Human Events: Stimulus Bill Hides Unconstitutional Provision (10th Amendment)
Thanks to the efforts of bloggers like Dave Nelle, we became aware of the stimulus bill’s end-run game around the 10th Amendment. Today, after the Conference bill was finally released, HumanEvents.com reports that Democratic staffers put it into PDF format with the text inputted in predominantly graphical form, so as to virtually eliminate the ability to do searches!
Further, it can now be confirmed that the stimulus bill has the following unconstitutional provision (link to bill; on pages 490-91):
SEC. 1607. (a) CERTIFICATION BY GOVERNOR — Not later than 45 days after the date of enactment of this Act, for funds provided to any State or agency thereof, the Governor of the State shall certify that: 1) the State request and use funds provided by this Act , and; 2) funds be used to create jobs and promote economic growth.
(b) ACCEPTANCE BY STATE LEGISLATURE — If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.
This provision –– apparently aimed at conservative governors such as South Carolina’s Mark Sanford who does not want the federal money — would overturn state laws and constitutions, intervening directly in the state’s government to give the legislature the power to overturn a government’s decision.
This provision probably violates the US Constitution, a matter which will be of no concern to Congressional Democrats.
This act — to strong-arm state governments and a governor’s ability to control the state budget — is Chicago-style bipartisanship.
It is paragraph (b) that is at issue. Paragraph (a) could be construed as perfectly reasonable for the federal government; the feds have the power to create mandates for the States and use money to enforce those mandates (to a certain degree). However, nowhere in the Constitution is it said that the federal government has the power or authority to circumvent the Executive branch at the State level.
Now that Majority Leader Harry Reid (D-NV) is actively searching for more votes on the bill, it looks like the tide might actually show some signs of turning on this Friday the 13th.
C-SPAN.org is currently showing that a vote is expected in both Chambers by this evening.
Update: A commenter provides me with good push-back for which to further make a constitutional point…
From “Melanie:”
Phil, you need to connect a few dots here. How is it unconstitutional to include a requirement that someone from a state — whether the governor or the legislature — certify that the funds the state requested and receiveed were used for the purposes sought? If a state has an objection to certifying that it used the funds for the earmarked purposes, the solution is obvious: just say no. Don’t request funding. Muddle through job creation and infrastructure redevelopment without federal assistance. If South Carolina doesn’t like it, well, that leaves that much more funding available for California. I’ll bet that Ahnold will have no problem putting his signature on the certification.
Melanie,
Let’s take a look at paragraph (b) again, shall we?
(b) ACCEPTANCE BY STATE LEGISLATURE — If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State. [emphasis mine]
Can you point me to any State in the Union that allows for passage of any bill or resolution in the Legislative branch at the State level that allows for the federal government to take the place of the State’s Executive in the case where a State’s Executive doesn’t agree with what the State’s Legislative says?
Why in the world would anyone want to have the federal government act as every State’s Executive, by proxy?
According to the 10th Amendment, States are sovereign legal entities that collectively comprise a Union out of which the federal government is created, current bills and resolutions reasserting such notwithstanding. As such, the federal government has no power or authority to be able to legally bypass the Governor on any issue. That’s treading on a State’s authority, power and right to determine it’s own policies per the Constitution.
Furthermore, it would be equally unconstitutional in my view for State Legislatures to agree to this provision in the bill, as they would effectively be overruling their respective Executive, which, by definition, would violate Article 4, Section 4:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence. [emphasis mine]
These arguments have already been laid out per US v. NJ, and I see this provision rearing its head in the direction of the Supreme Court yet again.
A current listing of State-based initiatives can be found here.
-Phil
To address what Sue said, I hate Rush Limbaugh personally. I think a bit of true research would reveal that this issue goes WAY deeper then just “right wing conseratives”. This goes to the very heart of Big Government forcing itself more and more in areas that it should not be involved in then “charging it” to generations not even born yet. The “credit crunch” is exactly what got us into this mess and yet our gov’t is using the same method for itself. Can this lead to anything less then more serious systemic problems for us as a country? Government is now way overstepping the boundaries implemented by our founding fathers and the real question is this, is this what we truely want? Do we really need big government positioning it’s states as “subjects”, then asking us to pay for them to do it?
I FIND IT EXTREMELY DISTURBING THAT MORE GOVERNORS ARE NOT QUESTIONING THE STIMULUS BILL AND OBAMA, IN THEIR APPARENT ATTEMPT TO CIRCUMVENT STATE SOVEREIGNTY. PERHAPS MORE DISTURBING THAN THAT , TO ME, IS THE LACK OF CONCERN ON THE PART OF THE CITIZENS ABOUT THE BILL ITSELF AND WHAT IT IS BEING USED TO DO. USURP RIGHTS FROM THE CITIZEN AND THE CITIZENS LOCAL GOVERNMENT.
THE OVERT ATTEMPT TO MIS-DIRECT OUR ATTENTION FROM THE FACT THAT THE AIG BAIL OUT MONEY, HALF OR MORE, WENT TO EUROPEAN BANKS, $92 BILLION+/- AND THE WHITE HOUSE AND HARRY REID, WITH THE MEDIA DUTUFULLY TOADYING ALONG ARE HIGH LIGHTING $165 MILLION IN CONTRACTURAL BONUSES. I. E. , BONUSES THAT AIG CAN NOT REFUSE TO PAY. NOW, SCHUMER AND REID ARE TALKING ABOUT SOMETHING THAT IS NOT GOING TO STAND SCRUTINY BY OUR HIGH COURT AND MAY WELL RESULT IN A UNANIMOUS COURT DECISION AGAINST THE REIDS, SCHUMERS AND OBAMAS. THAT IS A SPECIAL 90 PERCENT TAX TO TAKE AWAY THE BONUS MONEY FROM PEOPLE WHO WORKED ON A CONTRACT THAT SAID THOSE BONUSES WOULD BE PAID.
