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States cry foul over mandates

By: Jeff Thomas
August 15, 2010

Originally published in the Gazette Telegraph on Feb. 12, 1995


If no one lived in Phoenix, the dust and sand that naturally float through its desert air still might exceed federal pollution limits.

Yet the Environmental Protection Agency will punish Arizona unless Phoenix cleans its air.

This is the maddening world of federal mandates.

An aberration? No. There's more:

In Anchorage, Alaska, a river was so clean that the city couldn't reduce pollution by the amount the EPA wants. Now Anchorage pays fisheries to dump fish guts into the river, so the city can remove them.

Colorado's contribution to the federal Medicaid insurance plan has ballooned to one-sixth of the state budget, partly because Congress has expanded eligibility.

Sprawling Aurora wonders where it will get $42 million to make its curbs wheelchair-friendly, as required by the Americans with Disabilities Act.

And in Colorado Springs, the EPA has forced the city into a $27 million sewage plant overhaul, despite evidence it may not improve life much for the not-at-all-endangered suckers and minnows in Fountain Creek.

Angry mayors, legislators and governors across the country are grasping for weapons to fight frustrating mandates from Washington. Among them is the almost-forgotten trailer to the Bill of Rights: the 10th Amendment.

In the process, they are making something of a national figure out of Charles Duke, a Republican state senator from Monument, who pushed the nation's first "10th Amendment Resolution" through the Colorado General Assembly last year. Five states have adopted similar resolutions and about 20 more are considering it.

Many legislatures have seized on the 10th to symbolize their desire to defang Congress. Not content with mere symbolism, Duke was in Arizona last month to promote his resolution to a group of so-called "patriots," an ultra-conservative lot who would prefer to defang, declaw and even neuter federal government. He's scheduled to address another patriot conference in Atlanta next month.

Duke's resolution asserts Colorado's sovereignty over Washington as provided by the 10th Amendment, which reserves to the states all powers not specifically granted to Congress.

"It's a line in the sand," Duke says. "The 10th Amendment has been suspended. So how do you `re-enact' it? By asserting the claim."

The 10th has not been suspended, of course. But many consider it in need of revival, despite recent moves by the new Republican Congress to curb unfunded mandates.

"States simply have had it with micro-management by federal agencies," says Thomas Atwood of the Heritage Foundation in Washington, D.C. "They don't like being told, down to the jot and tittle, how to manage affairs within their own jurisdiction."

Once used to defy the emancipation of slaves and the integration of schools, the revival of 10th Amendment has more to do with money than with race. The message to Washington, however, is the same: Get lost.

Federal power grew as state lines blurred

The first article of the Constitution gives Congress power to collect taxes, declare war and maintain an army, regulate interstate commerce, print money and deliver the mail, among other tasks.

The 10th Amendment, meanwhile, was long regarded as a fence limiting the Congress to its list of duties. That view caused problems, however, when Southern states decided the federal government had jumped the fence to meddle in state affairs. Their solution: leave the Union.

As modern transportation and technology have blurred state lines and nationalized the economy, Congress has expanded its influence - sometimes into areas outside its authority. For instance, Congress has stepped into labor relations - mentioned nowhere in the Constitution - because it has the power to regulate interstate commerce.

And that's the way federal power has been calibrated for years. The Supreme Court has long held that limits on federal power are rooted not only in the 10th Amendment, but also in the federalist principles deposited throughout the Constitution. The 10th "is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the Constitution," the court noted in 1941.

"Simply raising the 10th Amendment alone has been laughable for generations," says David Engdahl, a constitutional law professor at Seattle University and a federalism expert. "Judges realize the issue is the scope of federal power, not some limitation that the 10th Amendment places."

The problem, Engdahl says, is that Congress has gotten sloppy. It has banned gun possession near schools, for example, because it supposedly interferes with interstate commerce. The Supreme Court is reviewing that tenuous argument and may, for the first time in 60 years, restrict congressional authority under the interstate commerce clause.

That isn't to say, however, that states have given up on the 10th Amendment.

San Antonio in 1985 tried to use the 10th to exempt its bus drivers from federal minimum-wage and overtime laws. South Carolina tried three years later to revoke a federal tax law that restricted the sale of development bonds.

Both failed. Both times the Supreme Court ruled that states must rely on the "political process," not on "discrete limitations on the objects of federal authority," to keep Congress in check.

The court acknowledged that the 10th Amendment guarantees state sovereignty in matters not specifically delegated to Congress, but said it "offers no guidance about where the frontier between state and federal power lies."

New York finally drove a 10th Amendment wedge between itself and Washington in 1992. The state was under congressional orders to take ownership of low-level nuclear waste produced by New York reactors.

This time the Supreme Court said Congress had gone too far. It's one thing to require San Antonio and South Carolina to live by the same wage and tax rules that apply to private citizens, the court ruled, but Congress cannot use a state as a regulatory arm.

"The Constitution simply does not give Congress the authority to require the states to regulate," the court ruled.

Sensing an opening, other states have gone to court pleading the 10th. A federal judge in Montana, citing the New York case, ruled that the background-check provisions of the Brady law violate the amendment. Judges in Mississippi, Arizona, Louisiana and Vermont have made the same ruling.

But a federal judge in Texas found no breach of the 10th. Several of the cases are on appeal.

California, Arizona, Texas and Florida have sued on 10th Amendment grounds, claiming that the "invasion" of illegal immigrants - a concern specifically delegated to Congress by the Constitution - has run up their law enforcement costs. The Justice Department has made conciliatory overtures to the states, even though a judge threw out Florida's case.

Arizona has set aside $1 million to press 10th Amendment claims. Several states, including Colorado, have asked their attorneys general to sniff out potential lawsuits.

But even ardent 10th revivalists say the amendment alone is not enough.

"There is no 10th Amendment fix," says Wendell Cox, director of policy for the American Legislative Exchange Council, a conservative think tank for state lawmakers. "Even if every state passed a resolution, what has changed? Those resolutions don't have any force of law."

States use other tools to fight mandates

The states are cooking up other ideas. Arizona is deciding whether to propose a constitutional amendment that would allow a three-fourths majority of states to nullify objectionable federal laws and regulations.

Missouri has created a "federal mandate auditor" to tally costs to the state.

Colorado last year forbade state agencies to follow federal mandates that the Assembly deems improper.

The Council of State Governments wants to hold a mock constitutional convention of at least 26 states this year to hammer out a list of demands. Colorado is deciding whether to attend.

Engdahl, the law professor, sees little value in ultimatums, and he doesn't see much salvation in the 10th Amendment, either. But he says widespread interest in the 10th can help change the political climate.

"Once the spotlight is on the topic of limited federal power," he says, "it's going to get some analytical attention, and along with some stupid mistakes, there's going to be some solid discoveries, and, eventually, improvement."

The 10th Amendment, however, will never be the unbreachable fence it was thought to be 150 years ago, Engdahl says.

"We already fought a Civil War over that."

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