Federal funding violates 10th amendment

[utford]

This is my fist attempt to create a thread, hopefully works.

A question I have had (in my own head at least) for a long time is - would it be a reasonable thing to consider suing the federal government's funding/tax policy as a violation of the 10th amendment?

Disregarding the general orientation to ignore the 10th amendment anyway - it seems that the policy of the feds to tax people in the states, then return money to the state organizations only if they follow the fed rules, is a roundabout way of circumventing the spirit of the 10th amendment. I'm not anywhere near a constitutional expert, just wondering if there is way to mount a feasible challenge to this activity?

[yarddog]

The 10th amendment has been a joke since the late 50’s probably even longer. The 2nd too even with the recent Supreme Court decisions.

What it really means is the Constitution really has no meaning. If any of it is treated as if it doesn’t exist, then all of it or any of it can be.

[marktwain]

I believe that you have the essence of it correct. One of the major purposes of federal “revenue sharing” is to reduce the power of the states and to weaken federalism to the point where it is totally ineffective.

Generations of “progressive” supreme court justices have worked hard to erase nearly all limits on federal power.

[Pollster1]

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.

1. You're right.

2. The standard response is that you lack standing to sue.

3. You're playing in their courts, and the rulings are to far too great an extent controlled by politics and not by law.

Good luck, but I don't see that as a winning position. The truth, the law, and being right are not terribly important in a liberal's courts.

[utford]

I figured that standing would be a big issue - as well as the fact that I’m not sure most politicians even recognize that the 10th exists. I really think in an ideal world this would be a winning argument - but unfortunately, we aren’t in an ideal world and anything that would reduce federal power isn’t even on the table.

[OldDeckHand]

Every administration and Congress since the turn of the century (the last century), has been eroding the importance of the 10th Amendment, and using federal funding to circumvent that Amendment - with the full leave of the Court, as well.

Ronald Reagan himself circumvented the 10th with the enactment of the National Minimum Drinking Age Act of 1984. I get furious every time I think about it.

If the Founders were here today, they'd tear up the Constitution and start all over - even Adams and Hamilton didn't have this in mind.

[o_zarkman44]

YOu are right. Some of the other respondents in this thread say it is all over. But I have a more optimistic, but guarded belief that there can be a push back to a line that the states and federal can compromise. If not, then there will be another civil war. I hope there will not.

Missouri voters last August voted 71% in favor of Health care freedom, taking out the federal mandates and penalties by not choosing to enroll in federal health insurance. This year our legislature is putting in more teeth to stop the incremental bleeding. So far, no federal push back. Maybe the 24 state lawsuits have their attention.

One other issue can be addressed. The council of governors created by E Order. We don’t believe our governor has the authority to administer beyond his state and electorate. And if one governor is presiding over a 4 state area, the other governors are being usurped of their authority to operate in their state in an emergency. Hopefully our legislature will be addressing that.

10th Amendment issues and state sovereignty are my passion. I am involved in a group studying the options and we are finding numerous encroachments on state sovereignty. Most involve federal money and unfunded mandates. Getting people to reduce their dependency on the government tit is the most difficult part of reducing, repealing, and restoring.

[douginthearmy]

Your suit would be immediately thrown out. Attempts to appeal would likely be met with very large fines for wasting the Court’s time.

[MileHi]

Yes it does rob the states of power. And states have gone along.

Much like the notion that “driving is a privilege” robs citizens of the right travel freely and turns it into a highly taxed privilege. And the folks have gone along.

[mrreaganaut]

The 10th Amendment has been basically a dead letter since the end of the Civil War. The right to secede was one of those rights reserved to the States or People respectively. Now, the proper argument to disallowing the South to rely upon the 10th is the equitable doctrine of 'clean hands,' because the South wanted to use its freedom to secede in order to continue to keep blacks in slavery. However, the baby of the 10th was thrown out with the bathwater of slavery.

The Court does grant standing in separation-of-church-and-state spending cases (1st Amendment). Scalia has said things along the lines of either eliminating it as inconsistent with the general lack of standing to mere taxpayers, or grant taxpayers standing to sue over all expenditures.

