Shining a Light on the 10th Amendment in Ohio

State sovereignty and the Tenth Amendment are getting some attention in the Buckeye State.

Ohio Rep. John Becker recently sent a letter to U.S. Congressman Brad Wenstrup in which he requested that his fellow republican initiate impeachment proceedings against Judge Timothy Black. Judge Black recently ruled (twice) that Ohio must recognize the marriage of same-sex couples despite (a) the lack of federal authority regarding the issue of marriage and (b) an amendment to Ohio’s Constitution which prohibits the state from recognizing or performing same-sex marriages.

(a) Congress has no enumerated power to regulate or define marriage. As such, the issue of marriage is reserved to the states per the Tenth Amendment of the US Constitution. Even the almighty Supreme Court admitted this in their recent opinion on DOMA.

(b) Article 15, Section 11 of the Ohio Constitution reads:

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State Governors Admit Feds Need State Help With Most Federal Programs

This so-called government shutdown has provided a lot of political theater and more than its fare-share of silliness. But state governors reaffirmed a very important fact in the midst of the lunacy.

The federal government depends on states to get things done.

The National Governors Association sent a panicked letter to congressional leadership on Monday, begging them to avoid a shutdown. In this email, the governors affirm something we’ve been saying for a long time – the feds need the states.

States are partners with the federal government in implementing most federal programs. A lack of certainty at the federal level from a shutdown therefore translates directly into uncertainty and instability at the state level. [Emphasis added]

Did you catch that?  Most federal programs.

That means the states have a great deal of power!

States can refuse to serve as cooperative partners and SHUT THINGS DOWN!

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CATO Chairman Says States aren’t Sovereign

The New York Times published on September 3, 2013 an article written by Robert Levy, chairman of the Cato Institute, on the “limitations of nullification”.  I have had the honor of having personal discussions with Mr. Levy on several issues and even had the opportunity to debate him on the issue of nullification in a forum in South Florida.  It will be no surprise to Mr. Levy that I disagree with his opinion. Opinions aside, I would like to have the opportunity to present the facts.

Mr. Levy’s main premise is that the States have the option to not agree and not enforce federal law, but they do not have the ability to prevent the federal government from enforcing its laws within the States.

“That’s because federal officials are authorized to enforce their own laws, even if they cannot compel the states to do so. Thus, on the second point, the nullifiers are wrong: states cannot impede federal enforcement of a federal law merely because the state deems it unconstitutional. That is up to the federal courts.”

Mr. Levy’s premise is flawed and a mere review of the facts makes that clear.  This country was built upon the foundation of free, independent, and sovereign States.

“Resolved, That these United Colonies are, and of right ought to be, free and independent States…”  Lee Resolution June 7, 1776

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Jerry Brown to Feds: ‘We Can Handle Our Own Prisons’

In early summer, California Governor Jerry Brown and state corrections chief Jeffrey Beard were in great danger of being held in contempt by three federal judges for willful defiance of a court order requiring the administration to meet a Dec. 31 deadline for reducing the prison population in California.  Brown had previously asked the federal government to back off on federal mandated prison requirements, “We can handle our own prisons,” he said.

Can he constitutionally say no to the federal government?

Yes, and he should.

Besides the obvious, that Californians do not want their convicts returned to society too easily, voiding the acts of juries and judges after they spent thousands of hours deciding what is just with respect to their crimes and their danger to society, federal enforcement of such is unconstitutional.  The Constitution gives the federal government only 17 grants of power, listed in Article I, Section 8, and managing federal prisons is not one of them. Nor has that power been added to the Constitution by way of amendment.  In fact, the Constitution names only four crimes that Congress has the power to penalize: counterfeiting (Article I, Section 8, Clause 6), piracy on the high seas, offenses against the law of nations (Art. I, Sec. 8, Cla. 10), and treason (Art. III, Sec. 3, Cla. 2).  Outside these four crime areas there can be no federal law or crime without a new amendment.  All other areas are entirely under state jurisdiction as per Amendment 10.

If the governor wished to follow the Constitution as designed, he could designate one or more facilities as being federal, move all prisoners that had committed crimes in the above four areas to that facility and be fully compliant with federal law.  With respect to the other prisoners, he might notify the federal government again that “We can handle our own prisons” and that the federal government has exceeded its Constitution jurisdiction.  This is a state function per the Tenth Amendment.  He should publicize his constitutional arguments with his sister states and, if possible, enlist similar action on their parts.  Some of us would love to assist a Democratic governor in leading the charge back to the Constitution.

