States' Federal Role in Perspective
When national politics is frustrating, it's tempting to go separate ways at the state or local level. And it's not surprising that when Congress starts granting itself discretion regarding the public's grievances (see Tomorrow's Issues in Political Process), the people start strengthening state and local powers instead. But even before the Constitution, states weren’t designed to function as nations: among other reasons, separate laws aren't always desirable.
State and local matters are different from national ones (see Article I, Sections 8, 9 and 10):
When a national policy exists, cutting up our law and policy geographically rarely solves problems, and often makes them worse.
We also consider majority values in a democracy, while preserving our inalienable rights by maintaining national pluralism instead of creating separate legal fiefdoms.
What’s needed is enactment of what Amendment I already requires.
Amendment I requires procedures for the public to introduce matters to any part of government, including Congress, without lobbying.
When the people in one state want to repeal a federal law or revoke part of it, we can’t lawfully pass a contrary law but we can petition Congress for revocation or repeal while appealing to the people of the other states for their agreement (see The Rule of Law, Valid Amendment, Restoring Invalidly Amended Text).
Congress’ only options when states want to lab revocation or repeal of a federal law are revoking that portion, changing that portion or repealing the whole law. Labbing can’t even involve a probationary period (although the people have an infinite right to change our minds). The Constitution doesn’t give Congress powers to suspend enforcement or to defund a law or to have different laws in different states or any other halfway measure. Their legislative powers are all or nothing, and that’s the way it should be.
"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."
Wherever the Constitution prohibits Congress from passing any law affecting a right the same prohibition applies to the states, and where it requires Congress to uphold a right in all laws it passes the states must also uphold it in all laws they pass.
This doesn't affect powers reserved to the states, but Amendments IX and X bring all rights and powers not mentioned in the Constitution into it by reference. This among other things reinforces that they are all subject to Article VI. Reducing any laws of the United States from being the supreme law of the land invalidly amends Article VI as well as violating the affected law.
Since the states already had laws and constitutions when the Constitution was passed, Article VI makes sure this includes "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding" to cover anything already existing. The Constitution and federal law are the supreme law of every state. By ratifying the Constitution, a state agreed to have its legislature repeal anything that contradicted the Constitution, and until then to treat anything not yet repealed that contradicted the Constitution or a United States law as already repealed. The Contrary clause doesn't allow states to pass new laws to the contrary.
States may not keep a law contradicting federal law or Constitutional text on the books until a case comes up because rights and powers aren't just what they are when a court is addressing them, rights and powers are what they are all the time. Delaying compliance until caught is the law of the jungle: if being caught were the standard of violation no law could be broken unless and until the lawbreaker was caught, and since by this token intimidation of victims and witnesses would also be legal as long as successful, the crime rate would officially be zero. That’s one way to do it.
We rise and fall together. We can only build better government together. Congress has never enacted the Grievance clause effectively. It's high time we pressed them to do this.
What if many people in your state disagree with all or part of a federal law? What if it may violate your constitutional rights?
To keep pace with new realities while maintaining our basic American values, we need to be free to experiment.
But staying within the framework we established for this process keeps our government running fairly and consistently. We need to
refresh our memories of this process.
States may always “lab” (try out) laws adding to a federal law as long as they don’t abridge any privilege or immunity the law (or the limits of its reach) establishes. Only Congress can change federal law, and there's no way around it. But when procedures are missing or damaged (see The Rule of Law) this can seem impossible, and it can be tempting to go around valid procedure at the local, state or federal level instead of correcting the procedural error. And if you don’t want to add to a federal law but subtract from it, the problem can seem even worse.
This amendment's restoration of the public's powers in the political process will make it easier to correct or replace errors in procedure or the balance of powers, but even without it there's no excuse for creating invalid new procedures that compound the errors. The Constitution's provisions aren't arbitrary or relative, and it's not hard to see where something has gone wrong.
"This 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; and the Judges of every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
In this example, this means upholding the supremacy of federal law over state law or state constitutions. State and local government officers are just as bound by the Supremacy clause as federal ones. Nor can federal law be enforced differently depending on the state (see Executive in Conflict).Even if a court - below the Supreme Court - fails to uphold a federal law, state legislatures can’t pass laws violating it. State legislators, state Governors, and even local officials are bound to support the Constitution.
In 1997, in Printz v United States, 521 U.S. 898 (1997), the Supreme Court created an “anti-commandeering rule” preventing any federal law from requiring any conduct of state officers except judges, claiming the above mentions only judges. But that’s not the only paragraph in the Supremacy clause. It continues:
"[…] The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; [...]"
Since the Constitution these officers are required to support includes the paragraph above it, which establishes not just the Constitution but also federal laws and treaties as the supreme law of every state,
Printz’s “anti-commandeering rule” invalidly amends.
Caselaw drift figures in Printz. A long string of conflicting precedents includes National League of Cities v Usery (the Secretary of Labor), 426 us 833 (1976), in which the court ruled that Congress couldn't make states comply with federal regulations. A regulation is an Act of Congress originating in an Executive agency: any Executive branch Act that would have the force of a law must be passed by Congress like any other bill (the Court later overturned National League of Cities but had changed course again before Printz).
Conflicting precedents can only be resolved by amendment, and this string must involve corruption as the text could hardly express this clause more plainly. Section 5 restores it (see Restoring the Preamble, Restoring Invalidly Amended Text).