Texas has the opportunity to take matters into its own hands.

Opposition to the Patient Protection and Affordable Care Act, with its embedded health insurance mandates, has stirred a widespread revival of interest in the Tenth Amendment and state sovereignty issues.

The passage of the health care act opened the eyes of many previously apathetic citizens, making them aware of the rapidly expanding scope and influence of the federal government and its intrusiveness into  their everyday lives. They intuitively understand that requiring them to purchase health insurance falls far beyond the powers granted to Congress by the Constitution. Suddenly awake and alarmed by the fact that the federal government has grown so far out of control, and frustrated by what they see as the lack of responsiveness by politicians in D.C., many Americans find themselves looking for answers.

And they are turning to their states.

Fourteen states have sued, seeking to block implementation of the unconstitutional health care act. Twelve states, led by Florida Attorney General Bill McCollum filed in federal court in Pensacola.

“The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage,”  the lawsuit states.

But some states are asserting their own authority to block unconstitutional acts, recognizing that federal courts don’t stand as the sole arbiter of constitutionality.

On Nov. 16, Texas Representative Leo Berman (R-Tyler) filed a bill in the Texas House of Representatives that would nullify federal health care legislation in the the Lone Star State. HB-297 asserts:

The federal Act is not authorized by the United States Constitution and violates the Constitution’s true meaning and intent as expressed by the founders of this country and the ratifiers of the Constitution.
The federal Act:
(1)  is invalid in this state;
(2)  is not recognized by this state;
(3)  is specifically rejected by this state; and
(4)  is null and void and of no effect in this state.

The bill takes things a step further, making it a crime for any official, agent, or employee of the United States or an employee of any corporation to enforce any part of the health care act in Texas, and imposes fines up to $5,000  and/or five years in prison for anyone convicted of doing so.

While some might call this legislation radical, it rests squarely within the scope of state power as understood by the framers of the Constitution. James Madison wrote in the Virginia Resolution of 1798 that states not only have a right, but a duty to step in when the federal government oversteps its authority.

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Tenth Amendment Center founder Michael Boldin said that Berman’s bill does not represent an extreme viewpoint and insists each state should determine the best path for its own citizens.

“There is nothing more extreme than having a federal government that refuses to abide by the laws that we the people of the several states delegated to it in the Constitution,” he said. “The important point here is that it’s up to the people of each state to determine what the best response may be. One state, as Wyoming did with its Firearms Freedom Act, may decide that penalties on federal agents is the rightful response.  Another, such as California with medical marijuana, may choose to create an environment conducive to non-compliance by masses of people. Either way – or somewhere in between – that’s the beauty of the American system. We can have widely varying actions, responses and viewpoints in different states while all living together in peace. One-size-fits-all solutions are actually the problem, and state-by-state decision-making is the natural response.”

Berman said that his bill faces an uphill battle as long as the current Texas House leadership remains in place. The legislation will likely end up bottled up in committee.

“The best chance for passage is to get rid of the current Speaker,” Berman said.

That speaker is Rep. Joe Straus (R – San Antonio)

Straus did not respond to an email request for comment.

Despite the fact that the bill faces long odds for passage, Boldin said introducing this type of legislation remains important,

“Whether or not there’s any guarantee of getting something passed is no reason to not do what’s right,” he said. “Champions look at insurmountable odds and take them on with passion, and that’s what We the People need to do in defense of our liberty.”

And its about baby steps. Boldin said he views the dismantling of an overreaching, bloated federal government a long-term project.

“Dealing with a constitutional monstrosity like Obamacare is going to take time. In the mid-90s, people around the country were saying that it was absurd for California to go it alone and try to pass a medical marijuana law. But they did, and today, we  see 15 states openly defying the federal government on this issue,” he said. “The blueprint is straightforward – when enough people say no to the federal government and enough states do so as well, there’s not much that the feds can do to enforce their unconstitutional ‘laws’ on us.”

Madison agreed, Writing in Federalist 46, he laid out the blueprint for constraining overreaching federal power.

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”

Texas has taken the first step. Now the people of Texas need to rise up and insist on passage of the bill. Ultimately, the people’s voice will carry the day.

The question remains, will they speak?

EDITOR’S NOTE: Texas is the first state to see the Federal Health Care Nullification Act introduced. Sources close to the Tenth Amendment Center tell us to expect up to 10 other states considering such legislation in the 2011 legislative session. CLICK HERE – to learn more about the bill and track progress of the act around the country.

