Posted on 07/23/2009 8:42:41 AM PDT by cowtowney
Rick Perry just stated on Mark Davis' show that Texas may use the 10th Amendment to reject Obamacare.
Go Rick.
Kinky didn't try to mandate that all young Texas females be forced to have the Giardasil vaccination.
Justice Brewer in State of Kansas v. State of Colorado, 206 U.S. 46 (1907), establishes that the federal government has no Constitutional claim to power to legislate on issues of a “national character” beyond the specifically enumerated powers. Such undelegated powers are retained by “all the people of the states”:
“...counsel for the government relies upon ‘the doctrine of sovereign and inherent power;’ adding, ‘I am aware that in advancing this doctrine I seem to challenge great decisions of the court, and I speak with deference.’ His argument runs substantially along this line: All legislative power must be vested in either the state or the national government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that state; consequently all powers which are national in their scope must be found vested in the Congress of the United States. But the proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the 10th Amendment. This Amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the national government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if, in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act. It 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 argument of counsel ignores the principal factor in this article, to wit, ‘the people.’ Its principal purpose was not the distribution of power between the United States and the states, but a reservation to the people of all powers not granted. The preamble of the Constitution declares who framed it,-’we, the people of the United States,’ not the people of one state, but the people of all the states; and article 10 reserves to the people of all the states the powers not delegated to the United States. The powers affecting the internal affairs of the states not granted to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, and all powers of a national character which are not delegated to the national government by the Constitution are reserved to the people of the United States. The people who adopted the Constitution knew that in the nature of things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and, after making provision for an amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. This article 10 is not to be shorn of its meaning by any narrow or technical construction, but is to be considered fairly and liberally so as to give effect to its scope and meaning. As we said, construing an express limitation on the powers of Congress, in Fairbank v. United States, 181 U.S. 283, 288, 45 S. L. ed. 862, 865, 21 Sup. Ct. Rep. 648, 650:
“’We are not here confronted with a question of the extent of the powers of Congress, but one of the limitations imposed by the Constitution on its action, and it seems to us clear that the same rule and spirit of construction must also be recognized. If powers granted are to be taken as broadly granted and as carrying with them authority to pass those acts which may be reasonably necessary to carry them into full execution; in other words, if the Constitution in its grant of powers is to be so construed that Congress shall be able to carry into full effect the powers granted, it is equally imperative that, where prohibition or limitation is placed upon the power of Congress, that prohibition or limitation should be enforced in its spirit and to its entirety. It would be a strange rule of construction that language granting powers is to be liberally construed, and that language of restriction is to be narrowly and technically construed. Especially is this true when, in respect to grants of powers, there is, as heretofore noticed, the help found in the last clause of the 8th section, and no such helping clause in respect to prohibitions and limitations. The true spirit of constitutional interpretation in both directions is to give full, liberal construction to the language, aiming ever to show fidelity to the spirit and purpose.’”
In the case of Carter v. Carter Coal Co., 298 U.S. 238 (1936), the Court had occasion to review the limits of the legislative power of Congress as is Constitutionally restricted to specifically enumerated powers. Justice Sutherland, in delivering the opinion of the Court made it clear that a national “general public interest” or promotion of “the general welfare” is insufficient authority to legislate, absent the legitimate authority of a specifically enumerated power:
...”Certain recitals contained in the act plainly suggest that its makers were of opinion that its constitutionality could be sustained under some general federal power, thought to exist, apart from the specific grants of the Constitution...the powers which Congress undertook to exercise are not specific but of the most general character-namely, to protect the general public interest and the health and comfort of the people, to conserve privately-owned coal, maintain just relations between producers and employees and others, and promote the general welfare, by controlling nation-wide production and distribution of coal. These, it may be conceded, are objects of great worth; but are they ends, the attainment of which has been committed by the Constitution to the federal government? This is a vital question; for nothing is more certain than that beneficent aims, however great or well directed, can never serve in lieu of constitutional power.”
