Stopping federal overreach is a job for Texas, not federal judiciary

On April 13, two proposed solutions to federal overreach were heard by the Texas House Select Committee on State and Federal Power and Responsibility Committee — the convention of states resolution, House Joint Resolution 39, and the Texas Sovereignty Act, House Bill 2338.

HB 2338 author Cecil Bell, R-Magnolia, and HJR 39 author Rick Miller, R-Sugar Land, see these approaches as complementary. Miller is a joint author of HB 2338, and Bell is a co-author of HJR 39. They know that clarifying enforcement (via the Texas Sovereignty Act ) is a prerequisite to any change of the U.S. Constitution. Any law, including the supreme law, is useless without enforcement. Lack of enforcement of the Constitution has allowed federal overreach. The Texas Senate has already passed its own measure, calling for a convention of states: Senate Joint Resolution 2, which is up for consideration in the House this week.

HJR 39 and SJR 2 call for a convention to cover three topics:

  • Fiscal restraints on the federal government
  • Federal term limits
  • Limiting the power and jurisdiction of the federal government.

Many Texans want a balanced budget and term limits, but the other prong of HJR 39 is not understood by most Texans and is more dubious. One of the most wrongheaded proposals to “limit the power and jurisdiction” of the federal government is made by Gov. Greg Abbott in his book, “Broken but Unbowed.” He proposes that we amend the 10th Amendment in two ways. He wants to add a second section that delegates to the federal judiciary the power to interpret the constitutional role of the federal government. He thinks that by adding “expressly,” to make the 10th Amendment read, “The powers not expressly delegated to the United States by the Constitution . . . are reserved to the States respectively...”; it would tell the federal government that “we really mean it this time!”

Abbott misunderstands the 10th Amendment and is blind to the cause of federal overreach. The notion that the U.S. Supreme Court is the final arbiter of constitutional meaning is what is killing our liberty.

The Constitution has not delegated the power of final arbitration of constitutional meaning to the judiciary, and thus that power is reserved to elected officials of Texas. Opinions by the U.S. Supreme Court to the contrary are usurpation and circular. Our legal culture accepts as fundamental that the U.S. Supreme Court is our supreme ruler, but that unconstitutional notion is what must change to win our liberty back. Delegating constitutional authority to the federal judiciary — the very branch that has deliberately misinterpreted the Constitution — is breathtakingly nonsensical. And to think that a one-word change to the 10th will make the judiciary never again violate the Constitution is incredibly naïve.

True enforcement requires lawmen to stop lawbreakers. To stop the federal overreach and win our liberty back, Texas must grab back the interpretative power reserved to the states respectively. And Texas law enforcement must arrest and prosecute federal agents breaking the supreme law of the land.

That is what the Texas Sovereignty Act does. It creates a standing committee of the Texas Legislature that will declare certain acts of the federal government to be unconstitutional, then state the reasoning, and then call on Texas lawmen and prosecutors to use the existing Texas Official Oppression Act (which makes it a crime for public officials to knowingly violate Texans’ rights) to arrest and prosecute federal agents who persist in attempts to enforce federal acts declared unconstitutional.

That April 13 committee hearing went to the fundamentals of how our government was designed to work, how it went wrong and how to get it back on track. Will we choose to enforce whatever Constitution we have?  Or will we only choose to change the Constitution, allowing the federal government to continue to ignore any limits on its power?

Tom Glass

Founder, Texas Constitutional Enforcement group

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