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Federal Lands Don’t Belong To The States

Federal Lands Don’t Belong To The States

The federal government owns large chunks of the West. It owns 65 percent of Utah, 69 percent of Alaska, and 83 percent of Nevada. Some Westerners see unfairness in that. They should not.

Senator Lisa Murkowski of Alaska recently slipped an item into a non-binding budget resolution, calling on the federal government to dispose of all its land other than the national parks and monuments. That would put U.S. national forests and wildlife refuges — from the Arctic to the Everglades — up for grabs. The Senate narrowly passed it.

Three years ago, Utah’s Republican governor, Gary Herbert, demanded that the federal government turn millions of its acres over to his state. Just like that.

Thing is, the land is not Utah’s to take. Federal lands do have an owner, the people of the United States. Those acres belong as much to residents of New Jersey and Ohio as they do to the folks in Salt Lake City.

Has anyone asked you whether you want to give away federal land? Me, neither.

Some insist that the laws creating the Western states required the federal government to hand over much of the land it retained. Not so, says University of Utah law professor Robert Keiter.

On the contrary. The Utah Enabling Act stated that the inhabitants of the proposed state had to “forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof.” That sounds pretty straightforward.

The property clause of the U.S. Constitution and subsequent Supreme Court cases hold that the U.S. keeps public lands in trust for all Americans. The government may keep, sell or give away the land — as well as decide what may be done on it.

Even if the federal government were obligated to unload that land, Keiter writes, “that obligation does not require the federal government to give land to the states.”

Sales of federally owned land should go to the highest bidder, with the proceeds dropped in the U.S. Treasury. If the state of Utah cares to participate in the auction, good luck to it.

In reality, the federal government has, over the years, disposed of many millions of its acres — some sold, some given to homesteaders, some handed to the states.

Western states didn’t care about this mostly parched land until the feds started building huge irrigation projects in the 1920s. Many states, including Utah, actually refused offers of public lands because they didn’t want to lose federal reclamation funds, mineral revenue, and highway money.

Federal ownership does have its advantages. About 330 million acres of federal lands are used for grazing cattle and sheep. Ranchers last year paid only $18.5 million in fees to use that land, whereas the feds appropriated $144 million for the grazing programs, according to a Center for Biological Diversity study.

“Had the federal government charged the average private forage market rate for non-irrigated lands in the western states,” the study says, “grazing receipts would have been on average $261 million, greatly exceeding annual appropriations.”

The oil and gas industries operating on public lands currently enjoy discounted royalty rates, courtesy of the U.S. taxpayer. We really ought to be charging them market rates.

Ronald Reagan famously said of the Panama Canal, “We built it. We paid for it. It’s ours.”

How did the federal government originally obtain title to the Western lands? Through treaties with France, Britain, and Mexico.

So American taxpayers did indeed pay for that land and made it more fruitful. That’s why it’s ours, all of ours.

Follow Froma Harrop on Twitter @FromaHarrop. She can be reached at fharrop@gmail.com. To find out more about Froma Harrop and read features by other Creators writers and cartoonists, visit the Creators Web page at www.creators.com.

Photo: U.S. Department of Agriculture via Flickr

Let The States Make Drug Law

Let The States Make Drug Law

WASHINGTON — Howard Wooldridge, a Washington lobbyist, is a former detective and forever Texan on an important mission — trying to persuade the 535 members of Congress to end the federal war on marijuana.

Liberals tend to be an easier sell than conservatives. With liberals, Wooldridge dwells on the grossly racist way the war on drugs has been prosecuted.

“The war on drugs,” he tells them, “has been the most immoral policy since slavery and Jim Crow.”

Conservatives hear a different argument, but one that Wooldridge holds every bit as dear: “Give it back to the states.”

This is a case for states’ rights, a doctrine to which conservatives habitually declare their loyalty. It is based on the 10th Amendment to the U.S. Constitution, which says that powers not delegated to the federal government are given to the states or to the people. In fact, states had jurisdiction over marijuana until 1937.

