by Diane Rufino, June 19, 2021
Today, June 19, Texas Governor Greg Abbott announced on Twitter that he had just signed a Resolution asserting Texas state sovereignty under the Tenth Amendment over all powers not granted to the federal government by the US Constitution. The Resolution officially notifies the President and Congress to cease acts that encroach upon the powers of the States.
No further information was given about the Resolution, what it actually states, its force, or how far Texas intends to take it.
But what if….
What if Texas is really willing serious about stopping federal over-reach and encroachment into its sovereign powers and what if she is really willing to fight this time for that sovereignty? What if the Tenth Amendment really does matter to Texas? And what if she can convince other states to join with her?
The Tenth Amendment is a critical amendment. It reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.” To be more exact, the Tenth Amendment is n restatement of the fundamental nature of our government system – the division of sovereign power between the States and the federal government, which is also known as “federalism.” The Preamble to the Bill of Rights makes this clear (as well as gives the reason for the Bill of Rights): “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
Since there wasn’t any additional information that I could find regarding the Resolution Governor Abbott referred to, I did some digging into what the Texas legislature has been doing. As it turns out, Senate Concurrent Resolution (SCR) 12, a resolution “to claim sovereignty under the Tenth Amendment” was filed in the Texas legislature on February 12 of this year by state Senator Brandon Creighton (R). State representative Phil King (R) filed a House Concurrent Resolution alongside Creighton’s, to allow passage of the measure in both chambers of the Texas legislature.
Senator Creighton’s Concurrent Resolution aims to not just “claim sovereignty under the Tenth Amendment” but to, “serve as notice and demand that the federal government, as our agent, halt and reverse, effective immediately, its practice of assuming powers and imposing mandates and laws upon the states for purposes not enumerated by the Constitution of the United States of America.” Additionally, the Resolution asks that “all compulsory federal legislation NOT necessary to ensure rights guaranteed the people under the Constitution of the United States that directs states to comply under threat of civil or criminal penalties or sanctions or that requires states to pass legislation or lose federal funding be prohibited and repealed.”
Furthermore, SCR12 requests that the federal government stop “assuming powers and imposing mandates and laws upon the States for purposes not enumerated by the Constitution of the United States of America.” [You can read the entire text of the Senate Concurrent Resolution, SCR12 below, in the Addendum].
As defined in the Texas Legislative Glossary, “a concurrent resolution is used to convey the sentiment of the legislature and may offer a commendation, a memorial, a statement of congratulations, a welcome, or a request for action by another governmental entity.
In an article by Suzaenne Weiss (“Sovereignty Measures and Other Steps May Indicate an Upsurge iin Anti-Federal Sentiment in Legislatures”), she writes:
“Discontent over federal mandates in areas ranging from health care to gun control to national security is fueling a states’ rights revival in legislatures across the country.
In 2009, formal protests against federal encroachment on states’ authority and prerogatives under the Tenth Amendment—in the form of sovereignty resolutions or memorials—were considered by legislators in 37 states. Although many of them never made it out of committee or failed on initial floor votes, roughly half were approved in at least one legislative chamber. And in seven states—Alaska, Idaho, Louisiana, North Dakota, Oklahoma, South Dakota and Tennessee—the measures passed in both the House and Senate.
Some examples include:
Since 2007, more than two dozen states have passed resolutions or laws denouncing and refusing to implement the federal REAL ID Act, which imposes rigorous security, authentication and issuance standards for driver’s licenses and state ID cards.
Fourteen states have asserted their right—through legislation or voter-approved initiatives—to permit and control the medicinal use of marijuana.
Montana and Tennessee in 2009 enacted legislation declaring that firearms and ammunition manufactured, sold and used within their borders are not subject to federal regulations and taxes. Similar measures have been introduced in Florida, South Carolina, Texas and several other states over the past year.
The Arizona Legislature recently voted to place a referendum on the fall 2010 ballot that would guarantee the state’s residents the right to opt out of ‘any potential national health-care system.’
In Moncrief’s view, the growth of the state sovereignty movement over the past several years is attributable in large part to the Internet, which has facilitated efforts on the part of conservatives to force issues out of Washington and into states, where they might have a better chance of winning them.
