Implementing the Tenth Amendment
by Colorado State Senator Charles R. Duke

In the many discussions across several states, questions have risen concerning exactly how the "Tenth Amendment Resolution" will help. A few have also wondered, "What's Next?"

Some insight might be gained if we look at the reasons the Resolution came to life. This discussion is primarily intended for legislators, but can be useful for those of you who are working to have it introduced in your state. It may help in your discussions with legislators who you are asking to sponsor or support the resolution.

The principal motivation came from the myriad of federal mandates which have been placed and are planned to be placed on the states. State legislatures feel they have little choice but to implement these mostly-unfunded mandates and pass the cost for implementation to the state taxpayers. For most state legislators, this is a very frustrating dilemma.

The Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the Union of States, now have, and have always had, rights the federal government may not usurp. Article IV, Section 4 says, "The United States shall guarantee to every state in this Union a republican form of government.....", and the Ninth Amendment states that..."The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people".

We have, through apathy and lack of will, allowed federal legislators and bureaucrats to assert their will over us and commandeer our funds for their own use.... most of it today outside the authority granted to them by the Constitution.

When a state passes this resolution proclaiming its sovereignty, that state may then claim exemption to most federal mandates under the Tenth Amendment of the U.S. Constitution. This is what happened with New York v. United States, 112 S. Ct. 2408 (1992). The federal government was attempting to mandate that the State of New York accept radioactive waste for disposal. New York pleaded they were exempt from the mandate under the Tenth Amendment and the court affirmed the Tenth Amendment protection. Thus, by having proclaimed sovereignty, a state is in the position to select those mandates they will follow, now by choice, not by edict.

A sovereignty resolution does not preclude any state from participating in any program they choose, but the proponent may no longer claim, "It's federal mandate. We have to do it." Each state legislator in compliance with his/her oath of office must then examine closely before passage the Constitutionality of any law being considered.

Needless to say, the feds may be unimpressed with a statement of sovereignty and attempt to impose economic sanctions against the state as has become their pattern over the years. In anticipation of this, each state should also create escrow funds for each federally-funded major program. That is, the states will collect the major sources of federal funds, such as gas tax and income tax; on behalf of the federal government and make monthly disbursements to the feds from these escrow funds... but only if the funds are to be used for purposes which are allowed in the Constitution.

The cost for maintaining this flow-through operation can be borne through the short term interest gained from the escrow accounts. It is easy to see the savings that are possible when the bureaucracies established on the federal level to dole out funds to the states are no longer needed.

Additionally, the tremendous tax burden on all Americans can be eased because of the decreased spending. Should the feds then decide to place economic sanctions, generally meaning the withholding of certain funds, the state could then simply stop making the monthly disbursement to the feds and retain the funds in the escrow accounts. When the matter is resolved, and it certainly will be, the disbursements could continue.

This approach also allows the placing of surcharges on those federal payments in order to pay for the cost of implementing federal programs. The exact mechanism for creating these funds will vary from state to state, but the idea is fairly universal. In most cases, the funds in question properly belong to the state in question to begin with. There are those who believe there is no such quantity as "federal funds" in the first place. Every dollar disbursed by the feds originated somewhere through the sweat of someone's labor.

The sovereignty proclaimed by the state simply inserts the authority of the state, guaranteed by the U.S. Constitution, at a point to re-assert control which should never have been given over. This measure will then relieve the pressure of frustration from a federal government wildly out of control and move the decision process much closer to the people.

Should the feds decide to utilize their hired guns -- the judicial system -- in order to coerce obedience, sovereignty again allows the state to ignore orders of the court. The feds will not, in my opinion, go to more forceful coercions beyond the court system for fear of triggering their ultimate demise. They do not want this and neither do we. We are perfectly within our rights to proclaim protection from federal oppression by our United States Constitution. It was created with exactly these protections in mind.”