Obviously, eliminating the exception (which only feeds the ACLU the taxpayers' money) would be easier. It also has the advantage of the argument that thousands of suits from cranks upset over the federal budget would waste the courts' time and ironically, the taxpayers' money.

Against this, the actuality of the relatively few suits filed each year should be weighed. The relation of the 10th Amendment to such suits, essentially calling most federal spending ultra vires, or unwarranted by the Constitution, would only come into play after the hurdle of standing had been cleared. Even then, the courts would likely defer to Congress' decisions and call the matter a nonjusticiable political matter.

Here, the courts might not be wrong, in that We The People should elect representatives who respect the Constitution and pass a federal budget that does not exceed Congress' powers to spend. If we elect Tea party officials, the need for such suits might disappear.

[mrreaganaut]

Oh, don’t even get me started on the “privilege” of whatever the government wants to disallow! I get a migraine from high blood pressure...

[Pollster1]

The 10th Amendment has been basically a dead letter since the end of the Civil War. The right to secede was one of those rights reserved to the States or People respectively.

"Has been" is correct, but the 10th should not have been treated as dead. The Civil War settled the question on whether states could be compelled by force to remain in the union, not whether this compulsion is constitutional. The constitutionality has not been decided in a legal sense, and the 10th stands unaltered by Amendment.

Here, the courts might not be wrong, in that We The People should elect representatives who respect the Constitution and pass a federal budget that does not exceed Congress' powers to spend. If we elect Tea party officials, the need for such suits might disappear.

The Constitution is the supreme law of the land (or it should be and says that it is) and does not exist to defer to the will of the voters or of "honorable" politicians. The Bill of Rights was written to place clear limits that even a popular though tyrannical government could not cross. The flaw in saying that the Court should defer to us as voters is that voters could just as easily elect representatives for the specific purpose of disenfranchising an unpopular minority as for the specific purpose of fleecing the wealthiest 49% to pay for whatever the wealthiest 51% demands.

[utford]

I really hope that someday we can get back to the spirit of the 10th amendment. Although it may not be possible via the courts, if we can elect the right representatives there is a chance. To me, the ability to tax and then allocate funds based on whether states/groups/individuals follow federal mandates is the linchpin to federal power and overreach - which also means it is going to be nearly impossible to stop.

[mrreaganaut]

The Constitution is the supreme law of the land (or it should be and says that it is) and does not exist to defer to the will of the voters or of "honorable" politicians.

I don't disagree at all, nor with taking the 10th seriously. My only point was that the more proper means of correction is through the ballot box rather than the courts.

A suit may be started by a single citizen, the smallest possible minority. When it's the rights of that minority that are threatened, recourse to suit is a blessing. When that minority wants to change public policy, a suit becomes more suspect. Remember Roe v. Wade? It was a suit supposedly to vindicate the rights of an individual, but was really "public policy through other means." This minority (who has recanted, and says she was used by the ACLU) got its will imposed on the majority of the country, without the ability for correction except through another suit.

I agree that Constitution-following judges should consider the 10th when it is alleged to have been violated. I just think that elections are more effective than lawsuits, especially when elections determine whether Constitution-following judges are appointed at all.

[OneWingedShark]

The problem is that governments, at all levels, are too willing to trample over their own Constitutions.

For example, my state, New Mexico has this in its Constitution:
Art II, Sec. 6. [Right to bear arms.]
No law shall abridge the right of the citizen
to keep and bear arms for security and
defense, for lawful hunting and recreational
use and for other lawful purposes, but nothing
herein shall be held to permit the carrying
of concealed weapons. No municipality
or county shall regulate, in any way, an incident
of the right to keep and bear arms.

Note the “IN ANY WAY” portion restricting municipalities and counties.
The municipal/county courthouses have posted “No Weapons” and when I inquire as to the authorizing authority I receive the reply “the judge’s.”
How can a judge, acting on the behalf of the municipality or county, possibly have the powers categorically denied to the municipality or county?