Representative Jim Guest (r) piles on late with a “tenther” bill:

With apologies to Atrios

HB 2176 Enacts the State Authority and Federal Tax Fund Act

Sponsor: Guest, Jim (5) Proposed Effective Date: Emergency Clause

CoSponsor: Gatschenberger, Chuck (13) ……….etal. LR Number: 4772L.01I

Last Action: 02/17/2010 – Introduced and Read First Time (H)

HB2176

Next Hearing: Hearing not scheduled

Calendar: Bill currently not on a calendar

…In light of the continuing unconstitutional federal expenditures, the state hereby reasserts its authority under the tenth amendment to the Constitution of the United States…

“Tenther” boilerplate.

…If the general assembly determines the federal government is operating beyond the scope of its constitutionally delegated powers, and is therefor operating unconstitutionally, the general assembly shall disapprove of such actions by the federal government by concurrent resolution adopted by a majority vote of each chamber of the general assembly…

Uh, isn’t that a job for the judiciary? You know, Marbury v. Madison (1803)?

The bulk of the bill bill reads like a delusional declaration of war.

And then, this:

…Section B. Because immediate action is necessary to enable the residents of this state to retain the benefits from tax revenues derived from the people of this state, section A of this act is deemed necessary for the immediate preservation of the public health, welfare, peace, and safety, and is hereby declared to be an emergency act within the meaning of the constitution, and section A of this act shall be in full force and effect upon its passage and approval….

Uh, you might suppose this would be a positive thing, in a delusional and quite selfish way, except for one teeny tiny reality: Missouri gets more in federal spending than it puts out in federal taxes. We’d be royally screwed if California or New York enacted the same bill.

The full text of the bill:

SECOND REGULAR SESSION

HOUSE BILL NO. 2176

95TH GENERAL ASSEMBLY

INTRODUCED BY REPRESENTATIVES GUEST (Sponsor), GATSCHENBERGER, EMERY, STEVENSON, SMITH (150) AND RUESTMAN (Co-sponsors).

4772L.01I                                                                                                                                                  D. ADAM CRUMBLISS, Chief Clerk

AN ACT

To amend chapter 14, RSMo, by adding thereto one new section relating to the State Authority and Federal Tax Fund Act, with an emergency clause.

Be it enacted by the General Assembly of the state of Missouri, as follows:

           Section A. Chapter 14, RSMo, is amended by adding thereto one new section, to be known as section 14.100, to read as follows:

           14.100. 1. (1) This section shall be known and may be cited as the “State Authority and Federal Tax Fund Act”.

           (2) In light of the continuing unconstitutional federal expenditures, the state hereby reasserts its authority under the tenth amendment to the Constitution of the United States.

           2. As used in this section, the following terms mean:

           (1) “Consumer tax”, any tax imposed by the federal government on any beer, liquor, wine, or similar alcoholic beverage, tobacco, gasoline, or any other consumer goods;

           (2) “Director”, the director of the department of revenue;

           (3) “Excise tax”, any tax that forms a component of the State Highway Account;

           (4) “Federal Tax Fund”, the fund created in this section;

           (5) “Income tax”, any tax imposed by the federal government on incomes from whatever source derived and shall include but not be limited to all income, withholding, payroll, Social Security, Medicare and unemployment taxes;

           (6) “Person”, natural persons, corporations, partnerships, limited liability companies, associations, and other legal entities.

           3. (1) There is hereby created in the state treasury the “Federal Tax Fund”, which shall consist of moneys collected under this section. The state treasurer shall be custodian of the fund. In accordance with sections 30.170 and 30.180, the state treasurer shall approve disbursements as provided in this section. Upon appropriation, money in the fund shall be used solely for the administration of this section. Notwithstanding the provisions of section 33.080 to the contrary, any moneys remaining in the fund at the end of the biennium shall not revert to the credit of the general revenue fund. The state treasurer shall invest moneys in the fund in the same manner as other funds are invested. Any interest and moneys earned on such investments shall be credited to the fund. Moneys accruing to and deposited in the designated funds shall not be part of total state revenues as defined in section 17, article X, Constitution of Missouri, and the expenditure of such revenues shall not be an expense of state government under section 20, article X, Constitution of Missouri.

           (2) All federal tax moneys collected by the state on behalf of the federal government shall be deposited by the director into the federal tax fund. The treasurer shall disburse the funds on a quarterly basis, less any interest earned on the deposits, to the respective appropriate federal recipient.

