For some time now, many have voiced the notion that federal law always trumps state law. According to the 9th and 10th Amendments, this is false.

Numerous federal agencies have imposed unconstitutional regulations, which carry the same impact and consequence as law. Many of these regulations limit our liberty and literally choke the life out of America’s small businesses.

As Article VI, clause 2, states, “This constitution, and the laws of the United States, which shall be made IN PURSUANCE thereof…shall be the supreme law of the land.” Additionally, according to Article I § 1, only Congress can make law. Therefore, many executive orders, judicial opinions, and federal regulations not enacted by Congress or made IN PURSUANCE of the Constitution are not legitimate law.

The “Father of the Constitution” James Madison described the doctrine of “anti-commandeering” in Federalist #46. “Anti-commandeering” simply means the federal government cannot force state or local governments to act against their will. States are responsible to maintain their sovereignty in order to keep our Republican form of government, guaranteed in Article IV, § 4.

Mike Maharrey of the Tenth Amendment Center points to the following four Supreme Court decisions from 1842 to 2012 which firmly established Madison’s “anti-commandeering” doctrine:

PRIGG v. PENNSYLVANIA (1842) Justice Joseph Story wrote the majority opinion concerning the Fugitive Slave Act of 1793. He said that the federal government cannot coerce the states to enforce federal law.

Story wrote, “The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or entrusted to them by the Constitution.”

NEW YORK v. UNITED STATES (1992) Justice Sandra Day O’Connor wrote for the majority on the Low-Level Radioactive Waste Policy Amendment Act of 1985. The law violated the SOVEREIGNTY OF THE STATE of New York because “ [it] offers the States a ‘choice’ between the two unconstitutionally coercive alternatives–either accepting ownership of waste or ANTI-COMMANDEERING DOCTRINE regulating according to Congress’ instructions–the provision lies outside Congress’ enumerated powers and is inconsistent with the Tenth Amendment.”

Justice O’Connor continued, “As an initial matter, Congress may not simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program…While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”

PRINTZ v. UNITED STATES (1997) The Brady Gun Bill required that county law enforcement officers administer part of the background check, thus providing local enforcement of a federal program.

Justice Antonin Scalia wrote for the majority opinion, “…it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme…We held in New York [v. United States] that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of DUAL SOVEREIGNTY.”

INDEPENDENT BUSINESS v. SEBELIUS (2012) The federal government attempted to force states to expand Medicaid by threatening to withhold funding for their Medicaid programs.

Justice John Roberts held that punishing states by coercing them to participate in a federal program violates the separation of powers. Roberts wrote, “The legitimacy of Congress’s exercise of the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract’. Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the STATES AS INDEPENDENT SOVEREIGNS in our federal system. That system rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ For this reason, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions. Otherwise the TWO-GOVERNMENT SYSTEM established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.”

The Tenth Amendment 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.” This amendment appears to be simple enough. If the short list of less than 20 “powers” is not specifically listed in Article 1, § 8 as a federally delegated responsibility, then the individual States or the people reserve that authority. Is healthcare on the list? Business? Jobs? Wages? Education? Marriage? Abortion?

The States and the people created the federal government and determined its responsibilities - not the other way around. Constitutionally, States do not need permission from the federal government to take action. State legislatures must pro-actively enforce State sovereignty on behalf of the people they represent.

Our Constitution guarantees to all Americans in every state a Republican, representative form of government with separation of powers in order to maintain dual sovereignty. This foundational principle of liberty is unique to America’s form of government and is essential to our freedom.

*Article by Michael Moon and Karen Lees

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