Fighting the good fight for federalism and
the 10th Amendment
BY KAREN LUGO | OCTOBER 11, 2013 AT 10:14 AM
As states find themselves defending turf in a grand tug-of-war, the federal government has been
yanking them closer to the game-over line with most of its pulls.
Obamacare represents devastating yardage. On other fronts, the federal government is also
assaulting state sovereignty in matters of voter identification and energy development.
The 10th Amendment has not been nullified just because the federal government chooses to ignore it.
Almost strangled by the Commerce Clause and dealt a heavy blow when the Roberts Court narrowly
ruled that Obamacare could survive under the federal government’s power to tax, federalism has been
dealt some stunning insults.
Beyond challenging state sovereignty, this trend threatens to become the status quo unless states
urgently organize to reassert the constitutionally intended allocation of powers among the respective
levels of government in this country.
This is why Texas Public Policy Foundation is gearing up in the Center for Tenth Amendment Action
(CTAA) to vindicate proper state authority.
The 10th Amendment means that power resides in the states if not enumerated as a federal
government power or if not delegated by a state to the federal government.
In a founding era Supreme Court decision, Justice Samuel Chase declared that “the several state
legislatures retain all the powers of legislation ... which are not expressly taken away by the
Constitution of the United States.” Although enshrined in the Constitution, state powers are being
serially undermined.
Despite the fact that oversight of health and safety matters is at the very core of the states' bundle of
reserved police powers, Obamacare will shift control of 18 percent of the U.S. economy from what is
now largely state jurisdiction to federal administration.
Sen. Mike Lee, R-Utah, points out that powers properly residing in the states to oversee “most
healthcare-related policy issues -- everything from laws governing the licensing and regulation of
doctors, nurses, hospitals, and clinics to laws governing medical-malpractice suits” will be absorbed by
federal agencies.
Obamacare’s absorption of state authority is bad enough, but 26 states are voluntarily opting-in to a
component of Obamacare that expands the existing Medicaid pool to many additional low-income
subscribers.
States were enticed into this expansive entitlement in return for 100 percent federal subsidy through
2016 (the federal government currently pays about 60 percent) but the reckoning will come after 2016
— presuming that the federal government holds up its end of the bargain — when states phase into
the 2022 burden of a 10 percent share at the expected cost of $73 billion.
Policy centers like CTAA will be reporting the consequences and fortifying the states that choose not
to take the bait.
The federal government also cannot leave well enough alone when it comes to states’ rights to
regulate election procedures.
Thirty-three state houses have passed some form of voter identification to promote electoral integrity.
Some of these voter identification methods are being challenged by the Department of Justice as
discriminatory.
These challenges are being mounted even though the Supreme Court recently reviewed the record of
states with a past history of racial voter suppression and found that “voter registration and turnout
rates now reach parity” with other groups.
Ironically, minority voters tend to support the identification requirements, as reflected in a 2012 poll
showing that 65 percent of blacks and 64 percent of Hispanics thought that voters “should be required
to show official, government-issued photo ID.”
Energy is another battleground where states are scrambling to protect policy priorities. Although
studies show that the harvesting of energy resources can benefit lower-income consumers
substantially more than exemplary government-structured subsidy programs and the employment
advantages are obvious, the federal government has stalled on new refinery approvals and continues
to issue burdensome EPA regulations.
Is dynamic state competiveness such a threat? Must the federal government act as referee to level the
playing field according to the lowest denominator?
States like Texas say no. Our Founders said no. And, most significantly, Americans packing up and
moving to successful states are saying a resounding yes to more open marketplaces for innovation,
experimentation, and autonomy.
The unique Texas brand stands for Lone Star-style indomitable spirit, resourcefulness, and
innovation. Much more than just legend, the storied achievements that result when entrepreneurialism
thrives become sources of inspiration and replication.
In a nation where the 10th Amendment provides 50 different stages on which states create their own
their records of success or failure, Texas will fight for the rights of businesses and families to write their
own scripts.
Karen Lugo is director of the Center for Tenth Amendment Action at the Texas Public Policy
Foundation, a non-profit, free-market research institute based in Austin.
Web URL: http://washingtonexaminer.com/article/2537133