Skip to content


January 27, 2017


An IUPUI professor published a post this morning seeking commentary to her description of a bill before the Indiana legislature which would end enforcement of any EPA rule or regulation within the State of Indiana, instead giving such authority to its state environmental agency which, of course, would be subject to both legislative authority and funding. (I have here made my response to her post my post, as edited.)

The professor, Sheila S. Kennedy, also a lawyer, said that such an enactment would likely be held to be unconstitutional under the Supremacy Clause of the Constitution. I agree that such an enactment would likely be held to be unconstitutional under the Supremacy Clause, though I am not so sure in view of Trump’s impending appointment of a likely right wing justice to the court which will reestablish the old 5-4 right v. left equation we had before Justice Scalia left this earth. Such a reconstituted court might well find some grounds upon which to allow states to pick and choose which federal laws, rules and regulations they wish to follow, grounds unknown to me as a lawyer.

If such a pick and choose system were to happen, expect total chaos as the various states make their selections of what they will or will not obey fromthe federal platter of not law but what could be more aptly called suggestions. The vision of federalism by Madison will be at stake as the court will look at not only the Supremacy Clause but also possibly the Tenth Amendment involving not specifically delegated powers to the federal government.

A larger political question undergirding such a scenario involves just how far we can descend or have descended in resisting the “feds” as badly gerrymandered state legislatures test the limits of the idea of federated states as set forth in our Constitution. Thus whatever happens in court, it seems to me that even filing such a bill is an act bordering on sedition and in the nature of a firing on Fort Sumter by South Carolinians the month after Lincoln was first elected, a treasonous act which ignited the Civil War and the deaths of hundreds of thousands of soldiers, all Americans.

Most states receive more federal largesse than they contribute to the federal pot, and strangely, are for the most part the same states that want to resist “federal intrusion” into their perceived states’ rights to govern themselves. Should one or more of such welfare-compensated states pull what I will coin here as a secession lite, don’t be surprised when such states come running back to be re-federated soon after their citizens suffer a tripling of their taxes along with massive reductions in services such bankrupt states can provide to their now “free” but impoverished citizens.

While I do not agree, many, including Lincoln, have said that the Civil War was fought not over slavery but rather preservation of the Union. With such shallow thinking as that suggested by the bill before the Indiana legislature, should it become commonplace among other states, then perhaps the “Union” is not worth saving – maybe we should try 50 different countries for a while to see how that works out. I thought the Articles of Confederation was an artifact, a political dead letter that Madison and others had eradicated with the adoption of our Constitution and Ten Amendments, but I have been wrong before. It appears that the people of South Carolina in 1860 wished and the views of the hopelessly gerrymandered legislature of Indiana in 2017 wish to selectively return to an Articles of Confederation form of government rather than play the role of a federated state as a designated unit in a federal system united by and living within our Constitution.

Finally, if we are to allow states to pick and choose such federal dictates as they please, then it is a short logical step to the next rung on the local ladder, like counties and municipalities could secede from their respective states, then townships, precincts and neighborhoods, and finally (and to the delight of libertarian nihilists) we could have no government at all. Finally! No rules, no regulations, no laws to impede our absolute freedom. Free at last! (Free, that is, If you like living in the jungle while subsisting on roots and berries. The cave man was free, too.)

There is a better way to solve this Hoosier dilemma and we can start by allowing the bill filed in the Indiana legislature to die in committee and never see the light of day. Bad air and bad water are not confined to any state; all states have porous borders. When toxic substances are dumped into the Ohio and Wabash Rivers in Indiana, for instance, Indiana and all of the states and their citizens who are downstream are adversely affected. It is plainly thus a federal problem and a situation EPA rules and regulations are designed to combat. The bill ignoring this reality should be itself ignored by the Indiana legislature, gerrymandered or not. Home Rule has its limits.     GERALD        E



From → Uncategorized

One Comment
  1. Dee permalink

    I’m guessing this is an ALEC bill, likely introduced in other state legislatures to coincide with the planned destruction of the EPA. The intent is maleficent; the thinking criminal. May it die a quick death.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: