State legislatures wrangling authority from overzealous Feds

[CrimsonandCreamForever]

http://www.nytimes.com/2010/03/17/us/17states.html?src=twt&twt=nytimes

What say you, Constitutional scholars? Will the states be able to win this battle or will the courts rule in favor of the Feds?

In any case, as a quote in the article suggests, some of these lawmakers need to realize what fundamental changes are happening in public sentiment. I HOPE voters use the elections this fall to send a strong message to Washington.

[sooner59]

I will certainly be interested to see how this turns out. I like the idea of the federal government having "some" power. I don't want a state to go nuts and say "Screw you we are making our own laws and decisions".....and basically threatening to become autonomous, because that could get out of hand. But I also like the thought of states having a certain amount of leverage over the federal government in some decision-making situations. Don't ask which, because I haven't thought about it that much yet. But I am interested to see what comes from all of this.

[Okla-homey]

http://www.nytimes.com/2010/03/17/us/17states.html?src=twt&twt=nytimes

What say you, Constitutional scholars? Will the states be able to win this battle or will the courts rule in favor of the Feds?

In any case, as a quote in the article suggests, some of these lawmakers need to realize what fundamental changes are happening in public sentiment. I HOPE voters use the elections this fall to send a strong message to Washington.

Article 6 of the US Constitution says Federal law trumps conflicting state law. For crying out loud. It couldn't be written more clearly, and you don't have to be a Constituional scholar or lawyer to understand the language:


"This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding."

That's why the states with segregated schools were compelled to stop, George Wallace in the schoolhouse door notwithstanding.

I think much of this state legislation purportedly nullifying Federal law is political grandstanding and largely symbolic.

[CrimsonandCreamForever]

Article 6 of the US Constitution says Federal law trumps conflicting state law. For crying out loud. It couldn't be written more clearly, and you don't have to be a Constituional scholar or lawyer to understand the language:



That's why the states with segregated schools were compelled to stop, George Wallace in the schoolhouse door notwithstanding.

I think much of this state legislation purportedly nullifying Federal law is political grandstanding and largely symbolic.

Ah, but Homey, there's that pesky Amendment 10:


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.

If Congress passes a law that doesn't have anything to do with the powers relegated to the United States by the Constitution, wouldn't that qualify as powers reserved by the States, and Congress is meddling in things in which they should have no business?

[Leroy Lizard]

I don't want a state to go nuts and say "Screw you we are making our own laws and decisions".....and basically threatening to become autonomous, because that could get out of hand.

I'm cool with it getting out of hand as long as the U.S. Constitution (not the whims of our federal legislatures) remains the law of the land.

[Okla-homey]

Ah, but Homey, there's that pesky Amendment 10:



If Congress passes a law that doesn't have anything to do with the powers relegated to the United States by the Constitution, wouldn't that qualify as powers reserved by the States, and Congress is meddling in things in which they should have no business?

Don't confuse passing a state law that affects something like marriage or probate that is not addressed in Federal law with passing a state law that conflicts with a Federal law. For example, Federal law says you have to file an income tax return. States can't pass a law saying you don't have to do so. OTOH, a state can pass a law governing state income tax seperate and apart from Federal income tax.

And here's a newsflash for you, the "necessary and proper" and "interstate commerce" clauses in the US Constitution have been FUBAR since the FDR administration. Thus, Congress now can safely draft laws that seem to violate the Tenth Amendment as long as they have even the slightest connection to "interstate commerce." At least that's been the Federal judiciary's position since about 1934.

That's how "whites only" in hotels, transportation and restaurants was banned. Hotels, restaurants, passenger trains, etc. are all vital to people's ability to move about the country -- which affects "interstate commerce." Neat trick huh?

[delhalew]

Arguements put forth during the Virginia ratification could lead one to believe that section pertains to federal law falling under the enumerated powers.
Besides which, in addition to the weed, the Real Id is another example of nullifation by the states.

[GKeeper316]

well on the one hand i love the us constitution, but on the other hand, i can see how the people of california should be allowed to pass laws in their state saying possessing a small amount of marijuana isnt an offense that should land someone in a federal pen which should be reserved for violent offenders or those who have royally screwed a bunch of people out of their life savings (bernie madoff).

its an interesting debate. where do the states get to draw the line?

if one state passes a law that says 2 dudes can get married, full faith and credit dictates the all the other states must honor that union.

should the people of one state be allowed to dictate public policy in another state?

[delhalew]

The founders made it clear that the states are sovereign, and have the right to legislate themselves. When there seems to be a contradiction, you have to look to what the founders had to say on the issue. The 10th ammendment lays out the role of the states in relation to the federal government.

[Half a Hundred]

Don't confuse passing a state law that affects something like marriage or probate that is not addressed in Federal law with passing a state law that conflicts with a Federal law. For example, Federal law says you have to file an income tax return. States can't pass a law saying you don't have to do so. OTOH, a state can pass a law governing state income tax seperate and apart from Federal income tax.

And here's a newsflash for you, the "necessary and proper" and "interstate commerce" clauses in the US Constitution have been FUBAR since the FDR administration. Thus, Congress now can safely draft laws that seem to violate the Tenth Amendment as long as they have even the slightest connection to "interstate commerce." At least that's been the Federal judiciary's position since about 1934.

