It’s both incredibly ironic and highly appropriate for me to be writing this article at this time. As February 2010 neared its end, I was very tired, but excited about GiN’s ongoing effort in support of what most people would identify as the State Sovereignty or Tenth Amendment Resolution.
That resolution, LR539 1 Note that the Sovereignty Resolution was originally introduced as LR292 at the beginning of the 2010 legislative session. Sometime following the ...continue, after another seven weeks of concentrated effort by a lot of people, passed in the Nebraska Unicameral with 39 AYES, 3 NAYS, 4 Present and not voting, and 3 Excused and not voting, following a floor debate, on April 13, 2010.
The full text of what 39 out of 49 Nebraska’s State Legislators approved, can be found at the end of this article, so, here, I’ll simply summarize the basic principles 80% of Nebraska’s state legislators voted to affirm:
1. Federal government has delegated powers which are few, defined
2. State government retains all powers not delegated
3. Balanced federalism is necessary to preserve the rights of the people
LR539 included a notification “encouraging” the U.S. Congress to adhere to the listed principles.
It’s ironic three years later, reflecting on this episode of Nebraska history. I must report that LR539, was, at best, a series of very necessary and important lessons, which, it seems, only benefited myself and a handful of other people2 The lessons to which I refer haven’t ever been detailed by us in an article, mostly for lack of time during 2010. Suffice it to say, ...continue, and, at worst, was a destructive distraction.
It only served to perpetuate a number of myths too many Nebraskans believe, such as the examples listed here:
MYTH: Legislative Resolutions (LR) are somehow binding on actions, taken or not, by any elected official or elective body.
REALITY: In Nebraska, the only legislative resolutions which are in any way binding are proposed amendments to the State’s Constitution, labeled LRCA, or special LRs, which include a very short list of particular words or phrases. Both LRCAs and special LRs, require a set of additional procedures to pass3 The term “special” LRs is an informal one; the employment of certain words or phrases in a resolution, such as ...continue.
- LR539 was the same type of resolution as the long list of congratulatory resolutions introduced every session in the Unicameral; such resolutions congratulate a sports team, Eagle Scout, or other citizen or group for some accomplishment, victory, etc. (See this session’s LR64, LR59, and LR55, as recent examples).
- In Nebraska, simple legislative resolutions like LR539 are rhetorical, political exercises and, at best, declarations by legislators.
- The ONLY way officials are accountable (or not) for such declarations as LR539, which are aimed at policy, is through the vigilance (or not) of constituents.
- Believing that LR539’s passage somehow assured changes in the future conduct of Nebraska’s legislators or members of Congress, many Nebraskans thought “mission accomplished”.
MYTH: Federal government constantly encroaches on the States, commandeering governmental structures, forcing state agencies to do the federal government’s bidding, and forcing the expenditure of state funds, especially with a horrendous stream of “unfunded mandates”.
REALITY: Federal government HAS vastly expanded in the past century, primarily through a bureaucratic machinery empowered by Congress to promulgate rules and regulations which do encroach upon the states, HOWEVER:
- States have spotty records regarding their use of available mechanisms to challenge (administratively or legally) encroaching regulations when they actually occur4 Evidence for this “spotty record” will be provided to some extent in the next article, which, as an exclusive disclosure just for ...continue.
- Most “mandates” are obligations state officials agreed to carry out VOLUNTARILY when the decision was made to enter into OPTIONAL federal programs OR when they actively lobbied for funds.
- Those “unfunded mandates”, more often than not, are actually federal programs which had initially limited funding, a fact that was stated plainly UP FRONT, or;
- Federal government has a history of making changes to programs, and often, to the very programs states voluntarily decided to accept. IF the change violates the law, states CAN, but rarely do, challenge them, AND, SO;
- With multiple opportunities to learn from history in dealing with the federal government and options to challenge federal overreach, why are state legislators and governors so eager to accept federal funding, whining consistently about “unfunded mandates”, yet so loathe to cut spending, challenge encroachments, or ever refuse federal money?
THE BOTTOM LINE:
1) Federal “encroachment” is almost always about money accepted with strings attached, and essentially a rash of whining by legislators and/or governors when the strings are pulled too tightly or limited funding runs out. See South Dakota v Dole, 1987, regarding states’ acceptance of federal funding. If our elected officials aren’t aware of their obligations to think carefully before accepting funds, why are we electing them?
2) “Unfunded mandates” are mostly about getting more federal money (right now!) with no thought of the impact on citizens or the future. See the objections by Nebraska officials about the Real ID Act of 2005; there was little concern, if any, noted by officials about the violations of our civil rights. The primary objection was “unfunded mandate”. Real ID is a typical case.
When the phrases “federal encroachment” or “unfunded mandate” are employed by a politician, if they’re sitting in elective office, constituents would be very wise to ask:
- What EXACTLY do you mean by that, Senator, Governor…?
- If federal government is encroaching on our state, do you plan on contacting the Attorney General to request the filing of a legal challenge? If not, why not?
- When you say “unfunded mandate”, does that actually mean the preliminary funding for the program has run out?
3) Politicians think little of the future beyond the current budget OR at most, the next two election cycles. So often, it’s about getting money NOW to plug a budget hole or fund a new program. The political calculations are simple; they will move on to their next office, another burst of federal cash will fill in the holes, and/or people will simply forget.
I can’t say it better than Linda did in a recent article: “People Don’t Walk Away From a Fool And His Money“. There are fools, of course, on both ends of this spectrum.
