Bags, Bans and Begnoches

[XLFD]

In the Opinion Page of the April 11, 2016 edition of the City of Ludington Daily News (COLDNews), one page after a headline announcing that me and Richard Rathsack are the only candidates with nominating petitions in so far, was one of the final editorials of Managing Editor Steven Begnoche before his retirement.  In this editorial he illustrates his viewpoints on state and local government powers while berating some state legislators who are presumably for small government doing things contrary to the idea. 

While Mr. Begnoche and I would agree that most of the Michigan Republicans in office have fallen away from the ideals of their party and have become little different than their Democratic counterparts in their propping up of government solutions and spending, I differ strongly from Steven's conclusions in the "Bag Debate" he describes below because of my strong beliefs in Constitutional conservatism.  Here is his editorial in its entirety, see whether it seems reasonable to your own viewpoint (click on it to make reading easier):

The general issue here is a debate on state and local powers, and Begnoche makes a pitch for local power.  This definitely isn't an unreasonable position; we can have very little effect on what happens in Lansing, but just about anybody can go down to the local city hall or county courthouse and try to influence their local politicians into doing something good for the region.

Begnoche mistakenly believes that Michigan is 'local control friendly', but historically this has not been the case.  Before Ludington was even on the map, the United States Constitution was drawn up and in force for the better half of a century.  This document, even with the amendments in the Bill of Rights, does not even mention local governments.  The overriding authority for powers not expressly in the Constitution, the Tenth Amendment, says:  "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 

Constitutionally, all local government powers must come from the state granting them those powers, and so these can be structured in 50 different ways in this country by the legislators of each state onserving 50 state Constitutions.  As local governments sprang up in this country looking for legislative authority to do things without being constrained by the state, an Iowa judge named John Dillon made two court decisions which solidified what has been termed Dillon's Rule. 

It affirmed the previously held, narrow interpretation of a local government's authority, in which a local government may engage in an activity only if it is specifically sanctioned by the state government.  Michigan is one of 39 states which have adopted Dillon's interpretation, its ramifications are reflected in court decisions and later 'home rule city' provisions of law.

The following tenets have become a cornerstone of American municipal law and have been applied to municipal powers in most states:

• A municipal corporation can exercise only the powers explicitly granted to them
• Those necessarily or fairly implied in or incident to the powers expressly granted
• Those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable

So taking the historical and Constitutional perspectives into account, there is nothing wrong, and nothing new about, state laws coming about that restrict the powers of local governments, particularly when they infringe on either the state's powers or the rights of individuals in that state.  Is this the right thing to do here?

In the case bemoaned by Begnoche, there are currently no local bag bans in Michigan, but Muskegon County is looking at finalizing an ordinance banning stores from giving plastic bags to customers and imposing a fee for each paper bag they distribute.  The move was initiated last year when the county board chairman noted a large amount of plastic bags would get blown by the wind into the fences around the county landfill, adding to cleanup costs.

Sarah Damm, a sustainability coordinator for Muskegon County,  said Muskegon County explored the local-state powers doctrines extensively with its legal counsel before concluding that it does have the power to regulate plastic bags. The county, she said, gets this through its power to manage sanitary and stormwater sewers and drains, where bags can accumulate and clog pipes.

Opponents of the ban say that it will lead to confusion and higher costs for consumers with little positive effects. Paper bags cost more and are more expensive to stock and distribute than plastic ones. Grocers operate on profit margins of 1 to 2 percent, according to the U.S. Treasury Department, so any cost increase may show up in more expensive groceries.

A study commissioned by the city of Austin, Texas two years after they banned plastic bags found a reduction in the use of plastic bags but also that people were throwing away reusable bags at a much higher rate than anticipated, mitigating the positive environmental effects. Other research has found that reusable bags often contain coliform bacteria and even a spike in visits to the hospital for E. coli potentially linked to bag bans.  (Thanks to MCC for that info)

Begnoche pointedly says that if a local community wants to ban plastic bags then that shouldn't be interfered with, that should be their choice.  He wants local governments to usurp the choice that each citizen of that locality already exercises as part of his Tenth Amendment freedoms/powers.  He doesn't want the state to prohibit the local government from taking away those rights of the individual citizens, even though the local government solely gets its authority to do anything  from the states Constitutional authority. 

In this case, the state is not utilizing a 'big government solution' as Begnoche portrays, but rather trying to curtail big governmental power at the local level.  It's a practical solution because most Michiganders and our tourists would be impacted and confused as to what local policies and fees would be added to their shopping experience in the 83 different counties, 276 different cities, 257 different villages, and 1,240 different townships of the state. 

If a locality wants to institute a 'bag ban' or a 'bag fee', they should, in a perfect world, submit such ideas to the electorate who would then have a chance to vote on whether it was a reasonable thing to do.  If passed, the state would then be hard-pressed to say they cannot do so.  This would fall more in line with the very popular Headlee taxation and spending limitations, where direct voter approval is required.

[AQUAMAN]

"Our View", another waste of editorial space. Begnoche can't even say something nice about the locals in Lud. that had to put up with his sneering and narcissistic mentality all these years? Figures!

[Willy]

I think the "plastic" situation is nothing but hysteria. Just another greenie weenie cause. With that said I have to agree with Begonche on the issue of local control. The 10th Amendment states that powers not reserved for the Federal Government are controlled by the States or the people. In my opinion if the 10th Amendment had said "and the people" then I would have some disagreement with Begonche on this issue. To me "or" is the key word in interpreting the meaning of this Amendment. The word "and" is inclusive while "or" refers to other. I'm not in favor of banning plastic because if the people want it then leave it alone and it is recyclable. I love George Carlin's take on plastic.

[XLFD]

This weekend's COLDNews had a 'guest editorial' from the Battle Creek Enquirer called "Paper or Plastic: Let Locals Decide" which effectively is a better written editorial about why local governments should be making rules on whether local merchants ban plastic bags or not.  Another 'guest-written' editorial in the Detroit Free Press had pretty much the same gripes about plastic bags and state legislators taking control away from local communities.

Why is it that newspaper editors only cry "foul" on such issues when the local ordinances being made are geared towards controlling the rights of people and businesses?  Even if the state denies local governments from enacting such laws banning plastic bags, guess what can still happen?  The citizens of an area can still initiate such rules if they decide to get enough signatures on a petition and have a majority of the voters in the district approve it once it gets on the ballot.  But individual people are smarter than that.