The Supremacy Clause Vs. the 10th Amendment: Who Has the Power?

By Josh Eboch on December 23, 2009 in Constitution, Nullification

The feds do, according to an article at Nolan Chart on Monday, which specifically takes issue with the idea that nullification is a power left to the states by virtue of its having never been surrendered:

In order to advocate their belief nullification or Tenth Amendment advocates ignore the specific language of the Constitution prohibiting such state power. This specific language is contained in clauses two and three of Article VI of the Constitution sometimes referred to as the supremacy clause. Clause two mandates “the Constitution and laws of the United States which shall be made in Pursuance thereof…shall be the supreme law of the land the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.” …Thus, any action by any state official to act in contrary of the Constitution, including the supremacy clause, is clearly unconstitutional.

Naturally, nullification proponents attempt to exploit the constitutional phrase, “made in pursuance thereof” asserting the laws, acts and rulings in question are not made “in pursuance” of the Constitution. Therefore, they assert, the state has the right to nullify such laws, acts or rulings as they are not made “in pursuance” of the Constitution. The problem with this argument is the Constitution does not assign the states the authority to decide what is “made in pursuance” of the Constitution. Instead, the Constitution assigns this authority to the federal courts under of Article III… Thus, the Constitution delegates the power to decide if something is constitutional or not to branches of the federal government and denied to the states.

We are used to seeing this from statists on the right and the left; in fact, it is pretty much the consensus position of the Supreme Court. But the author claims to be a libertarian, which kind of boggles the mind.

So, is his analysis correct?

Let’s ask Thomas Jefferson, the founding generation’s resident expert on natural law:

[T]he government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Game. Set. Match.

Who says logic is a dead art?

About Josh Eboch

Josh Eboch [send him email] has previously served as a research analyst for the Tenth Amendment Center. His articles have appeared in various publications, and he wrote regularly for the Center on issues related to state sovereignty and nullification.

View all posts by Josh Eboch →

Enjoyed This Post?

We cannot succeed without your help, as we will never accept government grants or handouts. Please help us by investing in the Constitution and freedom today!

Subscribe and Follow

Subscribe to our e-mail newsletter to receive updates.

Article III, Courts, Supremacy Clause

Why States’ Rights are the Answer

Merry Christmas, from the spineless Republican leadership

19 comments

Newest | Oldest

Bill

This is something of a veterans disability issue.

The law which you consider supreme over any other in enforcing 38 USC 5301? “…and shall not be liable to attachments, levy, or service by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.”

How for decades the Veterans Administration, in processing State court orders, administratively garnish a veterans’ disability compensation as alimony. In doing so, refer to VA guidelines that supersede and override the linchpin of the Constitution, “The Supremacy Clause, Article VI of the United States Constitution. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
=
Yes, this you know. However! The key word here is, “notwithstanding” which means, in spite of, despite. “[N]otwithstanding” also appears where State courts go to direct the VA by court order, the consent to enforcement and justify the taking of your, as well as thousands upon thousands veterans’ disability compensation as alimony awards. Using that exact same word, and then reference 5301 in order to make it quite clear any such waiver is not possible. “Notwithstanding” is found in Title 42 USC 659. “Consent by the United States to income withholding, garnishment, and similar proceedings for enforcement of child support and alimony obligations.”
=
Enforcement of 42 USC 659 is also embedded in 10 USC 1408. “Nothwitstanding any other provision of law.. payable by the Secretary…under all court orders pursuant to this section and all legal processes pursuant to section …42 USC 659.”
=
Briefly; 42 USC 659(a) Consent to enforcement.
Nothwithstanding any other provision of law (including section 407 of this title and section 5301 of title 38)…moneys.. due from, or payable by, the United States…to any individual, including members of the Armed Forces of the United States, shall be subject…to withholding in accordance with State law…to enforce the legal obligation of the individual to provide child support or alimony.”
=
(h)(V) By the Secretary of Veterans Affairs as compensation for a service-connected disability paid by the Secretary to a former member of the Armed Forces who is receipt of retired or retainer pay if the former member has waived a portion of the retired or retainer pay in order to receive such compensation.”
=
I went to a law professor looking for an answer to this question. I asked, I think I know the answer, however, I cannot pinpoint it to any particular reference of law other than the Supremacy Clause of Article VI of the United States Constitution. I would like your opinion on the Article VI “notwithstanding” and the use of “Notwithstanding in any other provision of law ” found elsewhere in the United States Code.”. I would think Article VI prevails, would you agree? He replied, “Yes, the US Constitution always trumps any other form of law. “
=
Here, your question is, or should be, which is it going to be? Either the United States Constitution Article VI “notwithstanding” , 42 USC 659 administrative law “notwithstanding” or 10 USC 1408 “notwithstanding“? Here… there I believe is the legal certainty. Which is it going to be?

