By Rep. Jay Steagall
OKLAHOMA CITY – Last Friday, Jan. 7, 2022, Supreme Court Justice Sonia Sotomayor stated, "I'm not sure I understand the distinction-why the states would have the power but the federal government wouldn't," in regard to the Occupational Safety and Health Administration (OSHA) "emergency temporary standard" (ETS) requiring companies with 100 or more employees to be vaccinated or wear face masks while at work and submit to weekly testing. That type of statement from a sitting justice is very concerning and unacceptable. Either Justice Sotomayor is ignorant on the subject of separation of powers, or she is deliberately attempting to dilute the powers of the states while simultaneously concentrating undelegated powers to the federal government – or both.
The Tenth Amendment to the U.S. Constitution states, "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." This very simple and straight-forward provision of our Constitution both illustrates the vertical separation of powers penned by the framers, and quells any assertion that the federal government has the same collective powers as the states, as Justice Sotomayor incorrectly alluded to in her statement.
Known as "the father of our Constitution," James Madison wrote in The Federalist Papers, No. 45, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce.... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State." Here, Madison delineates the differences in the limitation and focus of the powers delegated to the federal government versus the extensive and unrestricted reserved powers of the states.
The most important reserved state power is that in Article V which provides for amending the Constitution. Through this provision, it is the People, through their respective state legislatures, that ratify changes to the compact [Constitution]. This is not a power shared with the federal government – imagine the tyranny that would reign should the federal government have that power! It is through this power that restrictions are placed on government – such restrictions are found in the Bill of Rights as well as the main text of the Constitution. It is imperative for a Supreme Court Justice to understand the facts that the states themselves retain the power to regulate the actions of the federal government, and there are no provisions that allow the federal government to restrict actions of the states outside of the agreed upon provisions stated in the compact (which the states still retain the power to change).
Should Justice Sotomayor's statement have been made in an effort to intentionally dilute the powers of the states, then her motives must be brought into question. If it is her intent to disregard the provisions of our Constitution, which she took an oath of affirmation to support and defend, then Congress should find her in dereliction of duty and remover her from office. Justices are not "untouchable;" the Constitution provides for a mechanism to remove them from the bench – impeachment.
Justice Sotomayor made her statement either out of ignorance or destructive political desire; either way, it is extremely dangerous and reprehensible for a sitting member of the Supreme Court to assert such a skewed and inflammatory opinion that undermines the very Constitution she has sworn an oath to uphold.