AM I ALONE OR HAS NOT THE OBAMA ADMINISTRATION GONE BERSERK WITH USURPED POWER ?
glsmarlton,
The only thing I know for sure is that all State Governors have 45 days from the passage of the “stimulus” bill to OK monies into the State. In my view, this is part of the reason for why I think a number of Governors are basically saying, “Whoa, wait a second. We may not be able to accept everything that this particular bill is proposing that we take.”
-Phil
Phil,
I am not an attorney – just a regular person, and after reading through the link to the bill above, I find their writings to be deliberately done. The everyday JOE cannot fathom what this really means. I had all I could do just reading between the lines, so to speak to undertand that they didn’t want any of us to even having and inking of how they are controlling us.
I not only understand the AGES deal, but also people with disabilities to be under this as well, regardless of age.
So to sum this up, am I correct to undertand that not only seniors but every age with a chronic disability is included, in this so called wonderful national healthcare act?
To put it bluntly, the seniors and the disabled are to be discriminated against to the point of death.
This is my take on it and understand it to be that.
So not only is ALL abortion part of this, euthanasia is as well.
I hope all these people who voted for hope and change will experience exactly what they voted for.
Melanie,
Actually, no. It’s not just a matter of State law. As I’ve specifically pointed out, it’s a matter of a constitutional guarantee that every State shall be governed under the auspices of republicanism. Further, there is no issue to resolve RE: “which entity … is authorized to certify that the funds were used…” — the Governor is the Executive of every State who is ultimately responsible for executing legislation produced by the Legislature of each State, not the federal government. So, if a State’s constitution provides for what the feds are trying to commandeer, it would be great to see where this is stipulated in some State’s statutes or constitution somewhere.
So, either way anyone chooses to look at it, it’s complete over-reach by the feds, plain and simple.
By your tone, you appear to be alarmingly nonchalant about this issue; that is obviously your prerogative, but I regret that you think as you do, because the ramifications for infringement and usurpation of State and individual liberties and rights is absolutely staggering.
Yes, I do see this issue as ultimately that serious.
-Phil
I didn’t get into health care for the paperwork. I did it to help people – and I know you did, too.
So, when legislation comes along that helps us spend more time treating patients than we do filling out forms, I get excited. And when special interests try to stop that legislation, I get mad.
The Economic Recovery Act that passed the Senate today includes practical steps to improve health IT nationwide and cut down on paperwork. This one bill would do more to modernize the health care industry in one month than we’ve done in the past decade.
Now, opponents of this legislation – led by Rush Limbaugh – are launching an all-out smear campaign in the media. Will you help us push back? Write a letter to your editor right now: action.seiu.org/recovery
As nurses, our voices are critical in this debate. By explaining the benefits of health IT, we’ll have a seat at the table in deciding how this technology is implemented. Adopting better technology in our hospitals could save about $80 billion nationwide. That’s $80 billion that can be used to fund better staffing and safety.
It also has the potential to cut down on charting & paperwork and reduce errors. Studies show that nurses in hospitals that adopt health IT spend less time documenting patient care and more time delivering it.
People may not understand all the ins and outs of the Economic Recovery Act, but they’ll understand a nurse telling them the benefits it will have for patient care. Take a few minutes to write a letter to your newspaper right now: action.seiu.org/recovery
Thanks,
Cathy Glasson, RN
Value Care, Value Nurses
“Can you point me to any State in the Union that allows for passage of any bill or resolution in the Legislative branch at the State level that allows for the federal government to take the place of the State’s Executive in the case where a State’s Executive doesn’t agree with what the State’s Legislative says?”
That’s a matter of state law. How a state divides its powers between chief executive and legislature is spelled out in the constitution or by statute. If the state cannot resolve which entity — governor or legislature — is authorized to certify that the funds were used in accordance with the earmarked purpose, then the state may have to decline to participate in the stimulus.
The feds are not foisting the stimulus monies on the states — the states are soliciting the aid and pitching their shovel-ready projects in effort to get a piece of the pie. I feel confident that each state will find some way to resolve whatever in-fighting ensues between its governor and legislators when it comes down to the wire.
[...] Further, it can now be confirmed that the stimulus bill has the following unconstitutional provision (link to bill; on pages 490-91): [Full post] [...]
I just called the Republican Senatorial Committee and the GOP and asked that Snowe, Specter, and Collins have their committee assignments taken away as a result of their vote. Specter prizes that position as ranking member of the judiciary committee. He no longer deserves it!
Phil,
Thanks for the information. I do not get how the fed has the right to impose unfunded mandates. I think this issue is at the heart of some of the state resolutions affirming their 10th amendment rights. Please let me know if I am wrong here. In any case, this is really more despicable behavior on the part of the democrats trying to meddle and impose their will on states and also on we the people.
I heard on a conference call last night with Americans for Prosperity that the bill also rolls back on the welfare reforms from the Clinton years. This is very disappointing news as welfare reform was a huge success that motivated millions of Americans to get out and work rather than live off of the government.
They can’t wait to get their grubby, thieving hands on the still to be printed $$$ …
What are they going to do when the Abomination is ‘outted’ and they have to give all that funny money back … tax the constituents?