Oklahoma’s resolution, for example, declares that ‘many federal laws are in direct violation of the 10th Amendment,” effectively “commandeering the legislative and regulatory processes of the states.’ It demands prohibition or repeal of mandates that come without adequate federal funding and/or require states to comply under threat of penalties or sanctions.
In Tennessee, the sovereignty resolution approved by legislators, and subsequently signed by Governor Phil Bredesen, calls for creating a joint working group of states ‘to enumerate the abuses of authority by the federal government and to seek repeal of the assumption of powers and the imposed mandates.’ New Hampshire’s resolution, which was voted down in March 2009, went so far as to lay out a variant of the 19th century “doctrine of nullification,” which holds that states have the right to declare null and void any federal laws they deem unconstitutional.”
It is also worth noting that just barely 3 weeks after President Biden assumed office, not only was the State Sovereignty Concurrent Resolution introduced, but a bill (not just a resolution) was also introduced calling for the secession of Texas. The bill (HB 1359), filed by state Representative Kyle Biedermann (R), calls for the re-creation of Texas as an independent republic.
The bottom line is that if the States are willing to have a backbone, if they are willing to re-assert their rights and powers under the Tenth Amendment, and if there’s widespread support, people can resist the federal government at the state level.
Jessica Shorten, “Creighton Files Tenth Amendment Resolution In Texas Legislature,” Montgomery County Gazette, February 12, 2021. Referenced at: https://emcgazette.com/creighton-files-tenth-amendment-resolution-in-texas-legislature-p4763-214.htm
Suzanne Weiss, “Sovereignty Measures and Other Steps May Indicate an Upsurge in Anti-Federal Sentiment in Legislatures,” NCSL. Referenced at: https://www.ncsl.org/research/about-state-legislatures/facing-off-with-the-feds.aspx
Tenth Amendment Resolution, Tenth Amendment Center – https://tenthamendmentcenter.com/10th-amendment-resolution/
SCR12, Concurrent Resolution Text – https://capitol.texas.gov/tlodocs/87R/billtext/html/SC00012I.htm
ADDENDUM: I. SCR12 (Texas Legislature)
By: Creighton S.C.R. No. 12
CONCURRENT RESOLUTION –
WHEREAS, Each member of the legislature has sworn a solemn oath to defend our United States and Texas Constitutions and takesgreat pride in being a citizen of the United States of America,where citizens have the right to petition their government forredress of grievances; and
WHEREAS, Section 1, Article I, Texas Constitution, states that “the perpetuity of the Union depend[s] upon the preservation of the right of local self-government, unimpaired to all the States”; Section 2, Article I, declares, “All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient”; and
WHEREAS, The Tenth Amendment to the Constitution of the United States of America reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; and
WHEREAS, The Tenth Amendment to the Constitution of the United States of America defines the total scope of federal power as being that specifically granted by the U.S. Constitution and no more; and
WHEREAS, The Tenth Amendment to the Constitution of the United States of America means that the federal government was created by the states specifically to be an agent of the states with powers both limited and enumerated; and
WHEREAS, Today, in 2021, the states are demonstrably treated as agents of the federal government; and
WHEREAS, Many powers assumed by the federal government as well as federal laws and mandates are in direct violation of the Tenth Amendment to the Constitution of the United States of America; and
WHEREAS, The Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the Union of States, have always had rights that the federal government may not usurp; and
WHEREAS, Section 4, Article IV, of the United States Constitution says, “The United States shall guarantee to every State in this Union a Republican Form of Government,” and the Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”; and
WHEREAS, The United States Supreme Court has ruled in New York v. United States, 505 U.S. 144 (1992), that Congress may not simply commandeer the legislative and regulatory processes of the states; and
WHEREAS, A number of proposals from previous administrations, as well as from Congress, may further violate the Constitution of the United States of America; now, therefore, be it
RESOLVED, That the 87th Legislature of the State of Texas hereby claim sovereignty under the Tenth Amendment to the Constitution of the United States of America over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States of America; and, be it further
RESOLVED, That this serve as notice and demand that the federal government, as our agent, halt and reverse, effective immediately, its practice of assuming powers and imposing mandates and laws upon the states for purposes not enumerated by the Constitution of the United States of America; and, be it further
RESOLVED, That all compulsory federal legislation not necessary to ensure rights guaranteed the people under the Constitution of the United States that directs states to comply under threat of civil or criminal penalties or sanctions or that requires states to pass legislation or lose federal funding be prohibited and repealed; and, be it further
RESOLVED, That the Texas secretary of state forward official copies of this resolution to the president of the United States, to the president of the Senate and the speaker of the House of Representatives of the United States Congress, and to all members of the Texas delegation to Congress 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.
