contradicting the written opinions of all his agency’s scientific experts.
That’s a battle to be decided eventually by the Supreme Court, which previously indicated it will likely find the feds overstepped their authority.
The latest battle involved the U.S. Navy vs. California gray whales and the many dolphins that inhabit Pacific Ocean waters off California.
The state Coastal Commission and private wildlife protection organizations sued the Navy a year ago, trying to get warships to shut down some powerful submarine-detecting sonars during training exercises in the strait between Santa Catalina and San Clemente islands. Use of that sonar has been associated with deaths of the big marine mammals that pass through those waters during annual migrations.
After witnessing some maneuvers, U.S. District Judge Florence-Marie Cooper found in favor of the whales, instructing the Navy to shut down its sonar when within 2,200 yards of whales or dolphins. She pronounced naval efforts to protect the seagoing animals “grossly inadequate to protect marine mammals from debilitating levels of sonar exposure.”
The Navy, wanting to go full-bore in its maneuvers and needing to use those particular waters because of the similarity of conditions there to what prevails in the Strait of Hormuz at the entrance to the Persian Gulf, immediately appealed to Bush. He responded with the first-ever presidential order exempting naval exercises from environmental laws.
Cooper then compromised, allowing some sonar use, and the exercises went forward. That case, too, will likely end up in the Supreme Court just like the greenhouse gas dispute. And it should. For if presidents can override state and federal environmental laws for the sake of mere training exercises that hardly constitute emergency actions, they can declare almost anything a national security emergency, including things like overriding laws that now restrict oil drilling off the California coast.
Under an administration willing to claim almost anything – including an absurd assertion by Vice President Dick Cheney that his office is not part of the executive branch of government despite having assigned space in the White House – to increase its power, it is vital for states to fight back against wrongheaded federal actions.
That’s why California is now a key battleground in an entirely new states’ rights battle, one that will continue for many years if presidents keep wishing they were dictators.
Elias is author of the current book The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It, now available in an updated second edition. His email address is firstname.lastname@example.org