- The Washington Times - Sunday, May 20, 2012

The 10th Amendment, the amendment supposedly reserving for the states all powers not explicitly granted to the federal government, gets a lot of rhetorical love on the campaign trail.

But on issues from medical marijuana to voter-identification laws to malpractice reform, both President Obama and presumptive GOP challenger Mitt Romney have shown few qualms about trampling all over the 10th Amendment.

Earlier this month, Mr. Obama cited a respect for states’ rights as he announced his personal “evolution” to support of gay marriage, but has repeatedly deployed his Justice Department to challenge states over their voter-ID and immigration laws, and medical marijuana use policies.

For his part, Mr. Romney has repeatedly invoked the 10th Amendment to defend why he signed a state-level health law mandating coverage as governor of Massachusetts in 2006, only to oppose a similar program now at the federal level. But he has also called for overriding state laws to enact national tort reform, and has declined to say whether he would halt federal raids on dispensaries in states that have legalized marijuana for medicinal uses.

Mike Maharrey, of the Tenth Amendment Center, said this kind of fair-weather federalism illustrates an inconsistency running rampant in both major parties.

“That’s one of my greatest frustrations with the political process, not just with Obama and Romney, but both sides of the political spectrum tend to kind of turn to the 10th Amendment when it’s convenient,” Mr. Maharrey said.

Rallying against overreach

Tea party activists, constitutional conservatives and libertarians have rallied around the 10th Amendment as a bulwark against government overreach, wielding it in their revolt against the growth of the federal government that started under President George W. Bush and continues under Mr. Obama. The spirit of the 10th Amendment now weaves its way through the daily debates on Capitol Hill and has made its way into the presidential campaign, where Mr. Romney, in particular, touts a message that is wrapped in the notion of federalism and limited government from Washington.

“As president, I will make the federal government simpler, smaller, smarter — and, by the way, more in keeping with the vision of the framers of our Constitution,” Mr. Romney said last week at a campaign stop in Des Moines, Iowa. He vowed to “move programs to the states” and repeal the president’s health care overhaul law, which many conservatives see as trampling on states’ rights and prerogatives.

Oddly enough, it was Mr. Obama who turned to the 10th Amendment this month to help explain how he can support same-sex marriage, but stopped short of a full-blown federal press against individual states that choose to outlaw it.

“I continue to believe that this is an issue that is going to be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage,” he said in a nationally televised interview a day after North Carolina in a voter referendum became the 31st state to approve or confirm laws defining marriage as involving only one man and one woman.

Mr. Obama’s stance on the gay-marriage issue stands in contrast to his Justice Department’s press to challenge laws in Texas and South Carolina setting tougher new identification standards for voters at the polls. Administration lawyers say the voter-ID laws have been used to unfairly target minority voters.

The Obama administration has also gone to the Supreme Court to strike down Arizona’s crackdown law on illegal immigration, saying defining immigration laws is solely reserved for the federal government. The administration also is awaiting a second Supreme Court ruling in which more than half of the states have challenged the powers claimed by the federal government under the new national health care law.

Ilya Shapiro, a senior fellow at the Cato Institute, a libertarian think tank, said that, at least in the legal battles over health care and immigration, Solicitor General Donald B. Verrilli Jr. had tough task of defending in court policies that point up the administration’s inconsistency on 10th Amendment questions.

“If they lose those cases, it wasn’t because he had a bad day or did a bad job,” he said. “Some of the arguments that the administration has taken to the court can most charitably be described as a stretch.”

Mr. Obama also has infuriated marijuana advocates, who are dazed and confused about the administration’s continued adamant stand against marijuana legalization, even as a number of states and the District of Columbia have opened the door to the licensed use of pot for medicinal purposes.

“There is no doubt that he has been the worst president by far for medical marijuana and respecting states’ rights — in terms of their own medical marijuana laws, which is strange because he has had personal experience with marijuana and seemed not to have as much of an ideological problem with the idea of marijuana as a medicine,” said Morgan Fox of the Marijuana Policy Project.

Romney challenged

Meanwhile, it appears that Mr. Romney wants to avoid taking a clear stand on the issue. In an interview with a Colorado television station, he mocked the reporter for asking about the issue, arguing it wasn’t as important as the economy. Asked about Mr. Romney’s stance on federal raids, Andrea Saul, his spokesman, wouldn’t answer directly, instead saying that the “governor opposes any marijuana legalization, federal or state.”

Said Mr. Fox, “People who are for marijuana-policy reform can hope that maybe [Mr. Romney] will respect states’ rights to the point where he will not use any Department of Justice or federal resources to try to interfere with state law on this matter, but I’m not sure you can really count on his loyalty to the idea of states’ rights.”

On a critical legal issue, it is the Republican challenger who is seeking federal action that would trump state preferences.

Mr. Romney also has argued that “America needs national tort reform” — putting him on the opposite side of the issue from conservative Republicans, such as Virginia Attorney General Kenneth T. Cuccinelli, who has vowed to file suit in federal court against a federal tort reform bill if it becomes law.

Mr. Cuccinelli declined to comment for this article, but, in an Op-Ed column that appeared in The Washington Post last year, he criticized the five Republican senators who had endorsed a bill that would give the federal government the power to dictate how state judges try medical-malpractice cases and to cap what state courts may award.

“It is frustrating how ‘broadly’ some senators interpret the powers of the federal government when they are pursuing a favored policy, and how ‘limited’ those same powers are seen to be when it is the other guy’s proposal violating the Constitution,” Mr. Cuccinelli said.

But invoking a familiar argument, Mr. Romney has said that the current patchwork of state tort laws has proven confusing and inefficient, and has left businesses exposed to the vagaries of differing state laws and standards.

“You know what state-level tort reform means,” he said in one 2007 address cited on his campaign website. “It means that as long as there is one lawsuit-friendly state, they can sue almost any major, deep-pocketed company in America. No thanks, America needs national tort reform.”

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