January 13, 2017
Adam Laxalt, Nevada's Attorney General, was the keynote speaker at the Claremont Institute's Constitution Day event held at Chapman University on September 17, 2016.
he 1970s were a dreary decade. Four OPEC price hikes in five months meant that by summer 1979 half our gas stations were dry. The fall of Saigon haunted every foreign-policy decision and Iran was parading blindfolded American hostages. There was the pathetic Whip Inflation Now button, high unemployment, rocketing interest rates, and income taxes reaching 70% in the top bracket. William Rehnquist became the first conservative to join the U.S. Supreme Court in a generation—and remained the only one there for nearly 15 years. Worst of all, there was President Jimmy Carter, a man now synonymous with “malaise.”
Conservatism, in short, was in the wilderness in the 1970s. Yet in every crisis there is opportunity. From the ashes of Watergate and the Nixonian implosion the Reagan revolution arose. If the seeds of that revolution were planted with the formation of National Review by William F. Buckley, Jr. and William Rusher in the 1950s, and Barry Goldwater’s doomed campaign of 1964, those seeds began to germinate in the wilderness of the 1970s. The decade’s despair was harnessed by conservatives willing to fight back.
I know best the story of two such conservatives: Ronald Reagan and Paul Laxalt, my grandfather. Their friendship and long political alliance began not in Washington, but in the West. They were governors of neighboring states with a long shared border: Reagan in California and Laxalt in Nevada. For Laxalt and Reagan, federalism was not theoretical. It was the difference between self-government and government by an arrogant, distant bureaucracy seeking to substitute its will for the will of the people. It is no accident that so many conservative champions in the 1980s came from the Far West—Reagan, Laxalt, Goldwater.
We out here in the West deal with federalism, on a practical, real-world basis, more than any other region. And of our far Western states, perhaps no state’s fate is put at greater risk by Washington’s assault on federalism than Nevada. So I would like to talk to you about the examples I know best, examples I see every day in Nevada. And then I’d like to talk to you about what we, from a legal perspective, can do about it.
The Special Circumstance of Nevada
The federal government owns 86% of Nevada’s territory, the highest percent of any state in the nation. Federal ownership in no other state even comes close. Second place, Alaska, is about two-thirds. Ten percent of Nevada’s land is used by the military, such as with the Nellis and Fallon bases, two of the nation’s most important. But the rest requires federal permission for us to use it. This disproportionate land ownership also means that decisions made in D.C. regularly shake up Nevada citizens’ daily lives.
This is most evident in the management of natural resources and land use. In 2015, President Obama created a new national “monument” in eastern Nevada. He described it, with no sense of impropriety, as essentially a personal favor to Harry Reid. But the personal favor from the president to the Senate minority leader closed off 700,000 acres to key Nevada industries like mining and geothermal power. The president unilaterally created a national park the size of Rhode Island that was removed from access by Nevadans—without any state input or support.
Or consider scarce water, a fact of life in Nevada. In the nation’s driest state many counties get less than five inches of rain a year. This forces communities to make delicate, on-the-ground compromises to ensure enough water for, say, ranching, farming, or daily living. The U.S. Environmental Protection Agency caused near panic in 2014 when it defined the “waters” under its control so expansively that it could include even rain-filled ditches. There was panic because it meant new, expensive permits would be required to get water.
Then there’s the sage grouse, a bird resembling a punk-rock chicken. In 2015 the U.S. Department of the Interior moved to protect its habitat, restricting development on millions of acres. As it happens, outdated “habitat” maps showed the bird’s realm extending all the way into modern Reno, where my family and I live. It took a concerted combination of litigation and negotiation to ensure that we could build a middle school and veterans’ cemetery. And that was one just episode in a larger ongoing fight.
Federal authorities, fervently committed to their environmental agenda, deny any intention to harm our jobs and lives. But ideologues routinely ignore facts on the ground, which means the pursuit of their ideal often leads to people getting steamrolled. That may be the meaning of Reagan’s quip about the nine most terrifying words in the English language: “I’m from the government and I’m here to help.” Government can crush the little guy. Sometimes the government doesn’t even see the little guy before proceeding.
