Someone Needs To Educate Michele Bachmann About The Tenth Amendment

Michele Bachmann has made a name for herself partly for her frequent references to the Tenth Amendment and the encroachments on state authority by the Federal Government, however it appears she really doesn’t understand what the Tenth Amendment means:

During her appearance Sunday on Face The Nation, Michele Bachmann staked out what might be the toughest line in the Republican field against Mitt Romney on health care: That the individual mandate is not only unconstitutional at the federal level — but the mandate is unconstitutional at the state level, too, as Romney passed it in Massachusetts.

(…)

During the interview, Bob Schieffer asked Bachmann whether Romney’s Massachusetts health care reform should be held against him.

“I firmly am against the individual mandate. I think it is unconstitutional, whether it’s put into place at the state level by a state legislature or whether it’s put into place at the federal level. I think it’s unconstitutional,” said Bachmann.

I’m going to presume that Bachmann is referring to the United States Constitution, because after a fairly quick skim reading, it’s pretty obvious that there’s nothing in the Constitution of the Commonwealth of Massachusetts that would bar the state from imposing a health insurance reform plan that requires each resident of the state to purchase health insurance. In fact, Article IV of Section One of that documents says the following:

Full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth

That seems to me like a massively broad grant of authority, which is typical of state Constitutions, and there are no other provisions of the state constitution that appear to speak to this issue.

So, that means Bachmann must believe that there is some provision of the U.S. Constitution that bars a state from imposing an individual mandate. But, where is it ? It isn’t in Article I Section 10, which sets forth a number of restrictions on state authority, and it’s not in any of the Amendments. Instead what, we go back to is that Tenth Amendment that Bachmann likes so much:

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.

Even if one believes that there are doubts about the power of the Federal Government to impose an individual mandate, it is fairly clear that there is no Constitutional bar to a state doing the same, leaving aside the issue of Federal laws pre-empting state laws of course. Someone needs to tell Bachmann that just because she doesn’t like the individual mandate,  that doesn’t mean a state can’t do it

FILED UNDER: Campaign 2012, Law and the Courts, Quick Takes, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Chad S says:

    The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

    -Antonin Scalia

  2. Chad,

    I’m not talking about that issue in this post, as you can obviously tell. I am talking about the powers of the states.

  3. Jeff says:

    except that you believe the Mandate is Constitutional on a federal level don’t you Doug ?

    So your lecture about the 10th Amendment is mearly a club to hit Backman with isn’t it …

    the 10th Amendment doesn’t say what is unconstitutional at the state level, never has …

    just becasue the Feds are barred by the 10th from doing something doesn’t make it constitutional for the state to do it …

    Did you get your law degree outside the US ?

  4. Jeff,

    I’ve never said that. I have said that, based on current case law and the makeup of the Court, I think it’s more likely that the Supreme Court will overturn the mandate than strike it down. I may be wrong about, I may be right. We’ll see.

  5. Hey Norm says:

    Again…it doesn’t matter…if the states can constitutionally pass a mandate then she’ll use the US constitution. It really isn’t about the law…it’s about what she thinks…because she is not a flake…she is a serious person.
    Talking about NY passing Marriage Equality she said: “…federal law will trump state law on this issue….” “…States have, under the 10th Amendment, the right to pass any law they like. Also, federal officials at the federal level have the right to also put forth a constitutional amendment…”
    So what we really need is a originalist view of Bachmann’s view of the constitution and other stuff.

  6. Hey Norm says:

    Hey Malkovich…
    Saw you in Jonah Hex last night…awesome role for you!!!

  7. Ben Wolf says:

    It’s odd to see how Bachmann repeatedly makes such elementary mistakes. Recal during the 200 campaign Bush was embarrassed by reporters asking him elementary questions on foreign policy; questions he couldn’t answer, and his team spent the next two weeks cramming that knowledge into his brain so there wouldn’t be another slip-up. With Bachmann ( and Palin) I see no sign of this. She just keeps on saying, if you’ll forgive me, stupid sh*t. I can think of three possibilities:

    1) She’s functionally illiterate (limiting her study skills)

    2) She can’t comprehend the information (i.e. dumb)

    Or what I think most likely:

    3) She considers whatever she has in her head to be correct because God put it there, and it’s the rest of the world that’s wrong.

    The more she talks the more likely some form of psychosis seems.

