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Emmer's radical idea to change government: How can it possibly be constitutional?

An exchange of op-eds in the Sunday Strib highlights a pretty radical proposal by Republican Guv candidate Tom Emmer. Emmer’s idea — if it was adopted and if it was constitutional — would fundamentally alter the form of government in the United States.

Emmer favors an amendment to the Minnesota Constitution that would block federal laws from taking effect in Minnesota unless the congressional enactment was accepted by the Minnesota Legislature and the governor. In fact, the application of a federal law would require an affirmative vote by a two-thirds supermajority of each house of the Minnesota Legislature, and a signature by the governor to take effect in Minnesota.

Yes. Really. As a legislator, Emmer was not the chief author but one of three leading co-sponsors of the proposed amendment.  Read it for yourself. The text of the proposed amendment is here. Laws enacted by the Congress to apply to the whole country would not take effect in Minnesota unless they cleared that triple hurdle. And let’s face it, given the current state of American politics, nothing with the least whiff of controversy is going to pass. One third of either house, or a governor by him/herself, could erect a symbolic fence that would prevent the latest laws from Washington from taking effect in Minnesota.

Presumably, if Minnesota could do this, other states could too. And the system of national laws would become a patchwork of laws that applied in some states but not others.

There is this problem with the idea, though. It is almost surely unconstitutional (federal unconstitutional).  It’s hard to imagine that Emmer or the other sponsors think the U.S. Supreme Court would let it stand.

If I’m wrong about the constitutionality, it’s also pretty hard to see how the United States could continue to function as one nation, if each state was free to pick and choose which national laws they wanted to abide by. I know that Emmer favors a Minnesota opt-out from the provisions of the recent health care law. And it gives me a headache trying to picture the complications if some states were in and some were out. But that possibility pales compared with others that can easily be imagined. If this proposed new level of state nullification was adopted and Congress raised a federal tax, would it be up to each state to decide whether they felt like paying it or not? If Congress enacted a military draft, could those crazy peaceniks in Wisconsin decide it didn’t apply to their boys? Could southern states opt out of civil rights laws?

The amendment was introduced in the Legislature but isn't going anywhere for now. Still, Emmer is enthusiastic about its potential. His op-ed defending the idea doesn’t specifically answer any of the constitutionality or practicality questions I just posed, at least not specifically, but the essay and the test of the amendment imply that the answer is yes, states would have the power to ignore federal laws within their borders. Neither his piece, nor the language of the proposed amendment, suggests any limitations on this power.

The other op-ed piece, by DFLer David Lillehaug, a lawyer and former U.S. attorney, makes a powerful case that such an amendment would be struck down in a Minnesota minute as a fundamental violation of the U.S. Constitution’s supremacy clause, which states:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The Llillehaug piece calls the Emmer proposal a challenge to “the basic structure of America's constitutional system.” Adds Lillehaug:

“Emmer styles himself a ‘constitutional conservative,’ but this proposal is neither constitutional nor conservative.”

Emmer, by the way, is a law school graduate and a practicing attorney. In his own op-ed he said nothing about the possible constitutional problems with the amendment. I have asked for an interview to inquire about that and ask a few other questions not addressed in the piece and have been led to expect that I will hear from Emmer soon. I will surely pass along his answers.

The Emmer op-ed

The Emmer piece appears to be a reflection of the recent states-rights impulse among certain conservatives that is sometimes called Tentherism. That tendency is based on the 10th Amendment to the U.S. Constitution, which states that the U.S. government has only those powers delegated to it by the Constitution and that all other powers are retained by the states and the people. Tenthers believe that many federal actions overstep this principle. The language of the proposed state constitutional amendment invokes the amendment:

“Citizens of Minnesota are sovereign individuals, and immune from any federal laws that exceed the federal government’s enumerated powers.”

This is true in a sense. But the mechanism for enforcing the 10th Amendment already exists. If a federal law exceeds the constitutional power of Congress, it can be challenged in federal court and should be struck down by the U.S. Supreme Court. If such a law is allowed to stand, that means the court decided it was constitutional. Tenthers don’t think the Tenth has been properly respected by the courts since roughly the onset of the New Deal, and maybe it hasn't.

But the idea that an individual state can decide the question for itself, rather than the Supreme Court deciding for the whole country, is fairly revolutionary. It was thought to have been settled by the nullification crisis of the 1830s and subsequently by the Civil War.

Anyway, either the proposed constitutional amendment is sloppily drafted or it does not merely block at the state lines federal enactments that exceed the enumerated federal powers. It blocks all enactments unless they are ratified by a two-thirds vote of both houses of the Minnesota Legislature and by the governor.

As a candidate for governor, Emmer would, by himself, be empowered to stop federal laws at the state line, if his amendment was adopted. In his op-ed, He gives some examples of the kind of federal excesses that motivate him to want such a power:

“The Department of Education tells us how to educate our kids. The Department of Transportation tells us when and where to build roads or whether we should have a train instead of a road. The Department of Health and Human Services tells us what kind of welfare programs we must have. The Department of Commerce regulates our businesses, and the Department of Labor tells us whom we can hire at what wage.

"Minnesotans should have a say in the laws that govern them.”

Traditionalists might say that Minnesotans do have a say in the laws that govern them, but that say comes from their representation in the Congress and their role in electing the president.

