House Joint Resolution 1, introduced by Rep. Dennis Roch, R-Texico, seeks to use the 10th Amendment of the United States Constitution to invalidate any laws that rely on an “expansive” reading of the U.S. Constitution.
The resolution says, “New Mexico hereby claim sovereignty under the tenth amendment to the United States constitution over all powers not otherwise enumerated and granted to the federal government by the United States constitution.”
The bill asks “that all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed.”
The proposed bill is an almost direct copy of one at the Tenth Amendment Center. The sample legislation leaves places empty for the state’s names and then asks “that a certified copy of this resolution be transmitted to the President of the United States, the President of the United States Senate, the Speaker and the Clerk of the United States House of Representatives, and to each member of this State’s Congressional delegation 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.”
Similar legislation has been introduced in a majority of states — with 14 states passing the resolutions in the past two years.
One of the key tenets of the legal theory is that the U.S. Constitution does not allow for earmarks because of the 10th Amendment.
A growing faction within the Republican party has grown to disdain earmarks. But the question of whether Congress — the appropriating branch of government — has the right to direct spending has never been at issue. And Scalia’s explanation of that right may have left some of these freshmen Republicans wondering why the party has gone so far off the deep end.
“It’s up to Congress how you want to appropriate, basically,” Scalia told the members, according to Rep. Louie Gohmert (R-TX). “He pointed out historically, like when Jefferson was president, [Congress] said here’s a big pot of money, you decide where it goes, and Jefferson ended up paying up a big hunk of it to the Barbary Pirates.”
The odds of such a resolution passing in New Mexico, which has Democratic-controlled majorities in both the House and Senate, seem slim.
During the Supreme Court debate over President Barack Obama’s health care reform law, Scalia said the health care reform bill was contrary to the 10th Amendment.
“I mean, the 10th Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people,” Scalia said Tuesday, arguing that the court has held certain laws “reasonably adapted” but not “proper” because they “violated the sovereignty of the States, which was implicit in the constitutional structure.”
The rest of the Supreme Court did not agree and the law, nicknamed “Obamacare,” was constitutional.