Tag Archives: Federalism

Oklahoma is being called to lead on REAL ID, Charles Key’s Testimony


Kaye Beach

Nov. 27, 2015


Charles Key’s  Testimony on REAL ID

Former state representative, Charles Key who was the House author for the 2007 bill to prohibit our state from participating in REAL ID,  was the third speaker at the public hearing on REAL ID held at the state capitol on Nov. 18, 2015.  (Testimony from the first two speakers, Howard Houchen and Kaye Beach )

This was the second meeting held by Rep. Lewis Moore and Rep. Bob Cleveland seeking to find out more about the ramifications of implementing the federal REAL ID Act as is being proposed by some state legislators.

Charles Key begins by stating that he is here to “talk about States’ rights, and the responsibility of all state legislators to protect the citizens of Oklahoma from an overreaching federal government.”

He gives a little background on the 2007 legislation that prohibited REAL ID in Oklahoma noting that,   “The legislation passed without one dissenting vote.”

The law prohibiting Oklahoma from participating in the federal REAL ID Act  can be found in Title 47, Oklahoma Statute.

Key reads a portion of the statute:


“The Legislature finds that the enactment into law by the United States Congress of the federal REAL ID Act of 2005, Public Law Number 109-13, is inimical to the security and well-being of the people of Oklahoma, will cause approximately Eight Million Dollars ($8,000,000.00) in added expense and inconvenience to our state, and was adopted by the United States Congress in violation of the principles of federalism contained in the Tenth Amendment to the United States Constitution.”

He emphasizes that the statute says that REAL ID was adopted by Congress in violation of the principles of federalism.  “Those words were true in 2007, and are true today,” Key reminds everyone.

Charles Key then provides some history of the REAL ID rebellion by the states:

Over 600 groups representing the entire political spectrum opposed the Real ID Act 2005. …ACLU was one of the first organizations to oppose the Real ID Act. . . The ACLJ sent us a 120 page, scathing rebuke of the Real ID Act.”

Key points out, “It is not often that the ACLJ and the ACLU agree on anything,” and relates how these two organizations, traditionally viewed as polar opposites, stood side by side at the National Press Club in 2008 in opposition to REAL ID.

Charles Key was there and he says the words he spoke on that day in 2008 still hold true today: “The federal government was created by the states specifically to be an agent of the states, and we the states have not changed, or altered that relationship, but today the states are treated as agents of the federal government.”

Key urges Oklahoma lawmakers to take the lead once again.

“In 2007, Oklahoma led by being one of the first states to enact a law that says Oklahoma will not comply with the Real ID Act 2005. Today in 2015, we in Oklahoma must lead again by holding firm against Real ID.”

Key says that if the federal government wants a national ID then it should pass legislation to create one itself and quit trying to make the states do it for them.  He asks that Oklahoma legislators introduce a resolution “that tells the federal government, if it wants a national biometric identification card, then Congress needs to introduce legislation”

Oklahoma is being called to lead, and the best way to lead is to follow. Follow our oath of office and follow the constitution.  Let us lead by passing this resolution.   …Watch how many states will join us.”


Later in the meeting, Key spoke about the intentions of legislators in passing the bill banning REAL ID in our state and confronts the Department of Public Safety about their denial of his request for a non-biometric driver’s license.  The exchanges between participants at this hearing were extremely interesting.   I will be posting a transcript of all that was said in these exchanges after I finish with the speakers.

Next up is the Commissioner of Public Safety, Michael Thompson.




Random Tenth Amendment News

10th Amendment 101: Essential Reading for Tenthers
Tenth Amendment Center (blog)
This week, we present our essential reading (and listening) list- our “10th Amendment 101“. The links below are articles (and a few podcasts) we consider
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Time to Party Like It’s 1854
New York Times
The 10th Amendment to the Constitution, which gives the states all powers not delegated to the federal government, is all the rage. (The Second Amendment is
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State vs. Federal: The Nullification Movement
The New American
Proponents of the 10th Amendment to the US Constitution have been starting to rise up en masse to remind the national government of its proper
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Senate keeps after states’ rights
Salt Lake Tribune
Like SCR3, passed initially on Tuesday and finally on Wednesday, the new resolution asserted states’ 10th Amendment rights to powers not reserved for the
See all stories on this topic

NCLB – Federal Overreach in Education
Tenth Amendment Center (blog)
Another opportunity for a strongly enforced Tenth Amendment to make a difference. By Chris Slavens The No Child Left Behind Act (NCLB), signed into law by
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Sovereignty resolution draws Frederick crowd
Frederick News Post (subscription)
Alex Mooney, a Republican who represents Frederick and Washington counties, introduced the resolution supporting the 10th Amendment to the US Constitution,
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Utah Senate trash talks congress
This is all based on the 10th Amendment to the US Constitution. Basically it says anything not specifically governed by the federal government would be left
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Blogs – 10th amendment