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Is Utah Becoming ‘Tread-proof’?

SALT LAKE CITY – With the passage of HB 131, the Constitutional and Federalism Defense Act, Utah has taken a firm stance against the central government’s assault on states’ rights. “[If] we want to be a sovereign we have to act like one,” said Senate President Wayne Niederhauser, committee co-chair. The bill, signed by Gov.…

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Clash of Intrastate and Interstate Commerce in Los Angeles

Once again, the nine robed federal employees filling seats at the Supreme Court failed to check constantly expanding federal power.

The feds have tried to unconstitutionally regulate intrastate commerce in many ways through agencies under the purview of the executive branch. Using a several different alphabet agencies, they have maintained  bans on hemp and marijuana, and even regulated food, environmental conditions and  firearms within the borders of individual states.

While the Constitution delegates power to the federal government for regulation of interstate commerce – trade crossing state lines – the federal government was never intended to interfere with economic activity confined within the borders of the state.

On June 13, the Supreme Court rubber stamped this unconstitutional exercise of federal power, concluding federal acts override state and local laws.

In 1997, the Port of Los Angeles (“the Port”) introduced a plan to expand its cargo terminals to better accommodate its high shipping volume. Following public concern that the plan could significantly increase air pollution, the Board of Harbor Commissioners adopted a Clean Air Action Plan (“CAAP”). The CAAP aimed to reduce emissions and specifically targeted the Port’s drayage truck business. Roughly 16,000 drayage trucks regularly serve the Port, transporting goods between customers and the cargo terminals. Beginning in 2008, the CAAP banned drayage trucks from the Port, unless the carriers entered into a series of concession agreements. These agreements imposed a progressive ban on older trucks and provided incentives for drayage truck operators to convert their aging fleets to cleaner trucks.

American Trucking Associations (“ATA”), a national association of motor carriers, challenged several provisions within the concession agreements and brought suit against the City of Los Angeles and its Harbor Department. ATA argued that the Federal Aviation Administration Authorization Act (“FAAA”) preempted the agreements. The FAAA Act prohibits a state from enacting any regulation related to the “price, route, or service of any motor carrier.” ATA claimed that the concession agreements amounted to such a regulation. ATA further argued that the State could not limit a federally licensed motor carrier’s access to a port.”

The FAAA legitimately preempts state and local laws when regulating commerce in such places as ports, where interstate and foreign commerce takes place. However, off-site parking falls under to state and local authority and not federal regulation. But the Supremes opined that since neither California nor the city of Los Angeles ever had a problem with FAAA regulating things just outside the port before, well, then it’s just fine and dandy for the feds to regulate it under the FAAA now. Therefore, the strict regulations imposed by the state of California and the city of Los Angeles are now null and void under this ruling. Not only that, the FAAA can stop a city or state from preventing trucks access to a port based on consignments of statute all across the U.S.

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Federal Court Decides: Federal Rangers Supreme

In a move that would make Joseph Story and John Marshall rise from their graves and offer him high-fives, 10th Circuit Judge David Nuffer made himself the sole arbiter of federal and state powers, ruling last Friday that federal park rangers’ authority supersedes that of the State of Utah in matters concerning local law.nuffer

Gov. Gary Herbert signed  HB155, on April 3. The new law prohibits federal Land Management officers from acting as agents of state and local law by “limiting the authority of specified federal employees to exercise law enforcement authority within Utah.” The bill came in response to officers of the Forestry Service taking it upon themselves to administer local traffic laws, making such unauthorized actions class-B misdemeanors; punishable by a $1,000 fine and six months in jail.

We don’t want Utah citizens going before a federal magistrate for a speeding ticket,” said Utah AG Swallow, in the AG’s press release on May 13. “Federal officers should be enforcing federal laws and state and local officers should be enforcing state and local laws. We are concerned about the federal government once again encroaching on states rights and we will vigorously defend the constitutionality of HB 155.[Emphasis added.]

Federal attorneys promptly sued, and on May 13th, Nuffer granted a temporary injunction, stopping the law from taking effect. Last Friday’s ruling extends the injunction until the issue is settled at trial.

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