That's how "whites only" in hotels, transportation and restaurants was banned. Hotels, restaurants, passenger trains, etc. are all vital to people's ability to move about the country -- which affects "interstate commerce." Neat trick huh?

*cough*Lopez... Flores v. City of Boerne...*cough*

That being said, that they even heard the "privileges and immunities" argument in McDonald v. City of Chicago instead of sending it straight to the Slaughter-house means that this current SCOTUS isn't going to pay much attention to the Tenth Amendment jibber-jabber.

[jkjsooner]

And here's a newsflash for you, the "necessary and proper" and "interstate commerce" clauses in the US Constitution have been FUBAR since the FDR administration. Thus, Congress now can safely draft laws that seem to violate the Tenth Amendment as long as they have even the slightest connection to "interstate commerce." At least that's been the Federal judiciary's position since about 1934.



And that's been true for both conservative and liberal justices. Alito and Roberts have already had several opportunities to assert state's rights and have failed to do so. Neither showed much inclination to do so in their confirmation hearing either. If they do it now they're simply partisan hypocrits.

[jkjsooner]

Arguements put forth during the Virginia ratification could lead one to believe that section pertains to federal law falling under the enumerated powers.
Besides which, in addition to the weed, the Real Id is another example of nullifation by the states.

The feds (and supreme court) have made it clear that state law has not nullified federal drug laws. Obama has backed off a bit but Bush and Clinton were strong defenders of the DEA's rights in this area - which is quite interesting considering their histories with drug use.

Speaking of, this is three Presidents in a row who have a history of drug use. 18 years ago it was a big deal that Clinton had smoked pot (but not inhaled) and now we've had two former coke users. That would have never happened 20 years ago.

[delhalew]

Apparently we need to go back to straight edgers. The whole dope smoking, coke fiend thing hasn't served us well. psst...barry...barry! you got dat booger suger?

[Boarder]

The founders made it clear that the states are sovereign, and have the right to legislate themselves. When there seems to be a contradiction, you have to look to what the founders had to say on the issue. The 10th ammendment lays out the role of the states in relation to the federal government.
The founders saw the carnage of having an Articles of Confederation with a weak national government that hoped the states would work together. They knew they had to do something to nip it.

[delhalew]

The founders saw the carnage of having an Articles of Confederation with a weak national government that hoped the states would work together. They knew they had to do something to nip it.

I hope you don't consider your post and mine mutually exclusive.

[delhalew]

The key to this issue lies in here
http://www.infoplease.com/ce6/history/A0827416.html

Kentucky Resolutions of 1798

Authored by Thomas Jefferson in protest to the Alien and Sedition Acts.

1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes - delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

[delhalew]

Bueller?

[Boarder]

I understand Jefferson's feelings, but I am of the opinion that most sided with Hamiltonian views that favored mostly a professional, well-trained, and powerful government. They let the Bill of Rights in there just to give some specifics (and I do applaud that).

[TheHumanAlphabet]

The secession begins...

[delhalew]

I understand Jefferson's feelings, but I am of the opinion that most sided with Hamiltonian views that favored mostly a professional, well-trained, and powerful government. They let the Bill of Rights in there just to give some specifics (and I do applaud that).

It wasn't just Jefferson. James Madison prepared a similar resolution for Virginia. You better believe our founders and framers valued states rights and sovereignty over all else. Each state is an independent STATE. Read nation.

http://www.constitution.org/cons/virg1798.htm

RESOLVED, That the General Assembly of Virginia, doth unequivocably express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.

That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it's existence and the public happiness.

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.

That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the "Alien and Sedition Acts" passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; and the other of which acts, exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.

That this state having by its Convention, which ratified the federal Constitution, expressly declared, that among other essential rights, "the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States," and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution; it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the Rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other.

That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.

That the Governor be desired, to transmit a copy of the foregoing Resolutions to the executive authority of each of the other states, with a request that the same may be communicated to the Legislature thereof; and that a copy be furnished to each of the Senators and Representatives representing this state in the Congress of the United States.

Agreed to by the Senate, December 24, 1798.

[Boarder]

I understand Jefferson's feelings, but I am of the opinion that most sided with Hamiltonian views that favored mostly a professional, well-trained, and powerful government. They let the Bill of Rights in there just to give some specifics (and I do applaud that).

If I had to categorize the "founders" I'd do it on the Hamiltonian side. Sure, there were those of dissenting opinion, but I don't believe it to be the majority. Most saw the wreck of Confederation and lost their skeeredness.

[delhalew]

If I had to categorize the "founders" I'd do it on the Hamiltonian side. Sure, there were those of dissenting opinion, but I don't believe it to be the majority. Most saw the wreck of Confederation and lost their skeeredness.

Madison was criticized for being a nationalist, as opposed to a federalist. Even he was clear that the union, being voluntary and to serve a very explicit set of goals, must in the end be beholden to the states.

In other words, the progressives of that time realized the folly of letting a federal government run ruffshod over the states. The federal government existed only for the benefit of the states as declared by the states.

[delhalew]

Also, the articles of confederation were a first timid step toward governance. There was nowhere near the effort put forth as with the Constitution. In the end it was trade difficulties that sunk the articles of confederation. That does not mean the interstate commerce clause should be the "screw the people" trapdoor.

[AlbqSooner]

That does not mean the interstate commerce clause should be the "screw the people" trapdoor.

Do you intend to argue the "is" or the "ought"?

[delhalew]

Lol. Ought.