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Does federal spending meet "The Tenth Amendment Challenge?"

By Stephen M. Lilienthal
web posted October 10, 2005

Is the spirit of conservatism missing in these big budget times? It certainly is in the mindset of many members of the Washington elite. However, the belief in a limited Federal Government still inspires young conservatives who come to Washington to attempt to make a difference. Rep. Mike Pence (R-IN), Chairman of the Republican Study Committee, recently delivered a talk to such young conservatives at an event hosted by the Young America's Foundation. His talk was provocatively titled, "Have Conservatives Given Up On Smaller Government?"

The young conservatives who heard Pence have good reason to be concerned. So does any American who cares about this country's future. Deficits keep piling up. The share of the national debt amounts to $26,000 for every American.

Pence and the 105-member Republican Study Committee have been consistent voices for reduced spending in this session of Congress. That has made for some tense confrontations with the powers-that-be in Washington but the fact is that the Federal Government is too big, it is spending too much and it is hitting future generations of Americans with a gigantic bill.

An important point made by Pence in that talk to young conservatives is that the problem lies more with the process than with the people.

Conservatives should start demanding that Representatives and Senators apply a simple test to legislation, particularly those authorizing spending programs.

The Constitution mandates specific areas in which the Federal Government is to be involved. It is to regulate commerce between the States, provide for the common defense of our country, oversee the infrastructure needed for transportation and provide for the currency. New technologies and new conditions have expanded the definitions but certainly our Founding Fathers never envisioned a Federal Government of the present size and scope.

The Tenth Amendment, the very last measure in the Bill of Rights, says quite clearly:

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.

A simple review of programs now under the purview of the Federal Government should raise questions as to whether there is any constitutional justification for their existence. Here are some examples.

No Child Left Behind (NCLB). Education always had been considered to be a local and State responsibility. The increasing turn of the National Education Association (NEA) from a professional association to a union with a big purse for political contributions helped spur the federalization of lower education. The Department of Education was established in 1979. Then came the standardized testing regimes used to measure how well local schools are performing to national standards. Education is less a local and State responsibility as more regulations are imposed on the States. The National Conference of State Legislatures (NCSL) released a report earlier this year about the No Child Left Behind program. The chapter of the NCSL Task Force On No Child Left Behind assessing the Federal Role in education stated:

[No Child Left Behind] also has questionable constitutional underpinnings. It pits the 10th Amendment, which reserves powers to the States, against the spending clause of Article I, which allows the federal government to attach conditions to grants it provides to the States. Although the spending clause often has trumped the 10th Amendment, the Supreme Court, in South Dakota vs. Dole and other decisions, has placed constraints on how Congress may exercise its powers under the spending clause. The Task Force is concerned that NCLB fails to meet two of the South Dakota vs. Dole tests: its grant conditions are not unambiguous and it uses coercion and not financial inducement to attain state participation.

The appropriation No Child Left Behind received in FY 2005 was $24,350,254,000. That's $24 billion.

Community Development Block Grants (CDBG). Should the Federal Government concern itself with the attractiveness of your community's downtown business district? That is a matter for your city council. If so, why is the Federal Government trying to play Santa Claus to local communities, tossing cash at downtown areas? No doubt the new downtowns secured by Federal funds represent a good photo-op for the Congressmen. Too few Congressmen take it upon themselves to appear before the debt clock that flashes the size of our mounting debts. The appropriation for the CDGB program is over $4 billion for FY 2005.

The National Youth Anti-Drug Media Campaign. Most mature Americans do not promote use of illegal, addictive drugs, particularly by younger Americans. The Office of National Drug Control Policy (ONDCP) advertising and PR campaign urges Americans to talk to their children. It's a useful recommendation. The question needs to be asked: Given the current situation, there is one more reason for parents to talk to their children – to tell them about the bill we are passing on to them – the interest on the national debt -- thanks to our failure to curtail unconstitutional spending on programs like that of the ONDCP. The National Youth Anti-Drug Media Campaign received appropriations of $119,040,000 in FY 2005. Kids may be doing drugs but does ONDCP's media campaign have its own addiction problem?

