Powers Reserved to the States

Introduction

The 10th amendment of the Bill of Rights can be confusing to many people. It gives powers to the States but its not clear which ones.

Specifically, the following restrictions or qualifications are placed on the power of the States:

Powers not not delegated to the United States by the US Constitution.

and

Powers not prohibited to the States by the US Constitution

belong to the States, “or to the people”.

It is understood that powers reserved to the people is the power to vote through their State or National Representatives and that Powers reserved to the State are to be exercised through the Governors Office and the Executive Branch of the State.

Most States have mirrored the structure of the United States Government within their State to simplify delegation of powers, facilitate constitutional compliance and to facilitate voting by their residents.

In thinking of the President of the United States and the Federal Government, The Supreme Court and the National Judiciary and the Speaker of the House and People’s Representatives for each State the structure is mirrored with the Governor and State Enforcement Agencies, each State Supreme Court and their Local District Courts and the State Level Representatives.

Here is where it gets confusing again for many people because there is no clear indication of how the government is supposed to work at this point in the US Constitution or any of the publicly available founding documents. Obviously, the founders of the United States expected a level of unity amongst the States and set a framework in place for handling disputes between States and its Citizens, for allowing a certain level of sovereignty and self governance and for requiring compliance and adherence to treaties made by the newly formed country with allies or adversaries.

The Federal Government has the most developed framework for delegation of duties between the United States and the States as well as cooperation between State Level Law Enforcement and the Federal Government so it makes sense to examine that briefly before outlining areas of improvement for the courts and legislators on the State and National level.

From a law enforcement point of view, agencies have gone from fighting each other over jurisdiction and who gets credit for the arrest to working together to reduce crime, improve community safety and conduct operations in compliance with all governing laws. This change has brought to light many issues from things that are harmful to the community not being illegal, meaning wasted months running operations where everyone goes free to federal laws or constitutional rights being used as a defense for blatant criminal conduct.

The change in operational tactics caused the following questions to be asked:

Questions on Fulfilling the Obligations of Government

What is the correct way to conduct operations where no laws are defined making certain conduct illegal?
Can Governors issue executive orders suspending certain constitutional rights?
Can a law enforcement officer write Congress requesting certain laws to be made?
Are Judges allowed to make decisions based on laws that do not exist and can they reduce sentencing for laws that do exist?

It made most sense to examine law enforcement tactics and operations across the nation and to determine how much of that conduct was lawful and how much of it had just become standard operating procedure because nobody was holding law enforcement accountable for their conduct in order to fully answer the above questions. Nobody wanted to approach a Supreme Court Judge, the Speaker of the House, the Vice President or President with a “how do I do my job tutorial request”.

In conducting that case study, the Powers of the State came up as well. So did examining the lawful process for creating legislation on a Federal, State, County and Municipal level and the daunting issue of transferring the accused from State to Federal Court or vice versa.

Powers Delegated to the United States

Regarding the Power of the States the US Constitution delegates the following powers to the United States Legislature:

All legislative power.
Set and collect taxes.
To borrow money for the whole country.
To pay the national debt.
To provide for national defense.
To regulate commerce with foreign nations.
To regulate commerce between the States.
To regulate commerce with Indian Tribes.
To establish Rules of Citizenship and Immigration.
To establish rules for bankruptcy.
To create money and set the value of it.
To set the value of foreign currency.
To establish standards for weights.
To establish standards for measurements.
To declare the punishment for counterfeiting stocks, bonds and the currency of the United States.
To establish Post Offices and Postal Roads.
To secure the intellectual property of the copyright, trademark or patent holder in order to provide an incentive for further developments or new releases of artistic works, inventions and businesss processes.
To establish courts subordinate to the Supreme Court of the United States.
To define and punish crimes committed on international waters.
To define and punish crimes against the Laws of Nations.
To declare war.
To give private citizens and corporations Letters of Marque.
To give holders of Letters of Marque a Letter of Reprisal authorizing them to capture foreign assets or persons on behalf of the United States.
To make rules concerning captures on land or water.
To raise and support armies.
To appropriate money for armies for up to 2 years at a time.
To provide a Navy.
To maintain a Navy.
To make rules for the Government.
To define regulations for land and naval forces.
To define the method to call forth militias in order to enforce the Laws of the United States*.
To suppress insurrections.
To repel invasions.
To define ways to organize, arm and discipline militias.
To define ways to Govern militias when they are employed by the United States.
To define all legislation within Washington D.C.
To exercise authority over forts and armories within Washington D.C.

