Constitutional conflict: Emmer’s new position difficult to reconcile with bills he backed

Tom Emmer
MinnPost/Terry Gydesen
Tom Emmer

In recent comments — his first in two  months on tentherism — Repub guv nominee Tom Emmer appeared to back away from his previous efforts to challenge the existing constitutional balance of power between Minnesota and the federal government.

Specifically, Emmer implied last week at the Humphrey Institute that two bills he sponsored last year asserting the right of Minnesota to block the application of new federal laws and mandates within the state were not really serious proposals so much as an effort to “have a discussion” about the need for caution by the state in accepting federal money that comes with strings attached.

Problem is, Emmer’s new position is difficult to reconcile with the bills he actually sponsored or co-sponsored. Those bills were fairly radical and almost certainly unconstitutional assertions of states’ rights to nullify federal laws, mandates and regulations.

Emmer is, for now at least, unwilling to clarify whether he would even have voted for the bills he sponsored, nor whether, as governor, he would sign them, nor whether the discussion he wants to spark would challenge the current understanding of the supremacy clause in the U.S. Constitution.

I suffer from a by now diagnosable obsession with issues of tentherism. So I’ll try not to get drawn in too deep on this round. But here’s the latest:

When Emmer took his turn last week in the series of gubernatorial candidate forums at the Humphrey Institute, he chose to present his ideas on public education. But during the Q and A at the end, Larry Jacobs brought up the tenther question.

Jacobs brought up the various ideas percolating in righty circles around the country, and made reference to one bill that Emmer co-sponsored that would block new federal laws from application in Minnesota unless they were approved by two-thirds majorities of both houses. Then he asked Emmer:

“Does the federal state relationship need to be reexamined and do we need a new constitutional framework for that?”

Here’s what Emmer said:

“Yeah, I don’t think so. I’ve been — actually, I signed onto a bill that a representative in Minnesota offered with this two-thirds thing to support him in having the discussion. I’ve also offered my own bill. 

“Why? Because I do think we need to have the discussion again. I think great people, whether they’re Democrats or Republicans, that doesn’t matter anymore. But over the years, in Minnesota — and I think all across the country but I know in Minnesota — what’s happened is we had a system that was supposed to have the states, remember Louis Brandeis, I think, ‘these are all their own laboratories of democracy.’

“What happened is, I think, over time, states, whether it’s the governor and the Legislature or both, started waiting, anxiously, for the next one-size-fits-all answer to come from Washington.  And they kept coming from Congress, with these dollars attached to it and then these other strings that said, ‘Oh, and by the way, if you want this, you also have to commit to this.’

“The discussion that needs to be had, I believe, and that that’s the purpose, at least my purpose, for those types of proposals, is to get this discussion going.

“I don’t believe you have to redo our Constitution and all the rest. I think we’ve got to talk about the fact that every time a federal  new program is offered to the state of Minnesota, it is up to the next governor to always do the due diligence that is required for the public. What does that mean? It’s just like a business. You should be looking at this program that’s offered and say to yourself, ‘All right, now, if we say yes to this, what does it commit Minnesota to in the future? Are we suddenly opting into future financial liabilities that we may not be able to pay or more importantly that our children are gonna be asked to pay?'”


Here’s audio of Emmer’s comments at the Humphrey Institute.

Jacobs left it there. But having focused on the bills Emmer sponsored myself, the answer raised questions for me. Both of the bills — one of which Emmer now says he cosponsored as a favor to a colleague, but the other of which Emmer wrote himself — represent a challenge to the existing constitutional balance of power between Minnesota and the federal government.

The bills don’t match the explanation
If Emmer doesn’t think the constitutional framework needs change, why sponsor bills that challenge the framework? At the end of his answer, Emmer seems to suggest that it’s important for states to continue experimenting in many policy areas, without waiting for federal leadership. That’s fine. The current constitutional framework certainly permits states to experiment. But neither of Emmer’s bills is about that.

If I read his latest statement correctly, Emmer believes it’s important, when the feds provide funds with strings attached, for each state to seriously consider whether the strings may end up costing more in the long run than the federal money is worth. Fine. Good point. You could write a law that requires that such a study be done whenever the state has an opportunity to get federal funds with strings attached. Or, as a candidate for governor, you could promise to do such a study before you accept the funds.

But that’s not what the Emmer bills do. Both bills assert the right of states to reject federal mandates and laws. These ideas, historically often referred to as nullification, floated around in America before the Civil War and played a role in bringing on that horrible conflict. Big names in U.S. history — most famously John C. Calhoun but also, as I have written previously, Thomas Jefferson — flirted with nullification. But the question was settled long, long ago. The Supremacy Clause in the federal Constitution establishes that the feds can impose laws and regulations on the states as long as the feds are acting within their constitutional powers.