“The ruling and firmly established principle is that the powers which the general government may exercise are only those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers. Whether the end sought to be attained by an act of Congress is legitimate is wholly a matter of constitutional power and not at all of legislative discretion. Legislative congressional discretion begins with the choice of means and ends wit the adoption of methods and details to carry the delegated powers into effect. The distinction between these two things-power and discretion-is not only very plain but very important. For while the powers are rigidly limited to the enumerations of the Constitution, the means which may be employed to carry the powers into effect are not restricted, save that they must be appropriate, plainly adapted to the end, and not prohibited by, but consistent with, the letter and spirit of the Constitution. McCulloch v. Maryland, 4 Wheat. 316, 421. Thus, it may be said that to a constitutional end many ways are open; but to an end not within the terms of the Constitution, all ways are closed.
“The proposition, often advanced and as often discredited, that the power of the federal government inherently extends to purposes affecting the Nation as a whole with which the states severally cannot deal or cannot adequately deal, and the related notion that Congress, entirely apart from those powers delegated by the Constitution, may enact laws to promote the general welfare, have never been accepted but always definitely rejected by this court. Mr. Justice Story, as early as 1816, laid down the cardinal rule, which has ever since been followed-that the general government ‘can claim no powers which are not granted to it by the constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.’ Martin v. Hunter’s Lessee, 1 Wheat. 304, 326. In the Framers Convention, the proposal to confer a general power akin to that just discussed was included in Mr. Randolph’s resolutions, the sixth of which, among other things, declared that the National Legislature ought to enjoy the legislative rights vested in Congress by the Confederation, and ‘moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.’ The convention, however, declined to confer upon Congress power in such general terms; instead of which it carefully limited the powers which it thought wise to intrust to Congress by specifying them, thereby denying all others not granted expressly or by necessary implication. It made no grant of authority to Congress to legislate substantively for the general welfare, United States v. Butler, supra, 297 U.S. 1, at page 64, 56 S.Ct. 312, 102 A.L.R. 914; and no such authority exists, save as the general welfare may be promoted by the exercise of the powers which are granted. Compare Jacobson v. Massachusetts, 197 U.S. 11, 22, 25 S.Ct. 358, 3 Ann.Cas. 765.”
Stated Justice O’Connor for the Court in New York v. United States, 505 US 144 (1992):
“While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions. See Coyle v. Oklahoma, 221 U.S. 559, 565 (1911). The Court has been explicit about this distinction. “Both the States and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the States.” Lane County v. Oregon, 7 Wall., at 76 (emphasis added)...”
...”The inadequacy of this [Confederate] governmental structure was responsible in part for the Constitutional Convention. Alexander Hamilton observed: “The great and radical vice in the construction of the existing Confederation is in the principle of legislation for states or governments, in their corporate or collective capacities, and as contradistinguished from the individuals of whom they consist.” The Federalist No. 15, p. 108 (C. Rossiter ed. 1961). As Hamilton saw it, “we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens—the only proper objects of government.” Id., at 109. The new National Government “must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations . . .The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals.” Id., No. 16, p. 116.”
...”In providing for a stronger central government, therefore, the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States. As we have seen, the Court has consistently respected this choice. We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. E. g., FERC v. Mississippi, 456 U. S., at 762-766; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S., at 288-289; Lane County v. Oregon, 7 Wall., at 76. The allocation of power contained in the Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce.”
As clarified in Hodel v. Virginia Surface Mining & Recl. Assn., 452 U.S. 264 (1981):
“As the District Court itself acknowledged, the steep-slope provisions of the Surface Mining Act govern only the activities of coal mine operators who are private individuals and businesses. Moreover, the States are not compelled to enforce the steep-slope standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever. If a State does not wish to submit a proposed permanent program that complies with the Act and implementing regulations, the full regulatory burden will be borne by the Federal Government. Thus, there can be no suggestion that the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. Cf. Maryland v. EPA, 530 F.2d 215, 224-228 (CA4 1975), vacated and remanded sub nom. EPA v. Brown, 431 U.S. 99 (1977); District of Columbia v. Train, 172 U.S. App. D.C. 311, 330-334, 521 F.2d 971, 990-994 (1975), vacated and remanded sub nom. EPA v. Brown, 431 U.S. 99 (1977); Brown v. EPA, 521 F.2d 827, [452 U.S. 264, 289] 837-842 (CA9 1975), vacated and remanded, 431 U.S. 99 (1977). The most that can be said is that the Surface Mining Act establishes a program of cooperative federalism that allows the States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs. See In re Permanent Surface Mining Regulation Litigation, 199 U.S. App. D.C. 225, 226, 617 F.2d 807, 808 (1980). In this respect, the Act resembles a number of other federal statutes that have survived Tenth Amendment challenges in the lower federal courts.
