By Harold Pease, Ph. D
States should not sue the federal Government to obtain rights they already have under the Tenth Amendment of the Constitution because doing so undermines—potentially to oblivion—that Amendment. It reads: “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.”
The proper constitutional state response to the Obama directive of May 12, 2016, allowing transgender students in public schools to use bathrooms and locker rooms consistent with their chosen gender identity, should be to ignore it and forward a letter to the president reminding him that transgender bathrooms, or anything like unto them, are nowhere listed in the enumerated powers of the Constitution Article I, Section, 8 and have not been added by way of amendment.
States using the 10th Amendment should also encourage other states to do the same thing. If the eleven states presently suing the federal government for abuse of power instead took this course, the president would back off—proportionally, more so, as states refusing compliance on constitutional grounds, enlarged. This approach not only does not allow the federal government to weaken the 10th Amendment, but frees the state from costly litigation and the schools from costly implementation. Resolvement is also immediate. Progression through the lower courts to the Supreme Court takes years for resolvement, which is not likely to happen in the Obama Administration. While we wait the administrative objective is, in effect, fait accompli.
The choice to litigate rather than use the 10th Amendment not only implies that the federal government might have some measure of jurisdiction but allows a federal branch of that government sole power to decide. Rare has been the modern Supreme Court decision that limits federal power or protects the separation of power between the federal government and state government. Consider recent decisions on national health care, also not an enumerated power and therefore 100% a state power. State protection of state sovereignty becomes impossible should the Court rule against suing states. States will have neutralized themselves.
Those advocating the litigation process have forgotten the role of federalism in our republic—that two governments, one primarily for foreign affairs, the other for domestic affairs, each coequal, were established in the Constitution. This was the first separation of powers—those not specifically given by the states to the Federal Government belonged to the states. It supersedes the second division of power that of the creation of the legislative, executive, and judicial branches in the Constitution, which then divides the power left to the federal government. The Founders viewed the enumeration of responsibilities in the three branches they created as sufficient.
Fortunately the states, fearing a future over-reaching federal government, insisted on an amendment in the Bill of Rights restating what was then the obvious, before they would ratifying the Constitution. This, in order to protect more fully the separation that had been established—their right to be coequal—thus the 10th Amendment to the Constitution. Thomas Jefferson explained it best when he said, “The states are not subordinate to the national government but rather the two are coordinate departments of one single and integral whole…. The one is domestic the other the foreign branch of the same government.”
The Supreme Court serves a very important role as the umpire in keeping the division of power between the three branches separate but cannot nullify or adjudicate to oblivion the first separation of power, that between the two coequal governments. If a power is not enumerated in the Constitution, having been given to the federal government by consent of the states, in a process outlined in Article V, it belongs to the state and no decision of the Supreme Court can change this. Keep in mind that judicial review, now the peg post to hang most Supreme Court decisions, was not effectively established until Marbury vs. Madison in 1803, thirteen years after the Constitution went into effect and long after the establishment of State authority to nullify federal over-reach.
Perhaps Alexander Hamilton said it best when he wrote that every act outside of enumerated authority is contrary to the Constitution and thus is void. Hamilton continues, “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm … that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid” (The Federalist, No. 78, p. 467).
Again, States should not sue the federal government over transgender bathrooms or anything else to obtain rights they already have under the Tenth Amendment of the Constitution. What they need instead are governors and legislatures with a better understanding of the document and “fire in their bellies” to protect the Constitution they have sworn by oath to preserve. The federal directive for transgender bathrooms is the most outrageous abuse of the enumeration clause of the Constitution ever and therefore the most likely abuse to gain public support for state nullification. It is passed time to use the Tenth. Have we governors that will do it?