Our last column addressed the pros and cons of a federal abortion ban, weighing the need to protect babies nationwide against the constitutional importance of states’ rights as protected by the 10th Amendment. Noting that the Biden administration is promoting abortion in military hospitals, we also suggested that Alabama take the bold step of enacting legislation prohibiting abortions on federal property in our state, including military hospitals.
A state prohibiting the federal government? Can that be done?
Well, it’s been done before, and quite recently:
In 2013, Kansas enacted the Second Amendment Protection Act, which states:
“It is unlawful for any official, agent or employee of the government of the United States . . . to enforce or attempt to enforce any act, law, treaty, order, rule or regulation of the government of the United States regarding a firearm, a firearm accessory, or ammunition that is manufactured commercially or privately and owned in the state of Kansas and that remains within the borders of Kansas.”
Other states have adopted similar laws, including Wyoming, South Dakota, Arizona, Utah, Tennessee, and Alaska. So has Missouri, but the statute is on appeal after being struck down by a federal judge.
North Dakota enacted H.B. 1164 in 2021, prohibiting the implementation of a federal executive order that is not based on a law passed by Congress and that, in the opinion of the North Dakota Attorney General, "unconstitutionally restricts a person's rights."
In 2015, North Dakota (along with other states) enacted S.B. 2259, which protects the right of terminally ill patients to receive drugs not approved by the federal government.
In 2021, Oklahoma Republican Gov. Kevin Stitt issued an executive order nullifying President Biden's Executive Order 13990, which had terminated the Keystone XL pipeline. Stitt charged that Biden's order was "in contravention of Article II Section 2 and the 10th Amendment of the United States Constitution," and his order nullified Biden's order in Oklahoma.
So it's been done, but is it constitutional? Those who favor federal power will cite the Supremacy Clause of Article I, Section 2, which states:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
That seems to settle the matter. The Constitution and federal laws “which shall be made in Pursuance thereof” (that is, pursuant to the Constitution) shall be the supreme law of the land and shall override any state laws or constitutions. (Note we haven't talked about treaties or court decisions; that's the subject for another column.)
So federal law is supreme, right? No, federal laws are supreme only if “made in Pursuance” to the Constitution, because ultimately, the Constitution is the supreme law of the land.
But what portion of the Constitution is the supreme law of the land? All of it!
Does that include the amendments? It would seem so, because Article V provides that when an amendment is passed and ratified, it “shall be valid to all Intents and Purposes, as Part of this Constitution.”
If amendments are part of the “supreme law of the land,” then that must include the 10th Amendment, which states,
“The powers not delegated to the United States [federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Wherever the Constitution delegates power to the federal government, that is the supreme law of the land. And wherever the Constitution reserves power to the states, that is equally the supreme law of the land.
So does anything in the Constitution delegate the power over abortion to the federal government? The answer is no, with one possible exception: Article I, Section 8 gives Congress exclusive power to legislate "over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings." This would probably apply to military bases, but it refers only to Congress's authority to legislate, not the president's authority to issue executive orders.
And does anything in the Constitution prohibit the States from exercising power over abortion? Now that the Supreme Court in Dobbs v. Jackson (2022) has overruled Roe v. Wade (1973), the answer again is no.
If nothing in the Constitution delegates power over abortion to the federal government, and nothing in the Constitution prohibits the States from exercising power over abortion, then power over abortion is reserved to the States, or to the people.
And that, my friends, is the 10th Amendment, and the 10th Amendment is part of the Supreme Law of the Land.
So the Supremacy Clause is not a mandate for the total supremacy of federal law. It limits federal supremacy to those objects falling within the federal government's delegated powers but not one bit beyond them. Alexander Hamilton interpreted federal powers broadly, but in Federalist #33 he wrote that, although federal laws must be supreme, "it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such." The Supremacy Clause, he said, "expressly confines this supremacy to laws made pursuant to the Constitution."
In this era of expanding federal power, it is time for Alabama to join other states in reasserting the rights that are reserved to us under the Constitution.
Alabama’s State Motto is “Audemus jura nostra defendere” – “We dare defend our rights.” Or have we amended our motto to read, “We dare defend our rights, unless a federal judge tells us we shouldn’t?"
Colonel Eidsmoe is Professor of Constitutional Law for the Oak Brook College of Law and Government Policy (www.obcl.edu) and Senior Counsel for the Foundation for Moral Law (www.morallaw.org). Those with constitutional concerns may call the Foundation at (334) 262-1245.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819news.com.
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