Co-founder of a group called Law Enforcement Against Prohibition, Wooldridge leaves no doubt where he stands on the war on drugs. End it all. That means no more U.S. Drug Enforcement Administration. No more federal SWAT teams invading suburban backyards. No more DEA agents shooting from helicopters.

Today the war on drugs costs taxpayers $12 billion a year just for the enforcement part. Meanwhile, the loss of income for the millions of ordinary Americans made nearly unemployable after being caught with a joint can’t be counted.

“You could close half the prisons in the country if you ended prohibition,” Wooldridge says.

He now focuses only on marijuana, which he dismisses as “little green plants.” And he doesn’t use the L-word — that is, legalization.

If Washington state and Colorado legalize marijuana for recreational use (and they have), that’s fine with him. If 21 other states, from Maine to Hawaii, choose to allow marijuana only for medicinal use, that’s also OK. And if Alabama and South Dakota want all marijuana kept illegal, again, fine.

“For sure, Utah is smokeless,” he added, “and I say God bless.”

Liberals have traditionally shunned states’-rights arguments because of their association with the evils of slavery and segregation. So it is notable that the NAACP has endorsed a bill just submitted by Rep. Dana Rohrabacher (R-CA), requiring the federal government to respect state laws on marijuana.

African-Americans do not like the 10th Amendment, Wooldridge notes, “but the racism involved in the prohibition is a billion times worse for black people.”

Republicans once presented a united front in supporting the war on drugs. That wall began to crumble with the rise of the Ron Paul libertarians. When the House voted 219 to 189 last year to stop the federal ban on medical marijuana in states making it legal, 10 Republicans joined the “yes” side.

Pushing the “no” votes were police employed by the war and private businesses running prisons. They have an economic interest in keeping prohibition in place. It’s about “money and money,” Wooldridge says.

But also about “emotion.” Nearly every police officer had a colleague killed in the drug war. They don’t want to think their friends died for nothing.

Example: In the fall of 2012, two deputies flying over southeast Colorado to locate the marijuana harvest died when their light plane crashed. Two months later, Colorado legalized recreational pot.

The war on drugs, especially marijuana, is clearly entering its twilight phase. The question now is, How many million more American lives are going to be ruined and how many billion more dollars will be poured down the drain before we recognize its futility and move on?

Follow Froma Harrop on Twitter @FromaHarrop. She can be reached at fharrop@gmail.com. To find out more about Froma Harrop and read features by other Creators writers and cartoonists, visit the Creators Web page at www.creators.com. 

Photo: Frederic J Brown / AFP

Supreme Court Bars Judges From Setting Medicaid Rates

Supreme Court Bars Judges From Setting Medicaid Rates

By David G. Savage, Tribune Washington Bureau (TNS)

WASHINGTON — The Supreme Court barred doctors, dentists, and druggists Tuesday from going to court to fight cutbacks in Medicaid payments.

The justices’ 5-4 decision in a case from Idaho held that the Medicaid Act, which offers health care to low-income people, does not authorize medical providers to go to court if they believe a state’s reimbursements are too low.

Tuesday’s ruling reverses a decision from the U.S. Ninth Circuit Court of Appeals in San Francisco, which has repeatedly blocked California from making cutbacks in its Medicaid payments.

It is not clear what effect the ruling will have on the Medicaid program because significant cutbacks are not pending.

But the California Legislature in the past has adopted provisions to reduce government spending by lowering the payments for Medicaid, a program that is operated jointly by the federal government and the states.

Before these cutbacks could go into effect, lawyers for the doctors, dentists and pharmacists sued, contending that the reduced rates violated the Medicaid Act. The legislation says the payments to providers should be “consistent with efficiency, economy, and quality of care” and should be “sufficient to enlist enough providers” to serve the local population.

Judges cited this provision and ruled that California’s proposed cutbacks would break the promise that health care would be available.

However, the high court in the Idaho case said the Medicaid Act did not give patients the right to sue in court and that it did not authorize judges to intervene on behalf of doctors and other providers.

