Ted Cruz & ALEC: Seceding from the Union One Law at a Time

By Rachel Tabachnick, on February 5, 2014

Rachel Tabachnick is a PRA research fellow and member of the Public Eye editorial board. She researches the impact of the Religious Right on policy and politics in education, economics, the environment, and foreign policy.

Read more by Rachel Tabachnick →

Print PDF

Tea Partiers, Tenthers, and the corporate sponsors who support them have come up with a variety of ways to circumvent the federal government and bypass the federal regulatory system, including efforts to hold an Article V Convention, commonly called a “Con Con,” to amend the Constitution and the Sen. Ted Cruz(R, TX)-developed plan for use of “interstate compacts” to block federal law.
In a report for the Center for American Progress, Ian Milhiser described these state’s rights efforts as a project for “seceding from the union one law at a time.”  These initiatives could result in a Balkanized confederation of states that would be no match against the power of international corporations and would allow for eliminating the regulatory system and the social safety net.
The most recent issue of The Public Eye magazine includes two extensive articles on the efforts of conservatives to shift power to the states, including Frederick Clarkson’s article on the State Policy Network’s growing influence, and my article on the growing nullification movement (co-authored by Frank Cocozzelli).
Nullification is based on a legal theory that states can block enforcement of federal laws individual states deem unconstitutional. But another route to “nullification” was popularized by Senator Cruz before he even became a senator, and promoted through Tea Party organizations and the highly-controversial American Legislative Exchange Council (ALEC).

Ted Cruz was mentored at an early age through Rolland Storey’s Free Enterprise Education Center, where Cruz learned Austrian economics, read Cleon Skousen, and intensively drilled in delivering speeches. As an adult, Cruz joined the board of Storey’s Free Enterprise Institute, described as “forming conservative leaders since 1976.” The board includes Leo Linbeck III and Chairman Emeritus Robert McNair, one of the co-founders of the “flat tax” organization Americans for Fair Taxation.

Cruz’s idea is to use “interstate compacts” to shield states from federal laws. He developed the concept in 2010 as an alternative option for “nullifying Obamacare.” Just prior to his election as senator, Cruz worked as senior fellow with the Center for Tenth Amendment Studies at the Texas Public Policy Center, the state’s “free market” think tank and a State Policy Network member. While the concept of interstate compacts is not new, Cruz’s idea to use them as a strategy for shielding states from federal laws is uniquely original, which he freely admitted to Fred Barnes of the Weekly Standard  in January 2011.
The Constitution, in Article I, Section 10, allows for states to form interstate compacts with the consent of Congress.  This is most commonly done to oversee shared resources, such as waterways.  One of the earliest formed and better known of these compacts is the New York – New Jersey Port Authority. But Cruz is claiming that interstate compacts can be expanded as a way to circumvent presidential veto power.
“With congressional consent, federalized interstate compacts could shield entire areas of state regulation from the power of the federal government,” wrote Cruz and Mario Loyola in a December 2010 report for the Center for Tenth Amendment Studies. In the introduction, Cruz and Loyola state:

“Under our Constitution, interstate compacts that regulate matters within the enumerated powers of the federal government require congressional consent. That consent can be expressed (an affirmative majority vote in Congress) or even implied by congressional acquiescence. In the case of express congressional consent, historically that has been accomplished through either a bill or a resolution that typically has been presented to the President for his signature into law. 
Critically, once Congress consents to an interstate compact, the compact carries the force of federal law, trumping all prior federal and state law.”

In other words, Cruz and Loyola claim that an interstate compact can be formed and made the supreme law of the land, including trumping the Affordable Care Act, by simple “acquiescence” of Congress and therefore bypassing the need for the president’s signature.
By early 2011, this concept had already been promoted through the Sam Adams Alliance and Tea Party organizations, as described in the Weekly Standard:

“In October, Eric O’Keefe of the Sam Adams Alliance broached the compact strategy with the leaders of Tea Party Patriots, Mark Meckler and Jenny Beth Martin. And in November, they, in turn, took the idea to their national council, gathered in Washington to conduct an orientation session for newly elected members of Congress (only Republicans showed up).
When O’Keefe and a panel explained the strategy, they got a standing ovation from the 180 members of the council. ‘I’ve never heard of a panel getting a standing ovation,’ O’Keefe says. At least 37 of them signed up as state coordinators for winning legislative approval of the health care compact. An experienced political consultant, Mike Barnhart, was hired as national coordinator.”

