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.”


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…”


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.


Nullification: Lew Rockwell Interviews Tom Woods

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 of 1798, when Jefferson and Madison laid…


Mike Maharrey Talks Patriot Act and NSA Spying with the Forgotten Men

Tenth Amendment Center national communications director Mike Maharrey spent an hour talking with the Forgotten Men about the Patriot Act, NSA spying, the specter of indefinite detention, government secrecy and other threats to liberty flowing out of the “War on Terror.” As you’ll hear, the subject stirred a great deal of passion. “I’m sure some…


Why Nullification?

The TRUTH about nullification is that it is legitimate, and it is the only way to effect a meaningful check on the federal government when the executive, legislative, and judicial branches unite on an incorrect interpretation of the Constitution, and threaten the independence of the states and the reserved rights of the People.

The federal government CANNOT be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to judge the extent of its own powers, as Madison and Jefferson warned in 1798-99, it will continue to grow – regardless of elections, the separation of powers, and other limits on government power. Nullification has always been available to push the government back within the boundaries of the Constitution, but for too long, those hostile to the Constitution have insinuated – FALSELY – that the doctrine was the reason for the Civil War and for segregation, thereby trying to use shame to invalidate it.

We should take a cue from Patrick Henry. While others were celebrating the Constitution and rejoicing that a more effective compact was created, Henry urged them to cool their heads and take a step back  – to look carefully at the document they were asked to ratify.  It was his opinion that the government created by the Constitution would tend to concentrate power, strip power from the states, and become no better than England’s monarchy (“it squints toward monarchy”).  He urged Virginia to reject the Constitution. He reminded the delegates that trade, power, and security should not be the first concerns on their mind.  He said the proper inquiry should be “how your liberties can be better secured, for liberty ought to be the direct end of your government.”


Liberty Amendments: A Silver Bullet or a Blank?

Conservative commentator Mark Levin has created quite a buzz with his latest book, The Liberty Amendments: Restoring the American Republic.

Levin argues for an Article V constitutional convention with the purpose of passing 11 amendments. Some of the proposals include term limiting judges and members of Congress, repealing the 17th Amendment, amendments to limit federal spending and taxation, and an amendment to limit federal bureaucracy.

The Framers provided two methods for amending the Constitution. The second was intended for our current circumstances—empowering the states to bypass Congress and call a convention for the purpose of amending the Constitution. Levin argues that we, the people, can avoid a perilous outcome by seeking recourse, using the method called for in the Constitution itself.

Readers will find plenty to debate in Levin’s book. Will these proposals actually work to limit federal power? Are these the absolute best amendments to consider? Will the American people rally to the cause with enough vigor to push the amendments to ratification? Some will even question to wisdom of calling an Article V convention in the first place, arguing that the risk of a runaway process further empowering the federal government outweighs any potential benefits.

While I find any legitimate proposal that could lead to limiting federal power worth debating, I question those who view amendments as a silver bullet, especially those who reject nullification as a viable path toward stopping DC’s relentless usurpation. The federal government absolutely refuses to acknowledge any limits on its power and follow the Constitution as written. What makes anybody think the feds will suddenly give up power because we slap down some new rules? Do people really believe the federal government will suddenly become constrained and release its grip on power just because we pass some new amendments, essentially saying, “We know you’ve ignored every constraint on your power and authority for the last 100 years, but dammit, we really mean it this time!”


And You “Can’t” Defend Obamacare…Why?

Freedom and popular government in Britain and America became possible because over the course of many years the English House of Commons, and later the American colonial legislatures, were willing to exert the power of the purse to discipline an overreaching executive.

In Britain, the House of Commons—Parliament’s lower chamber—sometimes defunded the executive in order to curb it. The House was willing do this despite threats from the Crown and “bad press” from the English establishment. In America, the colonial assemblies were willing to defund the king’s governors to check their power.

Freedom likely would have been impossible without the constancy of the “people’s houses,” led by great parliamentary leaders like Edward Coke in England and Patrick Henry in America.


Pennsylvania Action Alert: Pass SB999, Help Stop “Indefinite Detention”

The NDAA of 2012 allows the Federal Government to detain U.S. citizens without due process rights right here in Pennsylvania.

Citizens suspected of a “crime” without a warrant, a judge, jury or trial.

Think of Guantanomo Bay right here.   They can lock you up and forget about you.

The Liberty Preservation Act SB999 will make it illegal for Pennsylvania to assist the Federal Government in detaining citizens under the NDAA.

Please ask your State Senator to uphold his or her oaths to the U.S. and Pennsylvania Constitutions and co-sponsor SB999.  Find your legislator here.

If you have already contacted your state senator and have not gotten a response, please follow up with another contact and politely ask for a response IN WRITING.

You can read more about the bill here: