Ever since Donald Trump was elected president, California has resembled the busty blonde B-movie actress in a horror film.
You know the look. Eyes wide. Red lips parted halfway between a gasp and a scream. Hands frozen in mid-flail.
That was the reaction in the scene where President Trump called California “out of control” and said he might have to cut off federal funds.
This terrifying prospect has public officials up and down the state looking everywhere for a copy of the U.S. Constitution. It says he can’t do that, right? States have rights. Right?
You might think so if you read the Tenth Amendment: “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.”
That amendment was written to make it absolutely clear, even though the authors of the Constitution thought it was already clear, that the federal government had limited powers. The powers of the states, on the other hand, were “numerous and indefinite,” in James Madison’s words.
One example of this system in practice was Prohibition. In 1919, the people of the United States decided it would be a good idea to have a federal law banning the manufacture, sale or transportation of intoxicating liquors. But because the U.S. Constitution didn’t give the federal government the power to ban or even regulate alcohol, Prohibition required a constitutional amendment. And so did the repeal of Prohibition, 14 years later.
California could cite the Tenth Amendment to protect its new law legalizing marijuana. If the Constitution didn’t give the federal government the power to ban “intoxicating liquors,” where does the federal government find the power to ban marijuana, or any drug?
The answer to that question is: The Supreme Court doesn’t want to talk about it.
In a 2001 case, lawyers for the Oakland Cannabis Buyers’ Cooperative argued to the justices that the federal Controlled Substances Act infringes the “fundamental liberties of the people” under, among other things, the Tenth Amendment.
The Supreme Court ducked that issue and decided the case on other grounds. “Because the Court of Appeals did not address these claims,” Justice Clarence Thomas wrote, “we decline to do so in the first instance.”
But the Tenth Amendment will be less useful in the fight against an effort by the Trump administration to withhold federal funds from California. That’s because federal funds, with strings, are how the federal government gets around the Tenth Amendment in the first place.
The federal government doesn’t have the power to order states to pass seat-belt laws, or to tell schools to give standardized tests, or to expand Medicaid to cover more people. It does all these things, and much more, by offering the states buckets of cash with strings attached. It’s constitutional because it’s voluntary.
President Trump may not be able to withhold federal funds that are tied to a previous agreement, but he can make new agreements that will put local and state officials in a very uncomfortable position.
For instance, if he can’t force states to cooperate with federal immigration authorities, he can offer barrels of cash to states that will cooperate voluntarily.
Then California officials can explain to voters that they will continue to defy federal law — on principle — even if it means tax increases every year to pay for schools, roads and health care.
We’ll see how that goes.
Susan Shelley is a columnist for the Southern California News Group. Reach her at Susan@SusanShelley.com and follow her on Twitter: @Susan_Shelley.
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