Obama Citizenship

Human Events: Stimulus Bill Hides Unconstitutional Provision (10th Amendment)

By Phil

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

Full post as published by The Right Side of Life on February 13, 2009 (boomark / email).