Monorprise

I would say let us entertain Bill Walker suggestion that the Federal court could some how hold theses absolutely tyrannical dictatorial powers, even thou it fly's in the face of natural law as described by Jefferson and the Federalist papers promises as described by Hamilton and Madison.

Let us say that the constitution was in fact so poorly designed as to permit this tyranny, what should we do about it?

How can any free people tolerate this kind of dictatorial rule? It is either a revolution to overthrow that government so poorly designed to as permit this tyranny or it is a restoration to that government which was designed to insure consent of the governed.
In the end its up to you to decide what you beleive, it is NOT however up to you to re-decide unilaterally the limits of our(Not your) consent to be governed.(our constitution) That is a right intrinsically reserved to the people for themselves. Both as expressed by means of the unilateral right of secession/immigration, and that of the their right to form a government and thus a constitution in the first place among each other.

Conservative1st

nullification* constitutionaltiy*

I either need to stop typing so fast or use spellcheck a little more often

Conservative1st

Thank you for the link. I will be sure to visit their website and contact them. Hopefully, there will be more articles here explaining the constutionality of nullififcation laws, state sovereignty etc. I always worry about SCOTUS. It's such a wild card. I was floored by the 2nd Amendment ruling recently.

Conservative1st

Well, I replied but I guess it got lost in cyber space.

Conservative1st

I agree with everything you just said Michael. It would be easier to convince people in my state. Especially given that I live in Texas. Our Governor has already said that citizens of Texas aren't going to be told we have to buy insurance, be fined or jailed if we don't and if we do purchase health insurance, what kind we have to buy.

I'm on your side, it's why I am here. The reality though is the Supreme Court doesn't seem to agree with either of us. They hand down rulings on a constant basis granting the federal government ever more power restricting individual liberty.

To paraphrase a quote...This isn't our Founders Republic anymore.

MichaelBoldin

Well-said, indeed! Have you gotten in touch with our Texas Chapter yet? texas.tenthamendmentcenter.com. They're barely a month old but making some noise already...could certainly use your help getting the word out!

Conservative1st

Maybe a more effective way to turn things back to what our founders intended would be to take over enough state legislatures to call and control a Constitutional Convention. That way, the Commerce Clause could be restricted, the 1st, 2nd and 10th amendments strengthened, and maybe the 17th repealed. Just a thought.

MichaelBoldin

Some seem to think that. Here's the question for you, Conservative1st:

Where do you think YOU can personally have a greater chance of success - convincing people in your own state to agree with you on something, or convincing most of the entire country to agree with YOU?

I'd be surprised if you really believed it was the latter. With that in mind, I think the most effective activism is not on a national level - that's what's been failing for decades and we now have a government that is creeping towards totalitarianism....look inward. If it's good enough for Jefferson and Madison, it's good enough for you and I.

Conservative1st

So, if the Supremacy Clause, interpreted in the broadest terms, is the consensus of SCOTUS, what makes anyone here think that a challenge to the states nullification laws won't be successful? I'm not a lawyer so, to me, it seems like a waste of time to go through all of this if SCOTUS is just going to ratify federal power in some knee jerk kind of way.

Downsizer

Josh, please cite your source for the Jefferson quote. Thanks.

Tim

The problem with this guy's argument is that it is possible for the supreme court to say a state can nullify federal law when those laws go outside the federal government's power. He seems to assume that because the federal government is the final interpreter of federal vs. state that it will naturally side with itself. It could (if we happen to believe in magic..LOL) be possible that they could rule that way one day.

