Does the Concept of Enumerated Federal Powers Matter? Democratic Attorney General Candidates Say Sometimes it Does, Sometimes it Doesn’t

Do not believe that they mean it, when local Democrats tell you that the Tenth Amendment has no meaning, or at least no meaning relevant to modern government, or that the Constitution means only that the Federal government cannot do anything expressly forbidden to it. The actions of a couple of statewide Democratic office seekers who have the full support of the progressive wing of the Democratic party definitively say otherwise.

As Anchor Rising reported (in typical ahead-of-the-curve fashion) last July, Massachusetts Attorney General Martha Coakley has filed suit against the Federal Government, attempting to have the Federal Defense of Marriage Act declared unconstitutional as applied in Massachusetts, on the grounds that no enumerated power of Congress comes close to allowing the Federal government to define marriage, and therefore the 10th Amendment reserves the power to define marriage within a state to the government of a state…

81. The Tenth Amendment to the United States Constitution expressly reserves to the states all powers except those limited powers granted to the federal government…

83. The Tenth Amendment preserves for the states the authority to regulate and define marriage for their citizens.

84. Congress lacks the authority under Article I of the United States Constitution to regulate the field of domestic relations, including marriage.

85. Section 3 of DOMA violates the Tenth Amendment, exceeds Congress’s Article I powers, and runs afoul of the Constitution’s principles of federalism by creating an extensive federal regulatory scheme that interferes with and undermines the Commonwealth’s sovereign authority to define marriage and to regulate the marital status of its citizens.

Joseph Fernandez, a Democratic candidate for Rhode Island Attorney General, has told the website Defend the Law -dot- org that he is all-in with the Massachusetts lawsuit…

"Joe will be ready to provide enthusiastic support for Attorney General Martha Coakley’s Massachusetts lawsuit in any way she asks."

However, when Projo political columnist Edward Fitzpatrick asked Mr. Fernandez last week if he would consider any kind of Constitutional challenge to the new Federal healthcare law, his awareness of limitations on Federal power entirely vanished…

Joseph M. Fernandez, a Providence Democrat, said, “The charge that the [healthcare] law is unconstitutional is a politically motivated ploy.”

By supporting a Tenth Amendment/enumerated powers challenge to Federal law when he supports a policy outcome, but refusing even to consider the legal arguments when he opposes the policy outcome -- before the arguments have fully been made -- Joseph Fernandez has disqualified himself from being considered fit to hold the post of Attorney General, on any grounds other than “I might be able to put together the raw political muscle to get elected”.

Democratic Attorney General candidate Steven Archambault takes a similar pair of contradictory positions. Of the Coakley lawsuit, his campaign told the Defend the Law blog…

"Steve Archambault will support Martha Coakley’s efforts through either joining the lawsuit, submitting an amicus brief or providing some other appropriate assistance."

But when the subject was a challenge to the healthcare law, Mr. Archambault told Edward Fitzpatrick…

“The health-care law stands on sound constitutional footing. The Supreme Court has consistently upheld Congress’ right to regulate interstate commerce and to tax. While I would certainly examine the legal arguments advanced by the attorneys general, their position seems more political in nature than based on legal reasoning.”

By supporting a Constitutional challenge when he supports the policy outcome, but deriding a lawsuit as politically motivated when he doesn’t -- again, before the legal arguments have been made -- Steven Archambault has disqualified himself from being considered fit to hold the post of Attorney General, on any grounds other than “I might be able to put together the raw political muscle to get elected”.

Assessing the constitutionality of laws requires more than comparing the desired outcomes of legislation to personal policy preferences or to policy preferences of political allies. This critical aspect of the rule-of-law seems to have escaped both Mr. Archambault and Mr. Fernandez.

According to Fitzpatrick's column, Democratic AG candidate Peter Kilmartin also opposes a challenge to the healthcare law in terms as strong as Mr. Fernandez's. However, Rep. Kilmartin hasn’t expressed an opinion on the Massachusetts lawsuit that I can find (though I haven't seen a report on whether he expounded on his positions at last night's Democratic AG debate at Roger Williams University), so he has not placed himself directly into the disqualifying contradiction that Fernandez and Archambault have. Perhaps Rep. Kilmartin doesn’t see protecting the rights of Rhode Islanders from encroachment by the Federal Government as a top priority for an Attorney General.

Moderate Party AG candidate Christopher Little didn’t rule out a future challenge to the healthcare law in his response to Fitzpatrick, but wants to see what the impact is, before deciding whether to join a lawsuit on its legality. Whether that represents the proper ordering of priorities for the state's top law enforcement officer is a question that merits serious discussion.

Amongst the Democratic candidates for AG, only Robert Rainville wants to hear the details of any suit against the Federal Government regarding the healthcare law, before deciding whether to join. He told Fitzpatrick that...

"There are possible constitutional challenges. You can make arguments on both sides, so it’s premature to say"...

He said he’d look at its constitutionality and cost, and “wouldn’t rule out” a suit.

At least prior to last night's RWU debate, Rainville hadn't expressed a public position on the Massachusetts lawsuit.

Finally, Republican AG candidate Erik Wallin does support a challenge to the healthcare law on Constitutional grounds…

“Never has the federal government attempted to force individual citizens to buy a good or service simply on the basis that they are Americans....Nowhere in the U.S. Constitution does it state that the federal government can require an American to buy a commodity"

…and has not taken an official position on the Defense of Marriage Act lawsuit, based on the fact that the the suit has no direct legal impact in RI, because the complaint filed by the Massachusetts AG directly states that it "does not address the application of DOMA in states that do not recognize marriages between same-sex couples" and Rhode Island does not recognize same-sex marriages.

Imagine that: Attorney General candidates who take campaign positions as if the job of Attorney General was to enforce the laws of Rhode Island and protect the rights of all Rhode Island citizens, rather than to implement the favored policies of the progressive wing of the Democratic party!