I bet you didn’t know that the home of the Las Vegas strip is the state also home to one of the nation’s last sheepherding communities. My great-grandfather, Dominique Laxalt, made his living that way. That ancient trade still goes on in our rugged mountains. At least it did until the U.S. Department of Labor determined last year to triple sheepherders’ minimum wage. If that cost makes herding unsustainable, as many expect it will, the American West may quietly lose a beloved way of life to federal overregulation. If it survives, sheepherding will be saddled with regulations like daily record-keeping, minute and unworkable. To be fair, the Department from their Washington desks graciously agreed to let the herders use tents when in “rough or mountainous terrain,” so they can keep using the shelter shepherds have relied on since ancient Greece.
Nevada also faces the strangest governance problem you’ve never heard of: the federal government, under something called the Wild Horse and Burro Act—another Nixon-signed law—feeds and maintains about 45,000 mustangs on ranches. The Feds will spend $1 billion on these animals over the next 25 years. Another 25,000 or so horses roam, in nature, across ten Western states. Now, the federal government is supposed to prevent overpopulation of these wild horses. Congress made it a crime for anyone else to try to do so. But Congress and its agencies have neglected this duty so egregiously that horses now starve, in large numbers, on the range—but not before eating all the grass that ranchers bought permits to graze on and relied on having to feed their herds. Many ranchers’ livelihoods are now at risk because the Bureau of Land Management is threatening to rescind these crucial permits. This is what happens when an absentee landlord 3,000 miles away owns 86% of your land. Though these instances are specific to Nevada, many other states endure their own plague of problems caused by federal overreach.
My role as Nevada Attorney General
The 50 state Attorneys General may be the officials in America best positioned to resist federal government’s excesses—at least, for those of us who choose to use that power. This is because in our present age, most big American political fights end up in the courtroom, and we have a great weapon: the lawsuit. Frequently, I use it with other states. Fred Barnes of the Weekly Standard recently called us the “scourge of President Obama.”
I like that thought. The U.S. Constitution is designed for the various states to lock arms for themselves and their citizens against federal overreach. Alexander Hamilton saw an “obvious and powerful protection” against over-centralization in the prospect of states “conducting plans of regular opposition.” My office conducts these plans of opposition for a living. We correspond with other states, test out legal theories, coordinate plans to file complaints, and join each other’s amici briefs. As we know, power does not have a good track record when asked to restrain itself. Blackstone said that one of the most fundamental maxims of law, a maxim in the class of “innocent until proven guilty,” was that you “never let a man be the judge in his own case.” But that is precisely what happens with the federal government under the Constitution. It’s one of the document’s quirks: a federal Congress grants authority to a federal President, whose actions are reviewed by federal judges.
I worry sometimes that the founders underestimated how hard the task of stopping encroachments would be. In 1885, about 100 years after Hamilton wrote the words above and 100 years before Reagan took office, an unknown academic wrote in a book on the Constitution that “we can see plainly enough now that this balance of state against national authorities has proved, of all constitutional checks, the least effectual.” Instead, he said, we had arrived at an age of the “supreme overlordship” of federal power. That writer was Woodrow Wilson. He ultimately did little to reverse the trend, but his observation shows us that we’re dealing with large, powerful forces that, like glaciers, have been long in motion and tend to reshape everything in their path. If it can be done, it will take immense effort and time to reverse the course of federal encroachment. But we must try, and as with any great endeavor, there is no better time than now to increase our efforts.
The worst trends—legislation from the White House, aka governance by executive fiat—seem to be accelerating. If you’re a Democrat, you might call President Obama’s approach to the constitutional limits on his power “creative” or “action-oriented.” From my vantage point, “illegal” and “unprecedented” are better words. He has tried things that other presidents didn’t dare to do. In fact, he has tried things that he himself didn’t dare to do, things that he has called unconstitutional. During his first term, Obama famously kept saying he was not a “king” and that’s why he couldn’t just wave a wand and command immigration reform. That was before he, in his second term, like a king, commanded immigration reform—or rather tried to—by means of executive order.
We have stopped some of it. In 2014 alone, the Supreme Court ruled against the President for his unlawful recess appointments (Noel Canning v. NLRB) and for his attempt to regulate small-source greenhouse gas emissions (UARG v. EPA). Many have rightly criticized him for unilaterally delaying the effect of the Affordable Care Act’s employer mandate, unilaterally raising the federal contract worker minimum wage, and unilaterally trying to expand background checks for gun sales.
