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Gov. Dave Freudenthal is proposing to reign in expansive federal powers and is asking the Legislature to help.

"We need less talk and more action," Gov. Freudenthal said as he asked the Legislature to lead an effort to curtail federal power by amending the federal Constitution.

The proposed amendment will "put teeth" back into the 10th Amendment and restrict the expansion of federal power under the Interstate Commerce Clause, the Governor said.

The attached memorandum and proposed resolution were sent to members of the Legislature Thursday (January 28, 2010).

MEMORANDUM
TO: Members of the Sixtieth Wyoming Legislature
FROM: Dave Freudenthal, Governor
DATE: January 28, 2010
SUBJECT: Resolution to Congress – The Tenth Amendment and Interstate Commerce Clause

For decades we have shared increased frustration dealing with the federal government and its agencies. What started out as a leak in the erosion of state prerogative and independence has today turned into a flood. From wolf and grizzly bear management, to gun control, to endless regulation and unfunded mandates – the federal government has become far too powerful and intrusive.

We are continually asked to adopt policy resolutions or amend the State Constitution. These efforts are laudable and we all enjoy the speeches. Unfortunately, they do not change the basic march towards centralized federal power. The policy resolutions are ignored by Congress and never considered by the federal courts. Amending the State Constitution may impact state law, but it has absolutely no impact on federal law. If we want to limit the role of the federal government, the limitation must be placed in the document from which the federal government and courts derive their power. That document is the Constitution of the United States. During this legislative session, I am urging you to take bold steps to help restore our sovereignty under the Constitution of the United States.

As you know, the Tenth Amendment declares that the powers not delegated to the federal government by the Constitution are reserved to the states. Its language is plain:

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.

To be sure, the Tenth Amendment has never enjoyed much consideration or respect by federal courts or constitutional scholars. The courts have dismissed the Tenth Amendment as simply a "truism" that says what the Constitution says, but that it gives no added authority to the interpretation of the division of power.

We Americans are all expected to play by the rules – to abide by the law. Our federal government is likewise expected to abide by the rules – in its case, the Constitution. The Founders of our nation and the Framers of our Constitution created a delicate balance of power among the federal government, the state governments, and the people. At the time of the drafting and ratification of the Constitution and for many years after, this was recognized all over the world as a wonderful experiment in democracy – and for many years it worked.

Prior to our Constitution, the Articles of Confederation sought to create a limited federal government with clearly enumerated powers. Article II provided, "[e]ach State retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

Delegations from some states, during the drafting of the Constitution, were concerned the federal government would have too much power. They wanted a provision similar to the Articles of Confederation to clarify that the federal government would be one of limited and enumerated powers. Many people, including James Madison, did not think this was necessary, since they thought it was obvious in the Constitution itself that the federal government was a limited one, with only certain "enumerated" powers. Nevertheless, as a compromise to encourage ratification by the states, the Ninth and Tenth Amendments were inserted. But we now know these Amendments were not enough to restrain either Congress or the federal courts from making expansive and incongruous interpretations of those limited and enumerated powers.

Indeed, since the Gilded Age the federal government has ignored these historic principles. The primary means by which it has done so has been through Congress’ regulative powers over interstate commerce. The massive expansion and subsequent abuses of the Interstate Commerce Clause is the bright beacon of federal intrusion into the business of the people and the states. The Interstate Commerce Clause (Article I, Section 8) provides that Congress shall have the power:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

The original purpose was to regulate trade between the states, and between the states and other nations. It was also intended to help prevent conflicts between the states stemming from disputes over commercial activities. And it was intended to prevent the erection of barriers to commerce between the states. Activist Congresses, since the late 1800s, have used the clause to justify intrusion into wholly intrastate activities, subjecting to federal regulation everything manufactured, transported, farmed or produced – regardless of where the product is made or where the business takes place.

Like our Framers recognized long ago, the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials responsible for dealing with them. We cannot stand for a government we see today in which special interests engage in sophisticated lobbying which results in the federal government monopolizing commerce, health care, land use, social welfare, education and many, many other programs. We must do what we can to stop this avalanche of federal intrusion.

The good news is that Article V provides for we the people, through our elected representatives, to make necessary adjustments to the Constitution to ensure that the Tenth Amendment, the Commerce Clause and other provisions are utilized in the manner intended by the Framers. The Framers provided for these processes to be employed at anytime. I submit to you — now is the time.