           4. Any person liable for any federal excise, income, or consumer tax shall remit the tax when due along with the federal taxpayer number to the director for deposit into the federal tax fund. All moneys collected under this subsection shall be transmitted to the director who, as a fiduciary agent, shall credit the funds to the federal tax fund on behalf of the person who remitted the tax. The director shall submit to the Internal Revenue Service the names and tax identification numbers of, and the date on which and amounts deposited by, persons liable for any federal excise, income, or consumer tax so that the Internal Revenue Service can credit the state’s taxpayers for federal tax obligations. Any person liable for any federal excise, income, or consumer tax who fails to forward federal tax moneys to the director shall be subject to penalties assessed under applicable federal or state statutes.

           5. The general assembly, by simple majority vote in both houses, shall determine how the moneys transferred from the federal tax fund to the general fund, including accrued interest, shall be used for the benefit of the people of the state. Such moneys shall be used for the benefit of the people of this state only.

           6. (1) If, as a result of any state action taken under the authority of this section, the federal government denies any matching funds or grants or imposes or mandates any other financial sanctions, penalties, or withholding of funds effecting a financial cost to the state, the state treasurer shall withhold quarterly disbursements as provided in subdivision (3) of this subsection.

           (2) If the federal government imposes sanctions of any kind on the state for failing to enact legislation called for by federal mandate, the general assembly shall consider the constitutionality of such mandate by concurrent resolution. If the general assembly determines the federal government is operating beyond the scope of its constitutionally delegated powers, and is therefor operating unconstitutionally, the general assembly shall disapprove of such actions by the federal government by concurrent resolution adopted by a majority vote of each chamber of the general assembly, and shall present such concurrent resolution to the state attorney general, who shall send written notice to the state treasurer that the treasurer shall begin withholding disbursements under subdivision (3) of this subsection in accordance with the concurrent resolution of the general assembly. If the federal government denies any matching funds or grants or imposes or mandates any other financial sanctions, penalties, or withholding of funds effecting a financial cost to the state while the general assembly is not in session, the governor shall convene the general assembly in special session for the sole purpose of considering the actions of the federal government under this subdivision.

           (3) Upon the denial of any matching funds or grants or the imposition or mandate of any other financial sanctions, penalties, or withholding of funds effecting a financial cost to the state by the federal government, or upon receiving notice of the general assembly’s determination under subdivision (2) of this subsection, the state treasurer shall withhold from payment all or part of the quarterly disbursement normally disbursed or transferred to the appropriate federal recipient, per occurrence, an amount equal to the total cumulative outstanding amount of the federal denial of matching funds or grants or financial sanctions, penalties, or withholding of funds. The state treasurer shall continue to withhold all or part of the quarterly disbursement or transfer not otherwise disbursed or transferred to the respective appropriate federal recipients until the total cumulative amount withheld from the federal government is equal to the total cumulative outstanding amount of federal denial of matching funds or grants or financial sanctions, penalties, or withholding of funds.

           (4) Per occurrence, when the general assembly has been duly notified in writing by the federal government that the federal government has terminated any denial of any matching funds or grants or any imposition or mandate of any other financial sanctions, penalties, or withholding of funds effecting a financial cost to the state, the state treasurer shall resume disbursements under this section at the end of the calendar quarter immediately following such notice by the federal government.

           7. In compliance with the oath or affirmation clause found in Article VI, Constitution of the United States, the governor, lieutenant governor, members of the general assembly, judges, attorney general, secretary of state, state auditor, state treasurer, director, and all other state officers and employees shall implement this section regardless of any sanctions, threats, court action, or other pressure brought to bear by federal authorities. Any actions by the federal government, its agencies or agents, or the Congress of the United States against any person in this state for compliance with this section shall be considered an action against this state, and this state shall make an appropriate response to cause the action to cease and desist. This state shall take all necessary measures to recover from the federal government, its agencies, or agents, or the Congress of the United States, the reasonable costs of defending the action.

           8. This section shall apply to federal taxes collected after the effective date of this section and, because the 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, as provided in Article VI, Constitution of the United States, this section shall be enforced retroactively to repeal any unconstitutional federal mandates that have been imposed on the state.

           Section B. Because immediate action is necessary to enable the residents of this state to retain the benefits from tax revenues derived from the people of this state, section A of this act is deemed necessary for the immediate preservation of the public health, welfare, peace, and safety, and is hereby declared to be an emergency act within the meaning of the constitution, and section A of this act shall be in full force and effect upon its passage and approval.

Separation of powers and stare decisis seem to be mystifying concepts for right wingnut “tenthers” in the Missouri General Assembly.

