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Emmer outlines another radical idea for limiting federal power

Tom Emmer explains his plan to limit federal “mandates” by giving unusual powers to the govenor, state House speaker and state Senate majority leader.

Rep. Tom Emmer
MinnPost/Terry Gydesen
Rep. Tom Emmer

Tom Emmer did call your humble and obedient ink-stained wretch Monday afternoon, for which he definitely deserves credit since there have been several posts in this space recently that were rough on him, including one yesterday about his support for a state constitutional amendment that would block most federal laws from taking effect in Minnesota.

The Repub guv candidate ran out of time before we could fully explore his ideas for bending the curve in the area of federal power over states. It’s definitely an area about which he’s worked up, and if he becomes governor, he will push the envelope. I had hoped to ask him whether he believed his ideas for asserting state power to block the application of federal laws and mandates in Minnesota can possibly be constitutional. But the best I got on that was,

Emmer: “I don’t know if it’s constitutional; I think its worthy of discussion.”

Earlier in the day yesterday, I had learned about a second measure that Emmer supports that also, like the one covered in yesterday’s post, would raise serious issues of constitutionality and practicality.  This one would also set up a mechanism by which Minnesota could block federal laws and mandates from taking effect in Minnesota. And it turned out that this was the one Emmer wanted to talk about, and which he had in mind when he made the arguments he made on the Strib’s Sunday op-ed page.

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OK, to cut to the chase: Emmer downplayed his involvement in House File 3738, which was the topic of yesterday’s post. He was just a co-sponsor but his colleague, state Rep. Steve Drazkowski of Mazeppa, Minn., is the chief author. Emmer said the idea “has merit.” But he seemed much more invested in House File 3012, of which Emmer is the chief author. Here’s how HF 3012 would work:

Any time the federal government imposes a new “mandate” on the states, Minnesota’s governor and the speaker of the House and the majority leader of the state Senate would be asked to consider whether they believed the federal government had the proper authority to impose that mandate.

If all three agree that “that the United States Constitution provides explicit authority for the federal mandate,” it can take effect in Minnesota, but if any one of the three determines that the feds have exceeded their power, the mandate will not take effect unless the same mandate is voted into law by the Minnesota Legislature.

This idea is a bit different in scope and in mechanism from the proposed state constitutional amendment authored by Drazkowski (and co-sponsored by Emmer). But it is quite similar in its underlying purpose and in the likelihood that it would be ruled an unconstitutional violation of the U.S. Constitution’s Supremacy Clause. The Supremacy Clause says that state laws and constitutions are subordinate to the U.S. Constitution and to the federal laws enacted under its authority.

Ah, but that’s exactly the problem, as Emmer sees it. The feds have long since gotten into the habit of enacting laws and issuing mandates that exceed the closely limited authority bestowed upon the national government by the Constitution. Said Emmer yesterday:

“The federal government has gone way beyond its constitutional authority. And frankly we need to put some balance back into it… The state is literally being force-fed laws that go beyond the authority of the federal government… What’s good for Minnesota may not be good for all states and vice versa… A one-size-fits-all blanket approach is not best for everyone…In order to have a strong union, I believe you have to have strong states.”

I said to Rep. Emmer, as I said in yesterday’s post, that the radical nature of both of his bills, and the reasons they would almost certainly be struck down as unconstitutional, is that they substitute rulings by state officials for the established mechanism for ascertaining whether a federal law exceeds the constitutional power of the federal government. That method is to file a federal lawsuit and ask the courts, ultimately the U.S. Supreme Court, to decide whether the federal action is constitutional or un.

Replied Emmer (and these sentences are drawn from a few paragraphs of Emmer response to my there-is-already-a-mechanism assertion):

“That is the preferred mechanism by some. That is usually federal-leaning constitutionalists. I’m not saying that’s inappropriate. I’m just saying that the states shouldn’t be waiting [for the courts to decide].

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“So while I appreciate that some might say that is the mechanism, well, that is one of the mechanisms. I think if you’re going to talk about a constitutional legal question. I’m taking about taking it from whether or not the authority is there in the first place. [Meaning the constitutional authority for the federal government to legislate in a particular area]. The state certainly does have the right to determine that at the state level, I believe, under our existing constitution.

“If you’re saying that [leaving it for the federal courts to decide whether Congress has exceeded its authority] has been the practice, I won’t disagree with that. Just because that has been the practice that doesn’t mean that we’re not supposed to be looking at these issues on a regular basis. We’ve gotta reset the table [on this issue].

“If the federal government can pass laws effective over all 50 states, why do we even have state constitutions?”