The Legal Services Corporation (LSC). The Constitution assures the accused in a criminal case a right to counsel. Ken Boehm, chairman of the National Legal and Policy Center, and Counsel to the Legal Services Corporation in the George Herbert Walker Bush Administration, points out, "There is no constitutional right to file a lawsuit at government expense." The attorneys funded by this quasi-government agency have the discretion to pick their cases and often they are tilting against businesses, farmers and landlords. A House Budget Committee report from the 1990s emphasized, "A phase-out of federal funding for LSC will not eliminate free legal aid for the poor. State and local governments, bar associations, and other organizations already provide substantial legal aid to the poor." Appropriations in FY 2005: $330,803,705 (after two rescissions).

The National Endowment for the Arts (NEA). Americans spend over $25.5 billion on the arts. Other than very limited projects in consonance with portraying our national history, there is no reason for the hundred million or so spent by NEA. It's great work if you can get an NEA grant but providing a subsidy for the arts is simply not a function of the Federal Government assigned by our Constitution. Artists will not starve without the NEA; they just will have to compete harder for all the other money out there. NEA appropriations for FY 2005, including two modest recissions made by Congress, was $121,263,000.

Two ideas that can be of use in attempting to rein in Big Government have been advanced by Rep. John Shadegg (R-AZ) and Sen. Sam Brownback (R-KS).

Shadegg is sponsor of The Enumerated Powers Act (H.R. 2458), that would require each bill introduced in Congress to include a statement citing constitutional authority. Shadegg has introduced this bill in several Congresses. He argued in 2001 that the Enumerated Powers Act was needed because:

Our Founding Fathers believed the grant of specific rather than legislative powers to the national government would be one of the central mechanisms for protecting our freedoms while allowing us to achieve the objectives best accomplished through a national government. One of the most important things Congress can do is to honor and abide by the principles embodied in the Constitution – no more, no less. Respecting the Tenth Amendment is the first way to ensure that the genius of the Constitution and its division of power between the national government, the States, and the people continues to guide our nation.

If enacted, Shadegg's Enumerated Powers Act would become the constitutionalist version of Consumer Reports.

After extensive research by the Free Congress Foundation, Senator Sam Brownback (R-KS) and Representative Todd Tiahrt (R-KA) have introduced the Commission on the Accountability and Review of Federal Agencies Act (S.1155 and H.R. ), more frequently referred to as "CARFA." Many conservatives, upon hearing the title of Brownback's bill, will instantly say, "The last thing we need is another commission examining the problem. We know what's wrong; what we need is a action!" Brownback's bill if enacted into law would provide just that.

CARFA members would be appointed by the President and the Congressional Leadership. They would undertake an extensive study of federal agencies and programs, specifically looking for those that are wasteful, duplicative or simply obsolescent. The bill does not specifically mandate a Tenth Amendment test. Pressure would need to be exerted on those who appoint, particularly those representing the more conservative party, to place commissioners who respect the purpose of the Tenth Amendment and want to see it reflected in Federal Government expenditures. The Commission would issue its recommendations in a report to Congress which then would vote up or down on the whole package.

The Executive Branch and Congress have each proven themselves to be careless in recent decades when it comes to exercising appropriate caution in spending taxpayer money. Worse, they have ignored the Constitution and its limits on federal power. The result is mounting deficits, leading to large interest payments on the national debt. That is not the legacy we want to leave to posterity. It's time to start pruning the Federal Government. (Reforming "third rail" entitlement programs, such as Medicaid and Social Security, is vital but something which Congress and the Executive Branch habitually defer.) The Constitution is clear about what the responsibilities of the Federal Government are and Members of Congress have taken an oath to uphold the course charted by our Founding Fathers. It's time Congress started to apply "The Tenth Amendment Challenge" to domestic spending.

Stephen M. Lilienthal is a policy analyst at the Free Congress Foundation.

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