As we’ve pointed out before, Michigan has made it onto the NPV radar. Legislators are being lobbied to ignore the will of Michigan voters and cast all 17 of Michigan’s electoral votes for the national popular vote winner—regardless of who wins in Michigan.

Next week, Save Our States is presenting a citizens’ briefing in Redford, Michigan. For any readers with connections in Michigan, please pass this info along. More details are available at: http://savemichigan.eventbrite.com.

The “separation of powers” is one of the hallmarks of American government. It works horizontally and vertically: governmental power is separated into different branches (legislative, executive, and judicial) and into different layers (state, local, and national).

These structures are built into state and federal constitutional law. Their raison d’être is to protect liberty.

Maintaining the separation of powers forces governments to follow multi-step processes. At each point, citizens can be heard and decision makers can be held accountable. Officials are elected to offices with particular powers related to their step in the process. They can appoint deputies (or hire staff), but responsibility remains with the elected officials who can be punished by voters at the ballot box.

Today, the separation of powers is blurred by a proliferation of “intergovernmental” organizations. These groups work outside of established legal frameworks to create public policy. Many spend and distribute public money. Some are not subject to open government laws. Most are unknown.

The organizational structure of the Puget Sound Regional Council.

Take, for example, the Puget Sound Regional Council. No one has ever been elected to the Council, at least not by the voters. Yet it has a budget of $22.2 million (over half for staff salaries) and controls over $160 million in government grants. Most citizens know at least a little about their state and local governments, but they know nothing about the Council. And if they do, what difference does it make? It is government of the government, by the government, and for the government.

When one government collects money for another government to spend, the chain of responsibility is impaired. It becomes harder for voters to figure out who is accountable for what. When money is transferred to an uncountable bureaucracy like Puget Sound Regional Council, it becomes impossible.

The Council also undermines the role of states in our federal system. It creates an avenue for the national government to work directly with selected local officials to create policy within the state but without the state government.

There are other examples. The International Council for Local Environmental Initiatives, ICLEI, is an international membership organization of local governments to develop model policies and lobby each other to increase government planning and regulation. In the United States, more than 600 local governments pay dues to ICLEI.

Policymaking outside of established legal frameworks endangers the separation of powers. Intergovernmental bodies represent their government members rather than citizens. Government, in such instances, is not representative. Federalism is undermined. Law and Liberty are at risk.

Today I had the pleasure of talking with two great legislators in Pennsylvania’s state capitol. The Commonwealth Foundation had suggested I speak with Senator Mike Folmer because of his understanding of and dedication to America’s founding principles. It turns out that Senator Folmer is one of the founders of COOL: the Constitutional Organization Of Liberty, an organization that is doing in Pennsylvania what the Evergreen Freedom Foundation’s Citizen Action Network is doing in Washington State.

The first-term Senator walks the walk in other ways as well, paying back to the state treasury the amount of the cost of living increase in his legislator salary because he believes the automatic pay raises violate the Pennsylvania Constitution. You can find him on Facebook.

State capitols are great places to get lost, which can turn out to be a real blessing. When someone offered to show me the way back to the main capitol building, it was only natural for me to ask him what he did there. He turned out to be Representative Joseph Preston, Jr., a long-time legislator from Pittsburgh. All I had to do was mention my concern about the effort to undermine the Electoral College and Representative Preston remarked that people just don’t read The Federalist Papers anymore. He explained to me that he requires his staff to read them.

What a day, and a great reminder that there are dedicated, thoughtful elected officials who care enough for Liberty to study the institutions that preserve it.

Freedom, the American Founders believed, is best preserved by a separation of powers. The division of government power among different branches and different levels was thought to provide a bulwark to liberty. The combination of powers in one center was, said John Adams, “the very definition of tyranny.”

President Barack Obama yesterday signed an executive order “to strengthen further the partnership between the Federal Government and State governments to protect our Nation and its people and property” by creating a “Council of Governors.”

The President will choose ten governors (for their resolution or their pliability?), choose the co-chairs, and entrust the care and feeding of the Council to … the Secretary of Defense. The Council exists to share “views, information, or advice … concern[ing]:

• matters involving the National Guard of the various states;
• homeland defense;
• civil support
• synchronization and integration of State and Federal military activities in the United States; and
• other matters of mutual interest pertaining to National Guard, homeland defense, and civil support activities.”

All this is directly in opposition to our constitutional design and sounds as if it threatens posse comitatus as well. Part of the genius of America’s system of states is that it has traditionally separated the governments in charge of local regulations and criminal law from the government in charge of foreign policy and national defense. In a way, that system maintained the separation of powers enjoyed by the American colonies (at least before 1763) and was echoed by the position of Japan and West Germany after World War II.

The big question here is, if we want to unravel our American system of states and our traditional limits on the domestic uses of military power, aren’t those things worthy of a national conversation rather than a quiet executive order?

In America, even those who trample on the Constitution must pretend to revere it, at least in politics. And so as the national government has been gradually–or dramatically–expanded over the last century, politicians and judges have scrupulously crafted alibis to explain why, golly, it turns out gigantic top-down government really was part of our constitutional design.

One of these fibs has grown like a tumor on the Commerce Clause, the enumerated power in Article I, section 8.

“Congress shall have the Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

This was one of the original reasons for replacing the Articles of Confederation with the Constitution, to facilitate trade among the states and prevent wasteful and dangerous commercial conflicts. But, says the Supreme Court, isn’t everything, at some level, about commerce? And so the Commerce Clause has been used as the reason why the national government can regulate wages, wolves, and backyard gardens (whether growing wheat or marijuana), to name just a few.

One might think that state governments, even state courts, would resist such federal overreach. All too often that is not the case. Last week, the Washington State Supreme Court happily embraced the overextended Commerce Clause to hold that the Federal Arbitration Act overlaps with–and preempts–Washington’s Condominium Act. The Court decided that selling and warrantying condos is “interstate commerce” because, well, some of the stuff used to build those condos probably came from another state. So much for limited federal power, and so much for states standing up for state authority against federal overreach.

(P.s. I actually think the Washington law is a boon for lawyers and harmful to builders, investors, and the economy. But if Washington State’s raison d’être, at least at times, is simply to serve as a warning to other states … isn’t that what “50 laboratories of democracy” is all about?)

Cross-posted at LibertyLive.org.

The balance of power between state and national governments was one of the most contentious issues for the American Founders.

The states were important historically, but also as a way to keep government close to the people and to divide government power into as many hands as practical in order to preserve liberty.

At the Constitutional Convention small states wanted every state to have an equal voice in the national government. Large states desired just the opposite—representation based on population would give them more power.

It was a compromise that created the U.S. Congress, where states are represented equally in the Senate but according to population in the House. That compromise not only broke the deadlock that threatened to derail the Constitution—it became the foundation for the unique American system of Federalism.

The national government was set up to provide national defense, manage foreign trade, and referee disputes between the states—in short, to provide the states with safety and commerce similar to the way the British Empire did for the 13 original colonies. The states were left to manage their internal affairs and to compete with one another; thus the states are sometimes referred to as our “fifty laboratories of democracy.”

Federalism fosters diversity by allowing groups of people in different states to manage their affairs differently, to innovate or remain the same, to address local needs. And by keeping government local, dividing it up, and making it compete, Federalism protects freedom.

The American system of states is not just unique—it has been uniquely successful. Federalism is an American invention worth preserving.

This website offers information about the serious flaws of so-called “National Popular Vote” legislation and the benefits of our current Electoral College system. Welcome!