AND THE BIG TELL — STIMULUS MONEY
To illustrate the thoughtless immediacy I’m talking about, Nebraskans need only review history by traveling “all the way back” to 2009 and 2o1o. Nebraska’s government is filled with Republicans, and Republicans across the land have cried bloody murder about reckless stimulus spending, and reckless spending in general by the Obama administration. President Obama’s spending has definitely been reckless, but Nebraska Republicans might want to spend some time screaming into the mirror, too. Nebraska Republicans, specifically, the Unicameral Republican super-majority, right along with the few Democrats (who were certainly more than happy to do so) – grabbed all the stimulus dollars they could.
And, another Nebraska Republican, our allegedly-conservative Governor, who has appeared time and again on Fox Business Network and Fox News Channel complaining about such reckless spending, actually said the following of “stimulus” funds provided for a public water project:
“This is an ambitious plan to stimulate the economy, help public water systems comply with federal and state regulations and continue to provide safe drinking water to Nebraskans,” Gov. Heineman said.
- If you want insight into legislative minds regarding federal funding grabs, read the special legislative Ad Hoc Budget Committee meeting minutes from June 29, 2010, and a follow-up article we published about it, “NE Budget: Senators Hope Feds Will Bail Us Out“.
- Have a visit to Recovery.Nebraska.gov and take a peek at what $1.7 Billion in stimulus funds paid for. Or you can download the most recent report (12/28/2012) by clicking HERE.
- And finally, beyond stimulus nonsense, if you haven’t been reading Linda’s series about the most insane and telling legislation to date regarding just where many legislators stand on the subject of Nebraska’s Sovereignty, you should start HERE.
Note that I mentioned the Governor. It’s true, he didn’t have a vote on the Sovereignty Resolution.
The reason LR539 was very likely destructive:
Any serious, meaningful Sovereignty Resolution in Nebraska (a state which gets about 40% of its annual budgetary funding from federal government), would necessarily be aimed NOT at the U.S. Congress, but directly at Nebraska’s state officials, including all of the Senators, the Governor, and the Attorney General5 Some might ask, “Why the Attorney General?” He is the attorney for the state and should challenge federal laws that encroach upon ...continue.
In my next article on this subject, I will detail another important myth related to State Sovereignty which has also been part of the reason why Nebraskans and many other Americans constantly point the finger of blame at federal government: Ensuring state officials aren’t held accountable for their actions.
FULL TEXT OF LR539, AS PASSED (click here for the PDF):
WHEREAS, the Ninth Amendment to the United States Constitution states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people;” and
WHEREAS, the Tenth Amendment to the United States Constitution declares that “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 framers of the United States Constitution envisioned a federal government with “few and defined” delegated powers, whereby state governments retained “numerous and indefinite” powers extending “to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State;” and
WHEREAS, the United States Government has historically and continues to expand its enumerated powers in a manner inconsistent with the Ninth Amendment to the United States Constitution; and
WHEREAS, the United States Government has historically and continues to assert powers not enumerated under Article I, section 8, of the United States Constitution in a manner inconsistent with the Tenth Amendment to the United States Constitution; and
WHEREAS, a balanced federalism is necessary to preserve the inherent rights of the people, from whose consent the just powers of both state and federal governments are derived.
NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE ONE HUNDRED FIRST LEGISLATURE OF NEBRASKA, SECOND SESSION:
1. That the Legislature encourages the Congress of the United States to adhere to the principles of federalism in accord with the Ninth and Tenth Amendments to the United States Constitution.
2. That a copy of this resolution be sent to all the members of the Nebraska congressional delegation with the request that this resolution be officially entered in the Congressional Record.
3. That a copy of this resolution be sent to each state legislature within these United States of America.
Last updated: September 12, 2013
“Sovereignty for Sale” image created by Shelli Dawdy
Notes & References [ + ]
|1.||↑||Note that the Sovereignty Resolution was originally introduced as LR292 at the beginning of the 2010 legislative session. Sometime following the February 19, 2010, Government Veterans and Military Affairs Committee hearing, it was discovered that the bill text included the phrase “memorialize Congress”, which required additional legislative procedures. We’re still not clear on the details, but LR539 was introduced in its place with the phrase “encourage Congress”, received a brief hearing as required, and was the resolution officially voted on by the full Unicameral on April 13, 2010.|
|2.||↑||The lessons to which I refer haven’t ever been detailed by us in an article, mostly for lack of time during 2010. Suffice it to say, attempting to impact the legislative process is an eye-opening and disillusioning experience.|
|3.||↑||The term “special” LRs is an informal one; the employment of certain words or phrases in a resolution, such as “memorialize”, among others, have particular legal meaning, and therefore, have different requirements. See Footnote #2 for an example. In addition to LRCA, “special” LRs, simple LRs such as LR539 and “congratulations” to a sports team, there are LRs for interim studies and, finally very particular resolutions mentioned in Nebraska’s Constitution. (See the Nebraska Legislature Rules for a more thorough and detailed explanation.)|
|4.||↑||Evidence for this “spotty record” will be provided to some extent in the next article, which, as an exclusive disclosure just for readers of footnotes, will inform that it is about how the U.S. Supreme Court has actually ruled regarding federalism and state sovereignty versus the prevalent beliefs.|
|5.||↑||Some might ask, “Why the Attorney General?” He is the attorney for the state and should challenge federal laws that encroach upon Nebraska’s State government or, especially, its citizens. And NOT just when he’s running for a U.S. Senate seat.|