From Tim Pawlenty (R-MN), contemplating his response to a health care system with a public option, should it ever come into being —
Depending on what the federal government comes out with here, asserting the 10th Amendment might be viable option, but we don’t know the details. As one of the other callers said, we can’t really even get the president to outline what he does or doesn’t support in any detail. So we’ll have to see. I’d say that’s a possibility.
You’re starting to see more governors, including me, and specifically Gov. Perry from Texas, and most Republican governors express concern around these issues and get more aggressive about asserting and bringing up the 10th Amendment. So I think we could see hopefully a resurgence of those claims and maybe even lawsuits if need be.
Anyone with even a passing familiarity with American history will recognize Pawlenty’s argument for what it is — nullification. The child of legendary “states’ rights” advocate John Calhoun, nullification is the theory that a state can end federal power at its borders, relying exclusively on the state’s residual sovereignty. Calhoun’s argument terminated with the Civil War, and the Fourteenth Amendment specifically, but Pawlenty, among other conservative “luminaries,” have latched onto the Tenth Amendment —
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. U.S. Const., Amd. X.
— as a way of rehashing this old, tired, and frankly dangerous battle.
Pawlenty’s neo-confederate legal necromancy is, of course, doomed to fail. Although the Tenth Amendment is notable for the sentiment it expresses, it retains little real legal “bite.” Simply put, in a Constitution of enumerated powers, a clause reserving un-enumerated powers to the states adds very little that isn’t already clear: most congressional enactments that would bump up against the Tenth Amendment would fail for other, more obvious reasons, like a failure to come within the Commerce Clause, etc. What the Tenth Amendment adds, post-Rehnquist, is a ban on a small set of federal actions that would be constitutional, but for their intrusiveness in state affairs. These acts take the form of a “commandeering” of state resources — an outright command that the state’s executive or legislature do some thing, or else. See, e.g., Printz. v. U.S., 521 U.S. 898 (1997), and New York v. U.S., 505 U.S. 144 (1992); but see Dole v. South Dakota, 483 U.S. 203 (1987).
Because Obama’s health care plan would not dictate commands to state authorities, then, Pawlenty’s arguments, and the arguments of most of the “Tenther” movement, really miss the mark. What’s weird is that Pawlenty knows it: in a bizarrely candid apology, he noted yesterday that, yes, the whole Tenth Amendment “state sovereignty” business is pretty meaningless:
Well, George, in the legal sense, I think the courts have addressed these Tenth Amendment issues, but more in the political sense, in the common sense arena, we need to have a clear understanding of what the federal government does well and what should be reserved to the states.
In other words, “I was wrong, and I knew it at the time.” There’s a case to be made, I think, that this apology actually makes Pawlenty look worse. To be sure, he isn’t the first person to exaggerate, ever, so he’s entitled to appropriate leeway on most things. Challenging the foundation of the federal system, though, isn’t one of them. Pawlenty knows, or should know, that there are people out there who take the “sovereignty” movement seriously, and honestly (but ignorantly) believe the President to be trampling on their vision of constitutionalism. Egging them on by propagating a falsehood is irresponsible at the best of times.