The Importance of the Attorney General in Fighting Government Expansion

U.S. vs. Darby Lumber Co. (1941) is one of the most destructive Supreme Court decisions ever handed down by the high court. Through this decision the Court gave near unlimited application of the Commerce Clause—thus being a precursor to the Obamacare decision issued by the Roberts Court—which consequently gutted the 10th Amendment of all the Founders’ intended meaning. Justice Stone, writing for a unanimous Court, wrote in Darby Lumber that the 10th Amendment, “states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than a declaratory of the relationship between the national and state governments…” Stone paved the way for all who would later desire to encroach on state sovereignty and expand the powers of the national government by delivering the 10th Amendment still born.

Despite Stone’s poor history and faulty logic it is hard to argue that his understanding of the 10th Amendment has not persevered. It seems most people in government and in the legal community think the 10th Amendment is a dead letter. Attorney General Candidate Ken Paxton likes to tell the story from his law school days about how a professor told him that the 10th Amendment was irrelevant. It’s a good thing for Texas that Paxton didn’t learn that particular lesson while in Charlottesville.

Every candidate in the Republican primary has used Obamacare as a talking point. The decision is particularly relevant to the AG race since the AG has the ability to halt implementation of Obamacare within our borders. But Obama is not the only enemy of federalism and Democrat presidents are not the only presidents who have expanded executive powers. Texas needs an AG, every state needs an AG, who is willing to fight against national government encroachment into state matters in order to preserve the proper balance between national and states’ rights.

Federalism is a delicate balance that the 10th Amendment attempted to codify. The 10th Amendment reads, ”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.” Thus, if the Constitution does not give a power to the national government, or deny it to the states, the people and the state retain that power. Justice Stone and his progeny have perverted the text to make it mean that the federal government can take as much power as it wants from the people and the states through an expansive reading of the Constitution so long as some crumbs are left over for the states and the people.

An AG needs to understand that national officials from either party are capable of passing laws or promulgating rules that expand national authority and reduce the role of the states and the people. An AG needs to have the ability to stand up to those who wish to violate the terms of federalism even if that means standing up to his own party. In two years there will be a new president so it is not enough for our AG candidates to speak solely against Obama. We need an AG who can speak directly to the importance of federalism in general and the 10th Amendment in particular. Of the current AG candidates only Ken Paxton has shown the ability to speak about the complexity of federalism and its importance in matters beyond Obamacare. Because Paxton had the courage to stand up to Straus while he was in the legislature, and stand up to party leadership and the governor when he voted against the payroll tax that is crippling small businesses, it is likely he’ll have the same courage serving as AG.

But this decision is too important to take my word for it. Ask the candidates yourself to discuss a moment when their conservative values were put to the test and how they reacted. Also ask them to go beyond Obamacare when discussing the importance of the AG. Talking about Obamacare and criticizing Obama is justified, but it’s also cheap and easy. We need someone who is capable of standing up against all enemies, even when it’s hard.

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