Douglas Kennedy eagerly filed this report from the wilds of Montana this morning for Fox News, describing the exploits of a Montana Tea Party Republican legislator named Greg Hinkle, from Thompson Falls -- just coincidentally the home of the Militia of Montana ...
Hinkle is a Republican state senator from Thomson Falls, and he recently proposed a law, likely the first of its kind, asking federal law enforcement to first seek approval of county sheriffs before any federal intervention in the state of Montana. He calls it “The Sheriffs First Bill.”
“I believe that before any federal agency does any action within a county,” he explained, “they should cooperate with the sheriff, coordinate with the sheriff and go to him and say this is what we need to do in this county.”
For instance, Hinkle would want the FBI to first notify a Montana sheriff before executing a search warrant or making an arrest in the state of Montana.
At one point he allowed for arrest of any federal agent who didn’t comply, but has since taken out that language. He also reluctantly added a line that allows for federal agents to notify sheriffs “after the fact,” in order to get the bill through the Montana House of Representatives.
Nonetheless, legal observers still call Hinkle’s bill “a clear violation of the Supremacy Clause of the U.S. Constitution.”
“The federal government does not have to ask or even inform local law enforcement about what they are doing,” said James Cohen, a constitutional law professor at Fordham Law School in New York. “Sometimes they do because it’s convenient, but they do not have to.”
Hinkle points out that the bill has already passed the Montana State Senate (with the original language) and is expected to pass the House in the next couple of weeks.
He also says there’s a lot of support in Montana, a state which he says well remembers the deadly federal raids at Ruby Ridge, Idaho, in 1992 and Waco, Texas, in 1993.
Funny that a parachuting reporter would forget this, but in reality, Montanans remember even better the longest armed standoff with federal agents in history: the 81-day FBI standoff in Jordan with the Montana Freemen. (Yes, yours truly was there.) As Jim Lopach, a professor of constitutional law at the University of Montana, put it in a retrospective piece:
Lopach said the real legacy of the standoff could be that it gave people a reason to consider how far and how deep devotion to political individualism should go.
"It might be a moderating thing," he said. "It might be that they saw the dangers of extremism."
In reality, Hinkle's bill is one we've known about for awhile. It was one of a package of bills that Montana Patriot-movement leader Gary Marbut announced last September in Hamilton at a gathering I covered. (You can watch the video of Marbut describing it here.)
Tonight Marbut wants to talk about a new piece of sovereignty legislation he plans to promote in the state legislature, something he calls Sheriffs First. The bill would make it a crime in Montana for a federal officer to arrest, search or seize without advance written permission from the county sheriff, Marbut explains, to enthusiastic applause.
"How that will work is, the federal officers might come to your local sheriff and say, 'OK, here's our probable cause, we believe there's people at this location in your county who have a meth lab …and we wanna bust 'em,'" Marbut says. "The sheriff might look it over and say, 'Gosh, I'm glad you brought this to me, here's your advance written permission, and I will send a couple deputies to help you.'
"Or the federal officers might come to the sheriff and say, 'Here's our probable cause, it leads us to believe there's somebody in your county at this location who's manufacturing firearms without a federal license. And we want to go bust them.' The sheriff might say, 'Sorry, we have a state law in Montana that authorizes that activity, it's perfectly legal here, you may not go bust them, you do not have permission, and if you do, we can put you in Deer Lodge. We can put you behind bars in Montana for doing that.'" That brings out whoops alongside the applause.
Kennedy's fawning coverage at Fox concluded thus:
“They can’t do it,” [Fordham law professor James Cohen] said. “They can't pass a law that says the federal government, the FBI, the [Drug Enforcement Agency], whatever federal law enforcement agency, must contact the sheriff before engaging in law enforcement activities. It simply can't be done."
Of course it can, said Hinkle.
“How on earth could the states not challenge federal law?” he asked. “That's the way our system of government works.”
“The states are what created the federal government,” he added, “so the states should actually have more authority than the federal government."
This is one of the more breathtaking aspects of this legislation: It so clearly flies in the face of the Constitution as to be absurd, and yet its proponents are some of the loudest proponents of their version of so-called "constitutionalism."
These are the Tea Partiers who swept to power in Montana in the last election, and boy, are they making their mark. But it may not be the one they long for.
Longtime Montanans are well acquainted with these kooks, and the more they rant and rage and embarrass the state, they more they turn people off. An AP story from a few weeks back pointed this out:
HELENA, Mont. – With each bill, newly elected tea party lawmakers are offering Montanans a vision of the future.
Their state would be a place where officials can ignore U.S. laws, force FBI agents to get a sheriff's OK before arresting anyone, ban abortions, limit sex education in schools and create armed citizen militias.
It's the tea party world. But not everyone is buying their vision.
Some residents, Democratic Gov. Brian Schweitzer and even some Republican lawmakers say the bills are making Montana into a laughingstock. And, they say, the push to nullify federal laws could be dangerous.
"We are the United States of America," said Schweitzer. "This talk of nullifying is pretty toxic talk. That led to the Civil War."
A tea party lawmaker said raising the specter of a civil war is plain old malarkey.
"Nullification is not about splitting this union apart," freshman Rep. Derek Skees said. "Nullification is just one more way for us to tell the federal government: 'That is not right."
There's been a substantial influx of these extremists into the state from elsewhere in the past decade, many of them drawn by cheap land and their own internalized mythology of the Western landscape what Montanans are like (think "rugged individualism"). Perhaps no one symbolizes this influx better than Chuck Baldwin, the erstwhile presidential candidate of the Constitution Party, who recently moved to the Flathead Valley from Florida.
Baldwin held a shindig in Kalispell, where he was feted by local white supremacists and other supporters. He all but announced that he was planning to run for governor, in hopes of displacing Schweitzer. And he voiced the view of a lot of these newcomers:
Baldwin went on to state that being born in Montana does not necessarily make one a Montanan.
“There are a lot of people that were born in Montana but are not Montanans,” Baldwin said. “And there are a lot of people, like me, who were not born in Montana but we have been Montanans our whole lives.” (Baldwin arrived in the Flathead in October.)
“Real Montanans love freedom,” he said. “Real Montanans will fight and die for the principles of truth, honor and freedom.”
Here's hoping he and his fellow Montana Tea Partiers run on that kind of platform. Sounds like a surefire winner with all the lifelong Montanans I know.