Legal Tender Laws and the Constitution | Tenth Amendment Center
By Tenth Amendment
Cited as authority in the legislation is Article I, Section 10 of the Constitution and the principle of reserved powers under the 10th Amendment. A number of other states are also considering similar legislation – click here to view the
Tenth Amendment Center – http://www.tenthamendmentcenter.com/

Tennessee Health Freedom Act Passes Senate | Tennessee Tenth

By Lesley Swann
This bill is intended to step into the gap to offer Tennesseans some protection until the amendment can be passed. Lesley Swann is the state coordinator for the Tennessee Tenth Amendment Center and founder of the East Tennessee 10th
Tennessee Tenth Amendment Center – http://tennessee.tenthamendmentcenter.com/

10th Amendment Rights Townhall (Part 1) « Texasfor56
By texasfor56
The Tenth Amendment Town Hall, was organized with a definitive set of goals in mind for the people of Texas. This Townhall would explore solutions to restore Texas’ constitutional rights, and how to limit the growing power and influence
Texasfor56 – http://texasfor56.wordpress.com/

Consent Of The Governed: CT State Legislators Uphold The 10th
By Judy Aron
Tanya Bachand of Connecticut Tea Party Patriots said,”Today we are pushing back; we are demanding that our elected state representatives uphold the tenth amendment and say no to unconstitutional federal action” The Tenth Amendment of
Consent Of The Governed – http://yedies.blogspot.com/

Do you believe in the Tenth Amendment? Really? : Peoples Press
By David K. Williams, Jr.
All “conservatives” that support the DEA in this matter, please, never mention the Tenth Amendment again. You don’t believe in it. I will be at this event, waving a Tenth Amendment sign. I hope you’ll join me.
Peoples Press Collective – http://www.peoplespresscollective.org/

Attorney: Oklahoma illegally spent $600M in stimulus funds

I somehow missed this very interesting piece of news when it was first circulated in November, but uncovered it in my efforts to trace the recent announcement that DPS is to install license plate recognition cameras around the state back to the original source of the project.

I am especially confounded by the way this is being implemented-reportedly by an executive order to be issued by Gov. Henry on the 23rd of Dec.

Oklahoma residents might assume that such a decision would need approval from the state legislature.  The Governor apparently thinks otherwise.

Nov 5, 2009 The Journel Record reported;

Oklahoma officials illegally spent about $600 million in federal stimulus money during the 2009 legislative session because the funds were not certified by the State Equalization Board, attorney Jerry Fent told an Oklahoma Supreme Court referee Wednesday.

. . . Fent, of Oklahoma City, told referee Greg Albert that an amendment to the Oklahoma Constitution approved by voters in 1985 requires certification.

Mr. Fent cites the reasoning behind his allegations then goes on to say;

. . . not putting stimulus funds through the traditional budget process, beginning with certification, means that “low-level bureaucrats” are in charge of the federal money “and we have no idea how they’re spending it.”

Now, that is bad.

It would also explain how Oklahoma is suddenly to be getting 200 license plate spanning spy-cams without so much as a cursory once over by our representatives.

“I want that illegal spending stopped,” says Mr. Fent.

And I want decisions of such magnitude as surveillance devices being installed to at least have to run the legislative gauntlet so we might have some sort of input on the matter!

Fent said the same issues apply to about $100 million in federal money over which the governor’s office was given discretionary authority.

Fent also questions the authority of a coordinating council appointed by Gov. Brad Henry to oversee the use of Oklahoma’s stimulus funds.

Assistant Attorney General Scott Boughton gives a set of reasoning to counter Mr. Fent’s argument that does not impress.  The OKC Attorney explains very his argument very straightforwardly.

Fent said the question is who has authority over such funds coming into Oklahoma, the state or the federal government. He said the attorney general’s office was arguing for the latter.

“This case is sovereignty versus federalism,” he said.

My thoughts tended towards governance by bureaucracy versus representative democracy but point well taken.

Read the entire article here

Supreme Court Ruling Haywood v Drown


 Here is the issue as I understand it;

 Keith Haywood, a prisoner filed suit against several corrections officers, asserting claims under 42 U.S.C. § 1983, a civil rights statute that can help gain access to constitutional claims that they otherwise may not have available to them under state or federal law.

New York Supreme Court denied his clam under New York, Corrections Law Sec. 24 (1) Which says that only the Att. General, on behalf of the state, may prosecute a civil action against a corrections officer, in his personal capacity when he is acting within the scope of his duties.

 The Question: (according to OYEZ)

Does a state law barring civil claims against corrections officers violate the Supremacy Clause of the United States Constitution when it prohibits an inmate from bringing a claim for a violation of his civil rights under 42 U.S.C. 1983?   