The Lillehaug op-ed

Lillehaug is a DFL insider and certainly no friend of the Emmer campaign. In asserting the constitutional problems with the Emmer-supported amendment, his tone begins to border on derisive:

“As any fifth-grade student could tell Emmer, a federal law becomes effective throughout the nation when passed by both houses of Congress and signed by the president. Nothing in the U.S. Constitution provides — or even hints — that state legislatures and a governor must agree to opt in before a federal law is valid. As a lawyer, Emmer should be presumed to know at least as much about the U.S. Constitution as a fifth-grader. “

And Lillehaug offers his own hypotheticals of what could happen if Emmer’s idea became the law of the land:

“Just imagine: In one state, a legislative minority or a governor might decide not to opt in to immigration restrictions. Another state might choose not to pay a tax or allow a military installation. Another state could withdraw from Social Security or create its own monetary system. Such disunity is precisely what the U.S. Constitution cured.”

As I mentioned above, Emmer’s op-ed did not address the potential constitutional problems with his idea, nor respond to the kind of scenarios the Lillehaug paragraph above imagines, but I was told that he would call me to discuss them.

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Comments (70)

As a lawyer, Mr. Emmer surely knows this amendment is unconstitutional and that, as a practical matter, it has a minuscule chance of being adopted in Minnesota and no chance of withstanding constitutional challenge. It is however, a politically useful position to take and energizes a certain portion of the electorate that Mr. Emmer is counting on to turn out and vote for him.

The most disturbing thing about this proposal is not that it has a realistic chance of being implemented, but that politicians are willing to play with this kind of fire in their quest for office.

It's scary, because who knows how a reactionary Supreme Court would rule? This could be right up Scalito/Thomas/Roberts' activist alley.

Emmer was sending a message to his base, secure in the knowledge that because what he was proposing was so obviously unconstitutional no one else would be able to take it seriously, or perhaps more significantly, discuss it with any seriousness.

This is an example of the "big dumb idea". Big and dumb ideas are so obviously stupid that they can be dismissed in a moment with a convincing argument, in this case a reference to the supremacy clause. But responding to these things isn't as simple. There is a trap here. Because the argument is so obviously wrong, it can be challenging to respond to it without seeming patronizing, or even contemptuous of the one making it, and more importantly, seeming contemptuous of those with whom the underlying concerns of the argument, resonate.

Understatement of the day: "fundamentally alter the form of government in the United States."

How about destroy forever the United States of America. The only good news here is that the amendment has zero chance of going anywhere and just lets the world know how nutsy Emmer is.

There are three problems with Tom Emmer defending that extremist nonsense. 1. He is running for governor. 2. He doesn't understand the U.S. Constitution at all (especially the Ninth Amendment). 3. He's supposed to be a lawyer.

With the help of the tea-party movement, Republican politicians are once again embracing the most radical wing of the party.

One of the most bewildering and frustrating aspects of contemporary politics is the right's inability to recognize that support for "limited government" logically mandates that we stop using the government to micromanage other people's personal lives.

His main point apparently is that government should be closer to those governed. As he says, the (federal) Department of Education tells us how to educate our kids, the (federal) Department of Transportation tells us where to build roads, etc.

Presumably, he wants to substitute state governmental entities for the feds.

But then how long until another politician objects to the (state) Department of Education telling us how to educate our kids, and the (state) Department of Transportation telling us where to build roads?

Emmer's quest, taken to its logical end, leads to anarchy. Dismantle the evil federal bureaucracy, and soon the next target will be the evil state bureaucracy.

Should something like this become law (an absurd assumption, but I'm trying to play along with Emmer's logic), it seems that little would change because the federal government could cut of funding to states that refuse to abide by federal laws. We see this type of encouragement today with things like transportation funding tied to drinking age legislation. Sure, states, you can do whatever you want for drinking ages, but if you want federal dollars for highways, you may want to consider 21.

Also, has Emmer considered how much his followers would freak out if this level of unprecendented gubenatorial power was available to someone to the left of Emmer?

A. It will never pass our legislature to get on a statewide ballot.

B. If it did get on the ballot, Minnesota citizens would never approve it.

C. If it DID get approved, the U.S. supreme court would strike it down.

Being no dummy, Emmer surely knows this.

Why do it then? To stir his political opponents into just the kind of fury it appears to be causing.

And to get them to make just the kind of statements as those by Lillehaug, which can easily be read to suggest that anyone sympathetic is just plain dumb.

Not a bad way to make your opponents look bad to some voters, and to distract from the rants about the redesign of government.

Well...this is refreshing. Obviously, Mr. Emmer has found an issue that even Mr. Swift cannot comment favorably upon.

I think Bachmann, Emmer and the rest of the tea party people would rather destroy our country rather than live in a country that can elect a black man president. They hide it when the rest of us are around but I think this whole situation speaks loud and clear. They all voted for Bush (Bachmann pawed him like a school girl) and they went along with the bailouts and deficits when he was president.Obama isn't particularly liberal by Democratic standards. The tea party conveniently occupies the same wing of American politics that harbors the southern racists and their klan and nazi brethren. They are trying to figuratively assassinate Obama and I doubt they'd be too disappointed if it happened for real.

And when they destroyed the United States, given the chance, they would impose their version of a Christian theocracy using the same warped minds to literally interpret the Bible the same way they have literally interpreted the constitution.

They like to hide behind the smiling, pretty faces of their women, like Palin and Bachmann, to hide their evil intent. Unfortunately too much of America is no longer literate enough to read deeply enough to understand this.

In the context of American history, Emmer's proposal could hardly be more radical. As Eric mentions, President Jackson and Congress were willing to use force against South Carolina and its nullification stance in 1833, although the issue was not fully resolved until the Civil War was won by the North.

