The New Tenthers

Put a Republican candidate on the stump in Texas and chances are the 10th Amendment will come up. In today’s political lexicon, invoking the 10th is the verbal equivalent of flying the “Don’t Tread On Me” flag: It implies the federal government is trespassing on states’ rights — and about to suffer the consequences.

The final amendment of the Bill of Rights has enjoyed a constitutional renaissance since its midcentury heyday as an instrument for southern states’ opposition to integration. Of late it’s gone from being a mantra of Tea Party-associated “Tenthers” — a pejorative nickname referring to supporters of the 10th Amendment movement — to a closely held tenet of the conservative establishment.

In the last few months alone, it has served as a buttress for Gov. Rick Perry’s opposition to the Environmental Protection Agency’s threatened federal takeover of the state’s air permitting program and its regulation of greenhouse gases; it is the promised premise of the governor’s latest authorial effort “Fed Up,” a book slated for release just in time for the November election; and it’s the underpinning of Attorney General Greg Abbott’s lawsuit to block federal health care reform. (Incidentally, Abbott has adopted the “Don’t Tread on Me” flag as a campaign logo.)

The Texas Public Policy Foundation, an Austin-based conservative think tank, has also just announced it will open a center dedicated exclusively to 10th Amendment scholarship, with former Texas Solicitor General Ted Cruz, who served under Abbott from 2003 to 2008 and clerked for the late U.S. Supreme Court Chief Justice William Rehnquist, and Scott Brister, who sat on the Texas Supreme Court from 2003 to 2009, at the helm.

Still, in a year that Cruz says “has seen the most dramatic expansion of federal government authority and the most concerted assault on individual liberty in modern times,” many legal scholars believe the 10th Amendment hasn’t been a valid legal argument since after the New Deal, when the U.S. Supreme Court broadly expanded the economic activity the federal government could regulate under the interstate commerce clause.

"It hasn't been taken seriously as a legal matter for 70 years,” says Supreme Court historian and University of Texas law professor Lucas Powe. “It's simple. Think of any federal law — does it tax, spend, or regulate commerce? Once you answer yes, the 10th Amendment is out."

Under the 10th Amendment, states reserve whatever powers the Constitution doesn’t delegate to the federal government. Determining what those powers are necessarily turns on what the federal government can do. As Powe intimates, the executive branch’s most expansive authority comes under its powers to tax, spend, and regulate interstate commerce. He says those powers — combined with the “necessary and proper” clause, which authorizes the federal government to pass any laws “necessary and proper” to execute its constitutional powers— leave very little regulation outside of the federal government’s wheelhouse.

Powe also points to the 10th Amendment’s unsavory legacy: Before it provided the legal basis to challenge integration laws, it was used to strike down laws limiting child labor and to preserve the institution of slavery prior to the Civil War. “The problem of the 10th Amendment, if taken seriously, is that it leads to a race to the bottom,” Powe says. “Which state can do the worst and force other states to do the same thing?"

Cruz acknowledges that “a significant percentage of legal academics in our law schools today do not recognize any force to the 10th Amendment.” (He refers to these academics as “creatures of the left.") But in his view, and that of many conservatives, the 10th Amendment goes beyond what is contained in text. It is shorthand for a host of legal doctrines that restrict the federal government, like those “meaningful limits” on the executive branch’s power under the commerce clause that he says the Supreme Court reinstated during Rehnquist’s tenure as chief justice during the '80s and '90s. For Cruz, the 10th Amendment is not about states’ rights. “It’s about individual liberty,” he says. “The more power that’s held at a local level, the more accountable government has to be” — and the easier it is for people to “vote with their feet,” or move away from states that implement policies they disagree with.

Bill Mateja, a former Justice Department attorney who investigated health care fraud under former U.S. Attorney General John Ashcroft, says that publicly referencing the 10th Amendment is a way to send “a populist message that says, 'Hey, look, the federal government is treading on my territory.'”

“It's an easy way to, one, send the message and, two, say there's girding for that message based in the Constitution,” says Mateja, who now practices law in Dallas for the law firm Fish & Richardson. “Sometimes politicians get it right, and sometimes they are just using it as propaganda.”

In the case of a 10th Amendment challenge to health care reform, Mateja says an argument based on the limits of the commerce clause could hold water — if it were focused on the individual mandate.

Mateja says it’s “unprecedented” for Congress to use the commerce clause to regulate economic inactivity (e.g., not buying health insurance) and notes that insurance contracts have traditionally not been considered commerce — that’s why the states regulate the insurance industry. But Mateja says it’s still “hard to envision how under the 10th Amendment that this law is going to be struck down" because of the expansive powers granted to the executive branch under the “necessary and proper” clause.

A state challenge to the EPA’s greenhouse gas regulation is also unlikely to succeed, he says.

"A long time ago, the Supreme Court laid to rest Congress's ability to enact laws that have to do with the environment, and the executive branch’s abilities to also have a regulator like the EPA,” Mateja says. “It comes back again to the commerce clause.”