BILL ANALYSIS SENATE COMMITTEE ON JUDICIARY S
David Roberti, Chairman J
1993-94 Regular Session R
4
4
SJR 44 (Rogers)
As amended July 1, 1994
Hearing date: August 9, 1994
Joint Resolution
MLK/jms
10TH AMENDMENT
HISTORY
Source: Author
Prior Legislation: None
Support: Northern California Coalition for Limited Government;
š Politically Active Christians of Porterville; Madera
County Republican Central Committee; Women V.I.P.'s;
Glenn County; El Dorado County Commission on Aging;
County of El Dorado; County of Tehama; Solano County
Local Control Movement Committee; 77 individuals
Opposition: None known
KEY ISSUE
SHOULD A RESOLUTION BE SENT TO THE PRESIDENT AND CONGRESS STATING
šTHAT FEDERAL MANDATES ARE DIRECTLY IN VIOLATION OF THE 10TH
šAMENDMENT OF THE U.S. CONSTITUTION AND THAT CALIFORNIA CLAIMS
šSOVEREIGNTY UNDER THE 10TH AMENDMENT OVER ALL POWERS NOT OTHERWISE
šENUMERATED OR GRANTED TO THE FEDERAL GOVERNMENT?
PURPOSE
The Tenth Amendment of the U.S. Constitution states:
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.
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The U.S. Supreme Court has held that federal policies do not
šviolate state's rights or the 10th Amendment simply because they
šimpose costs on the states.
This Resolution declares to the President and Congress that many
šfederal mandates are in violation of the Tenth Amendment of the
šU.S. Constitution. It further claims California's sovereignty
šunder the Tenth Amendment over all powers not otherwise enumerated
šand granted to the Federal Government in the U.S. Constitution.
The purpose of this resolution is to declare that the federal
šgovernment should obey the Tenth Amendment of the U.S.
šConstitution.
Comment
1. Need for the Resolution.
This Resolution is similar to one recently passed in Colorado,
Missouri and Hawaii. Similar Resolutions are pending in other
States.
The author states:
The Tenth Amendment has been in effect since 1791, but
over the past many years and for a variety of reasons
it has been either eroded or ignored. Now is the time
to remind both state and federal lawmakers that there
is a Tenth Amendment and that it needs to be followed.
The federal Constitution and the relationship of the
federal government, state governments, and individual
rights is a very complex and involved subject. The
author hopes that both houses of the California
Legislature will support this resolution so that this
important element of our federal Constitution will be
given a renewed and vital position in the body politic.
While the author realizes
this resolution! will have š no legal effect and change no state or federal law, it
does send a warning and a message to the President and
the Congress, and so is important in that regard.
2. Supporters arguments.
In general the supporters of this bill who have contacted this
Committee declare the need of California to get out from under
the federal government and the concern that the federal
government is bankrupting California. They believe that a
strict interpretation of the 10th Amendment would invalidate
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unfunded federal mandates.
Several writers declared that they were citizens of California
not U.S. citizens. Many writers listed their address as:
"Republic of California".
Many writers expressed that the United States was a confederacy
of nations, one of which was California. Several of these
letters expressed concern about and disagreement with the
United States' involvement with the United Nations, GATT, NAFTA
and other international organizations and treaties. One of
these letters explained that since California is already a
member of a league of nations, the United States, there was no
need to belong to another league of nations, the United
Nations.
One letter declared that any federal government department not
mentioned in Article I, Section 8 of the U.S. Constitution has
no standing in law, thus proclaiming the Labor, Housing,
Energy, Education, Agriculture, and Environment departments
"children of the federal government conceived outside of
Constitutional wedlock...."
Other letters included articles which expressed: concern over
immigration (legal and illegal); that "globalists" and a
future international government will take precedence over the
Constitution; and a call to refuse to pay any more federal
income tax.
3. The 10th Amendment generally.
The Tenth Amendment to the federal Constitution states that
"
t!he powers not delegated to the United States by the š Constitution, nor prohibited to by it to the states, are
reserved to the states, or to the people."
"The Constitution's 10th Amendment assures state sovereignty
and until the mid-1930's it was commonly used to protect states
from the intrusion of the federal government into their
affairs. But beginning with challenges to President Franklin
Roosevelt's New Deal social programs, the high court started
rejecting 10th Amendment claims and has been doing so ever
since.
Since 1937, the court has ruled for the states in only two
cases, and one was later overturned."
National League of š Cities v. Usery, (1976) 426 U.S. 833, overruled by Garcia v.
San Antonio Metropolitan Transit Authority, (1985) 469 U.S.
528!. (Weintraub, Daniel M., "Experts Say Suit Over Immigration
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Costs Will Fail", Los Angeles Times, April 29, 1994) The
second case, New York v. United States,(1992) 112 S.Ct. 2408,
which is cited in this resolution, and discussed further in
Comment 4, was a narrow decision.
The Supreme Court abandoned the theory that the Tenth Amendment
is an independent limitation on federal powers in United States
v. Darby, (1941) 312 U.S. 100. "The Court declared that the
amendment "states but a truism" indicating that relationship
between the national and state governments, the purpose of
which was to "allay fears that the new national government
might seek to exercise powers not granted." (7 Witkin, Summary
of California Law, 9th Ed. 3)
Subsequent decisions have: found that the federal government
can subject states to generally applicable laws ( see e.g.