Sensible Republicans, in the spirit of Lincoln, should condemn Emmer's proposal. They should worry that Emmer seriously entertains such ideas as a solution to the problems of the nation and state. The time he has devoted to this reflects misplaced priorities and a distraction from addressing some of the most serious policy challenges the state has ever faced.

Lately, every time Mr. Emmer opens his mouth he gets in more trouble...

Mr. Emmer fed the crowd raw meat at the GOP convention and lately has attempted to clam up over what might happen if he were elected governo.

People are rightly asking for details before buying another Pawlenty in a poke.

Justice Souter has recently and eloquently pointed out to the Scalia crowd that claims of discerning the Founding Father's intentions in writing the Constitution are specious. This document is the result of "contentious politial polemics."

And of course there is the dirty little contradiction of slavery from which many of the founding fathers, including the sainted Jefferson, benefited.

As Souter asked rhetorically: "Did the judges of 1954 cross some limit of legitimacy into lawmaking by stating a conclusion that you will not find written in the Constitution?"

Sound-bites are not going to work this election for Mr. Emmer, thanks to his predecessor. We need some serious answers to our more than serious problems.

Unfortunately, for Emmer the absurd positions he has been taking lately are attractive to only a small number of people. I look forward to the general election when this pandering will be further exposed to scrutiny.

Article I, Section 8, enumerates the powers of Congress and begins with this paragraph (which is then followed by a long list of powers):

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all duties, Imposts and Excises shall be uniform throughout the United States."

It would be hard to separate almost any federal legislation from the Congress's responsibility to regulate both foreign and interstate commerce and/or to defend our nation (including such aspects of national defense instructure as the interstate highway and rail systems) and seek to structure government so as to make the general welfare of all its citizens a basic task.

The legislature should make stopping this amendment from reaching a ballot where misguided (gullible? propagandized?) people can vote for it Task #1.

As someone once pointed out, the beauty of folks like Bachmann, Emmer, Palin, Rand Paul, et al to Democrats and liberals is...they are the gift that keeps on giving!

Lillehaug is a DFL insider and certainly no friend of the Emmer campaign. In asserting the constitutional problems with the Emmer-supported amendment, his tone begins to border on derisive:

In my opinion, much of what Lillehaug said was diluted because he let his emotions get the better of him. We have seen this anger before from Lillehaug.

From wikipedia (http://en.wikipedia.org/wiki/Pickpocketing)
"Pickpockets and other thieves, especially those working in teams, sometimes apply distraction, such as asking a question or bumping into the victim. These distractions sometimes require sleight of hand, speed, misdirection and other types of skills."

And, Sleight of Hand Principle 6 (http://en.wikipedia.org/wiki/Sleight_of_hand)
"Misdirection - To lead attention away from a secret move."

Okay, I can understand where putting forth a ridiculous proposal in order to elicit derision from, well, anyone who sees that a policy like this ultimately leads to secession would invigorate the part of Emmer's base who wants teensy weensy tiny government and never mind the particulars. I don't understand how he thinks this will play in the general election. Surely he expects the DFL to run attack ads that use the amendment and op-ed as ammo. Abolishing the Union isn't something moderates will take to, and "abolishing the Union" is exactly what the DFL will call it. They will call him anarchist. They will bring up the Civil War. They will do this because he painted a sprightly yellow bullseye on his back. So why the blazes is he campaigning to the radical right instead of the moderate right or perhaps even the center?

Lee Ann's apparent success in breaking new ground with the Minnpost censors withstanding, John Iacono's comment contains the explanation of why I didn't feel the need to jump in on this one.

Emmer is countering the hysterical rants circulating among the scary smart, reality based community with his version of Ali's rope-a-dope tactic.

There are many perfectly reasonable people in this country that agree that the federal government has exceeded its constitutional mandate in some areas. Emmer's suggestion gives reasonable people the opportunity to discuss this important subject, and allows the fringe left of the Democrat party plenty of rope (a-dope) to put their off putting, pale white underbelly on display to the electorate.

There’s nothing I need to add.

Rage away.

There's not a lawyer in this country who wouldn't recognize the proposal as unconstitutional. It is so clearly unconstitutional that we can be sure Mr. Emmer knows it too. That means that either he truly wants to push this country toward ungovernability (which sounds kind of like treason, I'll leave that to the parsers of such terms), or he is willing to do so (by inciting his Tea Party base) in order to advance his own political prospects. Either deserves the utmost condemnation. Mr. Black, you and your media colleagues should be identifying this for what it is, not catapulting Mr. Emmer's propaganda by treating it seriously.

Mr. Holtman, you've hit on it exactly -- does it say anything better for Emmer if this proposal is an act? Equally ugly in my eyes.

So much for a reasoned discussion this election season.

Thanks for following up on this, Eric. I look forward to Mr. Emmer's reply.

In the meantime, I think Hiram Foster is correct in labeling a "big, dumb idea" a political ploy. I also agree that it's difficult to respond to a big, dumb idea without seeming patronizing, or even contemptuous, of the person advancing the idea, as well as supporters with whom the idea resonates.

So be it. Let me be patronizing and contemptuous. Some ideas merit that response.

It's not just a dumb idea, it's a malevolent idea, proposed by someone who appears to have convinced himself that his own government is the enemy, and whose irrational response to that delusion is to ask voters to make him part of that same government.

John Reinan seems on the mark to me, as well. The essential argument is, logically, not just with the federal government, but with any and all government. Why should Hennepin County, for example, follow along with state laws it doesn't like? Why should Blaine or Maple Grove or Minneapolis follow applicable ordinances enacted by the Hennepin County Commissioners? Why should I follow the rules established by any political entity of which I do not approve?

