THE COUNCIL OF STATE GOVERNMENTS RESOLUTION TO AMMEND THE 10th AMMENDMENT AND THE INTERSTATE COMMERCE CLAUSE (ARTICLE 1, §8) OF THE UNITED STATES CONSTITUTION Resolution Summary Recently, state leaders have found themselves expressing concern that Congress is enacting mandates to the states that are beyond the enumerated powers granted to Congress under Article 1, Section 8 (Interstate Commerce Clause) of the U.S. Constitution. Modern laws and directives at the federal level, notably the Unfunded Mandate Reform Act of 19951, Presidential Executive Order 13132 (1999)2 and the 2009 Presidential Memorandum, re: Preemption of State Law3, have sought to restore the constitutional balance of power within our federal system. Despite these actions, work remains if state and federal leaders are to gain not only an appropriate balance of power, but a truly cooperative and productive partnership in solving today’s far-reaching policy issues. This policy resolution: Asserts that rights reserved to the state under the 10th amendment to the U.S. Constitution are being infringed upon by Congress as a result of unconstitutional mandates; Urges Congress to cease and desist from enacting mandates that are beyond the scope of the enumerated powers granted to Congress by the U.S. Constitution; Encourages CSG members to call upon their congressional delegations and Congress to initiate the amendment process to the U.S. Constitution to amend the 10th Amendment and Article 1, Section 8 (the interstate commerce clause) of the U.S. Constitution as proposed by the Resolution; Calls upon Congress to specify that the proposed amendments to the U.S. Constitution shall be operative upon ratification of three-fourths of the several states, provided that such ratification occurs within 7 years of the submission of the amendments to the states by Congress. 1 http://www.govtrack.us/congress/bill.xpd?bill=s104-1 2 http://www.epa.gov/fedreg/eo/eo13132.htm 3 http://www.whitehouse.gov/the_press_office/Presidential-Memorandum-Regarding-Preemption Additional Resource Information The 10th Amendment to the U.S. Constitution: Reserved Powers, Scope and Purpose, and Relevant Case Law. Sponsored by the U.S. Senate and U.S. Government Printing Office. Tenth Amendment Center CSG Management Directives Management Directive #1: CSG will affirm on behalf of its member states their sovereignty under the 10th Amendment and support continued and meaningful dialogue between federal and state officials on matters of common interest. Management Directive #2: CSG will transmit a copy of this resolution to the executive and legislative leaders in each state so that they may contact their states’ Congressional Delegation to emphasize the important role of the states in our federal system. Management Directive #3: CSG will transmit a copy of this resolution to the President of the United States, the President of the United States Senate, the Speaker and the Clerk of the United States House of Representatives and post a copy of this resolution on its website. THE COUNCIL OF STATE GOVERNMENTS RESOLUTION TO AMMEND THE 10th AMMENDMENT AND THE INTERSTATE COMMERCE CLAUSE (ARTICLE 1, §8) OF THE UNITED STATES CONSTITUTION WHEREAS, the Tenth Amendment to the Constitution of the United States reads as follows: "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."; WHEREAS, the Tenth Amendment to the Constitution of the United States defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; WHEREAS, the scope of the power defined by the Tenth Amendment to the Constitution of the United States means that the federal government was created by the states specifically to be an agent of the states; WHEREAS, the states are demonstrably treated as agents of the federal government; WHEREAS, many powers assumed by the federal government and federal mandates are directly in violation of the Tenth Amendment to the United States Constitution; WHEREAS, the Interstate Commerce Clause in Article 1, §8 of the Constitution of the United States provides that Congress shall have the power: "To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes;" WHEREAS, the Interstate Commerce Clause is limited to the federal government regulating trade between the states and between the states and other nations, to help prevent conflicts between states over commercial activities and to prevent the erection of barriers to commerce between the states; WHEREAS, the Interstate Commerce Clause should not be used to provide Congress with authority to regulate matters that are primarily intrastate with only an insignificant or collateral effect upon interstate commerce; WHEREAS, many federal laws are beyond the scope and intent of the Interstate Commerce Clause and the Tenth Amendment to the Constitution of the United States; WHEREAS, the Tenth Amendment to the Constitution of the United States assures that we, the people of the United States of America and each sovereign state in the union of states, now have, and have always had, rights the federal government may not usurp; WHEREAS, Article 4, §4, of the Constitution of the United States says: "The United States shall guarantee to every State in this Union a Republican Form of Government," and the Ninth Amendment to the Constitution of the United States adds "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."; and WHEREAS, Congress may not simply commandeer the legislative and regulatory processes of the states. NOW, THEREFORE BE IT RESOLVED, that Congress take action to initiate the amendment process provided by Article 5 of the Constitution of the United States to amend the Tenth Amendment and Article 1, §8 (the Interstate Commerce Clause), of the Constitution of the United States. BE IT FURTHER RESOLVED, that Congress amend the Tenth Amendment of the Constitution of the United States as follows, with proposed changes indicated in underscored text: The powers not expressly 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. This amendment shall be considered by all courts as a rule of interpretation and construction in any case involving an interpretation of any constitutional power claimed by the Congress. BE IT FURTHER RESOLVED, that Congress amend the interstate commerce clause, article 1 section 8, of the Constitution of the United States as follows, with proposed changes indicated in underscored text: To directly regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes, with no authority in Congress to regulate matters that are primarily intrastate with only an insignificant or collateral effect upon interstate commerce; BE IT FURTHER RESOLVED, that Congress shall specify that the amendments to the Tenth Amendment and the Interstate Commerce Clause, Article 1, §8 of the Constitution of the United States, as provided herein, shall be operative upon ratification by the legislatures of three-fourths of the several states, provided that such ratification shall occur within seven years from the date of the submission of the amendments to the states by Congress. BE IT FURTHER RESOLVED, that states are encouraged to express their sentiments to members of their congressional delegation on the need to amend the Tenth Amendment and Article 1, §8 of the Constitution of the United States as provided in this resolution. BE IT FINALLY RESOLVED, that a copy of this resolution be transmitted to the President of the United States, the President of the United States Senate, the Speaker and the Clerk of the United States House of Representatives. Adopted this 6th Day of December, 2010 at CSG’s 2010 National Conference in Providence, Rhode Island. Governor M. Michael Rounds, SD Senate President David L. Williams, KY 2010 CSG President 2010 CSG Chairman .