10th amendment discussion

[marksman]

What powers does the state have exclusive of the federal government?

That's not what the 10th amendment preserves. All it states is that anything the federal government opts not to regulate can still be regulated by the States. In other words, it's making clear that that you can't argue that the Constitution, through silence, divested the States of any power.

It's true that the expansive powers granted the federal government by the Commerce Clause and 14th Amendment means there the federal government has few practical limitations on its powers. But that doesn't mean the State is powerless. It's simply subordinate to the federal government (thanks to the Supremacy Clause).

 

[JoeTheJuggler]

In other words, it's making clear that that you can't argue that the Constitution, through silence, divested the States of any power.

This.

All it states is that anything the federal government opts not to regulate can still be regulated by the States.

However, I would point out that there have been Supremacy Clause cases won by the fed under the notion of "field preemption"--that is, even though the fed hasn't yet regulated the specific thing the state law in question seeks to regulate, Congress has somehow already occupied that entire "field" and any state laws are preempted. This approach has sort of fallen out of favor more recently, though.

 

[JoeTheJuggler]

Well there is the notion of sovereign immunity which is Illinois is used by some state agencies to say that they are not required to follow federal guidelines like provisions the ADA and other strange things, even though the legislature legislated it into not existing, except as provided in legislation. Or something like that...

I think it was also enacted to curb the rise of Federal power in many ways, but hey the State Militias are the National Guard now, etc...

Hmmm. . . I'm not aware of the situation you're speaking of, but if Illinois attempted to pas laws that conflict with the ADA, those laws would be struck down under the Supremacy Clause.

As for people or agencies in Illinois ignoring federal law, they would be subject to persecution by the federal government.

Do you know of any examples of people or state agencies in Illinois violating the ADA and not facing charges (or lawsuits)?

 

[marksman]

I would point out that there have been Supremacy Clause cases won by the fed under the notion of "field preemption"

I was going to mention that, but then I thought I might be getting too esoteric.

 

[JoeTheJuggler]

I was going to mention that, but then I thought I might be getting too esoteric.

In a JREF forum?! Impossible!

ETA: And "field preemption" doesn't even have a cool Latin phrase.

 

[Suddenly]

In a JREF forum?! Impossible!

ETA: And "field preemption" doesn't even have a cool Latin phrase.

Maybe not yet.

How does "up yours, we're the Feds" translate into Latin?

 

[marksman]

Vini, vidi, vici.

 

[JoeTheJuggler]

Maybe not yet.

How does "up yours, we're the Feds" translate into Latin?

I don't look at it that way at all. The authority of the Federal government comes from "we the people" and not from the states. The purposes of the government--the reason we adopted the current federalist system (and the reason we rejected the system with a much weaker central government under the Articles of Confederation) are expressed in the Preamble to the Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

I surely don't look at it as a struggle between the federal government and the states such that the federal government is somehow the usurper of liberty.

At any rate, on the subject of field preemption, as I mentioned it's a theory that has fallen out of favor with the courts. Unless there is specific conflict, the court isn't likely to rule that federal authority (in the absence of federal laws) preempts state laws.

I think the 10th Amendment refers primarily to authorities not enumerated to Congress (and not prohibited to the states), but may also, as Marksman said, apply to areas of federal authority the federal government has opted not to say anything about. (The latter realm is weaker because it really doesn't reserve any authority for the state. If it's within the fed's authority, Congress can still pass laws that will indeed preempt the state laws that were enacted while the fed was silent. Conflict preemption is definitely still valid jurisprudence.)

 

[crimresearch]

The words 'exclusive of the federal government' appear nowhere in the 10th amendment, and that isn't what 'reserved to' means.

What powers were not granted to the federal government, and therefore left up to the states?

Police. Sales tax. Liquor sales laws. Insurance regulation, and most other licensure and business oversight.

The fact that there may be some overlap or duplication with the feds doesn't alter that.

 

[Dancing David]

Hmmm. . . I'm not aware of the situation you're speaking of, but if Illinois attempted to pas laws that conflict with the ADA, those laws would be struck down under the Supremacy Clause.

As for people or agencies in Illinois ignoring federal law, they would be subject to persecution by the federal government.

Do you know of any examples of people or state agencies in Illinois violating the ADA and not facing charges (or lawsuits)?

It was a case where the State argued and one that it did not have to do something because of sovereign immunity, I will try to find it, but my memory is vague. Something like teh state did not have to comply with some provision...