I would take Greg Kapphahn’s suggested headline a bit further: “Tom Emmer wants to turn the United States into the Confederacy.” Among the several reasons why Lee surrendered to Grant at Appomattox, and not the other way around, was that the Confederate States took their belief in states’ rights (much as Mr. Emmer would have us adopt it) out to its logical conclusion. They often refused to cooperate with each other, even in their own war effort. South Carolina would not send its troops to join Lee, because South Carolinians wanted those troops to defend South Carolina, not necessarily the Confederacy.

If we’re to continue to be a nation of laws, and not of men, or of whim, then the proper response to laws of which you do not approve is to elect representatives who hold your viewpoint, and to go through the lengthy, laborious, messy process of negotiation with others who may not share your views. We used to call this the democratic process (please note the lower case “D”), but Emmer, frustrated with a process that may never come around to his worldview, now tries political gamesmanship. If he believes in what he proposes, it’s stupid. If he doesn’t, it’s cynical. Either way, it disqualifies him from office.

Indeed, Miles Spicer is correct in noting that the radical right is the “gift that keeps on giving,” and in a benign political environment, I’d enjoy them for their entertainment value myself. Unfortunately, plenty of people who’ve been betrayed by that same radical right (e.g., “What’s the Matter With Kansas?”) continue to vote for people who give them sound bytes instead of sound policy.

"A. It will never pass our legislature to get on a statewide ballot."

If Republicans win control of the legislature and elect a governor, the possibility of something like this could not be ruled out.

"B. If it did get on the ballot, Minnesota citizens would never approve it."

An electorate which elects a conservative Republican legislature and conservative Republican governor might possibly pass such an amendment.

"C. If it DID get approved, the U.S. supreme court would strike it down."

So what? If a state decides to defy one branch of government, what's to stop them from defying another? How many troops does the Supreme Court have?

Emmer may be the demise of the Endorsed Republican's Cross over Voting should be interesting, Curious what the Endorsed Chris Barden for AG thinks, Sharon for the 1st time agrees with the DFL Position of Lillhaug
www.sharonagmn2010.blogspot.com
http://www.mnvoters.org/Judges.htm

The Republicans will still win this November, because Obama is ten times worse than anything the GOP can even speculate about. Witness Obama lawyering up at BP: "we are watching them closely with the best legal minds in the country".

Nevertheless it will be mildly interesting to see how Emmer squirms out of the Federalist Papers, which were 2/3rds written by Alexander Hamilton, who was a close banking associate of Issac Roosevelt, the ancestor of FDR.

The republicans under Karl Rove won elections on "wedge issues" which had no real legislative importance, such as "pro life". Do you really think they want a constitutional amendment against abortion. Absolutely not. It would be like reinstituting Prohibition.

RIGHT NOW, their policy is to shut up, and let Obama, deliberately, destroy the country. Witness their hasty containment boom around Congressman Barton.

The Supreme Court is bound to enforce federal laws at the expense of state laws where they are in conflict; even pre-Marbury courts had overturned state laws as unconstitutional under the supremacy clause.

Which leads me to believe Rep. Emmer is not seriously looking to amend the Constitution; nobody is. He's pushing for votes, and these are the types of things you say to get them. Grand, sweeping promises of change get people excited (sound familiar?), and there's nothing more sweeping than an actual change to the cornerstone document of our state. This is the Tea Party equivalent of "Yes we can!"

The problem with grassroots movements is that they typically consist of the woefully informed and short sighted. This is precisely why Voltaire preferred the "enlightened despot"to the ignorant masses.

In his commentary, Rep. Emmer spits on the graves of the men of the Minnesota First who died at Gettysburg fighting against the very 'common sense' idea he propounds and claims to find in the Constitution. It may be that Rep. Emmer really does wish he could be the governor of Mississippi rather than Minnesota.

Mr. Black has noted how particular EmmerTruth has been in trying to truth-squad references to Rep. Emmer. I suggest that Mr. Black apply the same standard of specificity to Rep. Emmer's commentary. (It could the the start of a new column -- we could call it 'Em and Emmer.')

Other than the misrepresentations of US history and constitutional government Mr. Black has already mentioned, Rep. Emmmer should be asked to give just one example of when the US Department of Transportation has ever told an unwilling state, region, or city that they 'should have a train instead of a road.'

I don't understand the commenters that think that Emmer's proposal is an act. This is the proposal of a fanatic, not a politician.

I guess that Mr. Emmer's ideas are as radical as the idea that the Commerce clause pretty much gives the right to the US Congress to regulate all aspects of American Life. If the Founder's wanted that to be so, 1) they wouldn't have enumerated the powers, and 2) they would not have reserved anything to the States. They would have gone right out and created another Monarchy.

Please tell me how a Supreme Court case from almost 100 years ago concerning the right of someone to REFUSE to do business is now impacting every single business and legal citizen in America?

Mr Emmer is doing nothing but trying to move us in the direction of the founders - LIMITED FEDERAL GOVERNMENT, and a strong SOVEREIGN STATE. 90 years of liberalism and failing public education has blinded most Americans to what that really means.

"The Supreme Court is bound to enforce federal laws at the expense of state laws where they are in conflict; even pre-Marbury courts had overturned state laws as unconstitutional under the supremacy clause."

