Yes, Usually it’s Partisan; Get Over It

One criticism leveled against nullification is that it is usually a “partisan thing.”

In other words, most of the proponents of nullifying Obamacare are Republicans.  Also, a vast majority of proponents of nullifying the war on drugs are Democrats.

This is a true statement.

With most nullification efforts now underway, the effort is partisan.  This is not a real argument against the movement; it is simply an observation.  In reality, any effort, with certain exceptions, will of necessity be partisan. (As it will be nullifying an act of the federal government controlled at the time by one party or the other).

Of course, these same critics would hold up the Patriot Act (passed by a Republican, and sustained now for five years by a Democrat) as some shining example of good governance.  To these people, the fact that an act passed Congress, the Senate, and was signed by the president, gives automatic legitimacy, as long as some of the people who passed the bill were on both sides of the “aisle.”  They would have you believe that the acts of Congress all represent the consensus  of the nation at large.

But what is consensus?

Details

Nullification Outlaws

Usually, nullifiers are called racists. But now we have some dude spouting on how dangerous the nullification movement is because he believes YOU are too stupid to handle liberty and take responsibility.

In the Philly Post, Charles D. Ellison equated nullifiers to Duck Dynasty watching, rebel flag waving, outlaws in the driver’s seat heading down the path to America’s apocalyptic future.

Mr. Ellison, master of the status quo, wanted to show how that the nullification movement is disrupting the balance between two parties. He went on to assert the Civil War obviously resolved the question of who is the sole authority over 100 years ago, and that this new pesky nullification movement is messing that up.

Ohhhh Charlie!!!! You are so lame. And ignorant!

But wait! We’ve been down this road sooooooo many times before that I’m willing to look at this differently. Hey, I’m adult enough to try and see this from Charlie’s point a view. Let me try it out. Let’s see what it looks like through the eyes of someone who ignores important parts of the supremacy clause, ignores the fact that our form of government is a republican form, and believes that the Civil War settled things.

Details

Dianne Feinsten Defends NSA Spying, We Push Back

Dianne Feinsten Defends NSA SpyingLast week, during a hearing in the Imperial Senate Select Committee on Intelligence, Dianne Feinsten went to bat for the NSA – defending their wildly unconstitutional spying program as “lawful, effective and constitutional”

This is in light of the fact that the NSA intends to collect all U.S. telephone records and put them in a searchable “lock box” in the interest of “national security.” That’s how PCWorld reported on what General Keith Alexander, the NSA’s director, told U.S. senators.

There is no upper limit” on NSA telephone-records collection, Alexander said. “I believe it is in the nation’s best interest to put all the phone records into a lock box that we can search when the nation needs to do it.”

Fact: The 4th Amendment doesn’t authorize this kind of mass intrusion into your privacy, no matter what these people happen to say.

Details

Does Colorado Have a Republican Form of Government?

At the Excess of Democracy blog, Derek Muller (Pepperdine Law) has an interesting post on Kerr v. Hickenlooper, the case claiming that Colorado lacks a republican form of government, as required by Article 4, Section 4 (the guarantee clause).  As he explains:

In 1992, Colorado voters, by initiative, enacted a “Taxpayer Bill of Rights” (TABOR) that prohibits the legislature from raising tax rates or imposing new taxes without voter approval. Plaintiffs recently sued and claimed that the legislature had a kind of inherent right as a republican form of government to control tax increases.

The district court rejected defendant’s argument (at least as an initial matter) that claims under the guarantee clause are non-justiciable.  The Tenth Circuit heard oral argument last Monday.

Professor Muller thinks that the case is a non-justiciable political question.  I agree, but on somewhat different grounds.  He argues:

The second prong [of Baker v. Carr, a key political question precedent] … is salient: “a lack of judicially discoverable and manageable standards for resolving it.” Defining a “Republican Form of Government” is not an easy task, and certainly not one the judiciary has undertaken in over 200 years.

Further, the narrowness of the question weighs against examining the definition. The defendants who appealed note in their briefs that there are limited sit[u]ations in which it might be justiciable–such as if a state instituted a tyranny or a monarchy. But here, the question is whether the legislature has a right to raise taxes absent the popular vote of the people-and, perhaps as a prior question, whether the people can remove a delegated task of certain kinds of taxation from their representatives by initiative and restore it to themselves.

I disagree.  The fact that a question is hard should not make it non-justiciable.  Muller quotes a law professors’ amicus brief (written by some people with whom I often don’t agree, including Erwin Chemerinsky):

Details

Oregon County Takes First Step Toward Nullifying Indefinite Detention

Earlier this week, Klamath County, Oregon, took the first step toward nullifying indefinite detention.

Congress codified indefinite detention into law in sections 1021 and 1022 of the 2012 National Defense Authorization Act. Despite assurances from administration officials and members of Congress that it applies “only to the terrorists,” a federal judge ruled it unconstitutional because of broad language that could apply to pretty much anybody. And the Obama administration has fought hard to overturn that ruling. (Read more about indefinite detention HERE and HERE.)

