A question of nullification

Recently secession has been all the rage in the news, as all 50 states have at least began the process of petitioning on the White House website to have them address the matter. Texas is leading the way with over 100,000 signatures.

But perhaps a more realistic (and less bloody, given the last secession led to a war between the states) alternative is the concept of nullification, where states refuse to follow laws they consider unconstitutional. The principle is an extension of the Tenth Amendment, which grants “(t)he powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”

Obviously this idea is most popularized by the lack of willingness of some states to comport with Obamacare, but the question can be asked: do counties as part of states have those same nullification rights? Thanks to a strong TEA Party and pro-liberty movement, Cecil County is the Texas of Maryland, and one group is calling on the county to toss down the gauntlet on the so-called “septic bill” SB236.

The county’s Campaign for Liberty group puts it thus, as part of an “open letter” to the Cecil County Commissioners:

As we fight in Maryland to oppose S.B. 236 and O’Malley’s Plan Maryland we can learn a lesson from the fight over Obamacare.

Much like Obamacare, S.B. 236 was a radical leftist law that was rammed through the legislature.

After Obamacare passage, many conservatives felt like the battle was over, however, a number of states are now blocking implementation and using nullification to stop Obamacare in its tracks.

Our counties in Maryland need to take a page out of the states’ playbook by blocking implementation of S.B. 236.

S.B. 236 is an equivalent to Obamacare in Maryland.  If S.B. 236 is allowed to stay on the books it will go down as the greatest taking of private property rights in Maryland history.

Cecil County Campaign for Liberty is urging you vote against submitting Tier Map 10 (or any other Tier Map for that matter) to the State of Maryland as required by S.B. 236.

County Commissioner Robert Hodge spoke at a recent Cecil County C4L meeting and asked us to support the submission of Tier Map 10.

He explained that Map 10 included no private property in the most restrictive Tier 4 designation.

While we applaud every effort to protect private property rights, after careful consideration, we believe that objective is best served by non-compliance.

Meanwhile, the concept of selling development rights is also being challenged by a Howard County farmer who wants out of his contract as well.

For many years, since the nation’s founding as a matter of fact, the concept of taxation of private property had been the main flaw in the age-old doctrine that a man’s home is his castle – after all, your property isn’t truly yours when you pay an annual rent to the government in the form of a property tax. On the flip side, zoning codes came into being and more and more restrictions were placed on what could be done with one’s property. Most of these were modest changes which made some logical sense, but in the last couple decades we’ve seen more of a naked power grab by government at all levels. The transferable development rights under debate in Howard County were one thing, but the idea that a government edict can render your property all but worthless by curtailing its development simply because no wastewater system is nearby smacks of overly dictatorial control. But that’s the aim behind Senate Bill 236: if you’re in a Tier 4 area, it will be difficult (if not impossible) to develop your land as you see fit.

Maryland has always been a trendsetter in the area of “preserving” land through several approaches: buying development rights, placing restrictive land-use policies in ever-expanding coastal areas via stormwater regulations, or simply purchasing land outright through Program Open Space. Obviously that’s a last resort because the state won’t pay property taxes on land it owns, but they collect tax revenue on most privately-owned land whether it can be developed or not.

To hear them tell it, the key reason Maryland is so restrictive is the fact Chesapeake Bay divides the state, and I’ve joked before that if you wrote a bill to legalize murder but named it the “Chesapeake Bay Murder Legalization Act of 2012″ you just might get it to pass. In all states, “it’s for the children” works as a political slogan but you can add “it’s for the Bay” as a Maryland alternative. Put the wrong people in charge of government and this sloganeering bastardizing the name of a perfectly fine estuary becomes an almost inexorable power grab.

Rural development is the scapegoat for the water quality trouble in Chesapeake Bay, with the septic system considered to be public enemy number one to the Annapolis environmentalists. (Because we all know those urban sewage treatment plants always work perfectly and never, ever leak.) That’s why SB236 passed with almost unanimous support from urban areas and opposition from the parts of Maryland far away from the I-95 corridor.

Yet the environmentalists who continually blame farmers and those who wish to live far away from the city for the Bay’s filthiness seem to forget that Chesapeake Bay’s water doesn’t just magically appear in Maryland. There is a river which feeds the bay, and it’s worth noting that our allies in the Maryland Rural Counties Coalition aren’t forgetting that fact. A six-page letter from the legal firm Funk & Bolton outlines some of the study behind these assertions, contending that spending billions of dollars local governments don’t have to address only a small portion of the problem is a fool’s errand at best.

So what happens if Cecil County doesn’t send in a map for approval? The law as written basically tells them they can’t approve anything beyond a “minor” subdivision unless it is on a public sewer system. Of course, subdividing the county into tiers would place large areas off limits anyhow so in all honesty there’s not a big difference either way.

Unfortunately, it’s not likely we’ll see this law repealed anytime soon and no court in Maryland has the balls to tell Martin O’Malley and his environmentalist wacko allies to go pound sand. The only way that might happen is for an aggrieved party, such as a farmer stuck in a Tier 4 area who wants to develop his land, to take the state to court. But that farmer would need some deep pockets to fight the state and if he can’t do as he wishes with his property it’s not likely the financial wherewithal is there to fight.

As Maryland counties go, Cecil County is perhaps the closest match to Wicomico County. Yet it strikes me as odd that they have a TEA Party movement which is much farther along than ours, even though our County Council is a supermajority Republican one like theirs is. The key difference is that they just elected a Republican county executive, who will begin her new job next year. We’ll see how that affects our friends up the Shore, but I suspect they’ll be better positioned to take advantage if our state swings to the GOP in two years.

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