I am not aware of any Supreme Court decision prior to Marbury which overturns a state law, although a quick and dirty google search tells me the concept of judicial review in various forms was not unknown the the framers of the constitution. But in any event, I don't think we can take it for granted that the Supreme Court has the power to enforce it's decisions. It is after all, a collection of nine ex lawyers, served by a gaggle of bookish but otherwise unintimidating law clerks, and a few janitors. It's power comes from it's moral authority, and that moral authority has been weakened by decades of attacks from the outside, and in the last decade, and some of it's own irresponsible behavior.

"The problem with grassroots movements is that they typically consist of the woefully informed and short sighted. This is precisely why Voltaire preferred the "enlightened despot"to the ignorant masses."

The problem with many liberals is that they are way too quick to dismiss the real concerns of people as uninformed and shortsighted. Voltaire didn't quite make it to the French Revolution, but the fate of his class should remind all of us of the potential downside of dismissing the concerns of ignorant masses.

I only used the European Union, rather than the Confederacy because the followers Princeling Tommy is appealing to are the type who bring Confederate flags to their rallies. Many of them believe they would be very happy returning to the Old South (where, they assume, they'd be the ones living in the plantations and keeping slaves).

Listening to the news coming home, that noted liberal Tim Pawlenty had actually asked the federal government to declare a state of emergency in several Minnesota counties hit hard by last week's tornadoes.

I'm assuming then that a Governor Emmer would not even bother to pick up the phone.

"In his commentary, Rep. Emmer spits on the graves of the men of the Minnesota First who died at Gettysburg fighting against the very 'common sense' idea he propounds and claims to find in the Constitution. It may be that Rep. Emmer really does wish he could be the governor of Mississippi rather than Minnesota."

I too have been reminded of the role Minnesota soldiers played at Gettysburg, where they didn't exactly win the Civil War, but where they surely prevented it from being lost. I spend a lot of time hanging at the State Capitol, which sometimes seems to me to be one big monument to the Civil War. It isn't Hjalmer Peterson's portrait you see hanging in the House of Representatives.

It is interesting to me that Rep. Emmer, after spending so much time down there, in ideological terms at least, has chosen to align himself with the other side, the losing side.

Hiram, I thought a bit of light snark was appropriate about at this juncture (Voltaire).

Truth be told I have voted for more (what are now called) RINO's than Dems. I vote candidate, not party.

Which is not to say that the Tea Party does not raise valid issues. They have rights too. And valid grievances. And signs. Mostly grievances, though.

Marbury is not applicable in one sense because that case "created" the Court's power to nullify acts of Congress on Constitutional grounds. There is no way that applies to cases that involve Constitutional rights themselves. But Marbury would apply because the Court would find the law unconstitutional, which is a different thing.

What McCullogh did was establish that the Court decides whether a law or act by a state can be tossed by the Court on Constitutional grounds. That happened to apply to an act by the Federal government which a state was obstructing but the source for that decision is bluntly and clearly in the Court's definition of its powers to define what is in and is not in the Constitution. That's the point.

You lefties have exposed your poor white underbellies, said Tom, conservatively.

Unless he repudiates his sponsorship of this amendment, Rep. Emmer has disqualified himself from serving as governor since he is publically declaring that he does not support the constitution of the United States.

Dist 5 Repub (Minneapolis) endorsing convention resolved that the state should secede.

The Repub party has held the Gov's office and thereby managed to govern the state to a standstill by just digging in their heels.

They surly could have nominated a good looking goof with "Constitutional Fundamentilist" credentals and continued to be competitive. Or they could have offered serious opinion and constructive ideas and remained at the table.

The Palin - Bachman - Emmer -Tea Party era of the Republican party is an ugly time, but
whatever sort of self destruction are they going through, it certainly is a wonder to watch.

Mr. Bin Shah (#29):

Suggest that you review the history of the Articles of Confederation to see the kind of weak union that the founders did NOT want.

Let's be blunt. Mr. Emmer knows full well that this won't fly, at the legislature or in court. He also knows that it plays well to the audience he needs to get to the polls come November. It's precisely this kind of cynicism that supports the idea that the phrase "honest politician" is an oxymoron.

That guy should vet his plans with someone smart that knows a bit about government before making his big announcements.

Why the sudden concern for the constitution?

The health care bill is the most nakedly unconstitutional piece of legislation to pass in this country's history. Few MinnPost commenters seem to care. Why is that? Because, they like the health care bill, or the idea of it, or what they think might be in it. In March of this year, House Speaker Pelosi told us “We have to pass the bill so that you can find out what is in it.”

The bill passed, so what's in it? One of the CrackerJack surprises inside is the requirement for every American to carry health insurance, or be levied a fine. Another freedom bites the dust.

People like to pull out the constitution when it supports their position, and run rough shod over it when it does not.

Am I the only one who thought the piece made Emmer look like neither a canny politician nor an impassioned ideologue but a real nitwit. At least he swung for the fences, right. It does look like he wrote it himself, though. You wouldn't pay someone to do that kind of job for you.

I think the reaction to this proposal and some of the reactions to the reactions illustrate why Democrats have so much trouble winning elections against whacko Republicans.

For one thing, most of the comments here miss the point almost entirely. The proposal is obviously unconstitutional, and in the short term will fail, so focusing on what kind of lawyering could produce such a proposal is waste of time. Likewise, complaining about Lillehaug's tone is only self defeating, it sets up a scenario that rules out strong reactions as somehow playing into the design of ones opponent. This is how liberals end up diluting and diminishing their own campaigns and responses, they tie their own hands with moderate bias.

