The Tenth Amendment Strikes Back
Policymaking in the modern United States has three distinct phases, the three L’s: lobbying, legislation, and litigation. It seems that in the first few months of the Trump administration, the administration’s opponents have decided to abandon the first two and skip directly to the last.
Wednesday, Seattle once again took the lead as a staging ground for legal opposition to one of the president’s recent signature policies. The State of Washington had been the first state to launch a suit against Trump’s travel ban order. Now, Seattle has filed another suit seeking to bar the president from interfering with its status as a so called “Sanctuary City”. They have a powerful weapon with which to contest this point: the 10th amendment to the United States Constitution.
The not-so-mighty Tenth has amassed a checkered history before our nation’s highest court. In recent years, however, it has been trotted out as a bulwark against federal overreach, with landmark cases setting precedents on issues as diverse as nuclear waste, gun control, and health care.
The most recent of these was the landmark NFIB vs Sebelius. This decision set two seemingly conflicting precedents: that an individual responsibility payment for individuals without health insurance was within congress’s power, and withholding medicaid funds from states who did not implement the Affordable Care Act’s new eligibility threshold was not.
The Sebelius decision is likely to form a cornerstone of the Seattle, and other cities, challenges. In it, the Court ruled that threatening to withhold all federal funding amounted to a form of extreme coercion, a “gun to the head”, according to Chief Justice Roberts. This is no less than what Attorney General Sessions has threatened earlier this week.
Should the Trump administration make good on plans to withhold Federal grants to cities which do comply with its immigration enforcement policies, it will find itself having to make a case that it’s not wielding a similar gun. Seattle, and likely other cities, will no doubt make the argument that they are being placed under extreme duress, forced to chose between devoting resources to enforce Federal immigration laws and losing perhaps hundreds of millions in Federal funding. It’s hard to find fault with this argument. There are other precedents limiting to what degree the federal government can interfere with internal state policy. In particular, the court has held that states cannot be forced to enforce or implement Federal laws. And while no concrete policy changes have been announced from the White House on this matter, whatever is being decided will likely face substantial constitutional hurdles.
This is, of course, the very reason there is a tenth amendment. Decision at the Federal level have vast effects on state and local governments. There are good reasons to limit their scope and constitutional challenges to policy are the reason the judicial branch exists.
The irony of course is that both right and left wing governments are more than willing to ignore the tenth amendment when it suits them, but want to dust it off when the other side holds the reigns of power.
To progressives, with their worship of one size fits all government, the tenth amendment is a relic of another time. A fossil from the era when states mattered and federal power was limited to carefully designed boxes. How can “progress” happen when hindered by such close minded thinking? When the “living, breathing document” that forms the basis for our government is actually read as written, not as our politicians wish it to be.
Republicans and the right are guilty of this as well. They are perfectly willing to argue in support of state sovereignty when it comes to issues like health care or abortion, but forget it when discussion immigration or legalized marijuana.
The actual details of the Sanctuary City matter may well take years to be settled. We could see another landmark precedent around the use of federal funds to influence state policy, as in Sebelius or the earlier South Dakota v. Dole.
All talk about court challenges is, for the moment, speculation. What is certain is that power is always cyclical, and those today seeking to use the constitution to curb federal power will one day be the ones wielding it. One would hope that it could lead to a more circumspect application of that power in the future, but history gives little indication that will happen.