It Looks Solid, But…

I recently participated on a round-table discussion on the Tenth Amendment, political sovereignty, delegation of power and nullification on a talk show in Indiana. The panel consisted of me, two left-leaning lawyers and a right-leaning lawyer.

I took two interesting observations away with me.

Most telling was the fact that both of the lefties and the righty disagreed with me, proving a point I’ve been making for quite a while – at the core, the left and right aren’t that much different. Both sides desire expansive government power. They just argue about what part of your life that power should apply to.

I also found it interesting that my opponents’ entire argument rested on the thinnest of ice. It looked solid on the surface. But the slightest poke easily punched holes in it.

Opponents of nullification base their argument on a false premise – the ultimate authority of the Supreme Court.  The other three countered virtually every argument I made with, “the Supreme Court says.” It was almost comical. I pointed out in various ways that the Supreme Court does not stand as the sole and final authority on the extent of federal power, and they would answer, “But the Supreme Court says…” In essence, their argument boils down to “the Supreme Court stands as the ultimate authority because the Supreme Court says it stands as the ultimate authority.”

Yeah. OK.


Marriage Should Not Be Regulated by the Federal Government

liberals-states-rightsby Jason Kuznicki, CATO Institute

Of course gay marriage should be left to the states. Indeed, all marriage should be left to the states. Search the U.S. Constitution from start to finish, and you will find no reference whatsoever to marriage. You will, however, find the 10th Amendment, which reads as follows: “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.”

Marriage is not commerce, war, or taxation. It is unrelated to money, the post office, the patent system, or any of the other enumerated powers of the federal government. Its regulation is neither necessary nor proper in pursuit of those powers.

At the drafting of the Constitution, the states all had marriage laws of one kind or another. There were wide disparities among them, both then and now, and such disparities have existed at all times in between.


Will Montana Stand Up to the Feds on Everything?

Representative Bill Harris has introduced a bill in Montana that would assert state control over the implementation of federal programs.

H.B. 145, Revise the Montana Federal Mandates Accountability Act,  proposes to be more constitutionally stringent on the interpretation of federal law, and affirms the responsibility of the state to consider the well-being of its citizens in doing so.

“The intent of the legislature is to ensure the primacy of the state of Montana’s legal and political authority to constitutionally implement in and for Montana the policy mandated by federal statutes and to vigorously challenge and scrutinize the extent and scope of authority asserted by federal executive branch agencies when federal agency actions and interpretations are inconsistent with the United States constitution and Montana policy and exceed the constitutional authority of the federal government or are not required by constitutional federal law.”

The bill opens the door for state nullification of all unconstitutional federal acts.


Obama’s Stimulus: A Bit of Pork, a Lot of Opportunism

via the CATO Institute

study [$] published in the winter edition of Political Science Quarterly considers two possible reasons for why the 2009 American Recovery and Reinvestment Act (ARRA) failed to sprinkle Uncle Sam’s magic dust onto those areas of the country that were being hardest hit by the recession.

Was it because well-positioned politicians were successful in delivering the pork?

Or was it because the recession created a “window of opportunity” for politicians to quickly spend a bunch of additional money on pet causes, which had the effect of benefitting certain areas of the country?

I’m going to skip right to the answer: the uneven geographic distribution of stimulus funds had only a little to do with traditional pork barreling and much to do with Obama’s then chief of staff Rahm Emmanuel’s famous quip that “You never want a serious crisis to go to waste.”

On the possibility of traditional pork-barreling, the authors found no statistically significant relationship between the distribution of funds and whether a county was represented by a politician serving on a congressional committee relevant to stimulus funding. Nor was a relationship found between funding and counties that were represented by a Democrat in the House or Senate. However, a relationship was found between funding and those counties that overwhelmingly voted for the president: 


Guns and Freedom

by Judge Andrew Napolitano

The right of the people to keep and bear arms is an extension of the natural right to self-defense and a hallmark of personal sovereignty. It is specifically insulated from governmental interference by the Constitution and has historically been the linchpin of resistance to tyranny. And yet, the progressives in both political parties stand ready to use the coercive power of the government to interfere with the exercise of that right by law-abiding persons because of the gross abuse of that right by some crazies in our midst.

When Thomas Jefferson wrote in the Declaration of Independence that we are endowed by our Creator with certain inalienable rights, he was marrying the nation at its birth to the ancient principles of the natural law that have animated the Judeo-Christian tradition in the West. Those principles have operated as a break on all governments that recognize them by enunciating the concept of natural rights.

As we have been created in the image and likeness of God the Father, we are perfectly free just as He is. Thus, the natural law teaches that our freedoms are pre-political and come from our humanity and not from the government, and as our humanity is ultimately divine in origin, the government, even by majority vote, cannot morally take natural rights away from us. A natural right is an area of individual human behavior — like thought, speech, worship, travel, self-defense, privacy, ownership and use of property, consensual personal intimacy — immune from government interference and for the exercise of which we don’t need the government’s permission.