You can argue — all tenthers and many conservatives including Minnesota’s own Michele Bachmann do argue — that various federal enactments (Obamacare is the biggest recent case) exceed the enumerated powers of the federal government. But under the existing understanding of how the Constitution works, the solution to that is a federal lawsuit asking the U.S. Supreme Court to decide whether the feds have exceeded their constitutional powers.

The Emmer bills go much further. The one that he sponsored himself not only asserts the power of the states to reject new federal mandates, but if you read his definition of a mandate in the bill itself (see subdivision 4), he appears to say that the feds cannot withhold funds from states that refuse to abide by the conditions that are attached to the funds.

Forgive me if I take specific legislative language too seriously, especially in a bill that Emmer says was really more of a discussion vehicle than a serious proposal. But this provision is the opposite of suggesting that states should think carefully about whether to accept the strings that come with federal funds. It is an assertion that states have the power to take the money and disregard the strings.

History and precedent
The case that tenthers make has some historical merit, as I believe the historical pieces I’ve been cranking out make clear. The Constitution was not written by small-government anti-federalists. On the contrary, the Framers were trying to create the most powerful federal government that they thought could get ratified. But in the course of ratification and the subsequent drafting and ratification of the Bill of Rights, a rough compromise was worked out between the federalists and those who were most protective of states’ rights and most suspicious of federal power.

The historical case is complicated, and many tenthers prefer to ignore those complications. Federal power has grown enormously across U.S. history, especially since the New Deal Supreme Court stopped taking the Tenth Amendment seriously. The ability of the feds to extract taxes from residents of all states, then parcel it back to the states with strings attached, surely feels extortionate to those who dislike the specific strings. But this precise form of extortion has been challenged and upheld by the Supreme Court (see South Dakota v. Dole). Emmer, who is an attorney and who told me in our previous interview on this topic that he didn’t know whether his bill would be constitutional, appears to challenging this matter of settled law.

But of course, none of that is too serious, if Emmer just wanted to start a discussion. So after his Humphrey presentation, I asked for either an interview with Emmer or specific replies to these questions:

  • If Emmer was sponsoring the one bill and cosponsoring the other only because he wanted to “have a discussion,” does that mean he wouldn’t have voted for the bills if they came to a vote, or that he wouldn’t sign them if they came to his desk as governor?
  • If he doesn’t think that state-federal relations need to be adjusted, what is the point of the discussion he wants to have?

In reply, I received this statement from Carl Kuhl, the Emmer campaign’s communications director.

“The governor and the Legislature have a fiduciary obligation to the Minnesota taxpayers to perform due diligence review of every federal offering to ensure that all fiscal ramifications are understood before accepting the offering.

“Tom wants to ensure that the Legislature and the governor fully understand what strings are attached to money before it is accepted.  Part of the problem we have with redesigning government is the mandates that come with almost all of the money forcing state governments to do things in a one-size-fits-all way.  That isn’t going to work in financially difficult times.
What’s good for Washington DC students isn’t necessarily what’s good for Roseau students.  The federal government needs to allow more flexibility when they are sending funding to states.”

I appreciate the response, but note that it does not specifically address the questions I submitted. Emmer clearly isn’t looking to run for governor on his tentherist record. But it seems reasonable for him to clearly explain the bills he sponsored.

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Comments (13)

  1. Submitted by Bill Gleason on 09/22/2010 - 09:42 am.

    I’ve been concerned from the very beginning about this aspect of Emmer’s candidacy.

    He got the GOP nomination by feeding the right the raw meat of espousing unconstitutional legislation and now he claims it was just a stimulus to discussion.

    Such a feeble understanding of the constitution – especially from a lawyer – portends ill for an Emmer administration. There are other major discrepancies between what he did as a legislator and what he, apparently, espouses now.

    Either Horner or Dayton are far superior candidates. Although you may not like their positions it is pretty clear what they are. Another “make it up as you go along” Pawlenty-like administration is unacceptable.

  2. Submitted by Paul Udstrand on 09/22/2010 - 09:56 am.

    Emmer is doing what all Republicans have been doing for 20 years, bait and switch. This was predictged, now in the general election you’re seeing the “moderate” Emmer, but if he gets elected, you’ll see the Emmer that’s been in the legislature.

    DO NOT make the mistake of assuming that this moderation is anything other than a ruse to get elected. These guys are true believers and they have no problem with the idea of lying, the end justifies the means.

