Tennessee Is Acting Like a Real State By Suing the Federal Government

Apr 24, 2020 by David Fowler

line drawing of the TN capitol and the U.S. capitol with legal scales in between
Earlier this week I read a friend-of-the-court brief prepared by my friend Joanne Bregman. The brief was submitted to the United States Supreme Court on behalf of Eagle Forum of Tennessee, run by my friend, Bobbie Patray, and Eagle Forum nationally. One particular thing Ms. Bregman wrote made me think of the Scotsman William Wallace at Stirling Bridge and the patriots at Concord Bridge, where battles for freedom were won. It made me want to grab a kilt and musket and head to the halls of Congress and then the Supreme Court’s chambers!

At the risk of over-simplifying the situation, the brief asks the U.S. Supreme Court to grant permission to appeal in regard to two issues arising out of the federal government’s refugee resettlement program. But first, you need to know why the suit was brought.

The Litigation Context That Got Me Fired Up

The refugee program has put the state between a rock and a hard place: The state can “administer the federal refugee program and absorb the shifted federal costs” or “withdraw and continue to . . . absorb the shifted federal costs.” Not much choice there in terms of costs to the state, costs that Congress had promised to pay when it passed the Refugee Act.

But here’s the real kicker: If the state refuses to enroll the Medicaid-eligible refugees in the state’s Medicaid program to avoid having to pay the state’s share of those particular Medicaid costs that Congress had promised to pay, then the federal government will cut its contribution to the state’s Medicaid program. That jeopardizes about 20 percent of the state budget. 

In other words, Congress has given the state a Hobson’s choice. It has effectively extorted (commandeered) the state into paying part of the cost directly attributable to the federal program—pay these costs or we take even more money away from you!

As a former state senator and current state taxpayer, that is what makes me want to don a kilt and grab my musket!

Now, back to the issues. As I said, there are two:
  1. Can a state legislative body that has exclusive authority to appropriate state dollars and balance the budget be forced by the federal government to appropriate money for a federal government program it is not part of?
  2. Can Congress effectively commandeer the state budget because the budget must appropriate state tax dollars to pay for costs in Congress’ program?

What Ms. Bregman Said That Fired Me Up

In every brief, the author gives the Court a one-sentence statement of each argument he or she is going to expound on in the following pages. Here is how Joanne stated the first argument:

Restoring a Constitutionally Defensible Relationship Between the Federal Government and the Tennessee Legislature Requires Granting the Petition for Certiorari.

In other words, if the state legislature, whose state constitutional obligations in regard to the budget cannot sue the federal government to get this federally-imposed financial monkey off its back, then states will become an even bigger target for a federal government looking to reduce its spending or shift its costs.

At stake is more than the money. What is being fought for is the principle of dual sovereignty or federalism embedded in the very structure of the U.S. Constitution.

That principle has been largely lost upon members of Congress intent on doing things to get people to vote for them. Here’s the pitch: See what I’m doing for you, but don’t look too closely at what I am doing to you.

The U.S. Supreme Court ignores this principle, too, when it comes to its pet issues. Abortion is the Supreme Court regulating the provision of medical practices within a state’s borders. Same-sex “marriage” is the Supreme Court trying to require states to issue state licenses for a form of marriage that does not exist under state law.

If the constitutionally-established balance of power between the state and the federal government is not fought for and restored, then liberty will be lost.

How, you say, is liberty lost? As more and more things become nationalized either by Congress or the U.S. Supreme Court, we lose the right to vote with our feet. We are left with no place to which we can flee for the liberty that fits who we are and what we want for our day-to-day lives and the types of communities in which we want to live.

Concluding Thoughts

Every one-sentence statement of the argument in a brief is followed by a short summary of the argument that will later be explained in detail. Ms. Bregman’s summary began with a bang. This is the first paragraph:

The Court in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), exhorted states to assert their sovereign status against the federal government when necessary, “[t]he States are separate and independent sovereigns. Sometimes they have to act like it.” Id. at 579. This is precisely the spirit of the action taken by the Tennessee General Assembly. 

While the legislature has not shown such resolve in regard to legislation related to abortion and marriage, it got this budget issue right by suing the federal government.

And kudos to Joanne Bregman and Bobbie Patray for making sure the voice of every state with an Eagle Forum chapter was represented!
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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