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

Tom Emmer has a radical idea that, if adopted, would fundamentally alter the form of government in the United States. But there’s this problem: The idea is almost surely unconstitutional.

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.

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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

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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.

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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.