  8. Chad S says:

    @Doug: Yes I know, I just wanted to get ahead of the curve when the lawsuits are brought up.

  9. It could be she thinks it’s covered by a combination of the ninth and fourteenth ammendments, although doing so would require her to walk back her positions on a lot of other issues.

    Then again, consistency doesn’t seem to be one of her strong points.

  10. DMan says:

    JM,

    If you haven’t noticed yet, Doug doesn’t care much about the crazy until the crazy becomes a fast rising star with growing power and influence. Makes sense, rational ignorance, and all. If it upsets you that Doug spends a lot of time on the crazy people who have rising popularity in this country, it’s probably because you think they aren’t crazy, just unfairly treated by people like Doug. If that’s the case wouldn’t you be better served defending the craziness that Doug likes to bring up with rational rebuttals to how it isn’t so crazy after all? Or you could tell everyone to stick their fingers in their ears which you seem to enjoy so much.

  11. Jay Tea says:

    I think it’s more likely that the Supreme Court will overturn the mandate than strike it down.

    I’m not a lawyer. Is there a distinction between “overturn” and “strike it down,” or did Doug misspeak? Normally, I wouldn’t make a comment about what looks like a simple misstatement, but in this case, there could be nuances us laymen just don’t get.

    J.

  12. Yes, I was multi-tasking when I wrote that.

    I meant to say that, what I have said is that I think its more likely that SCOTUS will uphold the amendment than strike it down.

  13. Jay Tea says:

    Ben, could you turn that formidable intellect on to Obama’s misstatements? I’d be fascinated to read that kind of insightful analysis.

    Feel free to start off with his confusing two Medal of Honor winners — the first guy since Viet Nam to get it while alive, and one that was posthumous. The first one Obama presented to the guy, the other Obama presented to his family

    If you want more examples to draw from, I’ll be glad to assist.

    J.

  14. mattb says:

    BTW, it seems that under this current position, Bachmann must also be opposed to the mandatory auto Insurance requirement most states have.

    Or is the out there, that you don’t have to buy it if you don’t have a car (and you can opt-out of the driving system)?

  15. DMan says:

    Jay,

    Not to speak for Ben, but your example of Obama’s misstatement differs from mistakes by Bachmann and Palin because they more often continue to stand by them.

    White House Press Secretary Jay Carney acknowledged Obama’s error.

    “At Ft. Drum, the president misspoke when discussing the first Medal of Honor he presented posthumously to Jared Monti, who was a member of the 10th Mountain Division. The president paid tribute to Monti in his remarks to troops in Afghanistan in March 2010. Last year, the president presented the Medal of Honor to Salvatore Giunta, who was the first living recipient of the Medal who served in Afghanistan,” he said.

    Basically your example is a good example of a misstatement, like Bacchman and her misstatement regarding John Wayne. I think Ben and many of us don’t jump on her for these things (unless she tries to stupidly spin it as being accurate), instead we go after her factual inaccuracies and inconsistencies. You could defend them as being accurate or consistent if you’d like, or if you’re going to try deflection you could bring up Obama, but at least if you’re going for the deflection route, don’t make an obvious mistake of confusing a position from a misstatement.

  16. DMan says:

    In the interest of being Fair and Balanced, here is another take on Obama’s misstatement:

    http://nation.foxnews.com/president-obama/2011/06/23/obama-dishonors-medal-honor-winners-horrible-gaffe

    This being my first step into Fox Nation, I hadn’t realized Fox News had launched such a Fair and Balanced website for our opinions to be heard.

    “Fox Nation will be a forum for Americans to speak out on important and controversial issues, and to act on their beliefs and values — while always upholding the traditional American ideals of free speech, fair play, and tolerance… at FOX Nation, the American people will be the stars.”

    It must be a mistake that they closed comments on the article I linked to.

  17. Ben Wolf says:

    Jay,

    Dman pretty much nailed it. I can think of at least half a dozen episodes where Obama has acknowledged an error. Has Bachmann ever done so?

  18. Ben Wolf says:

    Surely, regardless of political inclination, we can all agree there’s reason to be concerned about someone seeking office who appears to believe in their own infallibility.

  19. Jay Tea says:

    Ben, I dunno. I don’t follow Bachmann that closely, But I do know that if the mainstream media hadn’t covered the apology, there would have been NO coverage of Obama’s Medal of Honor insult.

    J.