“We hold that Medicaid providers have no right to seek injunctive relief” in court, said Justice Antonin Scalia, writing for the majority.

He said that Medicaid authorizes the secretary of Health and Human Services to ensure that the states are complying with the law. If doctors or dentists are unhappy with the payment rates in California or elsewhere, they should take their complaints to the agency in Washington, he said.

“We think that Congress wanted to make the agency remedy that it provided exclusive,” he said in the case of Armstrong v. Exceptional Child Center. Chief Justice John G. Roberts and Justices Clarence Thomas and Samuel Alito agreed entirely.

Justice Stephen G. Breyer agreed on the outcome and provided the fifth vote. “Congress decided to vest broad discretion in the (federal health) agency to interpret and enforce” the Medicaid Act, he said.

In dissent, Justice Sonia Sotomayor faulted the majority for ruling that federal judges may not enforce this part of federal law.

“The court’s error today has very real consequences,” she wrote. It will allow states to “set reimbursement rates so low that providers (are) unwilling to furnish a covered service for those who need it.” Justices Anthony Kennedy, Ruth Bader Ginsburg, and Elena Kagan joined in her dissent.

Though the case decided Tuesday arose in Idaho, it was based on the same Ninth Circuit ruling that figured prominently in the series of California cases.

California Attorney General Kamala D. Harris had urged the court to block lawsuits over Medicaid rates.

Since 2008, injunctions issued by judges “have cost California more than $1.5 billion by precluding the Department of Health Care Services from implementing cost reductions that the federal government determined are perfectly consistent with federal law,” she said in a friend-of-the-court brief.

But the American Medical Association, the American Dental Association, and the American Hospital Association all had urged the court to protect Medicaid from state cutbacks.

Photo: Pete Jordan via Flickr

Loading Time For Online Sales Tax Is Expiring

Loading Time For Online Sales Tax Is Expiring

By Alan K. Ota, CQ-Roll Call (TNS)

WASHINGTON — Anyone hoping for an online sales tax bill out of the 114th Congress might as well be staring at a spinning circle on a computer screen.

A push to allow states to enforce sales taxes on remote online vendors faces likely stalemate, with a quiet retreat by Senate supporters and a splintering of House Republicans. That’s a big disappointment to backers of an overhaul of the tax structure for Internet sales; they had hoped the momentum from Senate passage of a bill in the last Congress would carry over into 2015.

House Judiciary Chairman Robert W. Goodlatte (R-VA), said he has no firm timetable for introducing his draft bill to require sales tax collections by remote vendors — based on rates in effect in the seller’s home state. Under Goodlatte’s proposal, the buyer’s home state would receive sales tax revenue from a remote online transaction involving one of its residents, but only up to the rate charged by the seller’s home state.

“The time frame is when we have an agreement,” Goodlatte said in an interview this month. “We are working with a wide variety of parties to reach an agreement on how to proceed. We are looking to work this out….We need people on board with widely differing points of view — governors, state legislators, big box retailers, online retailers, technology companies.”

Goodlatte has said in the past he would issue a bill. But he faces resistance from some conservatives, who argue that any legislation would be perceived as a tax increase.

Goodlatte said he and Representative Anna G. Eshoo (D-CA), will hold back on moving his draft bill until there is an agreement among key groups, including the National Retail Federation, National Governors Association, and National Conference of State Legislators. All three groups support the Marketplace Fairness Act proposed by Budget Chairman Michael B. Enzi, (R-WY), that would clear the way to enforce traditional sales taxes based on rates in the buyer’s home state.

But the Enzi plan has no clear path to the Senate floor, even though a similar bill won easy passage, 69-27, in May 2013. It was never acted on in the House.

That’s because the bill is opposed by Senate Majority Leader Mitch McConnell (R-KY), and other key players such as Majority Whip John Cornyn (R-TX), and Finance Chairman Orrin G. Hatch (R-UT).

Instead of bucking Senate GOP leaders, Health, Education, Labor, and Pensions Chairman Lamar Alexander said he and other supporters of the Enzi bill think the House should go first this time.

