End the War on Freedom

FROM MOUNTAIN MEDIA
FOR IMMEDIATE RELEASE DATED JAN. 15, 2002
THE LIBERTARIAN, By Vin Suprynowicz
Nevada leaders afraid to put federal government in its place

Nevada politicians (like those everywhere) scan the polls, figure out what their constituents expect, and put on a good show of stomping their feet and shouting "No, no!" every time the federal government takes another step toward stockpiling the nation's high-level nuclear waste in the labyrinth of rocky tunnels already being drilled some 100 miles northwest of Las Vegas.

The familiar Kabuki was repeated last week when federal Energy Secretary Spencer Abraham made his eminently predictable announcement (OK, throwing in a reference to the increased need for post-Sept. 11 security was a fresh touch) that the "sound science" practiced by his department has determined Yucca Mountain will make a really fine site for the nuclear dump.

(Come on. For the past 14 years they've only been examining the one site. Can we next expect Treasury Secretary O'Neill to hold a dramatic press conference, announcing the Philadelphia mint will henceforth be located in ... Philadelphia?)

None of this is to say the federal government's conduct in siting this facility hasn't been high-handed and cynical, or that Nevadans and their elected representatives don't have every right to fight the imposition of the dump (on a state that doesn't even use nuclear power) by every legal means.

Problem is, Nevada's elected representatives aren't fighting the dump through every legal means, which is precisely why cynicism is the proper response to a lot of this familiar foot-stomping.

The Tenth Amendment to the U.S. Constitution -- never repealed -- is written in such plain English that even the lawyers have not yet managed to screw it up: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The ninth and tenth amendments are the vital "default settings" of a government of limited powers, making it clear that the bureaucrats of the Potomac have only those powers specifically written down.

And what does the Constitution say about the power of Congress when it comes to siting a facility inside one of the several states?

Article I, Section 8: "The Congress shall have Power to ... exercise exclusive Legislation in all areas whatsoever, over such District ..." (the District of Columbia is described) "... and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful buildings. ..."

So there you have it: The only way in which Congress can lay hands on a piece of land within one of the several states to use as it sees fit for a needful facility. (The tenth Amendment tells us there can't be any other way, because no other way is written down.) If the Yucca Mountain project is on the up and up, all the federals need to do is show us the written "consent of the post-1864 Nevada state Legislature" to sell Washington the lands in question, as well as the bill of sale, the receipt for the moneys paid by Washington to the state for the purchase of Yucca Mountain ...

What's that? The state Legislature never consented? No such land sale never took place? There's no deed or tax assessment on file anywhere that shows the owner of Yucca Mountain is "the federal government," or any agency thereof? Then why does anyone think this landholder -- whose deed and title are not exactly clear in the first place -- has any more right to open such a facility without a state permit than would a private corporation?

The federal government is barred from high-handed enterprises such as Yucca Mountain within any of the 50 states by the 10th Amendment. What's more, a lawsuit brought by one of the states on such an issue doesn't have to wind its way through the chambers of numerous clueless and politically fearful lower court federal judges -- it goes right the the U.S. Supreme Court, which has original jurisdiction to reach a resolution.

So why haven't Nevada Gov. Kenny Guinn and Atty. Gen. Frankie Sue del Papa filed a federal 10th Amendment suit, demanding that the Supreme Court give the federal executive branch 72 hours to pack up their tunnel-boring rigs and get the heck off Nevada land?

It's not because they fear they might lose; it's because they fear they might win.

Legislators and bureaucrats from Carson City all the way down to the local school district are secretly pleased to be able to say, "Aw, we're sorry, but federal regulations give us no choice ..." as they instruct us that private land owners and even local school boards have to toe the line and obey the one-size-fits-all "plenary" edicts flowing out of Washington, as though the western states were still territories, like Guam. They're secretly pleased to have the power of the federal club behind their edicts, as well as credit for helping direct the massive river of loot which flows back out of Washington to fund their pet projects.

The big-government advocates in our midst whine that Washington's Yucca Mountain plan is "unfair," but secretly cringe in far greater fear of what could happen if such a suit were to succeed -- restricting Washington's jurisdiction to override the will of the state legislatures when it comes time to enforce all manner of edicts, down to and including the Endangered Species Act, except in those areas where it really has "exclusive legislative authority," those being the District of Columbia, Puerto Rico, American Samoa, and the fenced parking lot of the local post office ... assuming they can show that the state Legislature ever gave them formal permission to build it.

There is a way to stop Yucca Mountain -- providing the Supreme Court has the courage to enforce the Constitution as written.

The question is whether Nevada's politicians really want it stopped. And if so, why this lawsuit hasn't yet been filed -- with no dodging and weaving, the words "10th Amendment" right up there in the title.

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Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. Subscribe to his monthly newsletter by sending $96 to Privacy Alert, 561 Keystone Ave., Suite 684, Reno, NV 89503 -- or dialing 775-348-8591.

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Vin Suprynowicz, vin@lvrj.com

"When great changes occur in history, when great principles are involved, as a rule the majority are wrong. The minority are right." -- Eugene V. Debs (1855-1926)

"The whole aim of practical politics is to keep the populace alarmed -- and thus clamorous to be led to safety -- by menacing it with an endless series of hobgoblins, all of them imaginary." -- H.L. Mencken