Again this week, candidates for public office in Idaho railed at the federal government over environmental regulation and federal programs, calling upon their familiar “state’s rights” arguments, often invoking the Constitution’s 10th Amendment. In our region in particular, the Endangered Species Act, the Clean Water Act, and federal lands management are all challenged by much of Idaho’s political leadership as fundamentally trespassing on Idaho’s supposed sovereignty. These arguments fuel the burgeoning Tea Party movement and form the underpinnings of the Idaho GOP platform.
Constitutionally, however, the arguments are nonsense.
The 10th Amendment states, in its entirety:
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.
But the U.S. Supreme Court, from the very beginning and throughout the years, has held that the 10th Amendment, in its application, is essentially only a “truism.” The Constitution formulates the federal structure by delegating specific enumerated powers to the federal government, and then providing that the federal government may enact laws which are necessary and proper to carry them out. In particular, the commerce clause, the taxing and spending clause, and the necessary and proper clause, when taken together, are quite powerful.
The Supreme Court’s interpretation of the extent of federal power, particularly under the commerce clause, has been called “cooperative federalism.” Generally, if it is within the broad rubric of “regulating commerce .. among the several states,” Congress has the power to either set minimum federal standards to be implemented by the states, or it can simply preempt state law entirely. Because the commerce power is “delegated to the United States by the Constitution,” the 10th Amendment, by its very terms, won’t restrict it.
Idaho has been a reluctant participant in this cooperative federalism. As one of only four states to do so, Idaho has declined to participate in Clean Water Act permitting, instead allowing the EPA to issue water quality permits. Unhappy with federal requirements under the Endangered Species Act, Idaho is now threatening to quit managing wolves. But most states have found it to be more advantageous to be cooperative participants in the Constitution’s federal structure.
Short of seceding from the union, it is unclear what the vocal critics of federal power in Idaho would have us do. It would be nice if all the political sloganeering about the so-called states’ rights in the Constitution could be more consistent with what the Constitution actually says.