LINCOLN — At least three Nebraska lawmakers want to send a message to
the federal government:
Butt out of state business.
Next year they will see if a majority of their colleagues agrees.
The senators are working on resolutions asserting Nebraska's
sovereignty under the 10th Amendment of the Constitution.
Congressional powers
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.
Among the powers given to Congress by the U.S. Constitution:
>>To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
>>To borrow money on the credit of the United States.
>>To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
>>To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.
>>To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.
>>To establish Post Offices and Post Roads.
>>To constitute Tribunals inferior to the supreme Court.
>>To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.
>>To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.
>>To provide and maintain a Navy.
>>To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Nebraska wouldn't try to secede from the union under their proposals
but would go on record objecting to federal laws that they say go
beyond constitutional authority.
"My goal here is to shine light on the fact that the federal
government is overstepping its bounds," said State Sen. Tony Fulton of
Lincoln. "We would be making a statement on behalf of Nebraska."
The tension between states' rights and federal authority has been a
repeated theme in U.S. history, starting with arguments among the
founding fathers.
The struggle turned bloody when Southern states seceded, citing
states' rights on the question of slavery, and the Civil War ensued.
Critics say the current measures amount to little more than political
posturing — passing resolutions doesn't mean that states refuse to
comply with federal law or send back federal funds that come with
mandates.
State Sen. Bill Avery of Lincoln said the proposals sound disturbingly
similar to the states' rights arguments made in defense of racial
segregation and laws blocking blacks from voting.
"The history of this movement is rife with racism in the name of
states' rights," he said. "I'm not saying that the people making the
case now are racist, but I don't think Nebraska needs to be getting in
bed with these kinds of resolutions."
Colleagues denied links to that history. Fulton, an Asian-American,
said he has no intention of promoting racism or segregation.
Interest in states' rights is spreading as the federal government has
taken over businesses, mandated driver's license security measures and
proposed a public health care program.
Seven states passed resolutions this year affirming their sovereignty,
and resolutions were introduced in 30 others. Some states have filed
lawsuits or taken legislative action to challenge federal laws.
In Iowa, State Senate Republican leader Paul McKinley of Chariton
offered a resolution this year calling on the federal government to
"cease and desist" in issuing mandates that go beyond what the 10th
Amendment allows. The body's Democratic majority has kept the
resolution alive but bottled up in committee.
The movement's rise followed the election of President Barack Obama.
Most of its supporters, though not all, can be found in conservative
camps, such as libertarian talk-show host Glenn Beck and his
conservative Web site. The states passing resolutions all voted
Republican in the 2008 presidential election.
Online petitions urge Nebraska's state lawmakers to act.
"Either states can use the Constitution to maintain the power they
have always had, or they can give it up," said Gregory Boyle of Omaha,
who started one online petition this spring.
A constitutional scholar questions the effectiveness of legislative
resolutions and legal challenges.
"This is an outlet for those who are worried that the federal
government will take over everything," said Mark Kende, director of
the Drake University Constitutional Law Center in Des Moines.
Richard Duncan, a constitutional law professor at the University of
Nebraska College of Law, said legislative resolutions send valuable
political messages even with no legal weight.
"It's kind of a nice warning that people are growing tired of the size
of the federal government," he said.
Under the 10th Amendment, states and citizens retain all powers not
specifically given to the federal government.
Sovereignty supporters argue that the federal government has
overstepped those bounds on matters such as endangered species
protection and seat belt laws. Others say the Constitution, as
interpreted by courts from the 1800s on, gives the federal government
broad authority.
Fulton and Sens. Mark Christensen of Imperial and Ken Schilz of
Ogallala are researching possible resolutions.
"I absolutely don't like where our government is going right now,"
Christensen said.
Among his complaints are the mandates attached to federal stimulus
funds and the new national health care proposals.
Fulton listed federal control of General Motors and mandates imposed
on schools under the 2001 No Child Left Behind law.
"I'm not saying that every interaction with the federal government is
bad," he said. "I'm saying that some are over the line."
Schilz's concerns include a proposal to extend the Clean Water Act to
all bodies of water.
None of the three Nebraska lawmakers is ready to advocate giving up
most federal funds to avoid the accompanying mandates, although
Christensen supported the governor's decision to reject some
unemployment stimulus money because of the strings attached.
Speaker of the Nebraska Legislature Mike Flood of Norfolk said he
wasn't sure whether he would back a resolution, though he supports
states' rights.
"Every day in the Legislature," Flood said, "it seems we deal with
issues where the federal government has its tentacles, either on the
policy or the money or both."
South Dakota's GOP whip, State Rep. Manny Steele, introduced his
state's successful resolution. Steele said change will occur if enough
states follow sovereignty measures with legal challenges to federal
authority.
Some challenges have already popped up, on both conservative and liberal issues.
Montana, for example, passed a law this year asserting that guns made,
sold and used in the state are exempt from federal laws and taxes. The
law's chief backers said they hoped it would trigger a court battle.
Arizona lawmakers put a measure on the 2010 ballot that would exempt
residents from a federal health care plan.
On the liberal front, Massachusetts cited the 10th Amendment in filing
suit against a federal law barring recognition of same-sex marriages.
And six states sided with a California woman who argued to the U.S.
Supreme Court that states had the power to legalize medical marijuana.
The court ruled for the federal government in the 2005 case.
Kende questioned the states' chances of prevailing, saying the federal
government won all cases from 1937 to 1995, although its record has
been mixed since.
Courts already have upheld the practice of attaching strings to
federal funds, Duncan said.
No matter the result of the court cases, states can make a difference
through political pressure, said Michael Boldin, founder of the Tenth
Amendment Center in Los Angeles. The howls that greeted a George W.
Bush-era law increasing driver's license requirements, for example,
forced the federal government to rethink that law.
"With each state," Steele said, "we gain power."
Contact the writer:
402-473-9583, martha.stoddard@owh.com
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