Antonin Scalia in Warrensburg, Missouri on March 4, 2008:

[What do you think about the Tenth Amendment of the United States Constitution, the reservation of powers to the states?]

I don’t think [garbled] it very much. [laughter] As I think our opinion holds, so what else is new? It’s just, it’s the repetition of uh, of, of the understood fact that the Federal Constitution is a constitution of enumerated powers. The only powers the Federal government has are those given it by the Constitution. And that all the other ones remain with the states. That’s why, you know, I mean the Federal government has branched out into stuff that the framers wouldn’t have thought it had any business being in. But there’s still a lot of fields where the Federal government doesn’t touch, like family law.

Ever think of it? There are no Federal statutes on marriage, on, uh, divorce, on adoption. All that stuff.  So, the Tenth Amendment is just a repetition of what everybody understood the Constitution would be anyway.

[emphasis added]

Yeah, this bill would go over really well with the U.S. Supreme Court.

In his hot pursuit of Roy Blunt’s 7th district seat in the U.S. House of Reporesentatives, State Senator Gary Nodler (R-32) is running true to form for Missouri Republicans, who almost universally seem to feel the need to placate the crazies inhabiting the fantasy land to the right of the right. Nodler’s pandering, however, is a bit more amusing than most simply because, while as devoid of real benefit, it is bolder and more inventive in its rhetoric.

You may remember Nodler for his recent effort to garner the good will of Tea Party tenthers by sponsoring a “sovereignty bill” (Senate Bill 587) that would establish a “state-level Tenth Amendment Commission that would determine if the federal government is overreaching its bounds in powers reserved for the states under the Tenth Amendment of the U.S. Constitution.”

Most recently he has garnered attention by claiming that repealing Don’t Ask, Dont Tell (DADT), would create a “hostile workplace” for soldiers. Perhaps he would like to segregate male and female office workers here in Missouri? Plenty of potential there for a hostile workplace, eh?

But that’s not all – Nodler’s also worried that openly gay soldiers “could represent a ‘cultural affront'” to terrorists intent on killing American troops.”

There is, fortunately for those of us who like political slap-stick, a second act to Nodler’s performance. After his assertions abut DTDA were ridiculed by Igor Volsky at the Wonk Room, the ever-oblivious Mr. Nodler responded with this little exercise in self-righteousness:

I never said that this would be a cultural affront to terrorists. I don’t care what they think. I said it would be a cultuaral [sic] affront to the Muslims in who’s [sic] country we are operating. We can not win the hearts and minds of the people by insulting them and ignoring the standards of their culture. This is about the people who live there and the armies we are serving with. Your comment makes the common mistake that all Muslims are terrorists.

Well, to quote Steve Martin, Excuuuuuuse me! Who would have thought that Nodler was so culturally sensitive?  Is he really proposing that we shouldn’t stand up for what is right in our national institutions because folks elsewhere might be offended? He’ll be demanding that our female soldiers in Afghanistan don a burka next so as not to offend the Taliban. Of course, he’s also ignoring the fact that occupying Muslim countries on the basis of trumped-up accusations may have done more to offend hitherto non-militant Muslims than any of our social practices.

Oops! Update:  I wrote too soon – via Fired Up! Missouri, Nodler doesn’t think military women in Afghanistan should don burkas, he thinks they shouldn’t be in the military at all. The more this guy digs in … the deeper the hole – promises lots of fun.

Representative Doug Funderburk (r) introduced  HB 1602 to apparently make our energy free, or something.

HB 1602 Creates the Missouri Energy Freedom Act

Sponsor: Funderburk, Doug (12) Proposed Effective Date: 08/28/2010

CoSponsor: Parkinson, Mark A. (16) ……….etal. LR Number: 3351L.01I

Last Action: 01/12/2010 – Introduced and Read First Time (H)

HB1602

Next Hearing: Hearing not scheduled

Calendar: Bill currently not on a calendar

Again, with sincere apologies to Atrios.

Rally ‘Round the “True Constitution”

Convinced that the 10th Amendment of the Constitution prohibits spending programs and regulations? Conservatives have a movement for you.

Ian Millhiser | August 25, 2009

…Tenthers divine all this from the brief language of the 10th Amendment, which provides that “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.” In layman’s terms, this simply means that the Constitution contains an itemized list of federal powers — such as the power to regulate interstate commerce or establish post offices or make war on foreign nations — and anything not contained in that list is beyond Congress’ authority….

