The Supremacy Clause in the Constitution is not a Carte Blanche for Government Expansion and Usurpation

Some hold the erroneous view that the Supremacy Clause in Article Six of the Constitution of the United States gives the federal government preeminence over the states. If a federal law and state law are in conflict, many assume, without proper consideration and analysis, that the federal law trumps and should be unchallenged. A closer look at what Article Six actually says shows that this view which essentially places no restrictions on Congressional actions is false. In relevant part, Article Six states “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...” The key provision in this section is “which shall be made in Pursuance thereof.” Pursuance refers to the Constitution. It follows that laws which are not made in pursuance of the Constitution are not the supreme law of the land. Congress does not have a blank check from which to draw unlimited power with no questions asked and no repercussions. The States are as supreme in their proper sphere as the federal government is in its sphere.

Despite being probably the most ignored amendment by Congress, the Executive Branch, and the courts, the Tenth Amendment is still good law and is extremely relevant. The Tenth Amendment dictates that “[t]he 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.” Article Six and the Tenth Amendment are in conformity with each other. Coupled together, they place a barrier over which Congress may not cross. Congress may not pass legislation in areas not delegated to it by the Constitution. Congress, has of course, often ignored this constitutional barrier. While Congress has ignored the barrier, the States are not required, and should not, do the same.

Congressional disregard for the powers reserved to the States does not force the States nor give them an excuse to show the same callous disregard for the constitutional barriers. The assumption that whatever Congress does is constitutional and unquestionable should be dismissed. Questions should not give way to anarchy or disregard for the law. Proper regard for the law, however, requires that the States as well as Congress and the courts carefully consider these constitutional questions. The federal government has unquestionably grown to mammoth proportions and shows no signs of slowing down. With the passage of recent bills, nothing seems out of reach of the notions of Congress. Again, federal usurpation and disregard for federalism and the checks and balances system gives no excuse for others to do the same. If States allow themselves to be trodden under foot by the actions of Congress, they must share some of the blame.

The current situation brings other notable events to mind. One is the tax on tea and stamps. Another is the Tariff of Abominations of 1832. It is no stretch in stating that the government takeover of health care is a more blatant use of power than these two prior events. If Congress is allowed to pass this with silent acquiescence on the part of the States, what is to be restrained from further federal usurpation of power? The States must counter this whether it be in the form of filing a lawsuit or even refusing to implement the act which has no basis in constitutional authority.