The concept was also promoted through the State Policy Network’s “Federalism in Action” program, and Cruz himself presented the idea at the 2010 American Legislative Exchange Council (ALEC) conference, where it promptly became the foundation for ALEC’s “Health Care Compact ACT” model legislation for state legislators.
To date, this Healthcare Compact Act has been passed in eight states: Texas, Oklahoma, Utah, Missouri, Indiana, Alabama, Georgia, and South Carolina. The healthcare compact is promoted and tracked through an organization called the Healthcare Compact Alliance, a project of Competitive Governance Action, a 501(c)(4) co-founded by Texas businessman Leo Linbeck III and Eric O’Keefe and sharing the address of the Linbeck Group, LLC, in Houston.
The vision of shielding entire areas of state regulation from the federal government has been further enshrined by ALEC in the form of a model bill developed by their International Task Force, and approved by the ALEC board of directors.  Under the title “State Legislature United Compact,” the model bill provides validation for those who half-jokingly warn about the “United States of ALEC,” apparently giving ALEC a role in forming and running the commission that would organize the interstate compact, and ensuring that like-minded conservatives would control the topics and outcomes of a convention.
ALEC’s December 2013 States and Nation Summit in D.C. was sponsored, in part, by another Linbeck and O’Keefe nonprofit, called the Citizens for Self Governance.  Its legal name is the John Hancock Committee of the States and it’s the parent organization of the Convention of the States (one of several organizations promoting an Article V convention to amend the Constitution).  The organization was incubated prior to gaining its own nonprofit status by American Majority, an organization founded by Drew and Ned Ryun to “infuse new Tea Party blood into the political system.”
Until now, the only method used to amend the Constitution has been through a two-thirds vote of both houses of Congress, followed by ratification by three-fourths of the states. However, there is another process in Article V that allows for a convention to be called by two thirds of state legislatures.  Mark Meckler, cofounder of the Tea Party Patriots, is now president of the Citizens for Self Governance and is overseeing the group’s Article V convention efforts.

UPDATE: The Georgia State Senate has just become the nation’s first legislative body to pass a Convention of States application. It passed on February 4, 2014, by a vote of 37-17. You can see a copy of the application here.

Meckler promoted the Convention of the States project in a session at ALEC’s December summit. On the Saturday following the summit, roughly 100 state legislators from 32 states met at Mt. Vernon to advance convention plans.  Ferris’ reflections on the event acknowledged that there are divisions in conservative ranks between those who want the “con-con,” and those who fear a “runaway con-con” infiltrated and overrun by liberals. Historical revisionist David Barton has just recently endorsed a Constitutional Convention, while both Phyllis Schlafly’s Eagle Forum and the John Birch Society (JBS) fall into the second category.
As noted in The Public Eye article Nullification, Neo-Confederates, and the Revenge of the Right, the JBS has become a major force behind state nullification efforts across the country.
Despite misgivings about a “runaway con-con,” there are several right-wing groups around the country working to organize a convention, but with some disagreements about how it would work.  PRA senior fellow Frederick Clarkson, Salon’s Paul Rosenberg, and I have all listened in on conference calls by one such organization that has differences of opinion with the Convention of the States on how to proceed (you can read Rosenberg’s story about it in Salon). The leader of that organization has a plan for the first amendment to be a “Sovereignty and State’s Rights Amendment,” allowing any federal law to be “countermanded” by the agreement of 30 states.
This state’s rights movement is gaining traction across the country, including among some on the political Left, but the money and organizing behind the effort is solidly conservative­—or perhaps better described as paleo-libertarian, or a combination of radical anti-government philosophies wedded to social conservatism.