Wednesday, September 22, 2021
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The 10th Amendment Defense

In the last debate in Tampa, Rick Perry was attacked because Texas allows illegals to pay in-state tuition fees to enroll in a state college. Michelle Bachmann said this

I think that the American way is not to give taxpayer subsidized benefits to people who have broken our laws or who are here in the United States illegally.

Either she overlooked a 1982 Supreme Court decision, Plyler vs. Doe, or she is unaware of it. The court ruled that Texas and the rest of the country must educate illegal immigrant children free of charge in public schools. Some of the most vocal illegal immigration opponents don’t oppose the decision. But they say higher education is different, because it is tuition-based.

Rick Perry defended himself by saying

I’m not for the DREAM Act that they are talking about in Washington D.C. that is amnesty. What we did in the state of Texas was clearly a states right issue. And the legislature passed with only four dissenting votes in the House and the Senate to allow this to occur.

Under the U.S. Constitution, the government of the state of Texas cannot make laws regulating the naturalization or deportation of residents. Only the U.S. Congress can do that.

Attorney David Rogers argues that taxpayers suffer because of the law. It’s unfair, he added, that the state gives benefits that students from Oklahoma or other states can’t receive.

A challenge to a similar law in Kansas failed in 2005 after a federal judge found that out-of-state college students had no standing to challenge the law there, since they had not been harmed by it.

Rogers said states are not supposed to offer benefits to illegal immigrants that are not offered to eligible U.S. citizens. But University of Houston law professor Michael A. Olivas said federal law clearly allows states to draft their own policies, and he believes the Texas case is similar to the Kansas one. “It is a matter for states to determine,” he said. “In-state status is a state issue.”

Illegal immigrant students were never barred from enrolling in Texas colleges, but the higher tuition price tag for nonstate residents often meant they couldn’t afford to attend. State Rep. Leo Berman, R-Tyler, has tried sponsoring a bill denying education benefits to illegal immigrants in the past, but he later realized that went against the Plyler precedent.

The bottom line for me is that a Governor must deal with issues that are very specific to the people living in his state, and this does not always translate into something for the federal government to take up. In that respect both Mitt Romney with his Massachusetts health care, and Rick Perry with his Texas instate tuition are resorting to 10th amendment rights as their defense. Now one of these two men may very well win the GOP nomination to be President. I personally lean toward Rick Perry as the more conservative of the two. In either case I am grateful that both have embraced the 10th amendment, and want the federal government to intrude less in my personal life.

pilgrim
I am retired after 36 years of being a state of Indiana employee. I enjoy writing and reading conservative blogs.

16 COMMENTS

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16 COMMENTS

  1. Correct me if I’m wrong Pil, but wasn’t Perry consistent on states rights saying he didn’t agree with Romneycare, but Massachusetts had a right to pass it?
    Also, is there a danger in using the phrase ‘states’ rights’ because of it’s historical connection to Southern bigots? Or is it something that just might catch on?

    • I believe you are correct about Perry being consistent on states rights. As long as a northerner like Mitt Romney keeps using the ‘states rights’ phrase I think it would be a big stretch to say it is an example of Southern bigots.

    • I’d prefer Perry get off the states rights as it applies to health care. It’s dumb and not consistent with conservative’s view that Obamacare is unconstitutional. This is a flaw in Perry’s thinking, that a state can pretty much do what it wants.

      Our rights come from God and not from DC or Austin. I say this as a Perry supporter.

      • Plyler v Doe is not a 10th Amendment case and I think it was wrongly decided and was a disaster as it essentially granted rights to illegals. But, it is the law of the land and does bolster Perry’s position, even if he hasn’t yet defended himself well in debates. Plyler v Doe does highlight and intensify the fact that States cannot deport people and so are stuck with dealing with those that are present which the federal courts say must be educated as children. That his Dream Act is a state’s rights issue and that he and Romney recognize same is good and correct, but that is not the end of the evaluation of them. It is also correct that states have the right to mandate the purchase of health insurance, while the federal government does not. This conclusion is conservative because it is based on the ACTUAL LANGUAGE OF THE RESPECTIVE DOCUMENTS, IE THE US CONSTITUTION AND THE MASSACHUSETTS CONSTITUTION.

