Has California Bypassed the Tenth Amendment?


November 11, 2010 - San Francisco, CA - PipeLineNews.org - The tenth amendment to the U.S. Constitution reads, "The powers not delegated to the United States by the Constitution, norprohibited by it to the States, are reserved to the States respectively,or to the people - Amendment X, 1791.

For months the media provided us with constant reminders of the legislature's failure to approve a budget for California. Then on October 8, 100 days after the budget deadline, we all cheered when the governor signed a budget that was lightened by about $1B in line-item vetoes, especially in the area of social services: day care, mental health, community clinics. Taxpayers breathed a sigh of relief.

This action created an interesting opportunity to look at the inner workings of the bureaucracy. These line item vetoes, which involved removing state funding (the word "state" is very significant here) from certain programs, have brought hitherto unknown government and quasi-government partnerships out of the shadows, stepping forward to provide the funds to run the state programs that they claim the people need and cannot do without.

One wonders, though, if it is the people who need the services or the service agencies who need the people?

One also needs to ask if the governor's presumed action to save the taxpayers' money was as altruistic as we were led to believe, or if there was an agenda to be met?

Just as the federal government claimed it couldn't step in to help with the Katrina disaster because it wasn't invited, the feds could not step in to help cash-strapped California with its social service needs until it was invited.

How does the federal government get invited into a state?

Immediately after signing the budget, Senate bill # 853, a rather harmless piece of legislation that had passed both houses, was quickly gutted, amended and retitled. The governor then signed the bill, which had been authored by the Senate Budget and Fiscal committee. The main purpose of this new 130-page health care bill was to bring California into full compliance with certain elements within the federal Obama Health Care Plan. It was, so to speak, the contract with the federal government that California would institute ObamaCare.

Instituting federal programs within a state brings not only millions of federal tax dollars, but also strong and binding federal mandates.

But before the money could be released, certain things had to take place first. When the Governor line-item vetoed the state's contribution to mental health services leaving only the federal matching amounts in the budget it kicked in the mandates of the federal Americans with Disabilities Act. 1991 Title ll ADA regulation published July 26, 1991, Nondiscrimination on the Basis of Disability in State and Local Government Services, subtitle A. Civil Rights Division.

This set in motion the entry of the federal government mandates into the health care activities of California. This path was already being set during the last two years by passage of several health and child day care bills. These bills were designed to be only tweaking of state code wording, but were actually mirrors of the federal Health Care for All legislation.

On October 13, Senator Darrell Steinberg might have thrown a monkey wrench into the planned works by releasing a statement to the press that he would "wait for the new Governor and then request a reversal [of the] nearly $470 million in cuts to social services." (Sacramento Bee, 10/13/2010)

Which brings up one of many questions: If California is as broke as the pundits say it is, then from whence will come the money?

On November 1, media reports said that state Schools Superintendent of Public Instruction Jack O'Connell, "Releases $75 million in federal funds to help continue mental health services for students" until the end of the year. Stakeholders cheered.

Could it be that the state schools superintendent – and not the health department chief – has control of mental health funds? "Yes in certain circumstances," according to the State Department of Education's Director of Special Education Division, Fred Balcom, and the former Deputy Director of Yolo County First Five.

Mr. Balcom stated that, though this had never before happened, under the Americans with Disabilities Act – when and if state funds become unavailable to the Department of Health's Mental Health Services program, or that department refuses to administer the services, as it did upon hearing that its funding was cut – the state Department of Education would be responsible for administering federal dollars (already figured into the state budget) for mental health services.

How is the Department of Education going to do that when, according to Mr. Balcom, the DOE does not have the doctors and psychiatrists who are already present in the department of health?

Consider that the Department of Education and the Department of Health Care already have a partnership to establish health clinics in schools. And with the passage of Sen. Mark Leno's SB 543, mental health counseling for all, it is very likely that school clinics will soon have mental health components.

I have previously reported on the implications of SB 543 [see, Camille Giglio, We Have Come For Your Kids, PipeLineNews.org, https://www.pipelinenews.org/2010/We-Have-Come-for-Your-Kids-CA-State-Legislature-Using.html] Oct 13, 2010, Action Alert - Veto of Ca. Health Bill (SB853) Urged.

