Kansas lawmakers chickened out.

The Kansas legislature had a golden opportunity to make a bold statement and effectively nullify federal regulation of the Lesser Prairie Chicken and the Greater Prairie Chicken within the borders of their state.

The Senate Committee on Federal and State Affairs introduced SB276 early this year. The legislation built upon a Tenth Amendment argument asserting the federal government has no constitutional grounds to regulate the birds and would have prohibited the state of Kansas from providing any support to federal agencies trying to do so.

Instead, the Kansas legislature did essentially nothing. Oh, it passed SB276. But the bill that Gov. Sam Brownback signed into law simply authorizes the state attorney general to sue the federal government for injunctive relief.

If the state ever initiates a lawsuit in federal court, it will certainly lose. If the AG tries to sue in state court, the feds will have the case removed to federal jurisdiction where the state will lose. The court will rubber-stamp federal authority, cite the supremacy clause and toss the case out the window. I’m not speculating. This is a virtual certainty. (You can read more about the fruitlessness of passing bills to fight the feds in court HERE.)

So, instead of this solid anti-commandeering language:

It is unlawful for any official, agent or employee of the government of the United States, or employee of a corporation providing services to the government of the United States to enforce or attempt to enforce any federal law, treaty, regulation or executive action that specifically regulates the following within the state…”

We get lawsuits.

Of course, politicians in Kansas will pretend like they’ve taken a bold stand against the feds. That probably counts as the most frustrating part of this farce. The Kansas legislature had the opportunity to do something significant, chickened out, and will now run around clucking like roosters.

There was absolutely no reason to kill the anti-commandeering language. It stands as a well established constitutional principle. The federal government cannot force states to cooperate with their enforcement efforts. Of course, the feds need state cooperation. They lack the resources to do it themselves. So the original prairie chicken bill was on solid legal footing and would have certainly had the practical effect of blunting federal enforcement.

But instead, we’ll get a lawsuit. Maybe.



Mike Maharrey

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