When asked about his position, Pawlenty (a presidential hopeful) responded:
Depending on what the federal government comes out with here, asserting the 10th Amendment might be viable option, but we don’t know the details. As one of the other callers said, we can’t really even get the president to outline what he does or doesn’t support in any detail. So we’ll have to see. I’d say that’s a possibility.
Some states like Georgia are calling for challenging the national health care plan on the basis for the Tenth Amendment.
Sens. Judson Hill (R-Marietta) and Chip Rogers (R-Marietta) have been joined by members of the legislator to seek an amendment to their Constitution to allow Georgia to invoke the 10th Amendment to the U.S. Constitution to oppose the use of the health plan in Georgia.
On its face, it is a rather bizarre bill. If the 10th Amendment says what these legislators think its says, they would not need to amend their state constitution — they could stop the program on the basis of the federal constitution. For the Georgia story, click here.
However, to do so would require the Supreme Court to reverse decades of rulings. It is extremely rare for the Court to overturn legislation on this basis. Having said this, there is a great difference between this argument and the extremists in these Texas videos. Federalism is an important part of our Constitution and many of us are great believers in the rights of the states to go their own way on policy and programs. Indeed, I have long advocated greater protection of states in their fight against the federal government in areas like medical marijuana and assisted suicide laws, here.
The Tenth Amendment, however, reads as a more robust protection than the Court has been willing recognize. The amendment itself proclaims: “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.”
Yet, the Court has rarely used the Tenth Amendment to strike down laws. For example, when the Court protected federalism principles in United States v. Lopez, 514 U.S. 549 (1995) — invalidating the Gun-Free School Zones Act of 1990 (the “Act”), 18 U.S.C. § 922(q) — it did so under Article I and the commerce clause.
The Court did rely on the Tenth Amendment to strike down the law in New York v. United States, 505 U.S. 144 (1992), involving a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985. This provision required states to enforce the federal law. This was the similar result as Printz v. United States, 521 U.S. 898 (1997), where the Court held that the Brady Handgun Violence Prevention Act violated the Tenth Amendment by requiring states to enforce the law.
Yet, most cases follow the result in Wickard v. Filburn (1942), where the Court rejected challenges to federal wheat regulation.
In Gonzales v. Raich, the Court noted “we have reiterated that when a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” In her dissent, Justice Sandra Day O’Connor complained about the sweeping scope of the definition: “”The Court’s definition of economic activity is breathtaking. It defines as economic any activity involving the production, distrubution, and consumption of commodities . . . [T]he Court’s definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal reach.”
The problem with this claim is multifold. First and most notably, the law hasn’t been fully drafted, let alone enacted. Second, if it does contain an “option” for citizens, it is hard to see the state sovereignty objection when citizens can refuse the option. Third, like social security and other social programs addressing national problems, it would be upheld as a legitimate exercise of the national legislature.
This does not mean that the White House might not blow it in the drafting. Requiring states to enforce aspects of the law can be problematic, as shown above. However, the Court has upheld the right of Congress to pressure states into voluntary cooperation by threatening to withhold federal funds.
Given the prior case history, a Tenth Amendment challenge would appear highly unpromising absent a serious mistake in drafting. The Court has left such questions to the political process and critics have certainly done well in that arena thus far. However, if the Administration passes a national health plan with a public option, it could be drafted to pass the tests previously laid out by the Court.
In my view, the most interesting element of the law is the requirement (if it ends up in the bill) that every citizen must have insurance. Individuals have always been allowed to make such decisions for themselves, including young people who prefer to save money and “self-insure.” This is in some ways like a national helmet law. It is treating the individual without insurance as an interstate problem due to the collateral costs on society. That treats a failure of an individual to protect himself or herself as an interstate matter. It certainly stretches the definition of interstate commerce but there is support in these prior cases.
For full story, click here.