Patriotic or Paranoid?

There's a story, possibly apocryphal, about President Lyndon Johnson in which he was on the flight deck of an aircraft carrier during a visit to Vietnam. He started walking toward a helicopter to board it when one of the Navy personnel attending him corrected, "No, Mr. President, your helicopter is that way."

At that, the president disdainfully looked the officer up and down before responding thus to the apparent affront: "Son, they're all mine."

In state Rep. Charles Key's view, the anecdote effectively encapsulates the federal government's imperious and heavy-handed posture toward the states.

"The federal government is continuing to do things it doesn't have the authority to do," the Republican from Oklahoma City told UTW.

That's why he brought House Joint Resolution 1089 before the House of Representatives this year.

Had it passed, it would have been a formal declaration of the state of Oklahoma's sovereignty under the Tenth Amendment, which declares, "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 resolution also would have served "as Notice and Demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers."

The measure made no specific reference to instances in which the federal government has overstepped its constitutional authority, however.

But, it stated that, according to the Tenth Amendment, the federal government is a creation of the states "specifically to be an agent of the states," but "today, in 2008, the states are demonstrably treated as agents of the federal government," and that "many federal mandates are directly in violation of the Tenth Amendment."

After the resolution was introduced, the lack of specificity in its language left room for considerable speculation on the Internet and in the blogosphere about Key's motives in introducing it.

Some hypothesized that its purpose was to pave the way for some future legislation that Key anticipates might draw the ire of the federal government, but he refuted that notion when questioned by UTW.

"Not at all. It's all on the table. What you see is what you get," Key said.

"It's just what we've observed happening in the recent past, and even going back for awhile, are what it's all about. And the problem of what it means for us in the future."

When asked how, specifically, the states are "demonstrably treated as agents of the federal government," Key pointed to the No Child Left Behind Act and the Real ID Act as examples.

For those unfamiliar, the No Child Left Behind is a controversial initiative from Pres. George W. Bush, which set national standards for periodic testing in accordance with its "outcome based" approach to education. Since it became law in 2002, it's been the subject of numerous lawsuits against the federal government for its costly but unfunded mandates, among other criticisms.

Key added his own voice to those complaints.

"The federal government has no right or authority to do that--to require the states to do anything related to education. No Child Left Behind is just a flat-out violation in and of itself because the Constitution doesn't give authority to the federal government to do anything in the realm of education," he said.

Key reiterated, "There is nothing in the Constitution that says the federal government may or shall have the authority to tell anyone what to do in regards to how they educate their children."

The Real ID Act is a federal law passed in 2006. Its purpose is to prevent identity theft and make it harder for terrorists to avoid detection by setting national guidelines for the issuance of drivers' licenses and other state-issued identification cards (see "Be Scared, Be Very Scared" in the May 1-7 issue at www.urbantulsa.com for more details).

"They're trying to force us to have a national ID card, and they threaten to withhold money if we don't comply," said Key.

But, if it's federal money, why is it wrong to make compliance with federal law a condition of receiving it?

"First of all, it's wrong because it violates the system of government we have. Secondly, it's wrong because it uses money that comes from a state and withholds it," he answered.

"We get used to getting that money from them, even though it comes from us, through them, back to us, and then it's used against us," he added.

What's Eating Gilbert?

In mid-March, HJR 1089 passed the House 93-3, which is well beyond the 57-44 majority enjoyed by Key's party.

But, it was then sent to die without a hearing in the Senate Rules Committee.

Key emphasized, however, that it was "not the Senate" that killed his resolution.

"It was the Senate Democrats. They wouldn't hear it," he said.

He said he'd been negotiating with Democratic co-floor leader Sen. Charlie Laster of Shawnee to get a handful of his bills past the Dem's Senate leadership for hearings, including HJR 1089.

Laster agreed to give one of Key's bills a hearing, but not HJR 1089, Key related.

He said Laster didn't give him any explanation for Senate Democrats' opposition to the resolution.

"I pushed the issue to where it started to get contentious, so I backed off. I wanted to get my one bill heard. He wouldn't give me an answer," he said.

Laster did not return telephone calls from UTW.

But, Rep. Darrell Gilbert, D-Tulsa, who cast one of the three "nay" votes in the House, did.

Reps. Al McAffrey, D-Oklahoma City, and Glen Bud Smithson, D-Sallisaw, were the other two dissenters.

When asked why he voted against HJR 1089, Gilbert answered, "You know, it was just one of those things about the conspiracy theory crap more than anything."

What do you mean by "conspiracy theory crap"?

"If you know anything about Representative Key from the past, you know he was always under the impression that the federal government was out to get you, and that kind of stuff. So, that's basically part of the reason I voted against it: I don't believe the federal government is out to take over our lives like that," he explained.

His history reference had to do with Key's efforts about a decade ago to empanel an independent Oklahoma County Grand Jury to investigate the Oklahoma City Bombing. He went on speaking tours, insisting that the federal government had prior knowledge about the tragedy and covered up key evidence.

Many believe Key's controversial views were the reason he lost his House seat to Republican John Nance in the 1998 election.

Key returned to the office in 2006 when Nance decided not to seek re-election.

While Gilbert disagrees with Key and his "conspiracy theory crap," he happens to share his views on some of the issues behind HJR 1089.

When asked if he thinks the NCLB and Real ID acts go beyond the federal government's constitutional authority, Gilbert answered, "Well, that's a good question. I do have some serious problems with the Real ID situation. But No Child Left Behind? I don't know if that particular piece of federal legislation has any significance as far as the Tenth Amendment. I really don't."

"My whole objection to the Real ID was that it was an extremely unfunded mandate," he added.

But aren't unfunded mandates what this resolution was about?

"Well, yeah, kind of. But Real ID was really something that was creating a national ID card, where if we don't comply with it, we can't get on airplanes and that kind of stuff. And that's something I don't particularly agree with," Gilbert answered.

About NCLB, though, he also said, "I looked at it more as a huge unfunded federal mandate on education more than I did that it was putting unreal requirements on people."

"It sounds like you're not necessarily opposed to the specifics behind the resolution, but to the sentiment you believe is behind it?" asked this reporter.

"That's a fair way to put it," answered Gilbert.

"It was one of those things we did during the session that we didn't necessarily need to spend time on. We did a lot of things like this," he added.

But, in Key's view, there is no more important use of time.

"The Constitution is the supreme law of the land. Without it, we don't know what to do. If we don't follow it, it destroys the concept of 'rule of law,' and then all that matters is who's in office and who wields the biggest stick," he said.

Key said he intends to carry the resolution again next year.

But, Oklahoma's Republican U.S. Sen. Tom Coburn might beat him to the punch. Also citing what he views as the "waning influence" of the Tenth Amendment, Coburn recently announced his co-authorship of the federal Enumerated Powers Act (H.B. 1359), along with Congressman John Shadegg (R-AZ).

If it passes, the act would require Congress to justify its actions by including in each piece of proposed legislation the specific source of authority within the Constitution for the bill's enactment.

Shadegg has introduced the bill every year for the past 15 years, but this is the first time it's been sponsored in the Senate.

Sen. Jim Inhofe (R-OK) is also among 15 Senate co-sponsors this year.