Law & Principles

Fulfilling a Constitutional Mandate

August 3, 2008

Herbert W. Titus

On March 13, 2008, the Oklahoma House of Representatives voted overwhelmingly for House Joint Resolution No. 1089. By the wide margin of 92 to 3, the House resolved that "all compulsory federal legislation which directs states to comply under the threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed."

Oklahoma to Feds: ‘Cease and Desist'

Addressing the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives, the Speaker of the House and the President of the Senate of each state's legislature in the United States, as well as each member of the Oklahoma congressional delegation, the Resolution "Demand[ed] ... the federal government ... to cease and desist, effective immediately, mandates that are beyond the scope of" powers not delegated to the United States by the Constitution, as provided in the Tenth Amendment.

By this broadside, the Resolution attacks all federal mandates, funded or unfunded, under which state and local governments have labored since the New Deal-from welfare to public safety, and from education to health-matters historically regulated by the state's police power.

While the Resolution enjoyed strong bipartisan support in the Republican-led House, it languished in an evenly divided Senate which failed to act before the legislature's May 23rd adjournment. However, just 12 days later the Resolution was once again in the news.

On June 4, 2008, the United States District Court for the Western District of Oklahoma entered a preliminary injunction against the enforcement of certain employment provisions of the Oklahoma Taxpayer and Citizen Protection Act, described by USA Today as "arguably the toughest state law targeting illegal immigration." Enjoined by the Court were those provisions of the Act that would have required, after July 1, 2008, employers who sought to do business with a department, agency, or instrumentality of the state or of a political subdivision of the State to meet the State's strict standards verifying the immigration status of their employees.

The Court ruled that Oklahoma could not impose its immigration-status standards upon the state's private employers-even though such standards would apply only to those private companies seeking to provide goods and services to State and local governments-on the ground that Congress had "preempted" the Oklahoma statute by the Immigration Control and Reform Act of 1986, which contains "a comprehensive scheme prohibiting the employment of illegal aliens in the United States."

Charles Key, the Republican state representative who co-authored Joint Resolution 1089, pounced on the court's decision as just another example why the Resolution is needed. Indeed, if the United States Congress can dictate the immigration verification standards governing those companies who do business with state and local governments, then Oklahomans will continue to be wholly dependent upon the lax standards and enforcement of federal immigration laws. As a consequence, the people of Oklahoma will continue to suffer from, in the words of the Oklahoma law, the "economic hardship[s] and lawlessness ... that illegal immigration ... encourages when public agencies within this state provide public benefits without verifying immigration status," the Oklahoma Taxpayer and Citizen Protection Act notwithstanding.

Not surprisingly, Key promised that he would bring the Resolution up again when Oklahoma's legislature convenes in 2009.

Government Officials: Servants of the People

The Resolution's heartbeat is the Tenth Amendment, which 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."

According to the Resolution, "the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states" (emphasis added). Therefore, it is resolved that "the federal government, as our agent ... cease and desist [from enforcing] mandates that are beyond the scope of [its] constitutionally delegated powers" (emphasis added).

This is not the first time the claim has been made that the federal government was created by the states to serve the states. However, the claim is not true. In fact, the claim weakens, rather than strengthens, the Resolution.

The federal government was not created by the state governments; rather, it-like the 50 state governments-was created by the people. In the case of the federal government, it was created by "the People of the United States" who, as stated in the Preamble of the United States Constitution, "ordained and established this Constitution for the United States of America." To be sure, Article VII states that it would take nine ratifying States to "establish this Constitution between the States so ratifying the same," but it also prescribed that ratification must be by "Conventions" of representatives elected by the people for the sole purpose of voting on the proposed constitution, not by existing elected state legislative bodies.

By requiring ratification by constitutional conventions state by state, the people of the United States exercised their original right to constitute their own government, consistent with the nation's charter statement that "Governments are instituted among Men deriving their just Powers from the Consent of the Governed," and at the same time preserved their previously created state governments. As John Adams put it eleven years after the signing of the Declaration of Independence:

[I]t is indeed a "most excellent maxim, that the original and fountain of all just power and government is in the people;" and if ever this maxim was fully demonstrated and exemplified among men, it was in the late American Revolution, where thirteen governments were taken down from the foundation, and new ones elected wholly by the people ....

