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. (More) SJR 44 (Rogers) Page 2 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 (More) SJR 44 (Rogers) Page 3 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 (More) SJR 44 (Rogers) Page 4 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 (More) SJR 44 (Rogers) Page 5 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, (More) SJR 44 (Rogers) Page 6 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. ***********