Speaking at a Republican breakfast in New Hampshire last week, former House Speaker Newt Gingrich offered some policy proposals straight out of his 1994 playbook:
As the Republican nominee, I will have a contract with America. It will have seven bills. One of the seven bills will be a Tenth Amendment enforcement act to take the Constitution and return power to the states and the people thereof, and move it back out of Washington.
As George Zornick explains, Gingrich has made states rights tentherism, the belief that anything Congress does that conservatives don’t like violates the Tenth Amendment, a centerpiece of his campaign. But even though nearly every single GOP lawmaker’s lips presently drip with the words of tentherism and states rights, Gingrich’s proposed Tenth Amendment enforcement act is really nothing more than a reminder that Republicans will abandon their obsession with the Tenth Amendment the minute it becomes convenient for them to do so.
This is because Gingrich’s proposed Tenth Amendment bill is nothing more than a recycled idea from the last time Gingrich was relevant in American politics. While Gingrich was speaker, Republicans proposed the Tenth Amendment Enforcement Act of 1996, which, among other things, “requires the courts to interpret Federal statutes and regulations so as not to preempt State or local laws.” In other words, this bill would have instructed the courts to back away from a series of doctrines the Supreme Court has created which effectively invalidate state laws that touch on areas that are also regulated by the federal government.
Five years after this bill was introduced, however, Republicans seized control of the White House, and the party’s position on preemption changed virtually overnight. President George W. Bush’s Supreme Court appointees fought tooth and nail to give drug companies, banks, and the tobacco industry sweeping immunity from state law through preemption — often with the public and enthusiastic support of Bush’s Department of Justice. More recently, the House GOP rallied behind a tort reform proposal despite consistent claims by leading tenthers that this kind of federal government takeover of the state tort system violates the Constitution.
It will be interesting to see whether Gingrich’s new Tenth Amendment bill contains the same language regarding preemption — much of which can be embraced by progressives — that was in the bill’s 1996 version. One thing is absolutely clear from the GOP’s more recent position on preemption. Republicans don’t actually care all that much about the Tenth Amendment; they’re just happy to use it as a rhetorical bludgeon against federal laws that they don’t like.