Powers Prohibited to the States

The US Constitution also prohibits the States from the following:

Entering into treaties, alliances or confederations.
Granting letters of Marque.
Granting letters of Reprisal.
Circulating Bills of Credit.
Placing taxes on imports and exports without the consent of Congress.
Creating laws that impair the fulfillment of contracts.
Granting a Title of Nobility.

Additionally, the States must ensure their laws are not in breach of any restrictions in US Constitution Article 1, Section 9 and that they are compliant with the rest of the Constitution, the US Code and Congressional Public Laws.

The US Code and Congressional Public Laws are the Supreme Law of the Land because they are made in compliance with the US Constitution and in pursuance thereof. The States must abide by it as it contains terms for treaties and other international contracts as well as enforcement guidance for civil rights, human rights and citizen rights. Citizen Rights are enforceable under Maritime or Admiralty Law and the Laws of Nations so it is important to maintain strict compliance as adherence to the Laws of Nations is part of the Treaty of Paris 1783 and breach of that treaty can invalidate the status of a nation for the United States in the worse case scenario. It is unlikely for that to happen but other consequences can arise from breach of that treaty.

This may seem like the States don’t have very many rights left and that may be so in comparison to the rights States appeared to have during the early colonial days but the States do have lots of rights left and another state can not infringe on the rights of a different state or deplete it of all its natural resources without mediation and consultation with the US Federal Government and the States are allowed to settle disputes on international waters if the United States Federal Government allows them to do so.

US Constitution Article 1; Article 2; Article 3 and Article 4 all contain paragraphs on Rights of the State. The relevant sections are outlined below and are important parts of the US Constitution for the States to read, review and keep annotated in their law libraries as they set out specific Rights of the States that can not be modified or deleted through the US Code, Congressional Public Laws or even through Constitutional Amendments. Bill of Rights Amendment 10 should also be filed in each State Law Library.

Irrevocable Rights of the States

The following paragraphs of the US Constitution state the irrevocable rights of the States:

Article 1

Section 2, Paragraph 3

To have Congressional Representatives proportional to their number of residents.
To have taxes used to fund the National Budget be proportional to their number of residents.
To have members of the US Armed Forces selected from their State to be considered a resident of their State while serving in the US Armed Forces.

Section 8, Paragraph 16

Appointment of US Armed Forces Officers selected from and representing their State.
Authority to train militias and their military per the rules and specifications set forth by Congress.
- This would normally mean to train the State Military and militias so that they are able to remain compliant with Pentagon War Manual, Geneva Conventions and IHL if selected for service with the US Armed Forces.

Section 10, Paragraph 2

Right to charge taxes or import/export fees for in order to cover State costs for inspection.
Right to request Congress allow them to charge import/export fees for other purposes; for example, to deposit just revenues into the State Treasury based on its economic output.

Article 2

Section 1, Paragraph 2

Authority to appoint electors from their State.
Implies Authority to maintain a State Legislature.

Section 2, Paragraph 1

The right for US Armed Forces Officers appointed from each State to give opinions in writing regarding their duties of their respective office.

Section 2, Paragraph 3

Article 3

Section 2, Paragraph 3

Right for crimes that occur within their State to be held in a court within their State.

Article 4

To have the public acts, legal records and judicial proceedings that occurred within their State to be considered valid by every other State as long as their record keeping is done in compliance with record keeping requirements set by Congress.
To have their residents enjoy all the Privileges and Immunities granted to all Citizens of the United States.
To have their prisoners and those held to employment contracts in their State to be returned to their State to complete their obligations their first if they escape or flee to another State to avoid imprisonment or fulfillment of their contractual obligations.
To not have a new State formed within the borders of their State.
To not have a new State formed between their borders and the borders of a neighboring State.
To not have a State formed within their borders from parts of land that are not part of the State without the consent of their State Legislature. Forming a new State in this manner would require consent from both the State Legislature and Congress.
To not prejudice a State in any of their claims.
- This would apply to intellectual property claims of their residents in addition to State Territorial Claims and revenue allocation for international exports of their goods, services and natural resources. It would also apply to exports to another State being administered by or delegated to the US Federal Government.
To have a Republican form of Government.
To be protected from invasion by the US Armed Forces.
To have internal violence quelled by the US Armed Forces upon request by the State Governor.
To have internal violence quelled by the US Armed Forces upon request by the State Legislature.

