Allow me to say at the very start that the end of HOA government legal scheme will not end the real estate “package” that constitutes planned communities — the private amenities, landscaping rules and regulations (laws), or private community taxes (assessments).
Over the past four decades, rules crafted by a slim majority of the members of the Supreme Court have had a profound and unfortunate impact on our basic law. Far from striding toward a more perfect union, we have actually slid backwards.[i]
As an extension of the above quote, consider the influence that the modern Ministry of Public Enlightenment and Propaganda,[ii] CAI, has had on our social and political institutions. (See the national lobbying group’s legislative involvement to protect HOAs across the country in 2013.)
My HOA rephrased quote:
Over the past four decades, legislative and judicial support, cooperation, and coercion for HOA private governments, not subject to the Constitution, have had a profound and unfortunate impact on our democratic system of government. Far from striding toward a more perfect union, we have actually slid backwards.
Keeping Stevens’ discussion of his “anti-commandeering” amendment simple (see Proposed US Constitution amendments will help HOA reforms), the issue is whether or not the Feds can compel – commandeer – state officials to enforce federal laws. Article 2 of the Constitution says “the laws of the United States . . . shall be the Supreme Law of the land; and the judges in every state shall be bound thereby.” So we come to the attorney word games that it does not say that other state officials shall also be bound. The 10th Amendment says what’s not said belongs to the state. Well, what did the Framers intend?
Logically, if the judges are obligated to enforce federal laws and an official violates the federal law that orders him to act in such a way, the official can be sued. What’s the point? And, as the judges like to say, after a clear reading of the law, the first part of the clause stands by itself: “the laws of the United States . . . shall be the Supreme Law of the land.” But, dealing with realities and the whims of the Justices in several decisions, Stevens feels inserting “and other public officials” after “judges” will make it quite explicit.
What this amendment can mean is that the Feds, as many are asking, can order state officials to enforce federal laws and the Constitution. State legislatures and attorney generals would be answerable to the Feds instead of giving lame excuses of, ask the legislature to give me the power. It’s a mockery of law and justice when individual states can ignore the Constitution that binds this country. It’s a mockery of law when state legislatures approve HOA laws that unquestionably violate the laws of the land.
[i] Six Amendments: How and Why We Should Change the Constitution, front flap, Justice (ret.) John Paul Stevens (Little, Brown and Company, 2014).
[ii] “The Ministry of Public Enlightenment and Propaganda” was the NAZI agency headed by Josef Goebbels.