Q&A of the Day – Florida & Disney, The Feds & Texas & The 10th Amendment
Each day I feature a listener question sent by one of these methods.
Email: brianmudd@iheartmedia.com
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Today’s Entry: Submitted via Talkback Asking about the 10th Amendment and the implications at the southern border in addition to Florida’s legal battle with Disney.
Bottom Line: Today’s question comes on the back of my assessment of the most recent turn in Florida’s battle with Disney over the attempted dissolution of the Reedy Creek Improvement District and the end of Disney’s era of self-governance. One which I believe could have 10th Amendment implications after Disney sued Florida in federal court and Florida sued Disney in state court. As I mentioned in Tuesday’s takeaways... Should a federal judge rule one way and the state legal system another – we could be set up for a potential 10th Amendment showdown. What right would the federal government have to tell Florida how to govern itself? Or most specifically, what right would the federal government have to say that Disney gets to govern itself as it sees fit within the state of Florida? So, let’s enter into this conversation, the discussion of what the federal government has done to Texas, and other border states for that matter, by operating a defacto open border.
Most folks who’re at least somewhat constitutionally aware know the 10th Amendment is that “states' rights” amendment, but details matter...so let’s start the breakdown with what the 10th Amendment 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. In the grand scheme of Constitutional law, that’s about as straightforward as it gets. Of course, where it can get complicated, is where there’s a battle over what rights have been delegated to the United States. We’ve had those over the years, including those specific to the issue of illegal immigration. The Constitution doesn’t specifically address the topic of immigration, which in theory might suggest states would have the right to address immigration issues as they see fit. The reason they don’t have that right comes down to Article I, Section 8, Clause 18 of the Constitution which states: The Congress shall have Power To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. That Clause isn’t nearly as easy to process at the 10th Amendment. But here’s in effect what it means and specifically to the issue of immigration, whether legal or illegal, how the United States Supreme Court has interpreted it. It means that Congress retains the authority to make laws as necessary to carry out the business of this country. Immigration law is one of those.
The first major immigration law carried out by Congress was the 1790 Naturalization Act, which enabled those who’d resided in the United States for at least two years and who were determined to be of “good moral character” could swear an allegiance to the US Constitution and become naturalized citizens. There have been a total of 31 major immigration related laws passed since then. Somewhat ironically, the most recent was the 2006 Secure Fence Act, which authorized the construction of 700 miles of double-reinforced border fence be built along portions of our southern border. Anyway, the long story short on the border/illegal immigration crisis brought about by the Biden Administration is that long ago, Congress deemed the federal government as the exclusive arbiter of immigration policy. And while crossing over the southern border into a state like Texas, opens up those within the state to the laws of that state, the Supremacy Clause in the Constitution states that where there is conflicting policy between federal and state governments, federal policy wins. And that takes us back to Florida’s battle with Disney and why this battle is different.
Disney first sued Florida in federal court for retaliation. Disney’s alleging that the entire reason the state moved to dissolve the Reedy Creek improvement District in the first place, (which didn’t actually end up happening, but instead the District’s board was moved from Disney authority to state authority) was because of the of their opposition to Florida’s Parental Right’s law. This matters in a legal context because the First Amendment protects those exercising free speech from government retaliation for the use of it. And corporate speech, as determined by the Citizen’s United case in 2010, is protected speech. Meanwhile, the state of Florida, as represented by the DeSantis appointed Tourism Board overseeing Reedy Creek, has sued Disney in state court stating the way the outgoing Reedy Creek Board sought to invalidate the incoming board, by delegating all governing authority to Disney for the next thirty years, was an illegal overreach and abuse of power against the will of the people of Florida as exercised through state law.
These are two separate lawsuits, in two separate jurisdictions, which lead back to the same place. There could be a 10th Amendment showdown if the federal judicial system were to rule in Disney’s favor while the state judicial system would rule in favor of Florida, and here’s why. Let’s say the federal government rules in favor of Disney, and by the way, there’s a good chance that could happen (we’re all aware the reason Disney’s self-governance issue came to the forefront to being with was in response to their public opposition to Florida policy), what exactly is supposed to happen? The federal judiciary is supposed to vacate the current DeSantis appointed board and reinstate the Disney appointed board? Ok. Fine. Then what? Is Disney entitled to a lifetime guarantee of self-governance that no other entity in Florida has? Is the state’s government not entitled to ever attempt to govern in Reedy Creek again? The bottom line is that retaliation for speech is one thing, but the state of Florida created the Reedy Creek Improvement District under Disney’s control in 1967, therefore the state retains the right to alter or end it as they see fit. Congress, the federal judiciary, they have no authority on that issue. That matter would only be exacerbated if the state courts were to find that the board the federal judiciary reinstated had broken the law. And that’s where there would be the possibility of a 10th Amendment showdown. In the end though, I think Disney may win the retaliation claim in federal court, but essentially end up in the same place – because well, this is Florida and they’ve chosen to operate a business in it. That makes them, just like all of the rest of us, beholden to the laws here and there’s certainly nothing in the US Constitution or law created by Congress, asserting the right for Disney to have self-governance in Florida.