What Ever Happened to the Tenth Amendment?

By Kelly McCutchen

“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.”
— Tenth Amendment, Constitution of the United States of America

The best way to check the powers of government is to keep government close to the people.  The Tenth Amendment represented an attempt by our Founding Fathers to protect the states from the federal government.  Unfortunately, this protection has been trampled by Congress, and the primary means used has been through unfunded federal mandates.

Federal mandates are laws or policies passed by Congress, such as the Motor Voter Law or the Clean Air Act, that state or local governments must implement.  While these programs can be quite expensive, the federal government rarely reimburses state or local governments for any of the costs…hence the term “unfunded.”

Federal mandates represent an unfair, some say unconstitutional, intrusion into state and local affairs.  Do you ever wonder why your local taxes keep going up, but your local elected officials keep telling you that they still don’t have enough money to hire more police officers or build more little league baseball fields?  That’s because many of Georgia’s local governments must allocate as much as 25 percent of their budgets to pay for federal mandates — and the mandates keep coming.  For example, in LaGrange, Georgia (population – 26,000), new federal mandates cost more than $900,000 to implement this year.  In essence, federal government bureaucrats, instead of mayors and county commissioners, are setting the spending priorities for local governments.

Unfunded mandates represent a grave threat to taxpayers because they allow Congress to silently spread the reach of government and shift the cost of federal priorities onto state and local taxpayers.  Politicians enjoy telling their constituents that they can give them clean air, clean water, and access for the disabled.  What they don’t like telling voters is that implementing these programs costs money.  So, rather than raise federal taxes, members of Congress pass the costs down the line.  In the end, however, the same taxpayer gets stuck with the bill.

Communities in the United States vary dramatically in terms of geography, climate, ethnicity and otherwise, yet federal mandates only come in one-size-fits-all.  The results of such broad mandates are often absurd.  For example, some cities in Georgia must test for and remove a particle from their water that is harmful to a fish found only in California, even though the water is safe for human consumption and poses no danger to fish in Georgia.  Yet another federal mandate requires cities to test for the presence of a pesticide banned in 1977.  Even then, the pesticide was used almost exclusively by pineapple growers in Hawaii.

Fortunately, some states are beginning to stand up to the federal bully.  In 1992, Alabama became the first state to require their Congressmen to attend a joint session of the state Legislature.  There, under the spotlights of  TV cameras, the Congressmen were asked to account for their votes on legislation containing unfunded mandates.

Some states have raised the stakes even higher.  The Colorado Legislature recently passed a resolution demanding the end of federal mandates, claiming that they are in violation of the Tenth Amendment.  State legislatures in Illinois, Missouri and Hawaii quickly followed suit.  Colorado Representative Charlie Duke wants to go even further.  His radical plan would ask Colorado citizens to send their federal taxes to the state to be held as ransom until the federal government starts to behave more responsibly.

What can Georgia do? At a minimum, the Georgia General Assembly should bring this practice to the attention of its citizens as other states have done.  Public awareness alone would result in a higher level of accountability.  State and local citizens have a right to know how Washington is indirectly raising their taxes.  Meanwhile, Congress should require that all legislation containing mandates contain an economic impact statement.  Our elected officials, as well as their constituents at home, should be aware of the cost of their actions.  Finally, if such policies are important enough to justify a federal mandate, Congress should find a way to fund them.


Kelly McCutchen is Executive Director of the Georgia Public Policy Foundation, a nonpartisan, member-supported research and education organization based in Atlanta, Georgia. The Foundation promotes free enterprise, limited government and individual responsibility.

Nothing written here is to be construed as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.
© Georgia Public Policy Foundation (November, 1994) Permission is hereby given to reprint this article, with appropriate credit given.

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