The intrusion of the federal government into Americans' daily lives has become more extensive than the Founding Fathers ever intended.
From burdensome taxes to excessive regulations, my fellow Oklahomans frequently share with me their frustration with government interference. Restoring the principles of limited government will be a primary focus of the next Congress, and legislation I have introduced to protect states' 10th Amendment rights would help achieve this important objective. The 10th 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.
The most prominent recent example of government overreach is, of course, Obamacare. Beyond the increased costs, onerous regulations and diminished access to care the law is sure to bring about, there are constitutional concerns, as well. Many question the constitutionality of the individual mandate provision, which would require every American to purchase health insurance or face a penalty.
I have joined over 50 other House conservatives in signing on to an Amicus Brief supporting the legal challenge brought by 20 states on grounds that the individual mandate violates the Commerce Clause in the Constitution. While we work to fully repeal and replace this misguided policy, the legal challenge process is another opportunity to overturn the law before the most damaging provisions go into effect.
However, the law itself is only part of the problem. After the legislative process ends, the threats to states' rights continue during the rule-making period, in which bureaucrats in federal agencies develop regulations for actually implementing laws. However, during the New Deal, Congress enacted a range of federal regulatory programs, such as Social Security, designed to stabilize the economy, protect workers, and promote the general welfare. Constitutional law. After a brief reemergence, the Tenth Amendment went back underground in , before returning, apparently to stay, in Good reasons existed for the disappearance of the Tenth Amendment.
The Tenth Amendment suffered from the assertion that the powers reserved to the states included the power to enforce racial inequality. Politically, socially, and morally, the Tenth Amendment seemed to speak to the past, not the present or the future.
Along similar lines, the Court invoked the Eleventh Amendment to limit the ability of Congress to subject states to suit in federal court, even for claims that the states were violating federal law. Even while reinvigorating the Tenth Amendment in New York v. In its current incarnation, however, the function of the Tenth Amendment is to impose a non-textual limit on the use of federal power. The Court has held that even when the federal government is regulating interstate commerce, as authorized by Article I, section 8 of the Constitution, the federal government still may not invade certain protected enclaves of state sovereignty.
For example, in New York v. United States , the Court held that the Tenth Amendment prohibited Congress from enacting a comprehensive plan for the disposal of radioactive waste that required states to assume responsibility for the disposal of waste within their borders. That reading runs counter to the text of the Tenth Amendment. By way of policy justification, the Court has suggested that it must draw clear lines between domains of state and federal authority.
The blurring of federal and state functions, the Court asserts, would undermine the accountability of government officials. The citizens would not know to which government entity they should address policy concerns. Scholars have questioned the empirical underpinnings of this line of argument. Are people really so easily confused? Moreover, given the extensive overlap of state and federal power in so many areas, how important is it that some area of state exclusivity be maintained?
Citizens would need a fairly sharp sense of discernment to know which would be the few areas in which the federal government was immune from responsibility. The basic problem is that the language of the Tenth Amendment appears to assume a clear demarcation of state and federal domains of authority. The areas of society subject to federal regulation have grown significantly over time. The good news is that federalism is alive and well in the United States today.
States remain vital centers of policy debate and experimentation. State and federal power intersects and overlaps in many ways that promote the well-being of the people. Federal and state courts and legislatures engaged in a dialogue that eventually resulted in the recognition of a national right.
However, this federalism does not rely on outdated notions of exclusive areas of state sovereignty. For the moment, these exclusive state domains remain relatively small, offering little resistance to the exercise of enumerated federal powers.
Should the Court expand these enclaves, however, current Tenth Amendment doctrine would become a more significant, and pernicious, force. The Tenth Amendment formally changed nothing in the Constitution. As the joint statement indicates, no law that would have been constitutional before ratification of the Tenth Amendment is unconstitutional afterwards.
The Tenth Amendment simply makes clear that institutions of the federal government exercise only limited and enumerated powers — and that principle infused the entire idea and structure of the Constitution from onwards.
As a number of prominent Federalists pointed out during the ratification debates, this carefully targeted authorization to limit speech cuts strongly against any more general national power in the area.
As the Federalists argued to tedium, the whole Bill of Rights was mostly just a big exclamation point. In that respect, the Tenth Amendment is not materially different from the rest of the Bill of Rights.
The numerous cases applying various provisions of the Bill of Rights to actions of state governments via the Fourteenth Amendment are a whole different story that is not relevant here. There are two other, and more concrete, ways in which the Tenth Amendment has constitutional value. First, the reminder that powers not delegated to institutions of the national government do not belong to institutions of the national government should prevent anyone from inferring particular federal powers from the general nature of governments, rather than from specific grants of power to this specific federal government.
In modern times, the enumerated powers of the national government have been misread beyond all recognition, to the point that the actual Constitution is not really part of the governing structure at all. Once the enumerated powers are misconstrued out of existence, weight falls on the rest of the Constitution, most notably the Bill of Rights, to restore to some very modest degree the original balance of power. Congress, for instance, has no enumerated power to conscript state legislatures or executives into enforcing federal law though it does actually have enumerated power to conscript state courts into hearing federal cases through the Article I Tribunals Clause.
But if arguments that rest on a lack of enumerated power are foreclosed by wretchedly bad prior cases, then subbing in the Tenth Amendment to reach the correct result is not a completely irrational strategy.
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