  3. Submitted by Greg Kapphahn on 09/22/2010 - 10:04 am.

    Emmer increasingly identifies himself as nothing more than a political gadfly. He has no serious policy positions and seems, in his campaign, to be constantly changing course in his attempt to keep his rabid reichwing, protect my big money supporters happy while moderating his positions in order to try to be palatable to the general public.

    But as was the case with King Timmy, once in office it will be the big money (and hope to someday have big money) reichwing that will be holding Emmer’s leash.

    Unlike Pawlenty, however, who could put a pretty face on his destructive policies and moderate the policies he was being stridently pushed toward with an eye toward a national audience, Tommy, if he becomes king, will ignore everything but the ones that brought him to the dance in the first place, the “protect the big money, punish the poor for being poor, take down all enemies of the Chamber of Commerce,” far reichwing of Minnesota.

    If we elect this man, the ugly results will begin almost immediately and go beyond King Timmy’s destruction into serious, if not absolute, devastation of everything that has made Minnesota work for the vast majority of its citizens. We might as well change our name to North Mississippi.

  4. Submitted by Tim Walker on 09/22/2010 - 10:13 am.

    Jacobs should have held Emmer’s feet to the fire. Maybe if Rick Kupchella moderates another debate, he’ll succeed where Jacobs failed.

    We can only hope the mainstream media will press Emmer on this, but I’m not holding my breath.

    Eric, you need to re-submit your questions, politely asking that this time they be answered.

  5. Submitted by Gerald Abrahamson on 09/22/2010 - 12:06 pm.

    Emmer is a stale and moldy fruitcake.

    He wanted the state to automatically nullify federal law in MN *unless* each federal law was approved by 2/3rds majorities of both houses of the MN Legistlature. THEN he goes and claims the feds can NOT withhold funds because the states chose to NOT follow the requirements.

    Applying Emmer’s own rules today to lower levels of govt within the state (county, city, individual), the state can NOT withhold funds from anything simply because the state doesn’t agree with how the money is being spent. EVERY application for funding MUST be fully funded (no exceptions)–otherwise, it is a violation of federal law (equality among the citizens = federal law).

    Thus, as Emmer’s own laws/rules mean bankruptcy of the govt, he and his claims are nonsense and should be ignored by the rational voting public.

  6. Submitted by Thomas Swift on 09/22/2010 - 12:30 pm.

    Eric, what I’m detecting is not an obsession with issues of tentherism, but rather a determined effort to cast Emmer’s dabbling with it as reason to cast him as a kook.

    The frustration is that given the founders own dabbling you can’t.

  7. Submitted by Paul Brandon on 09/22/2010 - 12:41 pm.

    One — Emmer is a lawyer; he’s good at redefining questions to suit his interests.

    Two — if we’re not to take Emmer’s legislative proposals seriously, what is it that he says that we SHOULD take seriously?
    Or should we simply not take him seriously?

  8. Submitted by John Jordan on 09/22/2010 - 03:38 pm.

    Just a little curious when this so-called unbiased “news” outlet is going to cover the twice divorced, alcoholic, self-admitted “lousy” (former) Senator with the same sort of pieces as this? Just curious.

  9. Submitted by Paul Brandon on 09/22/2010 - 05:20 pm.

    JJ–
    When he proposes something which violates the Constitution of the United States?

  10. Submitted by Hénock Gugsa on 09/22/2010 - 05:42 pm.

    @ #8 –
    I’m just a little curious too. But what sins has your candidate openly professed that didn’t need to be addressed?

    And do the media always need to edit Mr. Emmer’s own words (and show him squeaky clean) before you believe the reports about him are unbiased?

    As far as I have seen, Mr. Emmer is the gift that keeps on giving. He speaks gibberish sometimes and it is very hard to follow his train of thought. He definitely is not a thinking man. And if some think he is a man of action, well I say … just take the blunderbuss away from him!

  11. Submitted by Paul Brandon on 09/22/2010 - 06:54 pm.

    I assume that when Emmer presents a budget proposal with details comparable to Dayton’s, MinnPost will give it a comparably detailed analysis.
    So far MinnPost has analyzed the statements that all three candidates have made. If the comments on Emmer (which, BTW, had nothing to do with his various personal foibles) were more negative, that may be a reflection on his statements.

  12. Submitted by Paul Udstrand on 09/22/2010 - 07:05 pm.

    //Just a little curious when this so-called unbiased “news” outlet

    Well that coverage would be found over on Fox. The focus here on Minnpost appears to be on honesty and accuracy. Non-bias doesn’t seem to be a priority so I wouldn’t break my arm patting myself on the back for spotting the liberal bent here.

  13. Submitted by Paul Brandon on 09/22/2010 - 09:53 pm.

    Accurate reporting does not meaning saying an equal number of good and bad things about everyone. The world doesn’t work that way.

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