“In the last Congress, the Senate took the lead and passed legislation first. Now, the House should pass legislation and send it to the Senate,” the Tennessee Republican said.

With Goodlatte at odds with House backers of the Enzi approach, lobbyists say prospects for a 2015 deal are fading, and will vanish completely in the 2016 campaign season.

“The chances are less than 50 percent that we will see a bill pass the House in 2015,” said Steve DelBianco, executive director of NetChoice, an alliance that represents eBay, Facebook, and other online commerce companies such as Utah-based Overstock.com.

Even that may overstate the potential for action. If Congress simply does nothing, opponents of a national online sales tax plan can maintain the status quo, where states have little chance of enforcing sales taxes for online purchases across state lines.

Goodlatte disputes the gloomy predictions. “I wouldn’t rate it that way at all. I think it’s something we can solve. And we’re committed to doing it,” he said.

Goodlatte said he had not decided whether to try to move an online sales tax compromise with his separate proposal for a permanent extension of the moratorium on new Internet access taxes, which expires at the end of September.

Loading Time Talks are going on between Goodlatte and Oversight and Government Reform Chairman Jason Chaffetz (R-UT), who has been working on a proposal similar to the Enzi plan with a streamlined audit process for online vendors and other adjustments. Like Goodlatte, Chaffetz said he had no timetable for introducing a bill, but would like to reach an accord.

Instead of holding a markup with votes on rival proposals, Goodlatte said he wants to broker a deal that brings together states and retailers backing the Chaffetz and Enzi measure with business alliances backing Goodlatte’s approach: NetChoice and the Northern Virginia Technology Council, which includes Google and Hewlett-Packard Co.

David French, a senior vice president of the National Retail Federation, confirmed that a coalition of retail industry groups had sent suggestions to Goodlatte in hopes of reshaping his bill. “We have encouraged the chairman to consider a destination-sourced model instead,” French said. “We think the chairman wants to solve the problem.”

Critics say Goodlatte’s origin-based approach favors some Silicon Valley businesses, and would hurt Main Street retailers. For example, they said it could prod manufacturers and online retailers to move to states with low sales taxes or to lobby home-state legislatures for exemptions or reduced rates for certain products such as computers or health-related items.

Goodlatte denies he is tilting in favor of Silicon Valley, where he has long been a GOP rainmaker with his purview over patents, copyrights, and foreign skilled-worker visas. He raised more than $435,000 in the last cycle from entertainment, technology, and Internet businesses and their employees, according to the Center for Responsive Politics.

Goodlatte said his approach is best for many businesses.”It’s better for growing our national economy because it does not allow states to regulate businesses outside of their jurisdiction,” he said.

Enzi introduced his latest version of the Marketplace Fairness Act this month, and cited help from an unlikely ally: Supreme Court Justice Anthony M. Kennedy.

He said he hoped to gain support because of Kennedy’s recent written remarks expressing a desire to reverse the court’s 1992 ruling in the Quill v. North Dakota case that prevented states from compelling sales tax collection by vendors with no nexus or presence in their borders.

Kennedy, in his concurring opinion for a court decision in a Colorado online commerce case, wrote that he believed it was time for “a reconsideration of the court’s holding in Quill,” citing concerns about state fiscal problems and “changes in technology and consumer sophistication.”

“A case questionable even when decided, Quill now harms states to a degree far greater than could have been anticipated earlier,” Kennedy said.

The comments were connected to the court’s ruling on Tuesday in favor of online retailers in Direct Marketing Association v. Broehl. The court cleared the way for vendors to challenge a Colorado mandate for customer information to expedite enforcement of sales taxes.

Supporters of the Enzi bill say Kennedy’s remarks may spur legislation by raising the possibility of new court rulings that favor states.

NetChoice’s DelBianco said he’d prefer legislation, but not at all costs.

“I would rather take my chances with the Supreme Court than have Enzi’s bill,” he said.

Photo: Tim Reckmann via Flickr