There is one salient point here that cannot be overstated, and cannot be ignored. Republicans like Emmer are megalomaniacs. They literally want to dismantle the United States of American. They are not patriots and they are not believers in the constitution. The only thing they believe in are themselves and their own ideas. The whole point of nullifying the federal government is to concentrate power in their own hands. The thing that really chaffs them is the fact that so long as the federal government exists, they are not the supreme power in the land. They are America's would-be war-lords. The reason these guys are constantly battling the constitution is they don't recognize legitimate limits of their own power.

Democrats have made a huge mistake over the last 40 years assuming that these proposals are simply expedient politics directed towards the Republican base, they are not. While there's obviously some political strategy involved it's also absolutely true that if folks like Emmer and Bachmann could do this stuff... they would. They are not just saying this, if they can pass it they will. This is the most dangerous ideology facing the nation because unlike the Taliban, these folks are elected and serving.

One of the most disappointing things about being stuck with Democrats as our liberal champions is they never want to recognize the danger. They are constantly taken by surprise by Republicans who are literally prepared to tear the nation or state apart in order to consolidate their own power- despite the fact that these Republicans routinely declare their intentions.

I'm not saying anyone should be locked up or anything but you cannot make common cause with people who literally want to tear the nation or state apart. Such people have no interest in solving problems, or working together in the common interest, or deploying public resources in fair and equitable ways. No, they're not stupid, they are megalomaniacs. Only a megalomaniac sees no contradiction in declaring sovereignty while still being entitled everyone else's resources. That's why these guys see no contradiction in declaring themselves unbound by federal law but entitled to federal disaster relief money. It's not about being a lawyer, it's a personality thing.

Don't be afraid to confront such people and expose them for what they are. In fact we have an obligation to confront such people and expose them for what they are. Calling a Emmer a megalomaniac isn't name-calling, it's simply recognition.

I thought the issue at hand was whether the federal government has assumed authority not given it in the constitution. I don't believe anyone has ever raised objection to laws clearly within its authorized scope.

When the constitution clearly states that powers not specifically delegated are "reserved to the states, or to the people" I believe the question raised deserves discussion.

That being the case, it seems that to claim Emmer wants to tear up the constitution is quite a stretch.

Perhaps "crying wolf" is legitimate in some circles, but those who do it should remember what happened when the wolf was really there.

A rational discussion would stick to the facts at hand, in my thinking.

Paul:

Megalomania is a delusional mental disorder. If you have the medical credentials, and have examined a patient, then you can make a diagnosis. Otherwise, you are name calling.

As I intimated in my post above, perhaps the states need a solution to the federal government's nakedly unconstitutional actions, like the health care bill.

See today's STrib for more about Emmer.
Real nice guy; makes Pawlenty look like a pussycat.

//I thought the issue at hand was whether the federal government has assumed authority not given it in the constitution.

John, If you really believe this statement, and you really believe in the constitution, then what you do is you file a lawsuit. This has been working more or less for over 200 years. Your problem is sometimes you lose those lawsuits and you don't want to live with the ruling. And yes you're going to have to tear up the constitution if you no longer want to be bound the laws of the United States.

And Steve, for your information there is no diagnosis of "Megalomania" contained the Diagnostic and Statistical Manual of Mental Disorders. If there were, it wouldn't be in the delusional category it would be in the personality disorder category. At any rate since I'm not billing anyone for my "diagnosis" it's safe to say it's not malpractice.

Paul:

Megalomania is an old-school term. It is commonly referred to as Narcissistic Personality Disorder, and it can be clinically diagnosed. Breaching doctor patient confidentiality, such as posting a diagnosis on a comment board, is grounds for medical malpractice. If you are not qualified to be making this diagnosis, you may be suffering from the disorder.

I am interested to hear ideas regarding the source of the federal government's authority to do things like bail out GM and force people to buy health insurance.

Authority clearly not provided for by the U.S. Constitution.

//Megalomania is an old-school term. It is commonly referred to as Narcissistic Personality Disorder, and it can be clinically diagnosed. Breaching doctor patient confidentiality, such as posting a diagnosis on a comment board, is grounds for medical malpractice.

Steve, Megalomania is not an old school term, it has never been a diagnosis in any of the DSMs. Your the one playing Dr. and badly. Confidentiality doesn't enter into it because Emmer's not my patient. Megalomania is not a medical term, it's popular vernacular that describes people like Emmer. You should look up the difference between a "diagnosis" and a public observation.

As for government authority, in GMs case the government simply bought sufficient shares to give it a controlling interest in the company, that purchase was authorized by congress, and such spending by the executive branch when authorized by congress is perfectly constitutional. The purchase was negotiated with GM not forced upon them (remember, Ford opted out). There are also laws governing the granting of corporate charters that give the government legitimate interest in a private company when it operation is having an adverse effect on the state. The main body of legal authority in play with the health insurance requirement is interstate commerce law. But we'll see, maybe someone will file a lawsuit. Just because you don't like a policy doesn't make it unconstitutional. You may think it does... but that would make you a megalomaniac.

Paul//"John, If you really believe this statement, and you really believe in the constitution, then what you do is you file a lawsuit."

Of course you do. Well, if you have %500,000.00 and two years you do. Otherwise you grump and wonder if there might be another way.

It DOES happen all the time, though.

Amazing, if the all-powerful federal government is always right so long as duly elected, partisan legislators can wheedle a law through with threats, bribes, and suspect techniques.

Amazing, too, how often those who challenge such "perfect" laws prevail.

Of course I "believe" in the Constitution (whatever that means), which wisely provided for strictly limitine the powers of the federal government, and provided a way for bad laws to be challenged in court and even provided a way to amend the Constution itself.