Here is one case but I don't think it is the specific one, I remember it involved a state employee, this one involves a prisoner

" The State in this case is protected by sovereign immunity.   The State has not consented to be sued by prisoners in the circuit court based on ADA violations, and the State's immunity has not been abrogated by Congress.  "

http://caselaw.findlaw.com/il-court-of-appeals/1482633.html

 

[marksman]

That case is quite clear. The ADA doesn't apply to Illinois because Congress didn't say that it applies to States. (You even quote that part of the decision: "and the State's immunity has not been abrogated by Congress.") States generally have sovereign immunity from suit. So when the federal Congress wants to create a law that allows citizens to sue State governments, they must do so explicitly. Courts will not imply such a right. The ADA does not have an explicit right of citizens to sue State governments.

This is not a case of the State ignoring federal law. It's a case where the United States Congress exempted the State law from federal law. Had Congress written the ADA to authorize specifically suits against State governments, then Illinois would have been out of luck.

 

[JoeTheJuggler]

It was a case where the State argued and one that it did not have to do something because of sovereign immunity, I will try to find it, but my memory is vague. Something like teh state did not have to comply with some provision...

Here is one case but I don't think it is the specific one, I remember it involved a state employee, this one involves a prisoner

" The State in this case is protected by sovereign immunity.   The State has not consented to be sued by prisoners in the circuit court based on ADA violations, and the State's immunity has not been abrogated by Congress.  "

http://caselaw.findlaw.com/il-court-of-appeals/1482633.html

Interesting case.

At any rate, the 11th Amendment re-affirms the sovereign immunity of the states. Basically states (and the federal government) can't be sued without agreeing to be sued. (This amended a part of Article 3.)

The issue here isn't the preemption of state law by federal law, but only that a federal law cannot be construed to be the state agreeing to be sued (even though, as the decision said, that was obviously Congress' intent).

That would not preclude a person in Illinois from suing an entity other than the state under the federal ADA. That's why I say this isn't a case of state law preempting federal law.

If the Illinois legislature tried to pass a law that conflicted with the ADA, that state law would be preempted. (They are certainly free to pass laws that complement the ADA.)

 

[JoeTheJuggler]

What powers were not granted to the federal government, and therefore left up to the states?

Police. Sales tax. Liquor sales laws. Insurance regulation, and most other licensure and business oversight.

And, as I mentioned, most other criminal and civil law that doesn't involve or affect other states (or interstate commerce). (There are a few exceptions. Kill a regular person, and it's a state matter. Kill a President or a foreign dignitary, and it's a federal crime--possibly in addition to being a state crime.)

 

[JoeTheJuggler]

That case is quite clear. The ADA doesn't apply to Illinois because Congress didn't say that it applies to States. (You even quote that part of the decision: "and the State's immunity has not been abrogated by Congress.") States generally have sovereign immunity from suit. So when the federal Congress wants to create a law that allows citizens to sue State governments, they must do so explicitly. Courts will not imply such a right. The ADA does not have an explicit right of citizens to sue State governments.

This is not a case of the State ignoring federal law. It's a case where the United States Congress exempted the State law from federal law. Had Congress written the ADA to authorize specifically suits against State governments, then Illinois would have been out of luck.

Actually the ADA was written that way (or written such that that was the clear intention of Congress), but the court ruled that that part of the ADA doesn't work because Congress can't waive a state's sovereign immunity.

And this is not a case where a state law is exempted from federal law. (There was no state law involved or discussed in the suit.) It also doesn't mean the ADA doesn't apply in Illinois. It's just that you can never sue a state unless the state agrees to be sued. The federal law does not comprise that agreement.

As I mentioned, you can sue entities in Illinois other than the state itself under the ADA, and Illinois or local laws cannot pre-empt the federal ADA.

Also, if Illinois had agreed to be sued, then the ADA would be the law that applied to the suit. So it's not really accurate to say that the ADA never applies to the state.

ETA: In short: sovereign immunity is only about a state's right not to be sued without it agreeing to be sued; it is not about authorities reserved to the state--that is, it's not about what laws a state can or cannot pass--which is the subject of the 10th Amendment.

 

[marksman]

Actually the ADA was written that way (or written such that that was the clear intention of Congress), but the court ruled that that part of the ADA doesn't work because Congress can't waive a state's sovereign immunity.

Crap. You're right. That's why I hate the 11th Amendment.

 

[Robert Prey]

I think examples of "automatic writing" belong in the Paranormal subforum!


I have no idea what he's talking about, but if I had to guess, I suppose it has something to do with this bit of Tea Party foolishness:

http://www.nytimes.com/2011/05/30/us/30gold.html

ETA: He's quoting from Article 1 Section 10 (which lists limitations to the authority of the states), but of course it's misleading to quote that little snippet while ignoring the part in Section 8 that gives Congress the authority to coin money--especially if he's purporting to answer the question you asked, "What powers does the state have exclusive of the federal government?"