….The Constitution gives Congress the power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States,” thus empowering the federal government to levy taxes and leverage these revenues to benefit the American people. Tenthers, however, insist that these words don’t actually mean what they say, claiming that spending on things like health care, education, and Social Security is simply not allowed…

The bill, along with its boilerplate “Tenther” language:

SECOND REGULAR SESSION

HOUSE BILL NO. 1602

95TH GENERAL ASSEMBLY

INTRODUCED BY REPRESENTATIVES FUNDERBURK (Sponsor), PARKINSON, JONES (89), DAY, FISHER (125), RUESTMAN, BURLISON, NIEVES AND KOENIG (Co-sponsors).

3351L.01I                                                                                                                                                  D. ADAM CRUMBLISS, Chief Clerk

AN ACT

To amend chapter 21, RSMo, by adding thereto one new section relating to the Missouri energy freedom act.

Be it enacted by the General Assembly of the state of Missouri, as follows:

           Section A. Chapter 21, RSMo, is amended by adding thereto one new section, to be known as section 21.900, to read as follows:

           21.900. 1. This section shall be called and may be cited as the “Missouri Energy Freedom Act”.

           2. The general assembly declares that the authority for this section is the following:

           (1) Amendment X of the Constitution of the United States guarantees to the states and their people all powers not granted to the federal government elsewhere in the Constitution and reserves to the state and people of Missouri certain powers as they were understood at the time that Missouri was admitted to statehood. The guarantee of those powers is a matter of contract between the state and people of Missouri and the United States as of the time that the compact with the United States was agreed upon and adopted by Missouri and the United States;

           (2) Amendment IX of the Constitution of the United States guarantees to the people rights not granted in the Constitution and reserves to the people of Missouri certain rights as they were understood at the time that Missouri was admitted to statehood. The guarantee of those rights is a matter of contract between the state and people of Missouri and the United States as of the time that the compact with the United States was agreed upon and adopted by Missouri and the United States;

           (3) The regulation of intrastate commerce is vested in the states under Amendments IX and X of the Constitution of the United States, particularly if not expressly preempted by federal law. Congress has not expressly preempted state regulation of intrastate commerce pertaining to energy produced in the state of Missouri;

           3. Any energy produced in Missouri and that remains within the borders of Missouri shall not be subject to federal law or federal regulation.

Does this mean that Missouri’s lead mines [pdf] could get into the fuel additive business?

Other than the last line, the language is strikingly familiar with other superfluous republican offerings. For instance, this excerpt from HB 1506:

….2. The general assembly declares that the authority for this section is the following:

          (1) Amendment X of the Constitution of the United States guarantees to the states and their people all powers not granted to the federal government elsewhere in the Constitution and reserves to the state and people of Missouri certain powers as they were understood at the time that Missouri was admitted to statehood. The guarantee of those powers is a matter of contract between the state and people of Missouri and the United States as of the time that the compact with the United States was agreed upon and adopted by Missouri and the United States;

          (2) Amendment IX of the Constitution of the United States guarantees to the people rights not granted in the Constitution and reserves to the people of Missouri certain rights as they were understood at the time that Missouri was admitted to statehood. The guarantee of those rights is a matter of contract between the state and people of Missouri and the United States as of the time that the compact with the United States was agreed upon and adopted by Missouri and the United States;

          (3) The regulation of intrastate commerce is vested in the states under Amendments IX and X of the Constitution of the United States…

The republican majority is guaranteeing that it’s gonna to be a long session with much sound and fury, signifying nothing. Or just plain crazy.

I’ve spoken slightingly on this site of State Senator Jane Cunningham’s stand on health care reform:

[I]f you can’t build on last year’s lunacy, you’re a shark that doesn’t keep moving: politically, you’re dead. So now Cunningham has promised:

to sponsor a state constitutional amendment to protect Missourians “against attempts to socialize health care through the ‘public option’ health care mandate currently under consideration by Congress.”

(…..)

Her proposition would put us among the dozen looniest states in the country.

I figured, why not have fun at her expense? After all, such a challenge ignores the supremacy clause of the U.S. Constitution. The first judge it went to, in whatever podunk district, would laugh it out of court. But our laughter might be premature. No, I’m not saying that such a challenge will get anywhere in the legal system. But consider this:

Those who argue that these challenges have little legal merit are missing a larger point.  This strategy is first a political one, and only secondarily aims to change the course of the short-run health care debate.

First, given the pace of implementation, the Presidential election of 2012 becomes pivotal.  A change of administration that year would likely cripple implementation, perhaps fatally.  Campaigns being developed now are largely geared toward building a base of activists for 2012.

Even if they are unable to unseat Obama, Republicans see health reform as a wedge issue they can use to regain control of Congress.  Failing that, by defeating some vulnerable and prominent supporters of reform, opponents hope to create a chilling effect that will dampen the willingness in Congress to pursue further reform.

