Accomplished attorneys providing solid legal counsel and legal representation.

The Tenth Amendment and the Resurrection of States’ Rights in the Age of Coronavirus

| Apr 15, 2020 | Firm News |

“Whatever the outer limits of that sovereignty may be, one thing is clear: The Federal Government may not compel the States to enact or administer a federal regulatory program.” New York v. United States, 505 U.S. 144, 188, 112 S. Ct. 2408, 2435, 120 L. Ed. 2d 120 (1992).

Could anything be clearer?

Here’s what happened in New York v United States. Congress enacted a Federal Law requiring the States to depose of low level radioactive waste. Some Counties in New York objected. In a 6-3 decision, Justice Sandra Day O’Connor wrote:

The Federal Government may not compel the States to enact or administer a federal regulatory program. The Constitution permits both the Federal Government and the States to enact legislation regarding the disposal of low level radioactive waste. The Constitution enables the Federal Government to pre-empt state regulation contrary to federal interests, and it permits the Federal Government to hold out incentives to the States as a means of encouraging them to adopt suggested regulatory schemes. It does not, however, authorize Congress simply to direct the States to provide for the disposal of the radioactive waste generated within their borders. While there may be many constitutional methods of achieving regional self-sufficiency in radioactive waste disposal, the method Congress has chosen is not one of them.

New York v. United States, 505 U.S. 144, 188, 112 S. Ct. 2408, 2435, 120 L. Ed. 2d 120 (1992).

The ruling in New York v. United States is that the Federal Government cannot make any State enact or administer a Federal program, especially where the safety of its people are involved.

The scientists seem to say that, even if the cases of Coronavirus level off and then decline significantly, we have to go slow in going back to normal or we can have another large waive of cases. The Governors of many States want to follow the scientists.

But this is the view of the Executive Branch:

“The president of the United States calls the shots… They can’t do anything without the approval of the president of the United States.”

Asked what provisions of the Constitution gave the President the power to override the states if they wanted to remain closed, the response was: “Numerous provisions,” without naming any.

There are no such provisions. But there is one that trumps everything, the Tenth Amendment of the Constitution of the United States.

“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.” Amendment X, United States Constitution

The bottom line is that the Governors have the responsibility and the power to protect the people they govern. The Executive Branch or the Congress cannot dictate to the Governor of any State on this subject. That much is clear. Crystal clear. It is that simple.