In early summer, California Governor Jerry Brown and state corrections chief Jeffrey Beard were in great danger of being held in contempt by three federal judges for willful defiance of a court order requiring the administration to meet a Dec. 31 deadline for reducing the prison population in California. Brown had previously asked the federal government to back off on federal mandated prison requirements, “We can handle our own prisons,” he said.
Can he constitutionally say no to the federal government?
Yes, and he should.
Besides the obvious, that Californians do not want their convicts returned to society too easily, voiding the acts of juries and judges after they spent thousands of hours deciding what is just with respect to their crimes and their danger to society, federal enforcement of such is unconstitutional. The Constitution gives the federal government only 17 grants of power, listed in Article I, Section 8, and managing federal prisons is not one of them. Nor has that power been added to the Constitution by way of amendment. In fact, the Constitution names only four crimes that Congress has the power to penalize: counterfeiting (Article I, Section 8, Clause 6), piracy on the high seas, offenses against the law of nations (Art. I, Sec. 8, Cla. 10), and treason (Art. III, Sec. 3, Cla. 2). Outside these four crime areas there can be no federal law or crime without a new amendment. All other areas are entirely under state jurisdiction as per Amendment 10.
If the governor wished to follow the Constitution as designed, he could designate one or more facilities as being federal, move all prisoners that had committed crimes in the above four areas to that facility and be fully compliant with federal law. With respect to the other prisoners, he might notify the federal government again that “We can handle our own prisons” and that the federal government has exceeded its Constitution jurisdiction. This is a state function per the Tenth Amendment. He should publicize his constitutional arguments with his sister states and, if possible, enlist similar action on their parts. Some of us would love to assist a Democratic governor in leading the charge back to the Constitution.
Why is it important that he and other governors do this?
It is the pattern of the never-ending enlargement of the powers of the federal government, at the expense of state prerogatives and the 10th amendment, that is transforming the federal government from a republic, as understood by the Founders, into something else. It is constitutional defilement. The use of Amendment 10 is central to the restoration of freedom from government and the return of checks and balances, of which state jurisdiction is essential, before all power is housed at the federal level and we are more clearly no longer free.
Unconstitutional overreach is epidemic, and there is now finally measurable pushback. The “check and balance” part of the Constitution is the 10th Amendment and the Doctrine of nullification. States do have the authority to “Just Say No!” but to be effective they need to do so collectively. The larger the group the more effective. Such was used in 1798 in the Kentucky and Virginia Resolves, in 1832 in the Nullification Crisis in South Carolina, and more successfully with the northern states, especially Wisconsin, in the 1850’s over the highly unconstitutional Fugitive Slave Act. In previous columns I have treated the highly favorable views of the Founding Fathers on the subject most notably Thomas Jefferson, James Madison, and Alexander Hamilton.
Finally, the 10th Amendment is beginning to be used by some states to prevent the federal government’s overreach of constitutional powers. It reads, “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.”
Federal medical marijuana laws are openly defied by many states. States’ refusal to implement the Real ID Act, passed years ago, is a form of resistance. When enough states say no, the feds will back away. Examples of federal overreach are everywhere. Even the federal ban on incandescent light bulbs, is an example of intrusion into state power. Dozens more could be listed. This has to stop!
In 2013, twenty-six states showed their resistance to Obamacare by opting out of the Obamacare health care exchanges. Nine State Sheriffs’ Associations put the Executive and Legislative Branches on notice that they will support the traditional interpretation of the 2nd Amendment of the Bill of Rights and 336 elected county sheriffs inferred that they will protect their people on this issue—even against federal agents coming into their counties.
So, California Governor Jerry Brown has good company in his “We can handle our own prisons,” nullification efforts.