How Congress gets away with defying the 10th Amendment … over and over again

While we are on the topic of fundamental rights and the Constitution, let's take a gander at the Obama administration's proposal to change the Bush-Kennedy "No Child Left Behind Act."

The New York Times reported Sunday that changes are afoot. "Significantly, said those who have been briefed, the White House wants to change federal financing formulas so that a portion of the money is awarded based on academic progress, rather than by formulas that apportion money to districts according to their numbers of students, especially poor students. The well-worn formulas for distributing tens of billions of dollars in federal aid have, for decades, been a mainstay of the annual budgeting process in the nation’s 14,000 school districts."

I was wondering how this law comports with the 10th Amendment: "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."

So I turned to Seth Lipsky's "The Citizen's Constitution: An Annotated Guide" for assistance. Sure enough he pointed me toward a fairly recent Supreme Court ruling on this topic, Printz v. U.S. in 1997. Justice Antonin Scalia wrote for the majority in overturning a portion of the Brady Bill, the gun control law named by President Reagan's aide wounded in the assassination attempt.

The Brady Bill required local law enforcement agencies to follow federal regulations in doing background checks for would-be handgun purchasers.

Scalia quoted from the Federalist Papers to reach his conclusion that the law violated the 10th Amendment.

He quotes No. 51: "In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself."

And he then concludes: "The power of the Federal Government would be augmented immeasurably if it were able to impress into its service — and at no cost to itself — the police officers of the 50 States."

So how does the No Child law survive? Largely because the stick comes with a carrot, lots of federal largess, our money doled out to us if we do as we are told.

Utah is one of the few states to balk at the No Child requirements, at the risk of losing federal funding.

It's kind of like the drinking age and blood alcohol levels dictated by Congress under pain to having transportation funding denied. Sometimes it is not what the law is, but what you can get away with.

For example, the state's 3 percent annual cap on property tax growth for residences and 8 percent for businesses was clearly in defiance of the Nevada constitutional requirement for equitable taxation. But the alternative might've been worse, so no one balked.

It is not the principle but your own self interest — a poor excuse.