We must pick and choose our battles wisely. But I also believe that we give ground on too many small fights to our peril. James Madison liked the phrase, “obsta principiis.” It’s Latin for “resist the beginnings.” He used the expression over and over in his writings because he knew how easily today’s innovation becomes tomorrow’s precedent. What seemed like a constitutional impropriety to my grandfather might be taught to law students today as a black letter legal principle. The problem with continuously stretching the fabric of the Constitution is that even the most sturdily woven fabrics, once stretched, do not return to their original dimensions.
But what I find most dangerous of all is the view that the call for observing federalism and the separation of powers is nothing more than politics dressed up as legal quibbles. That is the view of those who would undermine and weaken our fellow citizens’ faith in the rule of law. All law is not politics. Lady Justice is blindfolded; most political operatives are not. Too many ordinary citizens, to the extent they have time to worry about the legal fights that leave people like me sleepless, think that the question is something like: “Do I support this or that federal policy or not?” The real question is: “Does this federal agency have power to do it?” Citizens must be reminded that because the agencies so often do not have the power, they, the people, do. We must hope that when Americans see that their very self-government is at stake, they will rally for it. A Republic demands no less.
I like to think of the Western origins of modern conservative federalism because it carries with it a Western spirit of optimism. We may be nearing a low point regarding the scope of government. I often wonder if we are in so different a place from where those hardy conservatives found themselves in the late 1970s, still reeling from Lyndon Johnson’s Great Society when they ran smack into Carter, with a couple of unhelpful Republicans in the middle. Again, today, a fresh new wave of leaders is fighting back. My Attorney General colleagues in this battle include Scott Pruitt of Oklahoma, Patrick Morrissey of West Virginia, Luther Strange of Alabama, Mark Brnovich of Arizona, Ken Paxton of Texas, and others. And there members of Congress willing to fight for federalism. You know many of their names: Ron DeSantis, Mike Lee, Rand Paul, Tom Cotton, Ben Sasse, Ted Cruz, and others. Citizen groups are uniting and speaking out against the endless extension of federal power. And indispensable organizations like the Claremont Institute bring us together both often and effectively.
But in the end, the best and perhaps only way to restore federalism is through constant vigilance in policing the boundaries of state and federal power. We must insist on keeping distinct those lines that others are determined to blur. I’ve learned that Nevada needs to make clear to the federal government that the state is prepared to file a lawsuit when its rights are trampled upon. It’s a very good way to make people listen. Put another way, it’s hard even for Barack Obama to ignore court orders. We don’t commit these legal resources because we are trying merely to prove a point or pursue a constitutional theory. We do it because the failure to have a seat at the table where decisions are made means concrete injuries to our economy, losses of real jobs, and forfeitures of real liberties.
That’s why I’ve been glad to see Nevada vindicated in many efforts to push back through litigation against federal overreach. A lawsuit that I joined secured a preliminary injunction against the EPA’s “Waters of the U.S.” rule, the water grab that I mentioned earlier. Last February, the Supreme Court halted implementation of Obama’s signature climate change initiative, the Clean Power Plan, in a suit brought by 29 AGs. Nevada joined the successful suit that declared illegal Obama’s immigration executive orders.
One example I like shows that even the threat of litigation can get results. A few months ago the EPA announced that it would regulate auto racing under the Clean Air Act. Lawmakers sent letters, but so did eight Attorneys General, myself included. One thing we pointed out was that in framing the Clean Air Act, the topic of emissions from motor racing had come up and been specifically rejected as something not to be regulated by the EPA under that law. Nevada has a large auto-parts industry that could have been undermined. I didn’t get a thank-you note from the EPA, but I like to think that the prospect of well-coordinated and highly motivated litigation helped influence their decision to scrap the proposed rule.
We deterred that particular gambit, but I now brace myself for a final wave of new outrages during President Obama’s last days in office, when he unpacks his final wish list and sends its contents out to the bureaucracy for implementation. In the end, the job of the attorney general is to protect the rule of law. This means enforcing Nevada’s own laws just as much as it means patrolling the state-federal boundaries set by the U.S. Constitution. The two tasks are inseparable, because as federal government power grows, states and citizens’ power diminishes.