Haywood v. Drown Posted by Tim Lynch @ Cato

The Supreme Court ruling in Haywood v. Drown got lost in the news last week, but it was an important constitutional case involving the principle of federalism.  The issue concerned the  extent to which the central government can commandeer state judicial systems.  Unfortunately, by a narrow 5-4 vote, the Court gave the central government a green light.

Justice Clarence Thomas filed  another one of his sober, scholarly opinions in dissent and I think he makes the case rather well.  Excerpt:

The Court holds that New York Correction Law Annotated §24, which divests New York’s state courts of subject-matter jurisdiction over suits seeking money damages from correction officers, violates the Supremacy Clause ofthe Constitution, Art. VI, cl. 2, because it requires the dismissal of federal actions brought in state court under42 U. S. C. §1983. I disagree. Because neither the Constitution nor our precedent requires New York to open its courts to §1983 federal actions, I respectfully dissent.

Although the majority decides this case on the basis of the Supremacy Clause, see ante, at 5–13, the proper starting point is Article III of the Constitution. Article III, §1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The history of the drafting and ratification of this Article establishes that it leaves untouched the States’ plenary authority to decide whether their local courts will have subject-matter jurisdiction over federal causes of action.

Until this setback, the Court’s conservatives were doing well in this corner of the law.  In New York v. United States (1992), the Court ruled that state legislatures were not subject to federal direction.  In Printz v. United States (1997), the Court ruled that state executive officers were not subject to federal direction.  This case stood for the proposition that state courts are not subject to federal direction.  Alas, Justice Anthony Kennedy joined the liberals to subordinate the states to federal control.

Read more;


Fron ScotusWiki;

In a lengthy dissent, Justice Thomas, writing largely for himself, emphasizes a key theme: nothing in the Constitution requires state courts to hear federal claims. Instead, States have

 “unfettered authority to determine whether their local courts may entertain a federal cause of action”; “[o]nce a State exercises its sovereign prerogative to deprive its courts of subject-matter-jurisdiction over a federal cause of action, it is the end of the matter as far as the Constitution is concerned.”

Justice Thomas’s argument relies on the key premise, on which the majority oscillates, that Correction Law § 24 is not an immunity provision at all, but is instead solely a jurisdictional provision.

Finally, in the portion of the dissent joined by the Chief Justice and Justices Scalia and Alito, Justice Thomas argues that the majority “mischaracterizes and broadens” the Court’s prior decisions. Once it concedes that §24 is “jurisdictional,” and neutral with respect to federal and state claims, there is no way the majority could, under Howlett and its progeny, find the provision unlawful. Instead, the only way a jurisdictional rule could be problematic is if it were to discriminate against federal claims alone (which this one does not, because similar state-based claims also fall under § 24). Indeed, rejecting the majority’s inquiry into the State’s motives, Justice Thomas concludes that hostility to federal law is “irrelevant under this Court’s precedent—the Supremacy Clause is only concerned with whether there is anti federal differences.”

The Supremacy Clause gives states the power to deny enforcement of a federal right if they have a “‘valid excuse'” for doing so (Howlett, 496 US at 369, quoting Douglas v New York N.H. & H.R. Co., 279 US 377, 387-388 [1929]). One permissible exception is when a state court lacks jurisdiction due to a “neutral state rule regarding the administration of the courts” (Howlett, 496 US at 372). The Supreme Court has explained that states “have great latitude to establish the structure and jurisdiction of their own courts” and that Congress must “take[] the state courts as it finds them” (id. [internal quotation marks omitted]; see also Brown v Gerdes, 321 US 178, 189 [1944] [Frankfurter, J., concurring] [“[t]he Constitution does not require New York to give jurisdiction to its courts against its will”]; National Private Truck Council Inc. v Oklahoma Tax Commn., 515 US 582, 587 n 4 [1995]).

A corollary to this principle is that a state rule will be deemed “neutral” and “valid” if it does not discriminate against federal claims in favor of analogous state claims (see McKnett v St. Louis & San Francisco Ry. Co., 292 US 230, 233-234 [1934]). In other words, if the same type of claim, “arising under state law, would be enforced in the state courts, the state courts are generally not free to refuse enforcement of the federal claim” (Martinez v California, 444 US at 283-284 n 7).http://lawprofessors.typepad.com/laborprof_blog/2008/06/cert-grant-in-h.html

Holding otherwise, the dissent maintains, forces the states into an “all-or-nothing choice”: creating courts of general jurisdiction or courts of limited jurisdiction alone. Withdrawing a class of claims from a court’s purview would be prohibited.


Some view the case to be about the proper division of state and federal power-Like Thomas but others view it as a question of individual rights, for the prisoner and say that if the attorney general must be the one to initiate action then naturally prisoners will not be permitted access to justice.