Tim

What does the phrase "any thing in the constitution or laws of any state to the contrary notwithstanding" mean exactly. Does it mean state laws that contradict federal laws are void or state laws that contradict federal law are supreme. I'm confused by the language.

MichaelBoldin

It's pretty simple, Tim - when state and federal laws collide regarding powers delegated to the federal government in the Constitution, federal law trumps every single time.

But understanding that powers delegated to the feds were "few and defined" and left to the states or the people were numerous - that means very rarely does federal supremacy hold true when considering a Constitutional point of view.

The great problem comes from the very fact that congress, the executive and the courts have all injected themselves in areas never contemplated or approved by the founders and ratifiers. So what's their solution? Well, now it becomes a "constitutional question" and thus, they claim - that a branch of the federal government (the supreme court) must now decide the extent and scope of its own power.

That's pretty much what the American Revolution was fought over....to stop that kind of hubris.

Tim

That is what I thought but I was hoping I was wrong. I was hoping that their was some text that gave states to interpret the federal constitution on its own.

Tim

In other words, even the judicial branch is limited in power just like every other branch of the federal government and because of that limitation it does not have an all powerful authority over the constitution because what is left over from the list remains in the hands of other courts such as state courts. This makes it possible for a state court to interpret federal law in matters not specifically mentioned in article 3 section 2.

Monorprise

The interpretation of the U.S. Constitution the a separate issue then matters UNDER the U.S. Constitution which is given to the court:
Article 3: Section 2:"

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

As you can see here the U.S. judicial courts has quite a lot of rather spesfic jobs given/assigned to them under the U.S.Constitution, all of which would be redundant/meaningless if they had the unlisted job of dictating to the rest of us the meaning of that constitution, and thus what else was under that Constitution and thus the extent of their own job/powers.

Had the founders intended to give them such all encompassing judicial powers they would not have bothered to list out all theses specific jobs nor so extensively and specifically uses the term "under".

So yes States and the people do(and must) have an equal right and responsibility to read, enforce and interpret this constitution.

Congressional law cannot weld powers not given to congress, just as executive orders can not weld powers not given to the president, UNDER this constitution. That is the matter at hand here, and that is the excesses that our States have the sworn duty and oath to protect us from.

MichaelBoldin

SCOTUS does not have unlimited jurisdiction on such conflicts under the claim that it's a "case under the Constitution." To state such a faulty interpretation of the Court's role would be to claim that nothing is outside their jurisdiction. The rallying cry, of course - "But if you're claiming something is unconstitutional, the Court HAS to decide!"

Nope.

It's similar to the proponents of the monster state who argue that if something might, somehow, someway affect or relate to commerce that Congress can to whatever they deem approproate to "regulate" it. Neither is correct.

In fact, one of the primary reasons given for the mere existence of the court was to protect the roles of the states from federal overreach - and not to expand the power of the central government as it does today.

MichaelBoldin

I read Bill Walker's article - and his primary error is that he's confusing the role of the US Supreme Court under the Constitution with that of the politburo of the former Soviet Union - where the former's powers are strictly limited and the latter had the power to define the scope and extent of its own power.

Trackbacks

NYTimes: 10th Amendment Really Just a Plot By Big Health Insurance | Tenth Amendment Center Blog says:

December 31, 2009 at 1:41 am

[...] legislation is likely to supersede state constitutional amendments.” You know, because of the Supremacy Clause or [...]
uberVU - social comments says:

December 23, 2009 at 2:12 pm

Social comments and analytics for this post…

This post was mentioned on Twitter by TenthAmendment: #10th: The Supremacy Clause Vs. the 10th Amendment: Who Has the Power? http://bit.ly/80g5Xh…
Tweets that mention The Supremacy Clause Vs. the 10th Amendment: Who Has the Power? | Tenth Amendment Center Blog -- Topsy.com says:

December 23, 2009 at 1:28 pm

[...] This post was mentioned on Twitter by TenthAmendmentCenter, Kimberly Boldt. Kimberly Boldt said: RT @TenthAmendment: #10th: The Supremacy Clause Vs. the 10th Amendment: Who Has the Power? http://bit.ly/80g5Xh #tcot #tlot [...]

Navigation