December 15th is Tenth Amendment Day.
Most people ask, ‘What is the 10th Amendment?’ And they want to know what it’s for.
From my perspective, it’s the people’s power to govern. In the Bill of Rights, the Tenth Amendment reads:
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.”
The powers that aren’t given explicitly, expressly or exclusively to one government or the other — belong to the people.
Some say the amendment is validation that states are not always required to enforce federal acts. The Tenth Amendment Center notes it’s the reason illegal Cannabidiol (CBD) is “everywhere.”
“People in the cannabis industry who argue that CBD is legal over the counter generally rely on the ‘hemp amendment’ tacked onto the 2014 farm bill,” wrote Mike Maharrey. “State action has effectively nullified cannabis prohibition.”
But it’s a slippery slope. The federal government has been getting around the Tenth Amendment to direct the states through the Commerce Clause.
When that happened, many people praised the court’s decision. But today, it’s impossible to overhear political conversation where someone doesn’t express: “the government (meaning the Fed) controls everything.”
My inner James Madison sharpens his quill.
Federal Power Tugs States Through Interstate Commerce Powers
Brown County Junior High School’s 8th students recently discussed the 10th Amendment to the United States Constitution as they prepared for the We the People competition in Indiana.
“We have this tug of war between the state governments and the national governments. Who really maybe has more powers?” asked teacher Michael Potts of his students, according to the BC Democrat.
“The states,” the students answered.
“But what powers do the states actually have outside of federal government control?”
“Regulating trade inside the state?” a student asked.
“You have the Commerce Clause on that. What’s the court case?” Potts asked.
If you said, “Heart of Atlanta,” you’d be right. And I’d be impressed.
When the Heart of Atlanta Motel in Atlanta, Georgia, refused to accept Black Americans, the federal government sought to prevent the motel from racial discrimination under Title II, according to the Supreme Court of the United States multimedia archive housed at Chicago-Kent College of Law. Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public accommodation — if their operations affected commerce.
In a unanimous decision authored by Justice Clark, the Court held the government could enjoin the motel from discriminating on the basis of race under the Commerce Clause. Since the motel was positioned near Interstates 75 and 85 and received most of its business from outside Georgia, this showed that it had an impact on interstate commerce, which is all that is needed to justify Congress in exercising the Commerce Clause power.”
The federal government has stretched the Commerce Clause every which way to eclipse the Tenth Amendment and exert its will ever since.
States Pull Back
The New American recently outlined how the Tenth Amendment was cited throughout the argument used by the U.S. District Court for the Southern District of New York in its decision to block the Trump Administration from withholding federal funds from cities and states that “refuse to cooperate with federal immigration authorities in tracking down illegal aliens.”
If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken,” wrote Judge Edgardo Ramos (page 31) in the recent decision.
Governments that feel their funding being pulled can cite this case, and others like it.
The decision, according to author R. Cort Kirkwood, runs counter to the 2012 Supreme Court decision in Arizona et al v. United States, that the state’s immigration statute could not undermine federal law.
“So which is it? Under the Constitution, do the states regulate immigration? Or does the federal government?” wrote Kirkwood.
Then there’s the Tenthers, a movement that finds federal laws unconstitutional. In 2011, The Atlantic took the movement to task arguing that “the culmination of decades of sustained, informed national demand by the people” had its purpose in doing things like banning child labor from coast to coast. The Tenthers, Garrett Epps wrote, longed for the Articles of Confederation, wherein:
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.
Epps deemed the idea that the Tenth protects states’ rights a Constitutional myth.
While the argument holds for the discussion about how child labor came to be banned, calling states’ rights protections under the Tenth a myth doesn’t sit quite right with me, either.
Federal representation has been interested in figuring out a way to gain some ground back under the Tenth. A proposal — H.J. Res. 100 — to repeal federal laws and actions was introduced in 2015, and in the works long before:
“Upon ratification of this Amendment, any Presidential Executive order, rule, regulation, other regulatory action, or administrative ruling issued by a department, agency, or instrumentality of the United States may be repealed in whole or in part by the several States. Such repeal shall be effective when the legislatures of two-thirds of the several States approve resolutions for this purpose that particularly describe the same provision or provisions of the Executive order, rule, regulation, other regulatory action, or administrative ruling to be repealed.”
Through this legislative proposal, the will of the people in 34 states would have some collective veto power — executive orders and more.
States — propelled by the will of the people in them — have been known to make laws in contrary to federal ones. A recent example is marijuana reform exists in more than half the states, while it retains Schedule 1 classification federally.
There are other ways states band their will together to argue against federal power — their attorney generals.
The Columbus Dispatch noted that Ohio Attorney General Mike DeWine will support Arkansas in its bid to get the U.S. Supreme Court to overturn a lower court overturning state regulations of pharmacy benefit managers. DeWine with state attorneys general in at least 24 states plus the District of Columbia, will file an amicus curiae, or friend-of-the-court brief.
The Brown v. Board of Education decision, which led to desegregation of schools, relied heavily on them.
So, there is some life yet to this Tenth Amendment — one worthy of celebrating.
It guarantees our right to argue with federal government decisions in more than whispers on the wind or bold Tweets. The Tenth Amendment still gives the people the right to exert, and sometimes win governing power.
Congressman Rob Bishop — while I personally believe you are sitting on the wrong side of the WOTUS rule — this one is for you. It might be that 34 states agree with me — whispers grow across state wetlands.