Can the 10th Amendment Protect States from Obamacare?

Down here in Texas, Gov. Rick Perry says he’ll “consider invoking” the 10th Amendment to keep Obamacare out of the state if it passes the House and Senate. This is the second time in four months he’s made a pledge to defend state’s rights: In April 2009, he broached the subject of secession while speaking against unchecked federal spending at a “Tea Party” in Austin, Texas.
The 10th Amendment 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, all powers not explicitly given to the federal government or explicitly banned from the states, belong rightly to the states, “or to the people.” Our Founders intended this amendment to serve as a firewall between federal and state governments.

And just since the election of Barack Obama, Washington, New Hampshire, Arizona, Montana, Michigan, Missouri, Oklahoma, Minnesota, Georgia, South Carolina, Texas, Tennessee, Kentucky, Kansas, Indiana, and West Virginia have at least proposed a resolution in assembly to reassert state sovereignty under the 10th Amendment. Some, like Tennessee, have gone even further, telling the federal government that guns manufactured and privately owned in that state are beyond D.C.’s purview because of our Founders’ intentions in the 2nd Amendment, and also because those same guns did not cross state lines during manufacture or sale, they are strictly a state issue, thus further protected by the 10th Amendment.

Perry wants to push the issue, as Tennessee did with gun ownership, and use an appeal to the 10th Amendment to seal Texas off from Obamacare. Said Perry, “It really is a state issue, and if there was ever an argument for the 10th Amendment and for letting the states find a solution to their problems, this may be at the top of the class.” But Texas isn’t Tennessee, and to our shame the 10th Amendment resolution didn’t pass during our most recent legislative session. Therefore, talk about invoking the 10th for measures anywhere near as substantial as those taken in Tennessee could prove difficult.

Proof of this was evident the very day after Perry said he would “consider invoking” the 10th to protect Texas from Obamacare. On July 24, fresh from being wined and dined at a political love-feast with President Obama in Washington D.C., Texas State Sen. Eliot Shapleigh (D-El Paso) announced that the health care overhaul would increase “coverage for more people [and would] expand access to health care, increase the number of health care professionals, and positively affect health outcomes in [Texas] communities.”

This doesn’t mean Perry is wrong for wanting to protect his state from the “disastrous” affects Obamacare would have on Texas; to say he’ll face opposition is not to say he should give up the fight. He truly deserves our undying support for his opposition to this federal power grab that will cut and change Medicare and Medicaid in ways that will be hard on many states and devastating for others — a point which Sen. John Thune (R-S.D.) made over the weekend, when he explained that one of the many reasons he opposes Obamacare is because of the economic damage it will do to South Dakota.

Thune was not the only person over the weekend echoing Perry’s position on how detrimental Obamacare will be to individual states. On Fox News Sunday, Chris Wallace pointed out that Obamacare would cause such an increase in taxes on small businesses and upper income earners that “the top marginal tax rate in 39 states [will rise] to over 50 percent.” Sen. Jim DeMint (R-S.C.) concurred and pointed out that the small businesses Obama wants to tax “create 70 or 80 percent of the jobs in this country.”  Therefore, Obamacare is “a real jobs killer.”

Texas doesn’t have a state income tax. So Perry understands that part of the recent population boom in the Lone Star State, as well as our economic solvency during the recession, has been due to the influx of small business owners moving here to escape the taxes and regulations of other states. If Obamacare passes, these advantages would be lost for Texas and any other state that is currently benefitting from a low tax environment.

While Perry has made it clear that pleading the 10th will be a last resort, he’s also said he is “certainly willing and ready for the fight if [the Obama] administration continues…to force their very expansive government philosophy down our collective throats.” If push comes to shove and it becomes evident that the 10th must be invoked, Perry will need to explain how an appeal to it is going to be handled and whether it’s really feasible, considering the opposition to it by state legislators like Shapleigh in El Paso.

He’ll also have to show even his staunchest supporters that he’s going to toe the line better in appealing to the 10th than he did in rejecting federal stimulus money. In March 2009, after criticizing Obama’s $787 billion stimulus plan, Perry quietly accepted “most of the roughly $17 billion slated for Texas.” This gave fodder to liberal bloggers like those on, who can’t wait to undermine every attempt conservatives like Perry make at limiting the expanse of government.