As spelled out in Article V, the Constitution can be amended in one of two ways. First, amendment can take place by a vote of two-thirds of both the House of Representatives and the Senate followed by a ratification of three-fourths of the various state legislatures. Second, the Constitution can be amended by a Convention called for this purpose by two-thirds of the state legislatures, if the Convention's proposed amendments are later ratified by three-fourths of the state legislatures.

It is the first method that has been used before to successfully amend our Constitution and it is this method I suggest we pursue. We do not need a Constitutional Convention. Twenty-seven amendments have been ratified since the Constitution became effective all without a Constitutional Convention. Ten of those ratifications occurred almost immediately – as the Bill of Rights.

So what can you do? As described, I propose you insist that Congress take action forthwith to initiate the Article V amendment process to the Constitution. A process that will give teeth back to the Tenth Amendment and limit the Commerce Clause, as was intended by the Framers. This can be done by Congress by simply making a clear modification to the current language contained in these provisions of our Constitution. Such language could include the following:

Tenth Amendment
(Changes in bold): "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 federal courts as a rule of interpretation and construction in construing any case involving an interpretation of any Constitutional power claimed by the Congress under either the "interstate commerce" or the "necessary and proper" clauses of Article 1, Section 8."

Interstate Commerce Clause
(Changes in bold): "To directly regulate Commerce with the 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 affect upon interstate commerce;"

This is not a time to be timid. We should not allow our fears of this Constitutional process prevent us from taking the correct steps to restore the proper constitutional balance between state and federal powers. This flood can be stopped, but it starts with the people and their elected representatives. I urge you to join this effort and help send a strong message to Congress to rebuild our Constitution. Advancing the attached Resolution will emphasize the long established principle that there is a constitutional basis for the exercise of state authority in matters clearly not the business of the federal government.

GOVERNOR’S DRAFT
January 28, 2010
A Bill
for

A JOINT RESOLUTION requesting that Congress take action forthwith to initiate the Article V amendment process to amend the Tenth Amendment and Interstate Commerce Clause (Article I, Section 8) of the United States Constitution, and cease and desist from enacting mandates that are beyond the scope of the enumerated powers granted to Congress by the United States.

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"; and

WHEREAS, the Tenth Amendment to the Constitution defines the total scope of federal power as being that specifically granted by the Constitution of the United States and no more; and

WHEREAS, the scope of the power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states; and
WHEREAS, today, in 2010, the states are demonstrably treated as agents of the federal government; and

WHEREAS, many powers assumed by the federal government and federal mandates are directly in violation of the Tenth Amendment to the Constitution of the United States; and
WHEREAS, the Interstate Commerce Clause to 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 the Indian Tribes;" and

WHEREAS, the Interstate Commerce Clause is limited to the federal government regulating trade between the states, and between the states and other nations, and to help prevent conflicts between states over commercial activities, and to prevent the erection of barriers to commerce between the states; and

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 affect upon interstate commerce; and

WHEREAS, many federal laws are beyond the original scope and intent of the Interstate Commerce Clause and the Tenth Amendment to the Constitution of the United States; and

WHEREAS, the Tenth Amendment 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; and

WHEREAS, Section 4, Article IV, of the Constitution says, "The United States shall guarantee to every State in this Union a Republican Form of Government," and the Ninth Amendment states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"; and
WHEREAS, the United States Supreme Court has ruled in New York v. United States, 112 S. Ct. 2408 (1992), that Congress may not simply commandeer the legislative and regulatory processes of the states.

NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE LEGISLATURE OF THE STATE OF WYOMING:

Section 1. That the Wyoming Legislature urges Congress to take action forthwith to initiate the Article V amendment process to amend the Tenth Amendment and Interstate Commerce Clause (Article I, Section 8) of the United States Constitution.

Section 2. That the Wyoming Legislature urges Congress to amend the Tenth Amendment of the United States Constitution as follows:

(Changes in bold): "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 federal courts as a rule of interpretation and construction in construing any case involving an interpretation of any Constitutional power claimed by the Congress under either the "interstate commerce" or the "necessary and proper" clauses of Article 1, Section 8."

Section 3. That the Wyoming Legislature urges Congress to amend the Interstate Commerce Clause (Article I, Section 8) as follows:

(Changes in bold): "To directly regulate Commerce with the 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 affect upon interstate commerce;"

Section 4. That the Secretary of State of Wyoming transmit copies of this resolution to the President of the United States, to the President of the Senate and the Speaker of the House of Representatives of the United States Congress and to the Wyoming Congressional Delegation, with a request that this resolution be officially entered in the congressional record as a memorial to the Congress of the United States of America.