Category: Tenth Amendment federalism

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Nixon & Trans Athletes

Trump, federalism, state's rights, Constitution

The President of the United States clashed with the governor of Maine over transgender participation in government-​organized athletics. Quite a hoot.

Behind this fracas looms the legacy of … Richard M. Nixon.

First, the fracas: “In a tense exchange with Maine Democratic Gov. Janet Mills, President Donald Trump threatened to strip Maine of its federal funding,” explains CNN, “if the state refuses to comply with his executive order banning transgender women from competing in women’s sports.”

The brief volley of promises (threats) between the governor and the president made other governors “uncomfortable.” Yes, that’s a news story.

“Is Maine here?” he wondered aloud. “The governor of Maine?”

“Yeah,” Gov. Janet Mills answered from across the room. “I’m here.”

And then came a testy political exchange, the kind you don’t often see, culminating in this from Trump: “You better comply, you better comply, because, otherwise, you’re not getting any federal funding.” 

“See you in court,” she promised.

“Good; I’ll see you in court. I look forward to that. That should be a real easy one. And enjoy your life after governor, because I don’t think you’ll be in elected politics.”

Trump may not be wrong. He may have the better legal case.

But doesn’t it seem weird that the president of the United States can extort compliance from the states on matters that are not enumerated in the Constitution?

Well, back in his first term Trump signed an executive order to direct a new devolution process of turning back education to the states. But the transgender issue is a big deal, and most Americans (around 80 percent) are against “biological” “men” competing with girls and women in sports, and since much of sports in America takes place in state-​directed/​taxpayer-​funded contexts, Trump is leveraging federal bloc grants against states that balk at his agenda.

Thank Nixon and his “New Federalism.” While an attempt to give power back to the states, it also tied federal money to the devolution, which has effectively turned states into welfare queens begging big bucks off Washington, severely compromising the states’ … basic competence.

It’s this policy that Trump should be fighting.

But that would make governors even more uncomfortable.

This is Common Sense. I’m Paul Jacob.

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The Great Weed Fake-Out

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When, in the last State of the Union political rally, Stumbler-​in-​Chief Joe proclaimed that his administration had been “expunging thousands of convictions for the mere possession” of cannabis, did you believe him? Previously, when Second Banana Kamala set the theme, claiming to have “changed federal marijuana policy, because nobody should have to go to jail just for smoking weed,” how confident were you of her boast?

“Neither claim was accurate,” explains Jacob Sullum, in the June issue of Reason. They are exaggerations at best. For their voting bloc.

Remember Biden’s 2020 campaign promise to “decriminalize the use of cannabis” and “expunge all prior cannabis use convictions”?

They were undelivered because these moves would require new legislation.

Biden’s not a dictator. As much as he tries.

He still needs Congress.

When he announced, last October, to much ballyhoo, a mass pardon for simple marijuana possession convictions, directing a review of the drug’s classification under the Controlled Substances Act, neither move “actually ‘changed federal marijuana policy,’” Sullum insists. Not one prisoner was freed, and — more startling yet — no record was expunged … for while the president can pardon, he cannot legally expunge records. 

The question to ask ourselves is this: does Biden or anyone now in power really want to do anything more than yammer about drugs? 

After all, any substantive reform would require, as Sullum points out, addressing the tension in the union: a federal government claiming powers to regulate and prohibit (not found in the Constitution), and 38 states that have effectively nullified federal law.

Confronting that might lead to ceding a whole lot of power back to the states … on more matters than just weed.

This is Common Sense. I’m Paul Jacob. 

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Utah and the Tenth

Utah and The Feds

The trouble with the Ninth and Tenth Amendments to the Constitution — the last two items in the Bill of Rights — has not been lack of clarity. The Tenth, at least, is extremely clear: “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 problem has been one of enforcement. How do the States prevent the federal government from overreach? Especially when the federal government acts as if no objection to a federal law could be brooked? Especially when the Supreme Court is, ahem, wrong, or hasn’t yet been approached with a challenge.

Utah has rediscovered an old technique. And revived it. Governor Spencer Cox signed into law the “Utah Constitutional Sovereignty Act”: “The Legislature may, by concurrent resolution, prohibit a government officer from enforcing or assisting in the enforcement of a federal directive within the state if the Legislature determines the federal directive violates the principles of state sovereignty.”

