by Kenneth Scot Stremsky

I am very glad that Henri-Paul Bolineau asked the question about the Federal Government using extortion to reduce blood alcohol limits. I also enjoyed Mr. Berg-Andersson's answer to his question. [Reference: 3 December 2002 -Ed.]

A friend of mine was murdered by a drunk driver in 1980. I hope State Legislatures will voluntarily reduce their blood alcohol limits and increase their drunk driving penalties. I do not believe the Federal Government should use extortion to bring this about. Threatening to withhold Federal funds if a law is not passed or a regulation not adopted is a form of extortion. I also think it does infringe on Amendment Ten. Because of Amendment Ten, the Federal Government may not force a State to do something the Constitution itself does not say a state must do. Because of Amendment Ten, a State may not be kept from doing something the Constitution itself does not prohibit. I do not believe Amendment Ten keeps the Federal Government from doing things not prohibited by the Constitution.

I should have been more clear when I discussed the Supremacy clause in Article Six. Congress does not have the power to force a State to adopt a "one strike you're out" law dealing with a violent crime. Because Federal law supersedes State law, if a person is arrested for a violent crime by State police, Federal prosecutors may have the person tried in a Federal court instead of a State court if Congress adopted a "one strike you're out" law. If the FBI arrested someone for a violent crime and State law in the State the crime was committed is tougher, the person could be tried in a State court if federal prosecutors want this to be the case.

I do not believe Amendment Ten does enough to protect State's Rights. I believe the balance of power between States and the Federal Government has shifted too much in the favor of the Federal Government since State Legislatures stopped choosing Senators. I am glad voters are allowed to choose Senators. I am not happy that the balance of power has shifted so much in favor of the Federal Government.

I believe the following amendments to the United States Constitution will shift more power to the State Legislatures and decrease the probability that the Federal Government will use extortion. I also believe the amendments will decrease the probability that the Federal Government will pass unfunded mandates that States and Localities have to act on.

An amendment to the United States Constitution should be passed that says when at least 70 percent of the State Legislatures of the United States of America vote for the repeal of treaties, laws, and regulations, they should be repealed. When at least 70 percent of the United States Senate votes to overturn a repeal, the repeal shall be overturned.

An amendment to the United States Constitution should be passed that says that when at least 80 percent of the State Legislatures of the United States of America vote for the removal of the President of the United States of America, the President of the United States of America shall be removed from office two weeks later. The decision shall be overturned when at least 70 percent of the United States Senate votes to repeal the decision. The United States Senate should have to vote on overturning the decision within two weeks after the State Legislatures of the United States of America have voted for the removal of the President of the United States of America.

Giving State Legislatures the power to repeal treaties, laws, and regulations will shift the balance of power between the State Legislatures and the Federal Government more to the State Legislatures. Unfunded federal mandates may be passed less often by Congress and/or executive branch departments. Trade agreements the State Legislatures do not like may often be repealed. People who have a problem with this amendment should remember that United States Senators used to be picked by State Legislatures and not by the voters. I am glad that Senators are picked by voters.

Amendment Seventeen passed by Congress on May 13, 1912 and ratified on April 8, 1913 allows voters to elect United States Senators.

Giving State Legislatures the power to remove a President of the United States of America from office may encourage future Presidents of the United States of America to behave better in office than some of our past Presidents of the United States of America have behaved.

Allowing State Legislatures to repeal treaties, laws, and regulations may decrease the probability that the Federal Government will infringe on the civil liberties of our citizens guaranteed by the Bill of Rights. The Federal Government has infringed on the Bill of Rights while it has waged the War on Drugs and the War on Terrorism. The Federal Government has infringed on Amendment Four, Amendment Five, and Amendment Eight of the United States Constitution while waging the War on Drugs. The Federal Government has infringed on Amendment Six of the United States Constitution during the War on Terrorism. Congress passed the McCain-Feingold Campaign Finance Law which infringes on political speech guaranteed by Amendment One of the United States Constitution.

