Tenth Amendment Center Blog

During the 2013 legislative session, we saw an explosion of state nullification bills dealing with issues ranging from heath care, to the Second Amendment, to NDAA detention.

Out of this renewed interest in nullification, a grassroots movement continues to grow and flex its muscles. Realizing they need to bring more pressure to bear on reticent state lawmakers, nullification advocates have taken the movement down to the local level.

Over the last several months, led by grassroots activists across America, city councils and county commissions have passed resolutions and ordinances in support of the Second Amendment and blocking NDAA detention provisions. Some bodies have passed legally binding legislation prohibiting local cooperation with unconstitutional acts. Others have approved non-binding resolutions supporting state efforts. Both strategies send strong messages to state lawmakers and will increase pressure to pass state-level nullification bills in the next legislative session.

Activists in Colorado serve as a powerful example of what local grassroots activism can accomplish.

At least six local governments in the Rocky Mountain State have passed resolutions supporting the right to keep and bear arms. These include the Weld County Commission, El Paso Board of County Commissioners, the Jefferson County Board of County Commissioners, the Mesa County Commission, the Montrose County Board of County Commissioners and the Archuleta Board of County Commissioners.

Jeff Maehr hopes to harness the momentum created by these grassroots efforts and coordinate county level efforts across the state to nullify unconstitutional acts.

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On Monday, Governor Bill Haslam signed The Freedom of Unwarranted Surveillance Act, into law. This bill was introduced by Senator Mae Beavers, and had a roller coaster adventure through the legislative process. But it eventually passed – unanimously – in both state houses.  The tally was 32-0 in the Senate and 91-0 in the House.

The new law states that drones are prohibited with the following exceptions:

(1) To counter a high risk of a terrorist attack by a specific individual or organization if the United States secretary of homeland security determines that credible intelligence indicates that there is such a risk;
(2) If the law enforcement agency first obtains a search warrant signed by a judge authorizing the use of a drone; or
(3) If the law enforcement agency possesses reasonable suspicion that, under particular circumstances, swift action is needed to prevent imminent danger to life. (a very high bar in legal standards)

A party aggrieved by a violation of this bill may initiate a civil action against a law enforcement agency to obtain all appropriate relief, as determined by the court, in order to prevent or remedy a violation of the new law. Evidence obtained or collected in violation of this new law will not be admissible as evidence in a criminal prosecution in any court of law in the state.  Any law enforcement agency that uses a drone, or other substantially similar device to gather evidence or obtain information, must comply in all respects with the Fourth Amendment to the Constitution of the United States and article I, section 7, of the Constitution of Tennessee. Continue Reading →

Steve Benen over at the MaddowBlog came back for round two after apparently realizing some things he didn’t know that he didn’t know.

After his last post on nullification, North Carolina Tenth Amendment Center state chapter coordinator William Kennedy roughed him up pretty good. And a post by Jonathan Adler over at the Volokh Conspiracy schooled him too. That got Benen’s attention, so he brought in “big gun”  law professor extraordinaire David Gans, the director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center.

Of course, big guns don’t do much more than make noise when loaded with duds.

Benen  rolls out a strategy typically used by keepers of approved opinion. First they try to make the unapproved idea go away with some conventional wisdom spoon-fed with a healthy dose of ridicule. If that fails, they bring in some guy with impressive credentials to couch the same fallacious conventional wisdom  in academic language.

So, let’s take a look at a few of Gans’ assertions.

“Nullification was a 19th century theory, identified most closely with South Carolina Senator John C. Calhoun…”

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Michigan House Bill 4455 is a bill to nullify warrantless surveillance and armed drones. HB4455 has been sitting in the Criminal Justice Committee since March. Your help is needed to move this bill forward.

HB4455 prohibits any law enforcement from storing biometric data from non-target suspects, ensures proper destruction of surveillance collected, and any surveillance obtained outside of this law may not be used as evidence in a court.

Please call and email your representatives. Tell them you want HB4455 to be voted on as soon as possible.

Action Items for HB4455.

1. Contact the Committee Chairman. Politely ask him to schedule HB4455 for public hearing and vote.

Kurt Heise (517) 373-3816 KurtHeise@house.mi.gov

2. Contact the other members of the Criminal Justice Committee. Strongly, but respectfully, urge each of them to vote YES on HB4455.