Indeed, what happened previously in the original 13 states happened to the United States. In 1781, delegates from the 13 states met in Congress assembled and adopted the Articles of Confederation whereby "said states hereby severally enter[ed] into a firm league of friendship with each other, for their common defence, the security of their Liberties, and their mutual and general welfare ..."

Seven years later, "in Order to form a more perfect Union, establish Justice, insure Domestic Tranquility, provide for the common defense, promote the General Welfare and secure the Blessings of Liberty to ourselves and our Posterity," the People of the United States in nine states ratified a new constitution, thereby discarding the old Articles. (By 1790, all 13 of the original states had ratified.) In short, by their act of ratification, the people of the United States did nothing more than what the people of each of the original 13 states had previously done (and the people of 37 states subsequently did): constituted a civil government of elected and appointed officials who would be the people's "trustees and servants," legally and politically accountable to them for the exercise of the powers delegated by the people to them.

State Officials: Dual Oath of Accountability

In creating a civil government for the nation, the People of the United States did not dismantle their respective State governments and deposit in a national government all of the powers of civil authority. Instead, they created a federal government, vesting in that government only such civil powers as enumerated in the written document, leaving to the State governments previously constituted by the People of each State to exercise those civil powers not delegated to the federal government nor prohibited to the States by the Constitution.

Thus, the States remained united as sovereign and independent entities, as they had been since the Declaration of Independence, but only with respect to those areas not delegated to the new government or prohibited to them. In essence, the United States government authorities were to be the trustees and servants of the constituent people of the United States as a whole in those matters delegated to it; and the several State government authorities were to be the trustees and servants of the constituent people of each State respectively in those residual matters belonging to them.

Unlike their federal counterparts-who are bound by oath or affirmation only to the United States Constitution-state and local government officials are bound by both the United States and their respective state constitutions. To fulfill their unique dual constitutional responsibilities, state and local government officials have a duty not to serve as an agent of the federal government, but as an agent of the people of their respective states or political subdivisions. If the federal government mandates that state or local officials must implement a federal program authorized by the U.S. Constitution, then it is the constitutionally sworn duty of a state or local official not only to pass a resolution petitioning federal government authorities to "cease and desist" from such a mandate, but to refuse to carry it out, funded or unfunded. Otherwise, the state and local officials would be violating their oath to the United States Constitution by aiding and abetting a violation of Article II, Sections 1, 2, and 3 which vest in the President and his appointees only the power to execute federal law. Indeed, as Justice Antonin Scalia observed 11 years ago:

By forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for "solving" problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs ... they are still put in a position of taking the blame for its burdensomeness and for its defects.

And that is precisely what has happened in the case of illegal immigration. The state and local governments are bearing the costs of a failed federal policy. Yet, according to the recent district court's understanding of the federal "preemption" doctrine, it would be unconstitutional for Oklahoma authorities to carry out their state constitutional authority of ensuring that the companies with whom the state and local governments do business hire only lawful residents of Oklahoma. No court order, however, discharges the state's elected officials from obeying their independent constitutional duty to support the United States Constitution.

Conclusion

For years state and local officials have complained about federal mandates in the areas of education, health care, corrections, and more. And while HJR 1089 capsules complaints regarding immigration in the form of a petition, it will fall on deaf ears in the nation's capital unless it is accompanied by a firm resolve by the petitioning officials to resist further encroachments upon state powers, and not to be cowed by the federal courts or seduced by federal dollars to continue to neglect their constitutional duties to the people of Oklahoma. Enforcing the immigration status verification standards on companies desiring to do business with the state would be a strategic place to begin the long march back to constitutional federalism.

Herbert W. Titus, a cum laude graduate of the Harvard Law School, is of counsel to the McLean, Virginia law firm of William J. Olson, P.C. Prior to entering into the full-time practice of law, Mr. Titus taught constitutional law at five different law schools, including the University of Oklahoma.