Answer to Questions on Governance

What is the correct way to conduct operations where no laws are defined making certain conduct illegal?
Law Enforcement operations can not be conducted to stop behavior that is not illegal. This is why the Founding Fathers envisioned Congress meeting on a regular basis to address issues of public disorder, developing political frameworks and new technologies that can change the order of society.
Can Governors issue executive orders suspending certain constitutional rights?
No. Constitutional Rights can not be suspended, revoked, rescinded or applied on a case by case basis to individual Citizens based on preferential treatment or compliance with a desired behavior. Citizen Rights are irrevocable and US Citizenship would have to be revoked but a temporary or permanent resident would still have human rights. Citizenship can only be revoked by the US Federal Government.
Can a law enforcement officer write Congress requesting certain laws to be made?
Yes. A law enforcement officer can write Congress or the State Legislature regarding certain behavior that is of concern that is not illegal or unlawful but is of concern due to the behavior affecting public safety or prohibiting the Government’s ability to maintain public order. If the State Legislature or Congress agree with law enforcement officer they would have to author draft legislation and present it to residents who are US Citizens to vote on. There would have to be a public notice period that is normally considered to be 30 to 90 days if the legislation is proposed outside the normal voting schedule.
Are Judges allowed to make decisions based on laws that do not exist and can they reduce sentencing for laws that do exist?
No. Judges often make decisions that appear to be based on non-existent laws or issue opinions that are then touted as legislation. A Judge in the United States is bound by Maritime Law which is also known as Admiralty Law their knowledge has to cover three specific areas of law Citizen Rights and the Laws of Nations, Human Rights and International Treaties and the current legislation affecting the issues being presented in their courtroom. Many judges specialize in a certain area of law such as bankruptcy, property disputes, civil rights or immigration and they are freed from having to learn other complicated legislation.

Most people are familiar with judges that practice in areas of the State Penal Code or State Civil Code so they create an opinions about judges making opinions on non-existent laws because they are not familiar with the US Code, are unaware of any international treaties or conventions and have even less knowledge about laws and rights that predate the formation of the United States that are still active and in force that the National Judiciary along with Federal Judges, State Judges and Local Judges are bound by.

The Supreme Court also issues opinions regarding the US Constitution based on the actual text along with arguments presented in court by attorneys giving their interpretation of the text. However, these opinions can be overturned even at the Supreme Court by the same judge who issued the initial opinion if verifiable and factual documents are submitted to the Judge regarding the meaning of certain text at the time it was written.

The short answer is that a judge can only issue verdicts based on actual active and in force legislation. If a matter is brought to a courtroom that has no legal basis, the judge would have to write the State Legislature or Congress to address that area of law.

Summary of the Rights of the States

The US Federal Government is accountable to other nations for international wrongdoing by one of Citizens and the Federal Government , Congress and Judiciary are obligated to abide by the Laws of Nations. The States hold no such liability and the Constitution is designed to address these obligations and liabilities while still allowing a State to retain a certain level of Sovereignty and Autonomy.

The more knowledgeable a State becomes on international matters, the more autonomy the Federal Government is willing to grant to a State and a State then achieves a higher level of Sovereignty.

It’s important for a State to follow a few basic guidelines

Don’t do anything prohibited to the States by the US Constitution.
Don’t do anything delegated to the United States by the US Constitution without written authorization by Congress.
- Congress is allowed to change certain rules and to delegate certain authorities to certain States, to a Set of States or to every State.
Become familiar with at least a handful of international treaties and think about how certain scenarious would play out if you were the Federal Government.
Become familiar with Citizen Rights, Human Rights, Humanitarian Rights and know how they pertain to Citizens, Permanent Residents, Temporary Residents and Visa Holders. Know which demographic your State has more of.

The US Constitution, US Code and Congressional Public Laws set two sets of guidelines

These things can absolutely not be illegal (Citizen Rights/Human Rights).
These things are absolutely illegal and must be complied with (US Code and Public Laws).

A State can also have their residents vote on a resolution to modify the US Code through the State Legislature but the resolution would need to have a “yes” majority vote by the residents of at least 33 States. If the resolution passes the State Legislature, it can be presented to the Speaker of the House for each State Legislature during any regular Congressional session. The Speaker of the House for the State Legislature where the resolution originated can email the Speaker of the House or Assembly Leader for all of the other State Legislatures. If the resolution passes in at least 33 States, it can be presented in Congress for an official vote by each States Congressional Representatives.

The above procedure is Constitutional and compliant with the Laws of Nations.