“Appellees argue, however, that the threat of federal usurpation of their regulatory roles coerces the States into enforcing the Surface Mining Act. Appellees also contend that the Act directly regulates the States as States because it establishes mandatory minimum federal standards. In essence, appellees urge us to join the District Court in looking beyond the activities actually regulated by the Act to its conceivable effects on the States’ freedom to make decisions in areas of “integral governmental functions.” And appellees emphasize, as did the court below, that the Act interferes with the States’ ability to exercise their police powers by regulating land use.
“Appellees’ claims accurately characterize the Act insofar as it prescribes federal minimum standards governing surface coal mining, which a State may either implement itself or else yield to a federally administered regulatory program. To object to this scheme, however, appellees must assume that the Tenth Amendment limits congressional power to [452 U.S. 264, 290] pre-empt or displace state regulation of private activities affecting interstate commerce. This assumption is incorrect.
“A wealth of precedent attests to congressional authority to displace or pre-empt state laws regulating private activity affecting interstate commerce when these laws conflict with federal law. See, e. g., Jones v. Rath Packing Co., 430 U.S. 519, 525-526 (1977); Perez v. Campbell, 402 U.S. 637, 649-650 (1971); Florida Lime and Avocodo Growers, Inc. v. Paul, 373 U.S. 132, 141-143 (1963); Bethlehem Steel Co. V. New York State Labor Relations Bd., 330 U.S. 767, 772-776 (1947); Hines v. Davidowitz, 312 U.S. 52, 67-68 (1941). Moreover, it is clear that the Commerce Clause empowers Congress to prohibit all - and not just inconsistent - state regulation of such activities. See, e. g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973); Campbell v. Hussey, 368 U.S. 297 (1961); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947); Transit Comm’n v. United States, 289 U.S. 121 (1933). Although such congressional enactments obviously curtail or prohibit the States’ prerogatives to make legislative choices respecting subjects the States may consider important, the Supremacy Clause permits no other result. See Chicago & North Western Transp. Co. v. Kalo Brick & Tile co., 450 U.S. 311, 317-319 (1981); Sanitary District v. United States,, 266 U.S. 405, 425-426 (1925); The Minnesota Rate Cases, 230 U.S. 352, 399 (1913); Gibbons v. Ogden, 9 Wheat., at 211. As the Court long ago stated: “It is elementary and well settled that there can be no divided authority over interstate commerce, and that the acts of Congress on that subject are supreme and exclusive.” Missouri Pacific R. Co. v. Stroud, 267 U.S. 404, 408 (1925).
“Thus, Congress could constitutionally have enacted a statute prohibiting any state regulation of surface coal mining. We fail to see why the Surface Mining Act should become constitutionally suspect simply because Congress chose to allow the States a regulatory role. Contrary to the assumption by both the District Court and appellees, nothing in [452 U.S. 264, 291] National League of Cities suggests that the Tenth Amendment shields the States from pre-emptive federal regulation of private activities affecting interstate commerce. To the contrary, National League of Cities explicitly reaffirmed the teaching of earlier cases that Congress may, in regulating private activities pursuant to the commerce power, “pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress . . . .” 426 U.S., at 840. The only limitation on congressional authority in this regard is the requirement that the means selected be reasonably related to the goal of regulating interstate commerce. Ibid. We have already indicated that the Act satisfies this test.
