| Eminent domain, federal education
requirements and the freedom to allow cancer patients
access to medicinal marijuana. Those are just three
issues that affect the Western states and on which the
Supreme Court has ruled -- or possibly may rule in the
future.
The Western states are already responding to a Supreme
Court decision that said economic development could
be the basis for a local government's exercise of eminent
domain. Lawmakers in Utah and Nevada have already proposed
legislation to limit the use of eminent domain.
Connecticut has filed a lawsuit against the Department
of Education over No Child Left Behind requirements,
and if Utah can't reach an accord with the Department,
it may file a similar lawsuit.
The Supreme Court ruled in June that federal drug laws
were supreme to laws passed in 10 states including Alaska,
Colorado, Montana, Nevada, Oregon and Washington, that
permitted marijuana use by patients with a doctor's
approval. Arizona also has a similar law, but no formal
program in place to administer prescription marijuana.
The federal government has a large
footprint across the Rocky Mountain West. Federal
ownership of lands ranges from nearly 80 percent of
the total land in Nevada, to about 60 percent of Idaho
down to 28 percent of Montana. Mix in energy development,
management of roadless areas and water disputes and
you have a tangled web of interaction between federal,
state and local governments.
Add in the president's ability to make regulatory changes
to tweak government policies and rules, and there is
a very real possibility that the check-and-balance system
is in peril.
For that reason, Daniel Kemmis writes today, Supreme
Court nominee Samuel Alito's strong allegiance to preservation
of presidential powers should be of more concern to
federal lawmakers, and in particular Western Senators,
than Alito's stance on abortion.
Although nearly all of the debate on Alito's nomination
has centered on the future of Roe v. Wade if Alito is
approved, and Alito's adherence to stare decisis,
the system of following court precedent, much more should
be made of his belief in unchecked presidential power.
Alito served in the Justice Department's Office of
Legal Counsel for three years during the Reagan admininstration.
In a speech in 1989, he praised Justice Antonin Scalia's
dissent to a Supreme Court ruling upholding a Watergate-era
law that allowed independent counsels to investigate
wrongdoing in the White House. Alito said the decision
amounted to what was "congressional pilfering"
of presidential power.
Much of the current controversy over presidential power
has centered on President Bush's power to conduct the
war on terrorism, but expanded Executive Branch power
that goes unchallenged can be used in other arenas.
Some congressional leaders, including Sen.
Patrick Leahy, D-Vt., the ranking Democrat on the
Senate's Judicial Committee, have said they will make
Alito's stance on presidential power a focus of his
questioning during the nomination hearings.
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