Last week we looked at some early disputes over state rights and sovereignty that date back as early as the Bill of Rights and the Tenth Amendment. Depending on which side of the aisle that your political philosophy is influenced by, this issue has different meaning. There have always been disputes between the parties about the size and scope of the centralized federal government and the responsibilities and powers of the individual states to govern inside their own borders.
The Tenth Amendment states: “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.” After the ratification of the Constitution, an amendment limiting the federal government to powers "expressly" delegated was presented, which would have denied “implied powers.” When the Tenth Amendment passed and was ratified, the word "expressly" did not appear in it, and therefore the Tenth Amendment did not amend the Necessary and Proper Clause.
The Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment. In the modern era, the Court has only done so where the federal government compels the states to enforce federal statutes. In 1997, the Court ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment because it required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Since the act “forced participation of the State’s executive in the actual administration of a federal program,” it was unconstitutional.
There are many laws on the books that require implementation by State Government. However, the difference is states aren’t forced to participate, but are rather “encouraged” to do so through funding directives. Almost all policy regarding education for example requires the states to implement them and the funding for education is based on objectives set forth by the federal government. Other examples are the speed limit law, DUI laws, etc. and those cases the “withholding” of funding for roads and infrastructure for non-compliance is used as an incentive to participate and implement those laws.
In the last couple of years especially, we are seeing quite a bit of legislation and policy that is “unpopular” by the majority of citizens in this country. The recently passed health-care legislation created a major awakening of the people as to the scope of government control. Add other proposals such as cap and trade, immigration reform, financial industry reform, stimulus bills, bailouts, and government takeover of companies and industries and you have widespread unrest and concern in society.
If you look at approval polls, the people’s confidence in Congress is at all-time lows. They simply don’t trust the decision makers in Washington. That is why interest in “nullification”, “state’s rights”, and “state sovereignty” are gaining traction. People sense that the “rejection” of the federal government at the state level may be the best avenue to take. The following are examples of recent activity among the states along these lines:
In 2009-2010 thirty eight states introduced resolutions to reaffirm the principles of sovereignty under the Constitution and the 10th Amendment. These non-binding resolutions, often called “state sovereignty resolutions” do not carry the force of law. Instead, they are intended to be a statement to demand that the federal government halt its practices of assuming powers and imposing mandates upon the states for purposes not enumerated by the Constitution of the United States of America.
The Tenth Amendment Center, an organization seeking to promote the concept of state sovereignty, has gathered information on various actions taken by state legislatures in protest to federal actions. The organization is bipartisan. The movement has quietly gained support in a number of states.
§ State Sovereignty Resolutions ("10th Amendment Resolutions") – During 2009, "state sovereignty resolutions" or "10th Amendment Resolutions" were introduced in the legislatures of 38 states; in seven states the resolutions have already passed (Alaska, Idaho, North Dakota, South Dakota, Oklahoma, Louisiana, and Tennessee). As of April 2010, resolutions were introduced or reintroduced into the legislatures of 19 states; so far this year the resolution has passed in five states (Alabama, Kansas, South Carolina, Utah, and Wyoming).
§ State Sovereignty Bills ("10th Amendment Bills") – In 2010, (Georgia, Michigan, Missouri, New Hampshire, and Oklahoma) Tenth Amendment supporters have introduced "State Sovereignty Bills" (one step beyond the Resolution stage discussed above), which would mandate action against what the state legislature perceives as unconstitutional federal legislation; none have made it past the introductory stage.
§ Firearms Freedom Act Legislation and Federal Gun Laws Nullification – As of April 2010, resolutions have been introduced in the legislatures of 27 states that would "declare that any firearms made and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce among the states". The legislation passed in Montana and Tennessee in 2009 and in Arizona, Idaho, South Dakota, Utah, and Wyoming the following year. South Carolina has taken the issue one step further: in 2010 a bill was introduced which would effectively nullify all gun registration laws within the state.
§ National Health Care Nullification – As of March 2010, legislators in 30 states have introduced legislation which would declare certain provisions of any proposed national health care bill to be null and void within the state; the legislation passed in Arizona, Idaho, Utah, and Virginia. Such provisions include mandatory participation in such a system as well as preserving the right of a patient to pay a health care professional for treatment (and for the professional to accept it) outside of a single-payer system. Arizona's legislation passed as a proposed constitutional amendment, to be submitted to the voters in 2010. On February 1, 2010, the Virginia Senate took a stand against a key provision of a proposed federal health care overhaul, passing legislation declaring that Virginia residents cannot be forced to buy health insurance. On March 17, 2010, Idaho Governor C.L. "Butch" Otter signed a bill requiring the Attorney General to sue the Federal Government if Idaho residents are required to buy health insurance.
§ State Sovereignty and Federal Tax Funds Acts – As of March 2010, legislators in three states have introduced legislation which would require businesses (and in some cases, individuals) to remit their Federal tax payments to the state Treasurer (or equivalent body) for deposit into an escrow fund. If the state Legislature determined that a portion of the federal budget was not constitutional, or if the federal government imposed penalties or sanctions upon the state for creating the fund, then the money would be withheld.) None have advanced beyond the introductory stage.
§ "Sanctuary city" – another form of protest against enforcement of immigration laws, several United States cities have declared themselves "sanctuary cities", whereby they have ordered the local police department to specifically not work with United States Customs and Border Protection officials to arrest persons illegally residing within the boundaries of the city, and to not inquire as to a person's immigration status, even if the person was arrested.
§ “Immigration Enforcement”—Of course, in the last few months the Arizona Immigration Law has created a national stir on both sides of the issue. Arizona passed a law that basically gives local and state authorities the ability to enforce “federal immigration law” already on the books and to require documentable proof of citizenship be carried by individuals at all times. When the bill goes into effect any person pulled over or interrogated by authorities can be required to provide “their papers.”
We will pick up here next week in the conclusion of this series and also look at “state militias.” Stay tuned.