The Const. allows congress the power to coin money and the states to prohibit any thing but coined gold or silver a tender. And thus, the States have the power to declare Federal Reserve Scrip unlawful as a tender in payment of debt. The alternative, is to ignore these Constitutional laws and allow a private banking syndicate (the Fed) to issue counterfeit by the trillions to favored entities including foreign entities, in direct violation of these monetary clauses and a debasing of the currency the consequence of which is to invisibly extract wealth from those who earn it, just like a thief in the night.

 

[JoeTheJuggler]

The Const. allows congress the power to coin money and the states to prohibit any thing but coined gold or silver a tender. And thus, the States have the power to declare Federal Reserve Scrip unlawful as a tender in payment of debt.

No, you're completely misreading that. The section you quoted was in a list of things the states are prohibited from doing. States may NOT coin money except for precious metals.

Basically, states can't make anything that has a "face value" that is of more value than the metal itself. They do not have the authority to muck with monetary policy which is a power reserved for the federal government.

At any rate, you were replying to a question about what power states have exclusively, and they most certainly do not have exclusive authority to coin money. In fact, aside from precious metals (which are only valuable because they're gold or silver and NOT because they're part of the monetary system), states do NOT have that authority at all.

If you subscribe to the silly idea that because the authority given to the federal government only talks about coins and mint (and not printing and paper money) the federal government has no authority to print paper money, you are simply buying into an easily debunked myth/conspiracy theory.

 

[JoeTheJuggler]

The Const. allows congress the power to coin money and the states to prohibit any thing but coined gold or silver a tender.

The bolded part is just a complete misreading of the text. That's not what it says. It says states (that is state governments) do not have the authority themselves to mint any money except gold and silver, as I have explained above. It says nothing about the state having an authority to prohibit any kind of monetary policy or money the fed produces under its authority.

ETA: If you doubt me as to the meaning of this section that lists what states may NOT do, see U.S. v. Rifen (1978) or Nixon v. Phillipoff (1985) and Foret v. Wilson (1984). These clarify that your reading of the passage you quoted (see my bolding added below) is wrong and mine is correct. My favorite is from Nixon which says:

The provision of the Constitution [USCA Const Art. 1, §8, cl. 5] which gives Congress the right to coin money, and regulate the value thereof, gives Congress exclusive ability to determine what will be legal tender throughout the country ... The provision of the Constitution [USCA Const. Art. 1, §10, cl. 1] which mandates that no state shall make anything but gold or silver coin tender in payment of debts acts only to remove from states inherent soverign power to declare currency, thus leaving Congress as the sole declarant of what constitutes legal tender; the provision does not require states to accept only gold and silver as tender ... Federal Reserve Notes are legal tender for any debt or public charge ... Using or accepting Federal Reserve Notes as payment for state court filing fees was completely proper under the Constitution. USCA Const. Art. 1, §8, cl. 5; 31 USCA §5103.

 

[JoeTheJuggler]

The words 'exclusive of the federal government' appear nowhere in the 10th amendment, and that isn't what 'reserved to' means.

Well said. I think confusion on that point is what led to the (wrong) idea that the 10th Amendment was mooted by the 14th or mooted by the simple fact that the SCOTUS has the authority to review and reject any violation of the U.S. Constitution by state laws.

 

[Robert Prey]

The bolded part is just a complete misreading of the text. That's not what it says. It says states (that is state governments) do not have the authority themselves to mint any money except gold and silver, as I have explained above. It says nothing about the state having an authority to prohibit any kind of monetary policy or money the fed produces under its authority.

ETA: If you doubt me as to the meaning of this section that lists what states may NOT do, see U.S. v. Rifen (1978) or Nixon v. Phillipoff (1985) and Foret v. Wilson (1984). These clarify that your reading of the passage you quoted (see my bolding added below) is wrong and mine is correct. My favorite is from Nixon which says:

Whew!!! Talk about Orwellian Double-think?
Art I., Sec. 10 specifically prohibits the states from coining money -- even if gold and silver. No where is there an allowance for the States to mint gold and silver or anything else.

"No State Shall ... Coin Money emit Bills of Credit, make any Thing but Gold and Silver Coin a tender..."

Moreover to allow that Art. I SEc. 8 allows the Congress to determine what legal tender shall be would mean the Founders contemplated two different kinds of tender -- one for the States and one for the Feds. Absurd on its face. But to cite a lower court case that goes along with such a mis-reading does not trump the fact that the Fed. Const. is the Supreme Law, and no court can change that. The subject was thoroughly debated by the Founders at the Const. Convention and never interpreted any other way so long as any of them remained alive.