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Amid criticism, Pawlenty backtracks from state's rights comment

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Gov. Tim Pawlenty
Minnesota Gov. Tim Pawlenty. On Thursday, he said he may invoke the 10th Amendment to the Constitution to keep Minnesota from fully participating in proposed health care reform.
MPR Photo/Tim Pugmire

If a federal health care reform plan passes, should it not apply to Minnesota? Gov. Tim Pawlenty has raised that possibility, suggesting  that Minnesota might raise the issue of state's rights to prevent some of the proposed changes from going through. 

During a conference call hosted by the Republican Governor's Association Thursday night, a caller asked whether states could invoke the 10th Amendment to the Constitution to stop President Obama's health care reform plan.  

Pawlenty, who is considered a potential challenger to Obama in 2012, said it's a possibility. 

"Depending on what the federal government comes out with here, asserting the 10th Amendment may be a viable option, but we don't know the details," said Pawlenty. "We can't get the president to outline what he does or doesn't support in any detail.  So we'll have to see. I would have to say that it's a possibility."

Pawlenty also said he hopes Republican governors will be more assertive about state's rights, and even bring up lawsuits to challenge the federal government.  

But on Friday, Pawlenty backtracked from those statements.  He said he isn't exploring a lawsuit, and he doesn't want Minnesota to secede from the Union.  Instead, he said the idea of state's rights should be discussed.

"[The 10th Amendment] is a politically powerful phrase with a certain class of voters."

"I'm not saying that we're going to do anything unusual or abnormal.  I'm just saying we're going to remind the federal government that there's a proper role for them and for the states," said Pawlenty. "We're trying to keep that in focus."

Pawlenty later said that President Obama's health care plan could violate the 10th Amendment because a public health care plan would intrude on the private marketplace. 

He said it's "another step of the federal government taking over more things."

The 10th Amendment restates the Constitution's principle of federalism, saying that powers not granted to the national government, nor prohibited to the states, are reserved to the states or the people.  It was written to reassure the states that they would remain largely in charge within their own borders. 

From time to time, states and local governments have tried to us the 10th amendment as the basis to be exempted from various federal regulations, especially in the areas of labor and environmental controls.  In the modern era, the Supreme Court has only once declared a law unconstitutional for violating the 10th Amendment. 

Pawlenty isn't the first Republican governor to invoke the 10th Amendment.  Texas Gov. Rick Perry and former Alaska Gov. Sarah Palin, another possible candidate for president, both raised similar issues earlier this year.  

William Mitchell College of Law professor Mehmet Konar-Steenberg said politicians, especially those seeking the GOP nomination for president, invoke the 10th Amendment to appeal to a specific group of conservative voters.

"There's a certain voter who hears '10th Amendment,' and that immediately resonates with them for the reason that it equates with states rights, and it equates with a smaller federal government," said Konar-Steenberg. "It is a politically powerful phrase with a certain class of voters."

Konar-Steenberg questioned Pawlenty's assessment that the public option in the health care bill would be open to legal challenge.  He said it's unlikely the president and Congress would craft legislation that could be defeated in the courts.  

Democrats were quick to condemn Pawlenty.  DFL Senate Majority Leader Larry Pogemiller said the governor's threat to withdraw from the health care bill without knowing all of the details is "extreme."  He also said lawmakers are unlikely to support his efforts.  

"I just think it's a little bit of silly season there for the governor to -- I mean, he's governor of the state of Minnesota.  He doesn't have the power to make all decisions about all things.  I think he should calm down a little bit and focus on the job he has," said Pogemiller.

Other lawmakers suggested that Pawlenty, who has been a frequent critic of Obama's health care plan, is just trying to stand in the way of health care reform.  

Rep. Paul Thissen, DFL-Minneapolis, and House Speaker Margaret Anderson Kelliher noted that Pawlenty backed provisions very similar to those proposed by Obama just two years ago.  Both are planning to run for governor next year.