States take the tenth - and the feds - to court; a growing grassroots campaign is breathing life back into the 10th amendment as civic leaders across the country protest the ballooning power of the federal government - includes related article on New York State's successful US Supreme Court challenge over the federal mandate for nuclear waste disposal

0 Comments | Insight on the News, August 1, 1994 | by Nancy E. Roman

The Environmental Protection Agency descended on Monroe, N.Y., some 55 miles up the Hudson River from New York City, tested a sample of air and found a few parts per trillion too many pollutants. EPA officials told Monroe to clean up the air or get rid of the school district's diesel buses. The agency also ordered Monroe to implement a carpool system for all businesses with more than 100 employees.

But the city of 22,000, with an annual school budget of $54 million, doesn't have the $7 million to convert to nondiesel buses, and its residents are suspicious of test results that found their rural air to be as dirty as the air in Times Square. So the city is appealing the EPA finding and vows to take the agency to court if it loses.

Such incidents are driving the growing grassroots campaign to breathe life back into the Constitution's 10th Amendment as a defense against the ballooning power of federal government. Several states, fed up with Uncle Sam's unfunded orders to clean their water and air, incarcerate illegal aliens and put more police on the streets, are suing the federal government; others have passed resolutions ordering the government to stop handing down unfunded mandates.

"The government sticks its nose where it doesn't belong," says Mike O'Donnell, vice president of the Orange County Coalition of Taxpayer Associations and leader of a movement to get New York to challenge federal power. "We agreed to join the Union as long as this was a beneficial relationship." O'Donnell is working to pass a resolution reiterating the 10th and threatening to withhold federal income taxes of all New York residents if the federal government continues to interfere. It's not pass the Assembly, he admits, but similar resolutions in the West may. "The only way change is going to be effected is when the people in some particular state pass a law that says they are going to quit paying taxes," O'Donnell says.

Placed in the Constitution to protect states rights from a greedy central government, the 10th Amendment declares: "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 Congress has intervened in education, housing, transportation, labor and a host of other areas the founders never intended O'Donnell claims. Moreover, unfunded mandates require states to pay for programs for which the federal government gets all the credit.

"Colorado is one state that has stood up to the federal government," says Jim Abbott, chairman of Colorado's Tenth Amendment Committee, which lobbied state legislators to pass a resolution ordering the federal government to "cease and desist" creating unfunded mandates. "We reminded the federal government that they are supposed to be our agent. We formed the federal government, not the other way around." Hawaii and Missouri recently passed similar resolutions, and California has introduced one that is expected to pass. Tenth Amendment committees have sprouted in Alaska, Montana, Nevada, Oregon and Washington.

"Federal intrusion is getting so bad that some groups are wanting a civil war," says Abbott, a self-employed geologist. Although states have no means to enforce them, he believes the resolutions will signal the political momentum to cut federal power, just as Ross Perot's political appeal indicated a will to reduce the deficit.

Proponents of the 10th Amendment want the federal government pared back to its original size, which would mean dismantling many agencies and departments. The Energy Department, for example, was created in response to a fear that the United States was becoming too dependent on foreign oil. "In 1S years, with 50,000 employees, they have stifled mining, stifled oil production," Abbott asserts. "They've never produced a single quart of oil." The Department of Education was created in 1965 in response to falling achievement by American students. "But SAT scores are plummeting, and dropout rates are soaring," says Abbott.

Constitutional scholar Bruce Fein is no fan of the bloated federal government, but he says the 10th Amendment movement is hypocritical because it wants to stop unfunded mandates while continuing to accept federal grants. "No one would care if money weren't involved," he says. "You see, when the feds give them money, they don't object at all. It shows that these people aren't building their case on some principled application of the 10th Amendment." Fein also thinks the movement is unrealistic. "Technology, travel time, has just altered the Constitution de facto. No longer do people feel state loyalty. Twenty percent of the population moves every year. Our economy is national."

Some states are turning to the courts in their attempt to use the 10th Amendment as a check on federal growth. In Arizona, Gov. Fife Symington coaxed the state Legislature into setting aside $1 million for 10th Amendment challenges to federal environmental laws. California Gov. Pete Wilson was the first to use the 10th Amendment to challenge federal immigration policies which require states to pick up the tab for benefits to illegals. Florida and Texas soon followed suit.