Mark Leno's bill, SB 543, authorizes teens to accept mental health counseling without parental consent. The implications of this bill indicate that combined with giving the school system authority to manage and develop mental health programs, these services will be provided to students at school health centers under the authority of a newly formed California Mental Health Services Authority - CALMHSA.

The following article appeared in an online publication titled KansasCity.com:

"Collaboratively developed, CalMHSA's PEI Implementation Work Plan is posted on CalMHSA's website (www.calmhsa.org) and has been sent to CalMHSA's many members, partners and stakeholders for review. The Work Plan describes how $129 million dollars of Mental Health Service Act funds will be available for the purposes of implementing California's Statewide Prevention and Early Intervention (PEI) Plan to Prevent Suicides, Reduce Stigma and Discrimination, and Improve Student Mental Health Services on University and School Campuses.

Two days prior to O'Connell's action, October 29, the media reported that First 5, L. A. had come forward to donate $15 million toward temporarily restoring the budget cut for child day care. The news also carried a side line about First 5, L.A. donating $41 million the previous year. First 5 is an initiative-created agency using increased tobacco taxes to fund its programs to prepare infants and toddlers, ages 1-5 and mostly from poor and low-income families, for kindergarten. County First Five commissions have now contributed about $34 million toward replacing the vetoed state funds. The state Assembly has also kicked in $6 million of its budgeted funding.

"First 5's money -- about $480 million a year -- comes from a tax on tobacco approved by voters in 1998. Under state law, First 5 money may only be used in programs for children ages five and younger." Read more: http://www.californiahealthline.org/features/2010/children-s-advocates-welcome-help-hope-for-solutions.aspx#ixzz14o9zT0u9

In the last few years several county civil grand juries have investigated questionable financial activities of county-wide First 5 Programs for not being accountable to whom it grants its funds.

On November 3, the Sacramento Bee reported that the Obama administration "Approves California's $10 Billion MediCal waiver with stipulations that the funds be used to "pursue innovative and cost-effective strategies for delivering care to Medicaid (in California the program is called MediCal) recipients and expanding that care to more seniors and low-income residents. The official news release states that "Some of this (tax) money will be returned directly to the state in the form of incentive payments" (read: "bribes insuring compliance"). Both of these stipulations, along with others are contained in SB 853.

On November 5, the Sacramento Bee reports that an Alameda County Superior Court judge blocked the elimination of funds for welfare-to-work child care programs (CalWorks, valued at $256 million). The judge's authority to issue this ban results from a technicality, a failure on the part of the state, following elimination of some child care funds, supposedly, to notify parents they can be screened for eligibility for other programs. The amount of the funding to be restored comes to $74 million; $40m advanced from the State Assembly's operating budget to round out the year (when the new governor arrives).

In a commentary published by the Washington Times, Robert Holland states that "When the Obama administration dangled $4.35 billion in Race to the Top (RTTT) funds before money-hungry public school systems around the country, educators and politicians in most states reacted as if it were free money for simply singing the school-change tunes the feds wanted to hear."

Of course, the money isn't free at all. What Mr. Holland (Washington Times, 11/4/2010) and other government watchers don't seem to understand is that the money is just the bait. The real goal is the breakdown of the Tenth Amendment to the U.S. Constitution.

This bill, SB 853, is just one example of several bills that make minor changes to education, health care, welfare, and employment codes, ultimately reforming and creating new levels of state and local bureaucracies directly beholden to the federal government.

This strategy for supplanting states' rights with federal oversight is not new. It has been tweaked, tested, improved and experimented on for decades. We now seem to have reached what some government watchers are calling the perfect storm of planned crises.

According to an article published by the Associated Press, "Schwarzenegger acts on health care, foster care," Don Thompson, (9/30/2010), "[T]he laws all tie the nation's most populous state into federal reforms set to take effect in 2014."


Here are some of the bills passed this term in Sacramento.

A. Foster care bill extending community services to youth until they turn 21. This increases the costs to the taxpayer.

B. Children are allowed to stay on parental health insurance until age 26. This does away with family and kin-gap funding programs in order to keep youth on a continuing program of social services.