II. A SAMPLE “TENTH AMENDMENT RESOLUTION” (from the Tenth Amendment Center, with some of my own additions)
The following is a sample 10th Amendment House Concurrent Resolution approved by the Tenth Amendment Center. Activists, we encourage you to send this to your state senators and representatives – and ask them to introduce this resolution in your state.
A RESOLUTION affirming the sovereignty of the People of the State of _________.
WHEREAS, in the American system, sovereignty is defined as final authority, and the People, not government, are sovereign; and
WHEREAS, the people of the State of __________ are not united with the People of the other forty-nine states that comprise the United States of America on a principle of unlimited submission to their federal government; and
WHEREAS, all power not delegated by the people to government is retained; and
WHEREAS, the People of the several States comprising the United States of America created the federal government to be their agent for certain enumerated purposes only (that is, to carry out functions common to them) and intended that it enjoys no more power than that granted to it by the Constitution; and
WHEREAS, the Tenth Amendment to the Constitution of the United States reads as follows: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;” and
WHEREAS, the Tenth Amendment defines the total scope of federal power as being that which has been expressly delegated BY THE PEOPLE (through their State Conventions) to the federal government in the Constitution of the United States, and also any incidental powers which may be absolutely necessary and proper to carry into execution those enumerated powers; with the rest being left to state governments or the people themselves; and
WHEREAS, In Federalist No. 45, James Madison explained: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
WHEREAS, States acting under the authority granted to them by the Tenth Amendment have the ability to create innovative policy strategies that accommodate the unique needs, cultural traditions, and priorities of their jurisdictions; and
WHEREAS, recognizing the critical role that States play as fifty independent laboratories of democracy, innovation, solutions, and modern laws, the encroaching upon the sovereign powers of the States guaranteed and restated by the Tenth Amendment by the federal government threatens that essential role; and
WHEREAS, State governments are experiencing unprecedented shortfalls in revenue and are generally bound by constitutionally-balanced budget requirements, thereby struggling to pay for their own policies and programs, while the federal government taxes unconstitutionally the People in order to then turn around and “award” states various grants (which come with federal “conditions”); the government is unconstitutionally doing an end-run around the Constitution with this system; and
WHEREAS, powers, too numerous to list for the purposes of this resolution, have been exercised, past and present, by federal administrations, under the leadership of both Democrats and Republicans, which infringe on the sovereignty of the people of this state, and may further violate the Constitution of the United States; and
WHERERAS, despite the fiscal position of states and the articulated intent of the Tenth Amendment, the federal government continues to impose unfunded mandates and continues to pre-empt state sovereignty, treating the States as nothing more than agents of the federal government (rather than the reverse)
WHEREAS, when powers are assumed by the federal government which have not been delegated to it by the People, a nullification of the act is the rightful remedy; that without this remedy, the People of this State would be under the dominion, absolute and unlimited, of whoever might exercise this right of judgment for them.
NOW THEREFORE, BE IT RESOLVED BY THE _____ OF THE _______ GENERAL ASSEMBLY OF THE STATE OF ______, WITH THE SENATE
CONCURRING, that we hereby affirm the sovereignty of the People of the State of _______ under the Tenth Amendment to the Constitution of the United States over all powers not otherwise delegated to the federal government by the Constitution of the United States; and, be it further
RESOLVED, that this Resolution shall serve as a Notice and Demand to the federal government to cease and desist any and all activities outside the scope of their constitutionally-delegated powers; and, it be further
RESOLVED, that a committee of conference be appointed by this legislature, which shall have as its charge to recommend and propose legislation which would have the effect of nullifying specific federal laws and regulations which are outside the scope of the powers delegated by the People to the federal government in the Constitution; and, be it further
RESOLVED, that a committee of correspondence be appointed, which shall have as its charge to communicate the preceding resolutions to the Legislatures of the several States; to assure them that this State continues in the same esteem of their friendship as currently exists; that it considers union, for specified national purposes, and particularly those enumerated in the Constitution of the United States, to be friendly to the peace, happiness and prosperity of all the States; and, be it further
RESOLVED, 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.