What this means for reform supporters is that-far from final negotiations curtaining the show-a new act in the saga of U.S. health care reform  is about to begin.

Uh oh.

In an article in the New York Review of Books last October Michael Tomasky predicted that if  health care reform becomes fait accompli, the follow-up strategy of the fringewing opposition would be to rally under the “Tenther” banner. Tentherism refers to one of the more amusing distortions of the constitution current in right wing circles; Tenthers hold that the ninth and tenth amendments allow states to nullify any federal legislation they don’t like.

Although the Tenther premise is assuredly negated by the Constitution’s supremacy clause along with other considerations, the more feckless of Missouri’s fringer pols have been quick to jump on the bandwagon. As Hotflash noted last October, state Senator* Jane Cunningham has promised to introduce nullification legislation. Not to be outdone, the witless but very energetic Cynthia Davis (R-19*) has already started the ball rolling to amend the State Constitution and nullify the provisions of federal health care reform legislation.

The Tenther movement,  however, like the related Tea Party anger orgies, is not quite as natural a development as would-be constitutional defenders such as Davis and Cunningham would like us to think – or may actually think themselves. According to Lee Fang of ThinkProgress:

The American Legislative Exchange Council (ALEC), founded in 1973 by conservative activist Paul Weyrich, is a DC-based front group which helps state lawmakers craft corporate-friendly legislation. As the Atlantic has noted, ALEC developed template health care “states’ rights,” legislation to declare aspects of health reform unconstitutional. ALEC has promoted this “tenther” legislation using its network of mostly far right Republican state lawmakers. The bills, which have been adopted in some form in 24 states so far, aim to invalidate federal regulations of health insurance, the public option and the individual mandate using the Tenther Amendment.

To take the chain of influence one step further, one of the main architects of the ALEC Tenther strategy is Joan Gardner, Executive Director of State Services with Blue Cross Blue Shield Association’s Office of Policy and Representation. Is the picture becoming clearer?

Jane Cunningham and Cynthia Davis may be the face of Tentherism in Missouri, but we should remember who is pulling the strings. Bleat as they may about “freedom,” Cunningham and Davis are doing nothing more than providing a sham patriotic facade for the insurance industry’s war to save its profit margin.

* Corrected

The Post-Dispatch always refers to Senator Jane Cunningham, R-Chesterfield, as Calamity Jane. Fair enough. After all, she’s the lady who could tell Professor Harold Hill what the pool tables of 2008 were, because she spoke at a right wing “educational” conference last year on the topic of the “homosexual agenda in our public schools” and introduced her good friend State Rep. Sally Kern of Oklahoma, who believes that:

You know why they’re trying to get early childhood education? They want to get our young children into the government schools so they can indoctrinate them. …. And they’re going after our young children, as young as two years of age, to try to teach them that the homosexual lifestyle is an acceptable lifestyle.”

But if you can’t build on last year’s lunacy, you’re a shark that doesn’t keep moving: politically, you’re dead. So now Cunningham has promised:

to sponsor a state constitutional amendment to protect Missourians “against attempts to socialize health care through the ‘public option’ health care mandate currently under consideration by Congress.”

If approved by the Legislature and state voters, Missourians would be allowed to opt out of any health care reform passed by Congress. If you don’t want be forced to buy insurance under an “individual mandate,” that would be OK. You don’t want to provide your employees insurance, that would be OK, too.

Her proposition would put us among the dozen looniest states in the country.

The P-D editorial does a fine job of explaining Cunningham’s rationalization for ignoring the federal government. She and other tenthers believe that the tenth amendment of the U.S. Constitution grants the federal government the right to do only what the Constitution specifically mentions. Everything else is the province of the states. Never mind that:

Article VI, paragraph 2 of the U.S. Constitution – the so-called “supremacy clause” – says that federal laws and treaties are “the supreme law of the land” and that state judges should uphold them, even if state laws or constitutions conflict.

This is why we no longer have separate but equal schools and separate water fountains and rest rooms. It is why we have voting rights and all of the other heinous incursions into states’ rights brought about by the civil rights movement. George Wallace and Lester Maddox are dead.

The Post confines its critique of tenthers to health care. But don’t try telling me that Jane Cunningham doesn’t believe the rest of their malarkey, doesn’t oppose Social Security, Medicare, Medicaid, the GI Bill, even the federal highway system.

If we could just get her on record about that federal highway exclusion, it would be a hoot to film her driving down Interstate 70 to Jeff City next January.