Joseph Graves (517) 373-1780 JosephGraves@house.mi.gov
Kenneth Kurtz (517) 373-1794 KennethKurtz@house.mi.gov
Mike Callton (517) 373-0842 MikeCallton@house.mi.gov
Ed McBroom (517) 373-0156 EdMcBroom@house.mi.gov
Margaret O’Brien (517) 373-1774 MargaretOBrien@house.mi.gov
Klint Kesto (517) 373-1799 KlintKesto@house.mi.gov Continue Reading →

The federal government is out of control, unable to limit its spending or satisfy its insatiable appetite for consuming the people’s liberties.  And these tendencies seem to get worse with each election.  Americans are starting to wonder whether or not Washington will ever fix itself.  But, what if it didn’t need it to?  What if the states held the power to hold Washington within the limits imposed on it by the Constitution?  More and more people are coming to the realization that, through nullification, the states can do just that.  But this concept, although rooted in history, is still new to many.  Here are some common questions about nullification, the answers to which serve as an excellent introduction to this important, long-forgotten principle.

What is nullification?

Nullification is the principle that the individual states have the authority to refuse to comply with unconstitutional federal laws.

What is it based on?

Nullification arises from the understanding that the states, by ratifying the Constitution, brought the federal government into existence for a few specifically enumerated purposes.  The powers that were delegated to it by the states in the Constitution are understood to be the only powers that Washington possesses.  As such, it cannot legally do anything that is not specifically given to it as a power.  This understanding was formalized by the Tenth Amendment.

Is it constitutional?

The Tenth 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.”  Although the writers and ratifiers of the Constitution understood that the states retained all undelegated authority, the Tenth Amendment was added to ensure that this could never be challenged.

While nullification is not specifically mentioned in the Constitution, several key figures in early American history, including Thomas Jefferson, James Madison and Alexander Hamilton, openly supported the idea that states could refuse to comply with unconstitutional laws.  Furthermore, it makes no sense to believe that the Founding Fathers would have added the Tenth Amendment and then made its enforcement unconstitutional.  With this in mind, nullification is simply the manner in which the states can enforce the Tenth Amendment. Continue Reading →

by Michael Cannon, CATO Institute

ObamaCare supporters promised the law’s employer mandate would require employers to provide workers with comprehensive insurance. But they apparently didn’t read the bill very closely. It’s a recurring theme.

According to the Wall Street Journal, employers and employee-benefits consultants have found, and federal regulators now confirm, that the law actually requires most employers to offer no more than very flimsy coverage. Many employers are now exploring the option of offering limited-benefit health plans that cover preventive services and maybe “$100 a day for a hospital visit” but “wouldn’t cover surgery, X-rays or prenatal care.” Indeed, the law could push many employers to reduce the amount of coverage workers receive on the job.

The Obama administration’s reaction demonstrates they had no idea what they were doing. The Wall Street Journal:

Administration officials confirmed in interviews that the skinny plans, in concept, would be sufficient to avoid the across-the-workforce penalty. Several expressed surprise that employers would consider the approach.

“We wouldn’t have anticipated that there’d be demand for these types of band-aid plans in 2014,” said Robert Kocher, a former White House health adviser who helped shepherd the law. “Our expectation was that employers would offer high quality insurance.”
The Law of Unintended Consequences strikes again.

This and other employer responses to the law could make the roll-out of ObamaCare’s health insurance “exchanges” even more of a train wreck.

-To the extent ObamaCare’s employer mandate pushes firms to offer bare-bones plans, premiums for plans offered through Exchanges will rise. The healthiest workers will enroll in their employers’ bare-bones plans, but workers who have expensive illnesses (or with dependents who have expensive illnesses) will seek more-comprehensive coverage through the Exchanges. The influx of sick consumers will increase the premiums for Exchange-based plans. Many of these sick workers won’t receive any premium-assistance tax credits or cost-sharing subsidies because their employer’s bare-bones plan will likely satisfy ObamaCare’s definition of adequate – and because the statute forbids those entitlements in the 33 states that have declined to establish an Exchange. Continue Reading →