It provided one way for the ordinary citizen to challenge the unscrupulous acts of megalomanic majorities in Congress or megalomanic chief executives.

For ordinary citizens, with neither funds nor time, however, simple disregarding of the laws (see drug laws, immigration laws, abortion laws and the like) is more often chosen.

And sometimes bigwig politicians choose the same route, as when they REFUSE to enforce laws such as immigration restrictions, even choosing to call breaking of the law what it is.

I don't approve of such ignoring of the law, no matter who does it, but I can understand it, and if someone wants to find a better alternative I will hear it, whether I approve of the law or not.

Holy cow; you DFL'ers are wordy without saying much. 38 States have already introduced resolutions to reaffirm the principles of delegated powers under the 10th Amendment. Others are adopting bills that will allow state legislators to grow a few and actually nullify federal over reach. Get a clue.

//Amazing, if the all-powerful federal government is always right so long as duly elected, partisan legislators can wheedle a law through with threats, bribes, and suspect techniques.

Government is not always right, the courts rebuke the government all the time.

//Amazing, too, how often those who challenge such "perfect" laws prevail.

And..

Of course I "believe" in the Constitution (whatever that means), which wisely provided for strictly limitine the powers of the federal government, and provided a way for bad laws to be challenged in court and even provided a way to amend the Constution itself.

Make up your mind John, do you believe in the "wise" constitution or not? If you do why to you unconstitutional proposals?

//The problem with many liberals is that they are way too quick to dismiss the real concerns of people as uninformed and shortsighted. Voltaire didn't quite make it to the French Revolution, but the fate of his class should remind all of us of the potential downside of dismissing the concerns of ignorant masses.

Very well said Mr. Foster, and it bears repeating. I think the word: "dismiss" is the key insight here.

Paul:

I looked up the difference between a diagnosis and a public observation, and it turns out you are name calling and denying it in the same sentence.

So, the federal government bought some shares of GM? That's not quite how it came down, or even close. GM went bankrupt, and for 50 billion taxpayer dollars, a federal judge awarded the government 60% interest. If the government had, as you said, purchased enough shares for a controlling stake, the money would have gone to shareholders, not to GM. Of course, this pales in comparison to the $389 billion (CBO estimate) it is costing us to bail Freddie and Fannie.

If the President wants to do it, and he can get a majority in congress to agree, he can cast the Constitution aside and do as he pleases. I agree with the 38 states that seek to reaffirm delegated powers and limit the federal government to the constraints of the Constitution.

//If the government had, as you said, purchased enough shares for a controlling stake, the money would have gone to shareholders,

Steve, seriously, your as confused about basic business and economics are you are about medical diagnosis. When you buy shares, you become a shareholder, you're money does not "come back" to you until you sell you sell your shares. Share money goes to the company who then uses it hopefully, to expand business and pay a dividend. If the company is successful your shares increase in value. Dividends are a combination of revenue and investment money. When someone owns controlling stock that means they have enough leverage to dictate certain business decisions.

Now that your looking stuff up you should look up the difference between and unflattering but accurate public observation and "name calling". When you enter the public arena, especially as a political candidate, you open yourself up to critique, examination, and assessment. There is no obligation or requirement that candidates be exempt from negative appraisals of their conduct or character, especially when they themselves make character a primary issue. When you call president Obama a socialist, you're not name calling, you're simply making an inaccurate assertion about his politics. When I call Emmer a megalomaniac I'm making an assertion about his politics and character, it's not a flattering assertion, but it's not name calling.

Which brings me to another observation, I've noticed that throughout all of this, you have not once actually disputed the claim that Emmer is a megalomaniac, you've only complained about my calling him one.

Too bad that many in business don't understand business either or otherwise the economy wouldn't be in such bad shape.

The big irony often lost on conservatives is that F D Roosevelt saved capitalism in America. While Europe was being torn between the left and the right, ultimately being almost destroyed by fascism mainly brought on by the global economic collapse during the Great Depression, Roosevelt propped up the economy giving businesses some breathing room and a chance to regroup.

That is what is going on now. Obama certainly understands economics better than many on Wall Street and the media pundits

Paul:

When one purchases a share of stock, they they purchase it from an exchange, either directly or through a broker. An exchange brings buyers and sellers together. The seller is not the issuer of the stock, in this case, not GM. The money does not go to GM. Everyday the volume of sales of stock for companies like GM number in the thousands. Again, that money goes to the stock sellers, not to GM. An IPO (you can look that up,) which is underwritten by an investment bank, is a little different. However, GM is in no position to do an IPO. They also have no need for an IPO, as the federal government is willing to "invest" 50 billion taxpayer dollars.

I'm not an Emmer apologist, but I can recognize rude behavior. Anyone not delivering a liberal line on this comment board is acutely aware that preaching to the choir is the norm, and little else is welcome.

Steve, if I have anything to say about it, you are most welcome in the discussion. Compared to what I see in the blogosphere, MinnPost's discussions are pretty civil.

Eric:

I think I have said what I had to say about it. It, being about policies and not politicians.

I find it ironic that a proposal to stand up to the federal governments nakedly unconstitutional actions (health care bill, Fannie & Freddie bail outs, etc.) is being tarred unconstitutional. Why the sudden concern for that cast aside antique document, the U.S. Constitution? 38 states (red & blue) have indicated that they would sue the federal government over the overreaching health care bill. A suit has already been brought by twenty states and the National Federation of Independent Business. Minnesota and Wisconsin’s Democratic Attorneys General have sided with the federal government rather than defend their state’s sovereignty. Seeing how other states are responding to the federal government’s encroachment, Emmer’s proposal is hardly the radical proposal it is portrayed to be.