“This conclusion applies regardless of whether the federal legislation displaces laws enacted under the States’ “police powers.” The Court long ago rejected the suggestion that Congress invades areas reserved to the States by the Tenth Amendment simply because it exercises its authority under the Commerce Clause in a manner that displaces the States’ exercise of their police powers. See Hoke v. United States, 227 U.S. 308, 320-323 (1913); Athanasaw v. United States, 227 U.S. 326 (1913); Cleveland v. United States, 329 U.S., at 19; United States v. Darby, 312 U.S., at 113-114; United States v. Wrightwood Dairy Co., 315 U.S., at 119. Cf. United States v. Carolene Products Co., 304 U.S. 144, 147 (1938) (”it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states”); accord, FPC v. National Gas Pipeline Co., [452 U.S. 264, 292] 315 U.S. 575, 582 (1942); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919); Seven Cases v. United States, 239 U.S. 510, 514 (1916). This Court has upheld as constitutional any number of federal statutes enacted under the commerce power that pre-empt particular exercises of state police power. See, e. g., United States v. Walsh, 331 U.S. 432 (1947) (upholding Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301-392); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding National Labor Relations Act, 29 U.S.C. 151-168); United States v. Darby, supra (upholding Fair Labor Standards Act, 29 U.S.C. 201-219). It would therefore be a radical departure from long-established precedent for this Court to hold that the Tenth Amendment prohibits Congress from displacing state police power laws regulating private activity. Nothing in National League of Cities compels or even hints at such a departure.
“In sum, appellees’ Tenth Amendment challenge to the Surface Mining Act must fail because here, in contrast to the situation in National League of Cities, the statute at issue regulates only “individual businesses necessarily subject to the dual sovereignty of the government of the Nation and the State in which they reside.” National League of Cities v. Usery, 426.”
Justice O’Connor in New York v. United States 505 US 144 (1992) discussed methods by which Congress could “encourage” a State to regulate according to its wishes. Along with “cooperative federalism,” Congress may employ the “spending power” to achieve its aims:
“...the Constitution authorizes Congress “to pay the Debts and provide for the . . . general Welfare of the United States.” Art. I, 8, cl. 1. As conventional notions of the proper objects of government spending have changed over the years, so has the ability of Congress to “fix the terms on which it shall disburse federal money to the States...”
“...’Congress may attach conditions on the receipt of federal funds.’ South Dakota v. Dole, 483 U. S., at 206. Such conditions must (among other requirements) bear some relationship to the purpose of the federal spending, id., at 207-208, and n. 3; otherwise, of course, the spending power could render academic the Constitution’s other grants and limits of federal authority. Where the recipient of federal funds is a State, as is not unusual today, the conditions attached to the funds by Congress may influence a State’s legislative choices. See Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 Colum. L. Rev. 847, 874-881 (1979). Dole was one such case: The Court found no constitutional flaw in a federal statute directing the Secretary of Transportation to withhold federal highway funds from States failing to adopt Congress’ choice of a minimum drinking age. Similar examples abound. See, e. g., Fullilove v. Klutznick, 448 U.S. 448, 478-480 (1980); Massachusetts v. United States, 435 U.S. 444, 461-462 (1978); Lau v. Nichols, 414 U.S. 563, 568-569 (1974); Oklahoma v. Civil Service Comm’n, 330 U.S. 127, 142-144 (1947).”
..”if a State’s citizens view federal policy as sufficiently contrary to local interests, they may elect to decline a federal grant...”
In South Dakota v. Dole, 483 U.S. 203 (1987), Chief Justice Rehnquist outlined the limitations upon Congressional conditions imposed upon State receipt of funds under the federal “spending power”:
“...The breadth of this power was made clear in United States v. Butler, 297 U.S. 1, 66 (1936), where the Court, resolving a longstanding debate over the scope of the Spending Clause, determined that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” Thus, objectives not thought to be within Article I’s “enumerated legislative fields,” id., at 65, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.
“The spending power is of course not unlimited, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, and n. 13 (1981), but is instead subject to several general restrictions articulated in our cases. The first of these limitations is derived from the language of the Constitution itself: the exercise of the spending power must be in pursuit of “the general welfare.” See Helvering v. Davis, 301 U.S. 619, 640-641 (1937); United States v. Butler, supra, at 65. In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. Helvering v. Davis, supra, at 640, 645. Second, we have required that if Congress desires to condition the States’ receipt of federal funds, it “must do so unambiguously . . ., enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Pennhurst State School and Hospital v. Halderman, supra, at 17. Third, our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated “to the federal interest in particular national projects or programs.” Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion). See also Ivanhoe Irrigation Dist. v. McCracken, supra, at 295, (”[T]he Federal Government may establish and impose reasonable conditions relevant to federal interest in the project and to the over-all objectives thereof”). Finally, we have noted that other constitutional provisions may provide an independent bar to the conditional grant of federal funds. Lawrence County v. Lead-Deadwood School Dist., 469 U.S. 256, 269-270 (1985); Buckley v. Valeo, 424 U.S. 1, 91 (1976) (per curiam); King v. Smith, 392 U.S. 309, 333, n. 34 (1968).”