The Klamath County Board of Commissioners passed a resolution condemning indefinite detention under not only the NDAA, but also under “an authorization for use of military force or any similar law or authority claimed by Congress or the Office of the President,” calling it “unconstitutional and therefore unlawful.” The resolution also calls on the Oregon legislature to interpose on behalf of the citizens.

Klamath County requests the Oregon State Legislature recognize the duty of the state of Oregon to interpose itself between unconstitutional usurpations by the federal government or its agents and the people of this state, as well as the duty to defend the unalienable natural rights of the people, all of which is consistent with out oaths to defend the Constitution of the United States and the constitution of Oregon against all enemies, foreign and domestic.

Klamath County joins Coos County in condemning federal kidnapping and calling on Salem to act against it. These Oregon counties  join a chorus of local governments across the U.S. opposing indefinite detention.

Details

Sen. Mike Lee: Supreme Court ObamaCare Ruling a “Lawless Act”

Minutes after midnight on Wednesday, Senator Mike Lee (R-Utah) rose to give his colleague Senator Ted Cruz (R-Texas) a breather from what was already a marathon speech warning of the “train wreck” that is resulting from the collision of the American economy with the oppression of ObamaCare.

While the remarks delivered by both men were eloquent, engaging, and educational, Senator Lee’s impromptu descant on the unconstitutionality of the Supreme Court’s rewriting of the original healthcare legislation was particularly noteworthy.

For nearly an hour and without a teleprompter, Senator Lee rightly accused the Supreme Court of having “rewritten” ObamaCare, converting it from a penalty into a tax, thus placing it, as Senator Cruz said, “in a different stream of jurisprudence.”

Parenthetically, one wonders if “former law professor” Barack Obama could have stood for nearly an hour in the middle of the night and delivered an unrehearsed lecture on the Constitution without the use of a teleprompter.

Speaking of the court’s ruling last year on the constitutionality of the Affordable Care Act, Senator Lee said, “Those five lawyers wearing black robes, who we call justices, were no more empowered than the queen of England to impose a tax on the American people.”

“This was a lawless act,” he added.

It was indisputably a lawless act of unconstitutional lawmaking on the part of the black-robed oligarchy.

Details

California Defies Federal Education Mandates, Still Takes Steps Towards Common Core

California AB 484, a popular bill among state officials, educators, and schools alike, marks a major step forward in the state’s transition to the Common Core State Standards (CCSS). But it does thumb its nose at federal testing standards along the way, asserting California prerogative to chart its own educational path, even while adopting centralized standards.

Unfortunately, this bill has nothing to do with whether or not California will accept Common Core: the state has accepted it, and it is here to stay.  Rather, this bill merely irons out a few logistical wrinkles, including how best to transition from the old federal assessment instrument (the “STAR” test) to the new, Common-Core related one (“MAPP”).

The plan laid out in AB 484 allows for the 2013-2014 school year to be one of transition relative to the federal assessment requirements.  During this time, a field sample of students (rather than all students) would be tested using the new on-line Common Core-related federal assessment instrument called MAPP.

This new limited testing program flies in the face of mandates from the 2005 No Child Left Behind Act. To do this, California would need a federal waiver, but it’s not asking for one. The California legislature determined the federal test makes no sense in transitioning to new standards and determined to ignore it.

Details

A Surprisingly Well Done Nullification Op-Ed in Florida

When one of the remaining deans of Florida newspaper reporters writes an opinion piece about the Tenth Amendment that isn’t historically false, insulting and agenda driven, we take notice.

In his Tallahassee.com op-ed It’s time to start talking about the 10th Amendment, the highly acclaimed retired Tallahassee Democrat reporter Bill Cotterell writes, “Recently, though — and not just since Obama’s election — we’ve seen increased instances of states wanting to reject federal mandates. Surprisingly, and inconsistently, the Obama administration has gone along with some of them.

“The legal basis for this resistance is the 10th Amendment, which 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…’ Nobody really knows what that means. James Madison, who proposed it, thought the idea was so obvious that Ye Olde Bill O’ Rights didn’t need to spell it out, but some state legislatures were reluctant to ratify without a guarantee of their own powers.”

Of course, at the Tenth Amendment Center we know exactly what that means. Still,this is an excellent and open minded opinion, and a welcome change from the diatribe and mythology that has emanated from the likes of the Heritage Foundation, CATO and just today, Reason.com.

Details

Alternative to University Research Funding for NSA Projects

Many think university research is funded by tuition and student fees. This is false. In fact, research in colleges (both public and private) gets most of its funding through federal grants.

In scientific research, a majority of these federal grants comes from the NIH, NSF, and DoE. Some of it comes from private sources, but most flows from federal sources. And private funding becomes harder to get every year. The Ghostbusters line sums it up: “Personally, I liked the university. They gave us money and facilities, we didn’t have to produce anything! You’ve never been out of college! You don’t know what it’s like out there! I’ve worked in the private sector. They expect results.”

This being the case, getting universities to stop accepting federal grants that promote NSA won’t be easy and will call for some creative thinking. But it’s not and impossible task.

What we need is funding competition.

Details