Steve,

You're describing a situation where a company offers stock that flows into the exchanges and then spins off on it's own where it is bought and sold forever delivering no benefit to the company after the IPO. Do you really think that's how it works?

First, every stock does not change hands every day, and every stock sold is not resold, therefore the issuer of the shares retains some revenue from the original sales. Second, companies like GM are still issuing stock, in other words, not all stock purchased are re-purchased from previous buyers. When the number of buyers outnumbers the number of sellers, the corporation issue more stock, and yes they do this via the stock exchange.

But really, the basic problem with your whole argument is you are making bogus declarations regarding the constitution. The constitution allows for the executive branch's ability to make purchases that are authorized by congress. That's exactly what happened here- this was not a hostile takeover. But on a more basic level, you should know that the constitution does prohibit the seizure of private property, it requires due process if the government does seize private property. Although nothing was nationalized here, it could have been. The government could have declared a national emergency, and given the fact that GM was bankrupt, they could have simply seized the company temporarily. And it would have been entirely constitutional. If would kinda like taking GM into receivership. They could've done the same thing with the big banks, and I think they should have.

Just because you don't like what the government did, doesn't make it unconstitutional.

In my previous post I said:

//But on a more basic level, you should know that the constitution does prohibit the seizure of private property...

Sorry, I meant to say the constitution DOESN'T prohibit the seizure of private property.

“When the number of buyers outnumbers the number of sellers, the corporation issue more stock”

Really?

When a company does issue additional shares through an IPO, it dillutes the existing shares, giving the current shareholders a diminished stake in the company. This Share dilution puts a downward pressure on share price, so corporations do not issue new stock on a regular basis.

GM stock is not available to the public. Since they went bankrupt, GM has not been publicly traded. They expect to do an IPO later this year, but market and corporate conditions may not be right, and an IPO has not been scheduled.

I find nothing in the constitution that provides for the federal government’s involvement/interference with GM. Where in the constitution did you find it? The President wanting to do it, and a majority in congress going along, does not make it constitutional. You liking it does not make it constitutional.

If you have found the constitutional authority for the federal government's action with regard to GM, reveal it to us.

Chief Justice Marshall in McCulloch v. Maryland:

"This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted."

It is not a case of the government can do anything it wants, unless the constitution says it can't.

Steve,

We all know we have a constitution. We all know that the constitution contains checks an balances to limit the power of government so it doesn't become abusive. What's your point?

The only people who have argued that the government can do anything it wants in the United States in the last 10 years or so have been Bush/Cheney justice department lawyers, and not only would most people disagree with those views, but the courts have ruled that to have been shoddy lawyering for the most part.

You guys keep pointing to the tenth amendment and it's enumerated powers. Don't you realize the issue then becomes whether or not a given power has or has not been enumerated? Simply pointing to tenth's language doesn't prove your point, you need to show us some power you think is being abused and show how it has not been enumerated.

Take this recent discussion for example. You asked and people have told you where the federal powers to "take over" GM and implement the health care policy have been enumerated, and we've explained where from at least in theory those powers are derived. Your next step is either to take issue with those arguments, or concede but argue that though these government actions may be legal, they are nevertheless bad policy. Instead you just circle back to the beginning and expect us to pretend we haven't had this conversation before. Is it rude of me to ask you to stop arguing in circles?

By the way, I think Eric Black did a really nice piece on the Tenth a while back here, it may be a good idea to look it up.

Paul:

Couldn't find anything in the constitution to back your position?

What are you referring to with your "Bush/Cheney justice department lawyers"? comment? Warrantless wire taps, detaining terror suspects at Gitmo? Those things continue today.

I have to point out once again the way people like Steve are scripturizing the constitution. This business of issuing quotes as if they require no interpretation is exactly the stuff scriptural debates are made of. If you look at the way some of these people relate to the constitution it looks a lot more like a relationship to a sacred text than a legal foundation for a nation. You get these declarations of unconstitutionality that look a lot more like product of revelation than critical examination of the relevant text and law.

//This Share dilution puts a downward pressure on share price, so corporations do not issue new stock on a regular basis.

Not on a regular basis, but stocks are issued beyond the IPO. A variety of factors influence share value, it's not simply an issue of supply and demand, and it's not a closed system.

//GM stock is not available to the public.

Yes, but obviously it was available to the government. Steve, it's very simple, somehow the Treasury department (The Governmment) ended up owning 60% of and 8% of Chrysler stock, you tell me- how did that happen if he government didn't buy the stock, and what's unconstitutional about it? And no, the answer is not in the Ten Amendment.

Sorry, meant to say "60% of GM and 8% of Chrysler".

//(Reuters) - General Motors Co GM.UL plans to file plans as soon as next week for a public offering of stock that could raise up to $20 billion in one of the largest U.S. IPOs ever, a person with knowledge of the preparations said on Wednesday.(6/24)

The U.S. Treasury holds a 60.8 percent stake in the common stock of GM, Export Development Canada 11.7 percent, the United Auto Workers healthcare trust 17.5 percent and old GM, now known as Motors Liquidation, holds 10 percent.

The Treasury said earlier this month that a GM IPO would include the sale of shares by the U.S. government and other shareholders. The allocation of those shares to be sold has yet to be determined.//

It would be nice if grownups could stop pretending that the government can evade the responsibility of lender of last resort, and accept its responsibility for keeping financial firms from playing too close to the edge in the first place.