Ultra clear. And by old precedent — the non-​enforcement of The Fugitive Slave Act by some northern states — it provides teeth to the Tenth. If the federal government were to enact (just stretch your mind a bit!) something obviously unconstitutional, like, say, a gun confiscation, the state legislature would simply vote to prohibit any state employee, or subsidiary of the state (county, municipality) from working with federal agents. Federal government agencies don’t have enough manpower to enforce all the rules. The feds rely on the states.

CNN quotes a Democrat representative running against Governor Cox suggesting that the use of this technique would be overruled by the Supreme Court using “the Supremacy Clause.”

No. The Supremacy Clause only applies to the federal government regarding specified (“enumerated”) powers. 

Regarding matters not explicitly stated in the Constitution, it is the States that are supreme.

Or the People.

This is Common Sense. I’m Paul Jacob.

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States Still Have a Role

Nancy Pelosi, Federalism, Nationalism

When asked what kind of government had been proposed at the Constitutional Convention in Philadelphia, Benjamin Franklin famously responded: “A republic, if you can keep it.”

But Old Ben did not clarify the nature of the republic. 

It was to be a federal republic. 

In the new Constitution — which was adopted by the states over the next few years — the States were sovereign, the general government given a concise and limited list of tasks to perform.

Since then, nationalism has won most of the big battles, but federalism remains vital as a principle, re-​asserting itself in interesting ways.

Most recent? “Texas Attorney General Ken Paxton receives huge win with court ruling delivered on Tuesday deeming the $1.7 trillion omnibus spending package passed in 2022 unconstitutional,” as Leading Report explained on Tuesday. “This victory marks a pivotal moment in Paxton’s challenge against the legislation, highlighting concerns over the bill’s approval process.”

At issue is Consolidated Appropriations Act of 2023, which President Biden signed in December 2022, with the U.S. District Court for the Northern District of Texas, Lubbock Division, concluding that “by including members [of U.S. Congress] who were indisputably absent in the quorum count, the Act at issue passed in violation of the Constitution’s Quorum Clause.”

As Paxton gleefully summarized, “Former Speaker Nancy Pelosi abused proxy voting under the pretext of COVID-​19 to pass this law, then Biden signed it, knowing they violated the Constitution.”

The story, as Leading Report argues, “showcases the role of state attorneys general in upholding constitutional principles and ensuring adherence to legal frameworks within the realm of federal governance.”

The States have some say. Still.

This is Common Sense. I’m Paul Jacob.

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July 4, 2022 Independence Day

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Independence Day

Those core ideas of independence and liberty still matter — perhaps now more than ever.

And to help take Common Sense with Paul Jacob beyond 2022, join …

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Not Nitpicky

Austin, Mayor, Steve Adler

Austin, woke capital of Texas, may have some difficulty keeping its mask mandates going in the face of Governor Abbott’s lifting of the statewide mask orders. 

Abbott formulated this new policy last week, to nationwide controversy. Officials in Austin and Travis County responded by announcing their intent to keep the old orders in full effect until April 15. 

At least.

“Texas Attorney General Ken Paxton said on Wednesday that his office will take Austin officials to court,” explains The Epoch Times, “if they continue to refuse to comply with an order lifting mask mandates across the state.” 

Austin officials may think that the pandemic gives them a special license.

It doesn’t.

In these United States, the primary governmental entities are the states.

The federal government is built on top of the union of states, supreme only regarding the limited number of explicitly defined powers given to it in the Constitution. But beneath that, government entities are creatures of the states. Cities, counties, and metro governments are incorporated by their respective states, which retain overriding authority.*

Yet, perhaps as a sign of the general lawlessness of trendy tyranny, a spokesperson for Austin Mayor Steve Adler told Forbes yesterday that the city does not intend to rescind the order and that officials “will continue to do everything within our power, using every tool available to us to reduce the spread of the virus.”

Is it nitpicky to demand that our public servants not do “everything in their power” — but only things within their authority?

No, it is Common Sense. I’m Paul Jacob.

* Under Abbott’s new policy, Texas businesses and individuals remain free to determine mask policies on their property. 

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