Sincerely,

Republican candidate for President of the United States of America in 2004
http://www.geocities.com/kstremskyforpresident

Mr. Berg-Andersson responds:

I won't comment specifically on Mr. Stremsky's characterization of the relationship of the Supremacy clause in Article VI, clause 2 to the provisions 10th Amendment. One can read for themselves my previous responses- three to 'vox Populi' from Mr. Stremsky, three to 'vox Populi' from Mr. Bolineau- in which I have thoroughly discussed this issue: one can therefrom so easily see that I agree with Mr. Stremsky in part and disagree with him in part and my responses of this past week or so to both Mr. Stremsky and Mr. Bolineau, in my opinion, stand by themselves in well answering why I feel as I do. [Vox Populi References: November 28, 2002, November 29, 2002, November 29, 2002, November 30, 2002, December 1, 2002, December 3, 2002 -Ed.]

I want to, instead, use this response to address the constitutional issues behind what both Mr. Stremsky and I agree is a form of Congressional extortion- that is, using the withholding of Federal funds as a method of cajoling State legislatures into adopting laws they would otherwise not necessarily adopt:

There have been two basic theories of Federalism, as applied via Law (as opposed to the theories of Federalism I described in my most recent response to Mr. Bolineau, which are more the stuff of Political Science), that have been wrestling with one another since the early 19th Century. One of these theories is generally known as 'National Supremacy'- in which the supremacy of the Federal government over those of the States is assumed unless it can be shown otherwise in a given case: it dates back to the case of Chisholm v. Georgia (2 Dallas 419 [1793]); the result of the Chisholm case was specifically overturned by the adoption of the 11th Amendment to the U.S. Constitution but the theory that was the basis of Chisholm survived and became the basis of much of the constitutional jurisprudence during the tenure of Chief Justice John Marshall (1801-1835). Marshall himself wrote the classic expression of the essence of 'National Supremacy' in relation to the Necessary and Proper clause found in Article I, Section 8, clause 18 in his opinion in the case of McCulloch v. Maryland (4 Wheaton 316 [1819]) when he stated:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution are constitutional.

However, Marshall did go on to note that there are limits to such 'National Supremacy' when, later in the same opinion, he also noted:

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution; or should Congress, under the pretext of executing its powers pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the Judicial Department, and to tread on Legislative ground.

The delicate balancing act described by Marshall was, however, not quite good enough for those who advocated a second theory of legal Federalism in the United States- this being known as 'Dual Federalism', in which the Federal government and a government of any one of the constituent States of the Union are more or less equally sovereign (although this theory never was used by its proponents- beginning with the tenure of Chief Justice Roger Taney [1836-1864]- to thwart the Constitution's principal objectives, primarily when these also had the backing of the Federal Judiciary itself: in other words, even those who advanced the cause of 'Dual Federalism' would have agreed that a State's sovereignty ultimately paled before that of the Federal government; thus, the use of this theory by those who agitated for "State's Rights" was actually rather limited and the mistake made by the proponents of "State's Rights"- from the Nullification controversies of the 1830's through the battles over Civil Rights into the 1960s- was in their trying to stretch the concept of 'Dual Federalism' much too far). 'Dual Federalism' had its heyday from the mid-19th Century into the early 20th Century (the Civil War and Reconstruction notwithstanding) but 'National Supremacy' returned with a vengeance with the New Deal's responses to the Great Depression of the 1930s (especially once these responses began to be regularly ruled constitutional by the U.S. Supreme Court from 1937 on) and this theory once again became predominant well into the 1970s. With the middle of the 1970s beginning the evidencing of a rather strong backlash against the perceived excesses of the 1960s, however, the two theories of American Federalism have been more or less "duking it out" in the three decades since.