        Yes, ‘galt, our unalienable rights come from God, but since God has left governance to humans since Adam and Eve left Eden, the issue for us is WHO defines those what those unalienable rights are? We have three options under our Constitution: Congress, Federal judges or the states. The Framers understood that it was the states and Jefferson and Jackson understood that it would be a Pandora’s box to let it be federal judges under the 9th Amendment.

        We have an amendment process to decide what should be universal…more later

      • There is nothing inconsistent about the unconstitutionality of the individual mandate of ObamaCare and the rights of states to regulate health care within their borders. But that what a state MAY constitutionally do and what it chooses to do is quite relevant in who we would prefer as President.

        I was never a Huckabee advocate, but I did say that criticism against him based SOLELY on his tax hikes at the state level was not conservative. States are not the feds in many ways. They are subject to mandates and they cannot print money. Moreover, many conservatives seem to forget that states have to do things that the feds should not be doing and have to pay for it, even pre-New Deal!

        more later

        • Huckabee never did a good job of responding to his critics. He chose to deny all charges instead of say that a Governor of a state has got to deal with things specific to that state that may not translate into something the federal government should take up. I give both Perry and Romney kudos for using the 10th amendment defense instead of denial like Huckabee.

        • In general, I do not favor expansive state’s rights in economic matters. One of the main reasons we trashed the Articles of Confederation in favor of the U.S. Constitution was due to states acting like separate nations. hence the interstate commerce clause, which, while abused is why we have a vibrant national economy, interstate highway system etc. Curiously, congress has not used that clause to nationalize health insurance sales and I think that is a travesty. The number one thing we can do to reduce health ins premiums is to allow ins companies to compete across state lines. But states and ins cos enjoy their bought and paid for monopolies. Romney and Perry should be asked about this issue.

  2. Thanks Pil for mentioning the court ruling. I’ve tried to talk to a few other conservatives about it, but some people just have a single track mind on it. Perry is in a tough spot with millions and millions of illegals. Texas is forced to educate them, doctor them and police them. The Feds won’t do squat and have ignored the request for Guardsmen on the border.

    At least Perry was able to so sign the voter ID act this year which should limit the illegal voting.

  3. I’m surprised the Federal Government has allowed the States to decide this on their own. That theoretical student from Oklahoma surely makes the entire issue one of “interstate commerce.” At least according to the Democrats.

  4. Very good post, Pilgrim. I appreciate the information. I cut Perry slack on it because I know they are dealing with a very difficult proposition in TX and I believe it is their right to charge their students whatever they choose, but I didn’t know they had to take the court ruling into account.

  5. Texas doe (did?)indeed have a special relationship with Mexico in the Maquiadoros-Brownsville region, where many US mfg corps moved to do partial manufacture on both sides of the border but still be able to put “made in USA” on the label. I was in on that. Workers moved freely (sort of ) but special concessions were made for Texas-based education, as those workers benefited both Texas and Tamaulipas labor markets. These programs began in late 80’s. Not sure when they eded.

  1. Correct me if I’m wrong Pil, but wasn’t Perry consistent on states rights saying he didn’t agree with Romneycare, but Massachusetts had a right to pass it?
    Also, is there a danger in using the phrase ‘states’ rights’ because of it’s historical connection to Southern bigots? Or is it something that just might catch on?

    • I believe you are correct about Perry being consistent on states rights. As long as a northerner like Mitt Romney keeps using the ‘states rights’ phrase I think it would be a big stretch to say it is an example of Southern bigots.

    • I’d prefer Perry get off the states rights as it applies to health care. It’s dumb and not consistent with conservative’s view that Obamacare is unconstitutional. This is a flaw in Perry’s thinking, that a state can pretty much do what it wants.

