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.”