Cross-posted at BloggingForMichigan.com
In Michigan, the Republican-controlled State Senate has two major functions: (1) obstruct everything proposed by our governor and the Democratic-controlled State House; and (2) test-drive every right-wing hobby horse that arrives in Lansing.
The latest such hobby horse is the Tenth Amendment, a favorite of the "Don't Tread on Me" crowd that voted for Ron Paul and shows up at anti-government tea parties.
Today the Senate Judiciary Committee held a hearing on two resolutions: Senate Resolution No. 17 and Senate Concurrent Resolution No. 4, both of which affirm Michigan's sovereignty under the Tenth Amendment to the Constitution.
These resolutions read like something that came out of a fantasy camp for lawyers.
The chief sponsor, Bruce Patterson (R-Canton) ought to know better, but he's running for attorney general. The nominee for that position is chosen at the state GOP convention, where many delegates are so far to the right that they've fallen off the visible spectrum of politics.
Let's start with the real Tenth Amendment, which reads as follows:
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.
Not exactly a model of clarity, leaving it up to the Supreme Court to figure out what the Framers meant by this. In United States v. Darby, 312 U.S. 100, 124 (1941), the Court said:
The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.
Because it has so little force, the Tenth Amendment doesn't come before the Supreme Court very often. Only twice in the past 50 years has it provided the basis for striking down a federal law. In New York v. United States, 505 U.S. 144 (1992), the Court struck down a provision of the Low-Level Radioactive Waste Policy Amendments that required states to either dispose of waste by the end of 1995 or wind up owning it. And in Printz v. United States, 521 U.S. 898 (1997), the Court struck down a portion of the Brady Handgun Violence Prevention Act which required state and local law enforcement officials to conduct background checks on would-be buyers of handguns. The reason? It forced state officials to take part in the administration of a federal program.
The Court used the word "commandeering" to describe federal laws that directly required state and local officials to carry out a federal program. And supporters of the fantasy-camp version of the Tenth Amendment have seized on that term. Both resolutions offered by Senator Patterson and his colleagues include this language:
Many federal mandates are directly in violation of the Tenth Amendment. The United States Supreme Court has ruled that the United States Congress may not commandeer the legislative and regulatory processes of the states....
This resolution serves as notice and demand to the federal government, as Michigan's agent, to cease and desist immediately all mandates that are beyond the scope of the federal government's constitutionally delegated powers.
Not so fast.
The Supreme Court made clear that the federal government could indirectly require states to do certain things by using its spending power. That issue came up in South Dakota v. Dole, 483 U.S. 203 (1987), where the Court upheld upheld the National Minimum Drinking Age Act. A 7-to-2 majority held that Congress could withhold millions of dollars in highway funds from states that had a drinking age lower than 21--even though the 21st Amendment, which repealed Prohibition, gave states broad powers over alcoholic beverages.
And the federal government can pre-empt state power by exercising its power to regulate interstate commerce. In Gonzalez v. Raich, 545 U.S. 1 (2005), a 6-to-3 majority held that the federal Controlled Substances Act applied to medical marijuana in states where it is legal. The justices reasoned that medical marijuana was subject to regulation under the Commerce Clause, even if the amount was tiny and the drug never crossed state lines.
Which brings me to House Bill 5232, the Michigan Firearms Freedom Act. It declares that guns that are made in Michigan and stay in the state are not subject to the Commerce Clause. This sounds like a recipe for expensive–-and unsuccessful–-litigation if the law passes.
Most of the sponsors of House Bill 5232 are Republicans, but there are some conservadem sponsors as well. Michigan conservadems are another topic for another day.