Garcia v. San Antonio Metropolitan Transit Authority, id; New
York v. United States (1946) 326 U.S. 572; Fry v. United
States, (1975) 421 U.S. 542; South Carolina v. Baker, (1988)
485 U.S. 505; Gregory v. Ashcroft, (1991) 501 U.S. ____, 111
S.Ct. 2395); that Congress can attach conditions on the receipt
of federal funds (see e.g. South Dakota v. Dole, 483 U.S.203;
Fullilove v. Klutzinick, (1980) 448 U.S. 448; Massachusetts v.
United States, (1978) 435 U.S. 444; Lau v. Nichols, (1974) 414
U.S. 563); that Congress has the authority under the Commerce
Clause to regulate certain activities and thus has the
authority to offer the States the choice of regulating the
activity under federal standards or having state law pre-empted
by federal law (see e.g. Hodel v. Virginia Surface Mining &
Reclamation Assn., 452 U.S. 264; Arkansas v. Oklahoma (1992)
503 U.S. __ 112 S.Ct. 1064; Gade v. National Solid Wastes
Management Assn. (1992) ___U.S.__, 112 S. Ct. 2374).
4. New York v. United States.
This resolution states:
The United States Supreme Court has ruled in New York
v. United States, 112 S. Ct, 2408 (1992), that Congress
may not simply commandeer the legislative and
regulatory process of the states...
While it is true that the Supreme Court made this statement in
the New York case, citing it out of context implies a much
broader rejection of federal regulation than was made in this
narrow case.
This case involved a challenge by New York and two of its
counties to the Low-Level Radioactive Waste Police Amendments
Act of 1985. The Act arose out of the lack of low-level
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radioactive waste disposals in this country. The original Act
in 1980 declared a federal policy of holding each state
responsible for its own waste disposal and authorized States to
enter into regional compacts to address disposal and to
eventually restrict use of their facilities to the member
states .
The 1985 Amendments arose out of a continuing lack of
facilities. This Act provided three incentives. The first
were monetary incentives; the second access incentives and the
third a take title provision. (New York v. U.S., id. at
2414-2417)
New York did not argue that the Tenth Amendment limited
Congress' power to regulate the disposers of waste but only
that it could not regulate in the manner in which it did. They
argued that rather than directly regulating the generators and
disposers of waste, Congress had impermissibly directed the
States to regulate in this area. (New York v. U.S., id. at
2420.)
The court reviewed the statute as a series of incentives and
not a mandate to regulate as New York had suggested.
The court found "
t!he Act's first set of incentives, in which š Congress has conditioned grants to the States upon the State's
attainment of a series of milestones" to be well within the
authority of Congress under the Commerce and Spending
Clauses. (New York v. U.S., id at 2472.)
The second set of incentives represented a "conditional
exercise of Congress' power, along the lines of those we have
held to be within Congress' authority. (New York v. U.S., id
at 2472.)
It was only the third set of incentives, the take title
provision, that the court found violated the Tenth Amendment.
The Court noted that this provision was unique, no other
federal statute was cited which "offers a state government no
option other than that of implementing legislation enacted by
Congress." (New York v. U.S., id at 2429.)
The Court found that although the federal government has the
authority to regulate the area of waste disposal directly, they
can not order the States to regulate it. Part of the court's
decision discussed the fact that Congress can not avoid making
a difficult, and unpopular decision by requiring the States to
make it. (New York v. U.S., id at 2432.)
Thus, contrary to what the quote in this Resolution implies,
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the Court did not reject the ability of the federal government
to impose regulations on the States and in fact throughout the
decision the Court acknowledged Congress' right to do so.
5. Implications of the Resolution.
Although, as the author states, a Resolution has no legal
effect, a declaration against all mandates not explicitly
authorized by the Constitution would arguably apply to the
following.
a) Brady Bill.
According to an April 18, 1994 San Francisco Daily Recorder
article the NRA is supporting suits filed by five sheriffs in
Southern and Western States challenging the Brady Bill based on
the Tenth Amendment restriction. (The imposition of a waiting
period and other restrictions when buying firearms in a state
without such a requirement.) The article implies that the
Tenth Amendment is being used because of the lack of success
the NRA has had with expanding the Second Amendment beyond the
need to accommodate state militias. (Teepen, Tom, "The NRA is
Scared of the 2nd Amendment" San Francisco Daily Recorder April
18, 1994.)
b) Illegal aliens.
The basis of the suits that Governor Wilson has filed against
the federal government is the Tenth Amendment.
c) Other regulations.
A March 20, 1994 Denver Post article included in background
material received from the author, cites as some of the
regulations by Congress which are an "assault on state and
local governments": The Americans with Disabilities Act; the
Safe Drinking Water Act of 1986; the EPA Stormwater Management
Program; the Occupational Safety and Health Act; Asbestos
Abatement Regulations; and the Clean Air Act. (Knight, Al;
"Serious Problems Demand The Use of Radical Solutions" The
Denver Post, March 20, 1994.)
It should be noted that according to the New York case the
Clean Water Act was challenged and upheld in Arkansas v.
Oklahoma, 503 U.S. ___, 112 S.Ct. 1046.
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