C. SB 1381 changes the age at which children may start kindergarten, thereby creating government run pre-school programs along with added costs of those programs. Believe it or not, this ties in with school-to-work programs.

D. SB1317 dealing with school truancy allows parents to be slapped with a misdemeanor charge for failure to get their kids to school. An alternative program requires parents to take parenting classes.

E. AB 2084 restricts the beverages that can be given children in state daycare centers to bring them into compliance with federal nutrition standards set by the federal Dietary Guidelines for Americans promoted by the federal departments of Agriculture and Health and Human Services. One of the goals of this and the National School Lunch Program is to change children's eating habits to turn away from "unhealthy taste preferences."

This last bill was co-sponsored by the California Center for Public Health Advancement and the Food Policy Program, both nonprofits endorsed by First 5 LA. The CCPHA and the FAPE consider themselves to be partners with the government while First 5 is a government-created entity. Perhaps you read about federal funds given to Contra Costa County's First 5 Centers requiring preschoolers to wear knit vests with an electronic chip sewn in a pocket to monitor their eating, drinking and general activities while at day care. All data collected will be sent to the feds for evaluation. This is referred to as taking policy out into the community and enforcing it.

Sen. Mark Leno's SB 1413 (Schools: Pupil Nutrition) mandates the availability of tap water in food service areas be required in schools and served with lunches. The Feds will provide funding for complying. This apparently fulfills federal demands for proper nutrition and hydration. Children don't drink enough water, they claim.

SB1357 (Longitudinal Pupil Achievement Data System, or CALPADS) by Sen. Darrell Steinberg, (D) - signed by the governor on 9/30/2010. Required to meet the requirements of the federal No Child Left Behind Act. This bill requires the State Department of Education, contingent upon federal funding, to prepare the state Longitudinal Pupil Assessment Data System to include data on the quarterly rate of pupil attendance. It requires that the system be capable of issuing to local education agencies periodic reports on district, school, class, and individual pupil rates of absence and chronic absentees. And it requires a specified report on absences by the Superintendent of Public Instruction to include chronic absentee rates. (See SB 1317)

In 1975, the Education for All Handicapped Children Act became law. In 1990, the title was changed, swapping out the word "handicapped" for the more generalized "disabled". The new name is the Individuals with Disabilities Education Act - IDEA - P.L. 94-142. It opened up wide avenues of acceptance for bringing the handicapped into the regular class setting and, by using the definition of disability, enabled an expanded program of social services to be given to a greater number of children with what some would say are more disciplinary, social, religious and lifestyle differences than actual physical or mental limitations.

In 2002, through Executive Order, President Bush signed the "President's New Freedom Commission on Mental Health." It established a commission which bound the Departments of Health and Human Services, Education and Labor together in a common quest for "the desired outcomes of mental health care, which are to attain each individual's maximum level of employment, self-care, interpersonal relationships, and community participation."19 See Legalizing Mind Control

This has encouraged a whole new approach to thinking about what behaviors and attitudes are considered disabling. It further authorizes the state to set up programs designed to protect children from disabling influences including religious, familial, social, lifestyle or income related.

In a release entitled the Future of California's SCHIP Program, Peter Harbage, a health care expert who runs Harbage Consulting, showed his relief at the turn of events with these words: "The state really pulled it off." He continued with "It has been a daunting task, along with the short time frame of two years to put many different elements of health care reform into place."

In the recent election, though the Democrats managed to maintain control of the Senate, it was the states Governship programs that saw a significant turnover to the Republicans. About 23 states have now come forward signaling their participation in lawsuits to overturn the invasive nature of ObamaCare. In other words, defending the Tenth Amendment to the

Constitution from federal demands that the states adhere to federal mandates in what has always been considered states rights issues.

Should it happen that these states succeed as is being predicted by many media outlets the question now to be asked is: does this mean that California will be out of step with the rest of the country? Will California be known in the future as a fresh and innovative leader or as the state that broke the Tenth Amendment?Stay tuned.

© 2010 Camille Giglio. All rights reserved.