Guest columnist
State sovereignty has been debated since the American Revolution.
James Madison, who penned the Constitution in 1787, believed that the blurred lines between state and federal sovereignty, embodied in the concept of federalism, is what convinced the states to ratify the Constitution and create our union.
Federalism is inscribed in the 10th Amendment, which states, "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." In other words, a state can only legislate in an area that is not expressly given to the federal government nor expressly denied to the states by the Constitution.
Unfortunately, politicians have abused the dividing line of sovereignty by stating flatly that laws and government agencies, counter to their own personal policy preferences, are unconstitutional.
One argument proposed by some Tea Party candidates is that the U.S. Department of Education (DOE) is unconstitutional. They argue that the creation of the DOE is outside the purview of the federal government because Congress' powers do not include regulating education.
True enough, but the DOE's function is not to regulate education or to create a federal public school system. Instead the DOE provides federal funding to states' public schools and provides loans and grants to college students.
Article I, section 8, clause 1 states that Congress has the power to tax and spend to "provide for the . . . general Welfare of the United States" and clause 18 states that Congress "shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Congress determined decades ago that providing federal funds to public schools and granting loans to college students promotes the "general welfare."
Congress created the DOE as a "necessary and proper" way to execute the law and distribute the funding in an efficient way. Thus, this is a legitimate use of congressional power.
Another example is the debate over the constitutionality of Arizona's immigration law, which was recently ruled unconstitutional and is up for appeal. Article I, section 8, clause 4 states, "The Congress shall have Power . . . To establish an uniform Rule of Naturalization." According to the 10th Amendment, since the Constitution vested the power of immigration with the Congress alone, it is removed from the states' prerogative unless federal law dictates otherwise. Furthermore, under the supremacy clause of Article VI, a state law inconsistent with federal law or its purpose is superseded. Arizona
Political rhetoric is avoiding real debate because one side starts with an averment of unconstitutionality that is deceptive.
Politicians and pundits need to own their views and stop the subterfuge that prevents progressive decision-making. Then rational argument should prevail and our government will regain a sense of legitimacy that has been attacked in recent years.
Kurt Willems is a lawyer and writer from Raleigh who studies public policy issues.
