Should states or the federal government decide whether Americans have the right to own assault weapons and high capacity clips of ammunition? Should the states or the feds have the final say over whether genetically engineered herbicide resistant crops may be planted anywhere, without limitation? These are questions of federalism.
Our federal republic is an electoral democracy that balances national and local interests. There has always been political friction over issues of federalism; does the federal or state and local government get the final say over the laws we live by? Some things are in our clear national interest, others are best decided by the local community. Everything else we argue about.
The Civil War was fought over questions of national and regional sovereignty compelling enough to fight a war over. States’ rights and federal government advocates clashed over every compromise in our intricately drawn U.S. Constitution. In the end, certain fundamental issues must be resolved on a national level.
The newly granted legal rights of slaves freed after the Civil War, for example, were protected by constitutional amendments and federal laws to enforce them. The Supreme Court soon limited the scope of these federal protections and states were allowed to pass their own laws governing the treatment of former slaves. It was not until a hundred years later, after a lot of activism, that new federal laws against certain forms of discrimination were promulgated and protection of civil rights became a national priority. The states are sovereign in many things, but they may not violate a federal law over that same subject matter.
Federal preemption is the legal term for when federal law trumps state law. The power of states and localities to act in such cases is preempted by federal law. Our federal system is based on a case by case balancing of federal and local interests.
After a particularly horrible mass gun slaughter of kindergarten children, a large majority of Americans across the country called for federal gun restrictions. Most Americans wanted, at the very least, restoration of the ban on assault-style weapons, the guns of choice for mass shooters, a ban that was allowed to expire in 2004. This call for national action resounded again recently when a gay nightclub was strafed by a maniac wielding a legally-obtained assault rifle designed to spray dozens of bullets in seconds.
Defenders of the right to bear arms insist that gun control is a States’ Rights issue. The NRA is a stickler on this point. State sovereignty supporters decry federal “over-reach” every time federal gun legislation is proposed.
Monsanto corporation, makers of powerful herbicides (they were the makers of Agent Orange) herbicide-resistant genetically modified organisms, and other powerful environmental agents, is currently in federal court arguing that federal preemption should allow Monsanto’s customers to disseminate GMOs without limitation, everywhere in the United States.
Giant international corporations like Monsanto increasingly argue that their U.S. business interests should be protected by federal immunity from state regulation and are deserving of a federal shield against liability for injuries resulting from use of their products. Regarding their desire to be shielded from liability, they are like the gun makers, except that where the gun lobby wants states to decide, these chemical makers argue for federal preemption of all other laws.
In most things taking place within their borders, states have broad decision-making powers. States make their own criminal, business and family laws, levy taxes, regulate most health, safety and environmental matters. The right of the states to retain all powers not reserved to the federal government is a well-established principle in our Bill of Rights. The Ninth Amendment reads: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Last week three judges for the Ninth Circuit Court of Appeals heard a case involving federal statutes Monsanto argues preempt the laws and wishes of every local community in every one of the fifty states. Monsanto argues that state and local government is powerless to protect small farmers and delicate and unique ecosystems from the harms that genetically engineered crops can cause.
The facts of this case are pretty stark. Farmers and environmentalists in Hawaii argue that GMO cultivation contaminates their environment. Many GMOs are engineered to be immune to herbicides, they are cultivated in conjunction with powerful herbicides and pesticides. Chemicals used with these GMOs contaminate the habitat, soil and water of Hawaii and threaten neighboring farmers’ livelihoods. The cultivation of these genetically engineered plants introduces toxic chemicals into schools, homes and gardens that, in Hawaii, are often close to farm land.
The crops the counties in Hawaii attempted to regulate, with laws Monsanto sued for relief from, are created to be herbicide-resistant, designed to allow growers to spray (Monsanto’s) Roundup and other weed killers (like 2,4-D, a component of Monsanto’s Agent Orange) on the whole field without killing the crop. Other Monsanto crops are engineered to exude their own pesticides. The Hawaii laws were also intended to limit transgenic contamination, the spread of the DNA of the genetically engineered plants themselves.
Under traditional American federalism the local community would, barring some overriding national interest, usually have the final say on local health, safety, and environmental matters. The flora and fauna of the Hawaiian islands are part of a unique and delicate ecosystem and the state of Hawaii is thousands of miles from the shores of the mainland United States. It is hard to think of a better case for States’ Rights than Hawaii seeking autonomy over matters directly affecting its own ecology.
Monsanto argues that the federal Plant Protection Act and other federal statutes prevent the State of Hawaii, or any county or local government, from restricting the use of Monsanto’s genetically modified organisms anywhere in the Hawaiian islands, or anywhere else in the country.
The Ninth Circuit has previously ruled that once USDA allows a GMO plant to be sold commercially, the federal government has no authority to restrict it in any manner, so if the court accepts Monsanto’s latest argument, this would put those crops beyond the reach of any government regulation.
How do we reconcile the case of using federal law to force herbicide-resistant plants and toxic chemicals into every American community, on the one hand, and using a states’ rights argument to block federal action to control America’s unique plague of frequent mass murders by gun, on the other? A moment then, for the compelling arguments for federal preemption of state and local law in each case.
In the case of guns, the factual argument is immediately easy to grasp. Guns easily travel from states with permissive laws into states with restrictive ones, and regularly kill people in states with the most stringent controls. Without federal laws, the regular mass shootings that are a unique and gruesome feature of present-day America will never stop, no matter what heroic steps individual states may try to take to prevent them.
There is a strong case for why federal regulations are needed to stop these massacres. Only a nationwide law can have any effect on controlling access to highly portable weapons like “America’s gun”, the AR-15, the mass killers’ gun of choice. These semi-automatic weapons shoot dozens of rounds in seconds, they were designed to allow special forces to shoot their way out of military confrontations with multiple deadly enemies.
What is the compelling national interest that justifies Monsanto seeking federal preemption of the reasonable wishes of citizens of every state, even of an island state with a unique and delicate ecosystem over 2,000 miles from the mainland U.S.? That is now up to three federal judges, appointed for life, to decide.