It’s safe to say that every one of the fifty States have been victims of overreach by the federal government. States that tend to be more liberal openly lament the federal government’s intrusion on what they perceive to be their power to regulate immigration, religious activity, and drug use. States that tend to lean conservative rant and file suits over the Affordable Care Act, Environmental Protection Agency regulations, and school curriculum. Both tend to believe that the federal government is overreaching when their sacred cows are led to slaughter and that they aren’t so much overreaching when the other guy’s sheep are being fleeced. Meanwhile, all fifty struggle annually at budget time to figure out how to find the money to fund the many federal mandates that are otherwise unfunded. Yes, everyone understands that federal overreach is a problem.
But, it’s fairly easy to identify problems, isn’t it? You have a real problem breathing during the spring and fall? Many times, you need oxygen therapy to get you through May and September. Clearly you have allergies. That’s a fairly easy problem to identify. You take all kinds of decongestants and expectorants to alleviate the symptoms. But a million other people have allergies and don’t need oxygen to get through May and September.
Maybe a better solution would be to look for the real reason why you suffer so much more than others. Ah, that cigarette! That’s the culprit. That is the reason you have to resort to life-saving devices twice a year. Stop that and you can take a pill and join the rest of humanity, am I right?
So, with respect to the overreach of the federal government, can balanced budgets, term limits, expanding the commerce clause, and the numerous other suggested tweaks to the Constitution fix the underlying issue? No! These are mere pills, and in extreme cases oxygen tanks, designed to alleviate symptoms of the larger issue. Let’s get to the heart of the matter and find that fatal cigarette.
Yes, there is a single underlying issue that actually causes (or at least allows) the federal government to arbitrarily enforce powers not enumerated to it. That issue is the total degradation of the previously understood balance of power between States and the federal government. Did I say “previously understood”? Yes. Recall that a mere 80 years ago, the American people, the State governments, and most importantly the federal government itself understood that it was not a power within the scope of the central government to abolish alcoholic beverages. Yes, we all knew that it would take a Constitutional amendment approved by three-fourths of the States to make such a wide-ranging decision for all fifty. Now, a scant eighty years later, that same federal government that could not regulate away the “devil’s brew” is perfectly willing and able to regulate away a style of light bulb and a three-gallon toilet. And not even with a federal law. But with merely the stroke of a pen in a bureaucratic office somewhere.
This underlying disease, the complete disintegration of American federalism, is at the heart of all the symptoms. To cure the symptoms, we already know the best solution is to cure the underlying disease. And the underlying disease, we know, is not cured a mere symptom at a time as in the days of leeches and elixirs. It is cured only by a direct attack on the dangerous virus that causes the illness.
Enter the only comprehensive solution to the problem that I have met to date (short of the outright civil war prescribed by too many) – the State Powers Amendment to the Constitution of the United States. This much-needed Twenty-Eighth Amendment will be discussed in depth in upcoming blogs. But, in this introduction, I will present a summary of that amendment.
This is a perfect spot for me to say that you will never, ever hear me use the term “State’s Rights”. States don’t have rights. States only have powers. No level of government possesses rights. Government is totally about power. So, the proper term is “State powers”. It’s the term used in the Tenth Amendment. If it’s good enough for Madison, it’s good enough for us.
If the Tenth Amendment is the tiger of State Powers; clearly stating that every power not enumerated to the federal government within the Constitution belongs to the States, and respectively, to the people; then it is a toothless tiger. For, nowhere within the Constitution is there any mention of the method the States have at their disposal to enforce or maintain this power. States, and States alone, are empowered to change the Constitution. Yet, at no point is there a provision for how States should respond when the federal government acts in a singular specific way to overreach or overstate its specifically delegated power and authority. Clearly, I think, you cannot and should not change the Constitution every time the federal government errs. So, what are the States to do?
Yet another suggestion has been “just nullify the law/rule/finding/regulation.” Aside from the questionable Constitutional legitimacy of single-state nullification, what are the practical applications? How does a State alone stop the IRS from collecting a penalty from the refund of a citizen who chose not to buy “approved” health insurance? What is the State of Colorado prepared to do when the Drug Enforcement Agency swoops in on a farmer, seizes his crop, and sends him to prison for 20 years? And, let’s try to “nullify” the federal tariff on steel. Nullification might work if enough States joined together, even without a Constitutional mandate such as the State Powers Amendment. The Andrew Jackson coalition thought so. How’d that work for them? Without a Constitutional prerogative to actually put the power of the tenth amendment into practical form, nullification is simply the act of saying “Well, we don’t like it.” And saying it isn’t enough; talk is cheap.
The State Powers Amendment is an amendment to the Constitution of the United States that puts teeth in the Tenth Amendment tiger. It says that when a representative majority of States move together to annul a federal law, regulation, or federal court opinion – that law, regulation, or opinion is null and void. The Constitutionality of such a move could not be challenged. The affected rule just disappears.
A resolution calling on the Congress of the United States to propose this amendment has been introduced again this year in Missouri. Identical concurrent resolutions in the State House and State Senate are headed to committees now. Missouri invites every State who has been concerned about federal overreach, federal unfunded mandates, and the abuse of federal power to join her in the fight.
In the next few blog posts, we will dive deeply into the resolution, try to understand why this approach to getting a proposal to the States for ratification is the most advantageous approach, and how your State can get on board.
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American Federalism, a definition.
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” (Emphasis added) James Madison, Federalist 45
A worthy mission.