      Our rights come from God and not from DC or Austin. I say this as a Perry supporter.

      • Plyler v Doe is not a 10th Amendment case and I think it was wrongly decided and was a disaster as it essentially granted rights to illegals. But, it is the law of the land and does bolster Perry’s position, even if he hasn’t yet defended himself well in debates. Plyler v Doe does highlight and intensify the fact that States cannot deport people and so are stuck with dealing with those that are present which the federal courts say must be educated as children. That his Dream Act is a state’s rights issue and that he and Romney recognize same is good and correct, but that is not the end of the evaluation of them. It is also correct that states have the right to mandate the purchase of health insurance, while the federal government does not. This conclusion is conservative because it is based on the ACTUAL LANGUAGE OF THE RESPECTIVE DOCUMENTS, IE THE US CONSTITUTION AND THE MASSACHUSETTS CONSTITUTION.

        Yes, ‘galt, our unalienable rights come from God, but since God has left governance to humans since Adam and Eve left Eden, the issue for us is WHO defines those what those unalienable rights are? We have three options under our Constitution: Congress, Federal judges or the states. The Framers understood that it was the states and Jefferson and Jackson understood that it would be a Pandora’s box to let it be federal judges under the 9th Amendment.

        We have an amendment process to decide what should be universal…more later

      • There is nothing inconsistent about the unconstitutionality of the individual mandate of ObamaCare and the rights of states to regulate health care within their borders. But that what a state MAY constitutionally do and what it chooses to do is quite relevant in who we would prefer as President.

        I was never a Huckabee advocate, but I did say that criticism against him based SOLELY on his tax hikes at the state level was not conservative. States are not the feds in many ways. They are subject to mandates and they cannot print money. Moreover, many conservatives seem to forget that states have to do things that the feds should not be doing and have to pay for it, even pre-New Deal!

        more later

        • Huckabee never did a good job of responding to his critics. He chose to deny all charges instead of say that a Governor of a state has got to deal with things specific to that state that may not translate into something the federal government should take up. I give both Perry and Romney kudos for using the 10th amendment defense instead of denial like Huckabee.

        • In general, I do not favor expansive state’s rights in economic matters. One of the main reasons we trashed the Articles of Confederation in favor of the U.S. Constitution was due to states acting like separate nations. hence the interstate commerce clause, which, while abused is why we have a vibrant national economy, interstate highway system etc. Curiously, congress has not used that clause to nationalize health insurance sales and I think that is a travesty. The number one thing we can do to reduce health ins premiums is to allow ins companies to compete across state lines. But states and ins cos enjoy their bought and paid for monopolies. Romney and Perry should be asked about this issue.

  2. Thanks Pil for mentioning the court ruling. I’ve tried to talk to a few other conservatives about it, but some people just have a single track mind on it. Perry is in a tough spot with millions and millions of illegals. Texas is forced to educate them, doctor them and police them. The Feds won’t do squat and have ignored the request for Guardsmen on the border.

    At least Perry was able to so sign the voter ID act this year which should limit the illegal voting.

  3. I’m surprised the Federal Government has allowed the States to decide this on their own. That theoretical student from Oklahoma surely makes the entire issue one of “interstate commerce.” At least according to the Democrats.

  4. Very good post, Pilgrim. I appreciate the information. I cut Perry slack on it because I know they are dealing with a very difficult proposition in TX and I believe it is their right to charge their students whatever they choose, but I didn’t know they had to take the court ruling into account.

  5. Texas doe (did?)indeed have a special relationship with Mexico in the Maquiadoros-Brownsville region, where many US mfg corps moved to do partial manufacture on both sides of the border but still be able to put “made in USA” on the label. I was in on that. Workers moved freely (sort of ) but special concessions were made for Texas-based education, as those workers benefited both Texas and Tamaulipas labor markets. These programs began in late 80’s. Not sure when they eded.

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