FEDERAL MANDATES: BANKRUPTING STATES AND DESTROYING FEDERALISM
By Attorney Jonathan Emord
January 31, 2011
In a letter to Charles Hammond, dated August 18, 1821, Thomas Jefferson predicted our present state of affairs when he wrote: “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”
The founding fathers relied on four mechanisms to keep the federal government one of limited powers: (1) the separation of powers doctrine (commanding that legislative, executive, and judicial powers not be combined in a single individual or entity but remain separate and diffuse); (2) the non-delegation doctrine (forbidding the re-delegation of powers vested by the Constitution in Congress, the President, and the federal courts); (3) the enumerated powers doctrine (rendering by express Constitutional specification the federal government one of enumerated powers forbidden from exceeding those powers and invading the plenary province of the states); and (4) the Tenth Amendment (recognizing that all powers not delegated by the Constitution to the federal government and not prohibited by it to the States were powers reserved to the States and the people).
The doctrines and the Tenth Amendment were intended to maintain the primacy of the States over domestic matters, including health, education, welfare, and law enforcement. That dual federalist system, where State power would be plenary and federal power limited and expressly enumerated, has been eroded to near oblivion by the progressive encroachment of federal power over all domestic affairs since the 1930’s.