The essence of humanity is freedom. Government — whether voted in peacefully or thrust upon us by force — is essentially the negation of freedom. Throughout the history of the world, people have achieved freedom when those in power have begrudgingly given it up. From the assassination of Julius Caesar to King John’s forced signing of the Magna Carta, from the English Civil War to the triumph of the allies at the end of World War II, from the fall of Communism to the Arab Spring, governments have permitted so-called nobles and everyday folk to exercise more personal freedom as a result of their demands for it and their fighting for it. This constitutes power permitting liberty.


Indiana Bill Would Nullify NDAA “Indefinite Detention”

Indiana State Senator Jim Banks has introduced a bill that would prohibit detainment of citizens under federal defense act (NDAA) in the state.

SB 400 would amend the Indiana Code concerning state and local administration. The text of the bill simply states:

“Prohibits specified individuals and entities in Indiana from aiding an agency of the armed forces of the United States in the investigation, prosecution, or detention of a person under a provision of the National Defense Authorization Act (NDAA) or similar law providing for indefinite detention.”

The legislation takes things a step further too – providing for criminal charges on federal agents who attempt “indefinite detention” (AKA Kidnapping) in the State of Indiana:


Can the President Raise the Debt Limit Unilaterally? Hell no! Part II

The claim—partly silly, partly dangerous—that President Obama may raise the debt limit unilaterally without the approval of Congress is again being raised. I addressed it previously here. Now it has been further debunked in a Wall Street Journal op-edauthored by David B. Rivkin and Lee A. Casey.

Under the Constitution, only Congress may incur debt. The exclusive power of the legislature to do so is one of the central parts of our governmental system, pre-dating the Constitution by centuries, and with its roots in colonial and British practice.

Those seeking this indefensible extension of presidential power argue that the existing level of entitlement benefits are “debt” and that the Fourteenth Amendment requires it to be paid.


Oklahoma Senate Bill Aims to Nullify Obamacare

Oklahoma State Senator Patrick Anderson has introduced a bill that would nullify the Patient Protection and Affordable Care Act otherwise known as Obamacare.

SB 93 would amend the Oklahoma Code by adding the following:

The Legislature of the State of Oklahoma declares that the federal laws known as the “Patient Protection and Affordable Care Act” (Public Law 111-148) and the “Health Care and Education Reconciliation Act of 2010” (Public Law 111-152), signed by President Barack Obama on March 23 and 30, 2010, are not authorized by the Constitution of the United States and violate its true meaning and intent as given by the founders and ratifiers, and are hereby declared to be invalid in the State of Oklahoma, shall not be recognized by this state, are specifically rejected by this state and shall be considered null and void and of no effect in this state.

If passed, the law would require the state legislature to take action to prevent implementation of the unconstitutional Affordable Care act within the boundaries of the state:


ACTION ALERT: South Carolina Obamacare Nullification Bill in New Committee

COLUMBIA, S.C. (Jan. 10, 2013) – Just days after hundreds gathered in Columbia rallying in support of a bill that would nullify the Patient Protection and Affordable Care Act in South Carolina, momentum continues to build.

On Tuesday, more than 300 people descended on the Palmetto State capitol demanding lawmakers take action and stop implementation of Obamacare. The following day, three representatives signed on as cosponsors of H3101. On Thursday, two more followed suit. Eric Bedingfield (R-Greenville), Dennis Moss (R-Cherokee), Dwight Loftis (R-Greenville), Wendy Nanny (R-Greenville) and Michael Pitts (R-Laurens) all inked their names on the bill.

H3101 requires state lawmakers take every measure to “prevent the enforcement of the Patient Protection and Affordable Care Act within the limits of this state.” The bill also provides for criminal penalties for any “official, agent, or employee of the United States government or an employee of a corporation providing services to the United States government who enforces or attempts to enforce an act, order, law, statute, rule, or regulation of the government of the United States in violation of this article.”


REAL ID: A Quarter of a Billion Dollars Gone

by Jim Harper, CATO Institute

In an effort to show progress with implementation of our national ID law, the Department of Homeland Security issued a press release just ahead of Christmas reporting that thirteen states had “met the standards of the REAL ID Act of 2005.” Their compliance is not actually compliance, though. Read on…

Next Tuesday, another ‘deadline’ for REAL ID compliance arrives. Due to widespread public opposition, the majority of states and their people are not complying with the national ID mandate. Many states “have not provided sufficient information, at this time,” the DHS release says. I think that’s bureaucratese for: “They’re ignoring REAL ID.” But it doesn’t matter. The states ignoring REAL ID have been granted deferments. I’ve been looking for the Federal Register notice making this deadline extension official so I can put it next to the deadline extension from March 9, 2007, and the one from January 29, 2008, and the one from December 28, 2009, and the one from March 7, 2011.

The states that have tripped over themselves to follow this federal mandate should feel slightly burned. They’re no better off than the states that did nothing. And states need never comply.