In the case of National League of Cities v. Usery (426 U.S. 833 [1976]), the Supreme Court struck down a requirement that public employees at all levels of government- State and local, as well as Federal- be brought under Federal minimum wage laws through what was more or less a 'Dual Federalism'-based decision. Lest this have spelled yet another quiescent period for 'National Supremacy', however, that very decision was specifically overruled in the case of Garcia v. San Antonio Metropolitan Transit Authority (469 U.S. 528 [1985]). Justice Sandra Day O'Connor penned a rather scathing dissent in the Garcia case, in which she noted:

The Court today surveys the battle scene of Federalism and sounds a retreat... I would prefer to hold the field and, at the very least, render a little aid to the wounded... It has been difficult for this Court to craft the bright lines defining the scope of state autonomy protected by National League of Cities. Such difficulty is to be expected whenever constitutional concerns as important as Federalism and the effectiveness of the Commerce Power come into conflict. Regardless of this difficulty, it is and will remain the duty of this Court to reconcile these concerns in the first instance. That the Court shuns this task today by appealing to the "essence of Federalism" can provide scant comfort to those who believe our Federal system requires something more than a unitary, centralized government... I share Justice Rehnquist's [William Rehnquist- then still an Associate Justice- had also written a dissent in this case] belief that this Court will in time again assume its constitutional responsibility.

That time came in the case of New York v. United States (505 U.S. 144 [1992]) in which Justice O'Connor got to write the Opinion of the Court (that is, on behalf of the Majority). Her expression of the proper balance between the Federal government and the States (and her own words will well explain why I am quoting this passage from her opinion in the context of the Federal government's engaging in what I myself have already described as "political extortion" in order to get States to pass laws Congress wishes the States to pass) was as follows:

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... Indeed, the question whether the Constitution should permit Congress to employ State governments as regulatory agencies was a topic of lively debate among the Framers... In the end, the Convention opted for a Constitution in which Congress would exercise its legislative authority directly over individuals rather than over States...

In providing for a stronger central government, therefore, the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States... We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks power directly to compel the States to require or prohibit those acts.

Having said all this, however, Justice O'Connor then went on to note the following (which I quote because it is clearly relevant to the issue being discussed in this response of mine):

This is not to say that Congress lacks the ability to encourage a State to regulate in a particular way, or that Congress may not hold out incentives to the States as a method of influencing a State's policy choices. Our cases have identified a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with Federal interests... First,... [w]here the recipient of Federal funds is a State, as is not unusual today, the conditions attached to the funds by Congress may influence a State's legislative choices... Second, where Congress has the authority to regulate private activity under the Commerce clause, we have recognized Congress' power to offer States the choice of regulating that activity according to Federal standards or having State law pre-empted by Federal regulation.

So, apparently- even among those on the Nation's highest court who trend more towards 'Dual Federalism' than 'National Supremacy', the methods usually used by Congress to influence State legislation- methods which both Mr. Stremsky and myself decry as "extortion"- are, at least for the time being, constitutional.

Nevertheless, one has to still question whether such methods are simply coercion attained by other means. As I pointed out in my 3 December response to Mr. Bolineau's original question on this subject of whether or not the Federal government can force the States to change its law, there is no way that a State such as New York can afford to turn away Federal highway aid money; in addition, if New York does turn down such funding through refusing to do as Congress wishes it to do, it would then have to raise the taxes its own citizenry has to pay into the State's coffers (or, alternatively, cut out some governmental services which that citizenry has wished to have provided by the State in order to then divert State revenue to make up for the lost Federal highway funds)- even though that citizenry will, of course, also still be paying Federal taxes, some of which at least would still be going to States other than their own, States which do adopt the legislation that the Federal government wishes the States to adopt, in the form of that very Federal highway aid that New York would no longer be eligible to receive. Is this not then, in and of itself, yet another form of coercion?

It is hard for me to believe that this is an aspect of Federal-State relations that the Framers could have ever contemplated; it is likewise hard for me to believe that this was what was intended by James Madison when he first drafted that which eventually emerged as the 10th Amendment (see my Commentary titled 'WITH LIBERTY AND JUSTICE FOR ALL (Part One)' for details). Does not the use of such methods bordering on political extortion only serve to make the United States of America the more "Unitary" and, therefore, the less "Federal"? And how desirable is this to most Americans in the long run?! Hopefully, some future Supreme Court will someday get a chance to revisit these techniques and at least somewhat restore that delicate balance that is the truest essence of American Federalism; right now, however, that balance seems more than a little out of whack!