A few days ago I wrote an article entitled “The EPA can go to Hell, and I will go to Texas“. The article pointed out that Texas could (and does) favorably manage it’s own environmental policy while maintaining a superior economy. Both of which the federal government has failed to do. The EPA’s goal is simple: accrual of more power into the hands of the gluttonous feds.

For the last week, Governor Perry and the Texas legislature have been rattling the 10th amendment sabers and highlighting the success of the Texas policies. However, this week, the EPA officially took over control of the permitting process for one of these Texas refineries. EPA Region 6 Administrator Al Armendariz stated that the EPA is prepared to take over Texas’ entire permitting process. Now that the EPA has made it’s move, it is time for Texas leaders to quit talking and take significant action.

Here are concrete steps that the state of Texas needs to take to reassert it’s Constitutional right to govern without federal intrusion. Nullification, based on the 10th amendment  and our founding principles of federalism, is the legal answer to a federal government that seeks to centralize power without restraint.

Step 1: Governor Perry calls a special session

Since the Texas legislature does not meet until 2011, the Governor of Texas must call for a special session of the Texas legislature.

Step 2: Texas Legislature passes nullification legislation

Something simple like this should do the trick:

SECTION 1. The legislature of the State of  Texas finds that:

1. The People of the several states comprising the United States of America created the federal government to be their agent for certain enumerated purposes, and nothing more.

2. The Tenth Amendment to the United States Constitution defines the total scope of federal power as being that which has been delegated by the people of the several states to the federal government, and all power not delegated to the federal government in the Constitution of the United States is reserved to the states respectively, or to the people themselves.

3. The assumption of power that the federal government has made by enacting the “Clear Air Act” interferes with the right of the People of the State of Texas to regulate the state oil and gas industry as they see fit, and makes a mockery of James Madison’s assurance in Federalist #45 that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”

SECTION 2. NEW LAW

A new section of law to be codified in the [STATE] Statutes as Section [NUMBER] of Title [NUMBER], unless there is created a duplication in numbering, reads as follows:

A. The Legislature of the State of Texas declares that the federal law known as the “Clean Air Act,” and the federal agency known as the Environmental Protection Agency (EPA) is not authorized by the Constitution of the United States and violates its true meaning and intent as given by the Founders and Ratifiers, and is hereby declared to be invalid in this state, shall not be recognized by this state, is specifically rejected by this state, and shall be considered null and void and of no effect in this state.

B. It shall be the duty of the legislature of this State to adopt and enact any and all measures as may be necessary to prevent the enforcement of the “Clean Air Act” within the limits of this State.

C. Any official, agent, or employee of the United States government or any employee of a corporation providing services to the United States government that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this act shall be guilty of a felony and upon conviction must be punished by a fine not exceeding five thousand dollars ($5,000.00), or a term of imprisonment not exceeding five (5) years, or both.

D. Any public officer or employee of the State of Texas that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this act shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding two (2) years or by a fine not exceeding One Thousand Dollars ($1,000.00) or both such fine and imprisonment.

E. Any aggrieved party shall also have a private action against any person violating the provisions of subsections (C) or (D).

SECTION 3. This act takes effect upon approval by the Governor.

Of course, it may make more sense to identify specific parts of the Clean Air Act in more detail, but rejecting the entire charter of the EPA in Texas would be a huge step for freedom and state soverignty. Once drafted, no Republican worth the (R) next to his name should vote against this and no Democrat worth the “Texas” next to his name should either.

Now Available for Pre-Order

Back to you governor for the signature, that will send those EPA thugs packing.

And next time this Administrator Al Armendari steps foot in Texas, he should be escorted to the nearest border, where he can scurry back to Washington D.C. with the message that Texas is done playing games, they’ve finally had enough.

Brian Roberts [send him email] is the State Chapter Coordinator for the Texas Tenth Amendment Center

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

The resolution affirms that “the State of Texas claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the U.S. Constitution, serving notice to the federal government to cease and desist certain mandates, and providing that certain federal legislation be prohibited or repealed.”