...”These cases establish that the “independent constitutional bar” limitation on the spending power is not, as petitioner suggests, a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly. Instead, we think that the language in our earlier opinions stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress’ broad spending power....”
That makes it clear that the states can do that. I will have to look up the back story on the cases you cited since they seem to be examples (in practice) of when the state had invoked, successfully, the 10th Amendment.
True.
Please ~ping~ me to articles relating to the 10th Amendment/States Rights so I can engage the pinger.
I've stopped scouring threads and unilaterally adding names to the ping list, so if you want on or off the list just say so.
Additional Resources:
Tenth Amendment Chronicles Thread
Tenth Amendment Center
The Right Side of Life/State Initiatives
Sovereign States
Find Law(Brief narrative on 10th Amendment)
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If Rick Perry becomes a real conservative and is against amnesty and illegal immigration he might be President.
If I were him, I would pick any and every fight I could with Obama.
Prayers for Governor Perry. May all the other Governors begin uniting to defeat the river of .... coming out of Washington D.C.
Rick found his conservative roots about the time it looked like he wouldn’t get re-elected.
Excellent point. The SEC is trying to regulate insurance companies by calling annuities securtities. They have lost the first round.
State regulators of insurance companies have done a MUCH better job than the SEC has done regulating the secs industries from crooks like Bernie and the hedge funds that own Congress.
** Rick Perry’s strategy to win the governor election is to be the “Right” of RINO Kay Bailey Hutchinson.**
Shouldn’t be TOO HARD!!
** Rick Perry’s strategy to win the governor election is to be the “Right” of RINO Kay Bailey Hutchinson.**
Shouldn’t be TOO HARD!!
How are land prices in TX?
FWIW, I actually had about a 10 minute sit down with the governor a while back. I came away from our chat with a clear impression that he has the right stuff. He in fact IS a conservative but like so many conservatives, especially those we send to DC who catch Potomac Fever, he is susceptible to broadsides from the dinomedia, academia, Dim shills(but I repeat myself), etc. Amongst other things, we actually discussed the domestic media a bit and while he was initially reticent about offering any criticism of the media, he reluctantly agreed, after some polite badgering, they have been instrumental in contributing to the wrong turn the country has taken.
Not bad I thought, coming from a politician of some stature.
Governor Perry actually has a goodly number of other governors contributing to the blowback. One in particular I meant to post on my ping reply along the very same lines:
Sounds good. He needs to be strong and seize the conservative mantle. The good guys have a hard job because the left wing news media, smear merchants, etc etc.
Still want to take the feral government to feral court, eh? In case you hadn’t noticed, all branches of the feral government have evolved into partners in Constitutional crime. I can all but guarantee there will be no relief from that venue. At the very least The People, via their States need to have a come to Jesus meeting with the federales. Failing that, some good old fashioned frontier justice may be in order.
Wow!
I’m SURE that tomorrow morning I’ll read a story about The Schwarz doing the same thing in California, right?
/severe sarcasm
Here’s the article you were looking for. I’m going to download Mark Davis’s podcast tomorrow... I hope Perry is on the highlight recording.
I’ve had my problems with Perry........the TTC and the weird Gardisil thing was just kooky.......but he has regained a good bit of my interest with his latest actions.
We’ve already passed the state bill to eliminate ourselves from any further Federal interstate gun control initiatives. I wasn’t wild about Perry’s “secession” statements a few months ago but I am all for enacting another act that shields us from the King ‘RAT and his wild-a$$ed health takeover plans.
God bless Texas. And, unless Perry winds up being a cross-dressing, homosexual, coke addict, pedophile, socialist in disguise he’ll be getting my vote next time around.
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