A Long History of Constitutional War Power Violations

Barack Obama is clearly not the first president to ignore the framers’ intent regarding the executive’s war powers. In many ways Obama is merely building upon the framework of George W. Bush, whose many foreign interventions were based on, at best, faulty evidence, and even worse constitutional reasoning.

Believe it or not, it is not constitutional for Congress to officially hand over its war responsibilities to the president. This was the basis for Bush’s interventions in Afghanistan and Iraq.

But even George W. “If You’re Not With Us You’re Against Us” Bush didn’t lead the way in trailblazing the path of presidential war powers. Harry Truman kicked it off with his “police action” in Korea. The reasoning back then was pretty much the same as it is today. If war was redefined as a “police action,” it wouldn’t have to be declared by Congress and the President could wage it on his say-so alone.

If you or I tried to redefine the law like that we’d end up in jail. But when a president does it we’re supposed to fall in line with a chorus of “Yes, sir.”

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The Supremacy Clause and Proper Constitutional Bounds

Critics are quick to point out that the doctrine of nullification has never been legally upheld. In fact, the Supreme Court expressly rejected it – in Ableman v. Booth, 1959, and Cooper v. Aaron, 1958.

They say that the courts have spoken on the subject, and under the Supremacy Clause, federal law is superior to state law. Further, they argue that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore, the critics conclude, that the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws but rather, are duty-bound to obey them.

The fatal flaw in their arguments, however, is that they believe that the judiciary, a branch of the same federal government that tends to overstep their constitutional bounds, is somehow above the law and not subject to the remedy of nullification as the other branches are.

Another fatal flaw in their argument is that somehow, the Supremacy Clause is a rubber stamp that labels every federal law, every federal court decision, and every federal action “supreme.” They, and especially the justices of the Supreme Court, refer to the Supremacy Clause as if it were the Midas Touch – a magical power that turns EVERYTHING the federal government does, including by all three branches, to gold. Nothing is farther than the truth. The Supremacy Clause states simply: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; …shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…”

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Arguments Against Missouri Nullification Bill Fail

During the regular session, the Missouri legislature passed a Second Amendment Protection Act that would nullify unconstitutional federal actions violating the right to keep and bear arms. Gov. Nixon vetoed it. The legislature will have a chance to override in September. The Joplin Globe published the following guest column by Tenth Amendment Center national communications director Mike Maharrey addressing two of the most common arguments against the bill.

In a few weeks, the Missouri legislature will consider overriding Gov. Jay Nixon’s veto of a bill nullifying federal actions violating the Second Amendment.

As the debate rages, opponents of HB436 make two fallacious arguments. First, they argue the Constitution’s supremacy clause renders HB436 unconstitutional.  Second, they paint nullification as a discredited tool primarily used unsuccessfully to fight desegregation.

Nixon cited the supremacy clause as his reason for vetoing HB436.

“To me, it is not a gun issue, it is a law issue,” he said.

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Nullification: Lew Rockwell Interviews Tom Woods

Podcast: Play in new window | Download Recorded in 2010, this podcast is worth a listen today and again in the future. via LewRockwell.com Lew Rockwell interviews Tom Woods, on his new book, Nullification: How to Resist Federal Tyranny in the 21st Century. Thanks to the internet, Americans can learn about such forbidden ideas as the Principles…

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