The final vote was 99-36. (click here to see the tally)

Here’s the full text of the resolution:

WHEREAS, The Tenth Amendment to the Constitution of the United States reads as follows: “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”; and

WHEREAS, The Tenth Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and

WHEREAS, The scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states; and

WHEREAS, Today, in 2009, the states are demonstrably treated as agents of the federal government; and

WHEREAS, Many federal laws are directly in violation of the Tenth Amendment to the Constitution of the United States; and

WHEREAS, The Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the Union of States, now have, and have always had, rights the federal government may not usurp; and

WHEREAS, Section 4, Article IV, of the Constitution says, “The United States shall guarantee to every State in this Union a Republican Form of Government,” and the Ninth Amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”; and

WHEREAS, The United States Supreme Court has ruled in New York v. United States, 112 S. Ct. 2408 (1992), that congress may not simply commandeer the legislative and regulatory processes of the states; and

WHEREAS, A number of proposals from previous administrations and some now pending from the present administration and from congress may further violate the Constitution of the United States; now, therefore, be it

RESOLVED, That the 81st Legislature of the State of Texas hereby claim sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States; and, be it further

RESOLVED, That this serve as notice and demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers; and, be it further

RESOLVED, That all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or that requires states to pass legislation or lose federal funding be prohibited or repealed; and, be it further

RESOLVED, That the Texas secretary of state forward official copies of this resolution to the president of the United States, to the speaker of the house of representatives and the president of the senate of the United States Congress, and to all the members of the Texas delegation to the congress with the request that this resolution be officially entered in the Congressional Record as a memorial to the Congress of the United States of America.

A Texas lawmaker wants to further push state sovereignty from the federal government.

Rep. Leo Berman, a former Arlington mayor pro tem, has filed a bill to make guns, ammunition and gun parts that are made, sold and kept in Texas free from federal regulation.

That would exempt them from federal gun registration, dealer licensing rules and buyer background checks. State laws would still apply.

“This does two things,” said Berman, a Tyler Republican. “It tests our sovereignty in relationship to the federal government, and it would attract new small gun manufacturers to the state to manufacture certain types of weapons and ammunition that are only used in intrastate commerce.”

Guns and sovereignty are fiery issues in the Lone Star State, where residents resist federal regulations that could trample on either right.

Sparks flew last month when Gov. Rick Perry talked about how some Texans might want the state to secede from the U.S. and when a bill advanced in the Legislature to tell the federal government to “cease and desist” imposing regulations on the state.

Berman’s bill, similar to measures in Montana and Alaska, would push the sovereignty button even further.

The bill is pending in the House Public Safety Committee.

Texas-made

Berman said his bill is geared to help smaller “mom and pop” gun, ammunition and gun-part makers in Texas.

Those who make and sell their products in the state would put a “Made in Texas” stamp on items meant to stay in Texas.

CLICK HERE TO READ THE FULL ARTICLE

The resolution passed without amendment and is awaiting further action. (h/t Jeff Matthews)

Here’s the full text of the resolution:

WHEREAS, The Tenth Amendment to the Constitution of the United States reads as follows: “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”; and

WHEREAS, The Tenth Amendment defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and

WHEREAS, The scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states; and

WHEREAS, Today, in 2009, the states are demonstrably treated as agents of the federal government; and

WHEREAS, Many federal laws are directly in violation of the Tenth Amendment to the Constitution of the United States; and

WHEREAS, The Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the Union of States, now have, and have always had, rights the federal government may not usurp; and

WHEREAS, Section 4, Article IV, of the Constitution says, “The United States shall guarantee to every State in this Union a Republican Form of Government,” and the Ninth Amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”; and

WHEREAS, The United States Supreme Court has ruled in New York v. United States, 112 S. Ct. 2408 (1992), that congress may not simply commandeer the legislative and regulatory processes of the states; and

WHEREAS, A number of proposals from previous administrations and some now pending from the present administration and from congress may further violate the Constitution of the United States; now, therefore, be it

RESOLVED, That the 81st Legislature of the State of Texas hereby claim sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States; and, be it further

RESOLVED, That this serve as notice and demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers; and, be it further

RESOLVED, That all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or that requires states to pass legislation or lose federal funding be prohibited or repealed; and, be it further

RESOLVED, That the Texas secretary of state forward official copies of this resolution to the president of the United States, to the speaker of the house of representatives and the president of the senate of the United States Congress, and to all the members of the Texas delegation to the congress with the request that this resolution be officially entered in the Congressional Record as a memorial to the Congress of the United States of America.

Governor Rick Perry of Texas is getting some nice national press for endorsing a state “Tenth Amendment” resolution stating, among other things, that “That the 81st Legislature of the State of Texas hereby claim sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.”

Everyone seems to have forgotten that we went down this road not too long ago, and it didn’t lead anywhere. In the early and mid-1990s, many states (including Montana) passed similar resolutions.

In fact, the Texas resolution is almost a word-for-word duplication of those passed in the 1990s – including even the gross historical error that “the federal government was created by the states specifically to be an agent of the states.”

The resolutions of the ’90s had little long-term effect. One reason was the non-binding effect of mere resolutions. Another was that you can say the states have all powers not delegated to the federal government, but that means nothing unless you define the powers of the federal government more narrowly than they are currently being defined.

At a time when states have become deeply dependent on federal revenue, state officials have strong incentives to cooperate with the source of that revenue.  So when state legislatures did follow up in the ’90s with more substantive legislation, governors and attorneys general often ignored it. A case in point was Governor Marc Racicot’s failure to enforce the Montana Mandates Act.

Perry may be more serious than most: He was willing to turn down part of the Congressional stimulus plan. If he is really serious, he’ll oppose any state budget that includes spending for other constitutionally-suspect programs.

If tea party advocates want anything more than resolutions, the way to start is to ensure that between now and the next election, they swarm all over our state and federal elected officials, giving them no peace until those officials begin to respect the Constitution’s limits on federal power.

Cross-posted from Electric City Weblog

Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history.  He is currently seeking a publisher for his latest book, The Original Constitution.

Under the dome of the Texas capitol, folks typically focus on the Texas constitution, but it’s time to revisit the U.S. Constitution and the protections it guarantees, specifically in the Tenth Amendment. The authors of this amendment, ratified in 1791, remembered what it was like to be under the thumb of a distant, all-powerful government.

Unfortunately, the protections guaranteed by this visionary document have melted away over time. Since the U.S. Constitution was first ratified, the federal government has slowly, steadily and successfully eroded the notion of state’s rights.

The Founding Fathers understood that a one-size-fits-all approach just doesn’t work, especially in a country the size of America, and it certainly doesn’t work for Texas. Our economic strength, compared to the federal budget mess and other states’ troubles, is evidence that Texans know what’s best for Texas.

The Constitution simply does not empower the federal government to override state laws without restraint.

I agree with Texas’ 7th governor, Sam Houston, who once said, “Texas has yet to learn submission to any oppression, come from what source it may.”

We didn’t like oppression then and we certainly don’t like it now. Unfortunately, pressure is increasing from a federal government that is growing increasingly oppressive in its size, its intrusion into the lives of our citizens, and its interference with the affairs of our state.

I am calling on Texans to stand up and be heard, because this state of affairs cannot continue indefinitely. Returning to the letter and the spirit of the U.S. Constitution, and its essential Tenth Amendment, will free our state and, ultimately, strengthen our Union.

Regardless of your party affiliation, that is a goal we can all embrace.

from the Office of Texas Gov. Rick Perry

Gov. Rick Perry on Thursday joined state Rep. Brandon Creighton and sponsors of House Concurrent Resolution (HCR) 50 in support of states’ rights under the 10th Amendment to the U.S. Constitution.

“I believe that our federal government has become oppressive in its size, its intrusion into the lives of our citizens, and its interference with the affairs of our state,” Gov. Perry said.

“That is why I am here today to express my unwavering support for efforts all across our country to reaffirm the states’ rights affirmed by the Tenth Amendment to the U.S. Constitution. I believe that returning to the letter and spirit of the U.S. Constitution and its essential 10th Amendment will free our state from undue regulations, and ultimately strengthen our Union.”

A number of recent federal proposals are not within the scope of the federal government’s constitutionally designated powers and impede the states’ right to govern themselves. HCR 50 affirms that Texas claims sovereignty under the 10th Amendment over all powers not otherwise granted to the federal government.

It also designates that all compulsory federal legislation that requires states to comply under threat of civil or criminal penalties, or that requires states to pass legislation or lose federal funding, be prohibited or repealed.

HCR 50 is authored by Representatives Brandon Creighton, Leo Berman, Bryan Hughes, Dan Gattis and Ryan Guillen.

To view the full text of the resolution, please visit:
http://www.capitol.state.tx.us/tlodocs/81R/billtext/html/HC00050I.htm.

Caption:

Affirming that the State of Texas claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the U.S. Constitution, serving notice to the federal government to cease and desist certain mandates, and providing that certain federal legislation be prohibited or repealed.

From the bill

WHEREAS, The Tenth Amendment to the Constitution of the
United States reads as follows: “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”;
and
WHEREAS, The Tenth Amendment defines the total scope of
federal power as being that specifically granted by the
Constitution of the United States and no more; and
WHEREAS, The scope of power defined by the Tenth Amendment
means that the federal government was created by the states
specifically to be an agent of the states; and…

More Information Here