Author Archive | Mike Maharrey

Last week, the City Council of Charlottesville, Va., became the first U.S. city to approve an anti-drone resolution.

The resolution declares:

WHEREAS, the rapid implementation of drone technology throughout the United States poses a serious threat to the privacy and constitutional rights of the American people, including the residents of Charlottesville; and

WHEREAS, the federal government and the Commonwealth of Virginia have thus far failed to provide reasonable legal restrictions on the use of drones within the United States; and

WHEREAS, police departments throughout the country have begun implementing drone technology absent any guidance or guidelines from law makers;

NOW, THEREFORE, LET IT BE RESOLVED, that the City Council of Charlottesville, Virginia, endorses the proposal for a two year moratorium on drones in the state of Virginia; and calls on the United States Congress and the General Assembly of the Commonwealth of Virginia to adopt legislation prohibiting information obtained from the domestic use of drones from being introduced into a Federal or State court, and precluding the domestic use of drones equipped with anti-personnel devices, meaning any projectile, chemical, electrical, directed-energy (visible or invisible), or other device designed to harm, incapacitate, or otherwise negatively impact a human being; and pledges to abstain from similar uses with city-owned, leased, or borrowed drones.

ACTION ITEMS

The South Carolina Obamacare Nullification Bill needs your support for passage. H3101 has been assigned to the Judiciary Committee, where chairman Greg Delleney is waffling. He recently proposed completely removing ALL nullification language from the legislation and leaving it as just an opposition to a State-run insurance exchange.

1. If you live in South Carolina, call Rep. Delleney and let him know you want H3101 passed out of committee as written. Remind him that his obligation lies with the people of South Carolina, not special interests and that he has a duty to interpose and protect the people he serves. You can find his contact information HERE.

2. Also contact other committee members and urge them to vote for the bill passed as written. You can find committee member contact information HERE.

3. Contact your own state senator and state representative and ask them to support H3101. You will find House contact information HERE and Senate contact information HERE.

4. On Wed, Feb 6th, The Judiciary Committee will hold a public meeting on H3101. The Hearing will be held on Wednesday, morning 6 February at eleven o’clock. Members of the public may speak on the bill. Those who do should arrive about 10:30 in order to sign up in time to speak. The meeting is supposed to last at least one hour. Use the talking points below to make your case in this public hearing.

INFORMATION, BACKGROUND AND TALKING POINTS

When it comes to nullification of the Patient Protection and Affordable Care Act, the feet of some  Republicans in the South Carolina legislature reportedly got cold  over the last few weeks.

Rep. Bill Chumley introduced a bill to nullify Obamacare (HB3101) last month. It garnered 25 cosponsors and was ultimately referred to the House Judiciary Committee.

Committee chair Rep. Greg Delleney apparently fears nullification. He proposed changes to HB3101 that would strip all nullification language and remove direction to the South Carolina General Assembly to “adopt and enact all measures as may be necessary to prevent the enforcement of the ‘Patient Protection and Affordable Care Act’ within the limits of this State.” The revised bill would only address the health insurance exchanges, leaving the rest of the PPACA intact in South Carolina.

It remains unclear why this so-called conservative refuses to stand up to the Obama administration and stop implementation of Obamacare. Perhaps he doesn’t understand the legitimacy of nullification from a historical, moral and philosophical perspective.

Or perhaps he just supports Obamacare.

Continue Reading →

The federal prohibition on marijuana doesn’t seem to serve as much of a deterrent to the people of those states who want it legalized within their borders.

Congress and the president claim the constitutional authority to prohibit weed. The Supreme Court concurs. But claiming something doesn’t make it so. I can claim I am a unicorn, but I still don’t have a horn. Clearly, the Constitution delegates no power of marijuana regulation to the feds. And the so-called war on drugs rests on the same legal authority as all of the other modern-day undeclared wars.

None.

So, more and more states continue to do exactly what they should do when the federal government tries exercise power it does not legitimately possess.

Ignore it.

Eighteen states have done just that, legalizing medical marijuana. That wave continues to build, with seven state legislatures already considering medicinal cannabis legislation in the  2013 session, and more likely to follow suit. Then we have the people Colorado and Washington taking the next step, voting for legalization last November.  And at least two more states will consider marijuana legalization in 2013.

Earlier this month, New Hampshire state Rep. Mark Warden (R-Manchester), along with seven cosponsors, introduced HB337. The proposed act “removes the criminal penalties for possession or use of marijuana.” Continue Reading →

What is State nullification? (there are other forms as well)

Nullification is any act, or set of actions, taken by a state legislature finding a federal act unconstitutional, and rendering it null, void or simply inoperable in that state.

Where did nullification originate?

It finds its basis in the very structure of the Republic. The people of 13 independent, sovereign states agreed to form a political union and delegated specific, limited powers to the federal government through the Constitution, retaining all other power and authority to themselves. It logically follows that the political societies delegating power retain the authority to determine its extent, and take steps when the government they created tries to operate outside of those boundaries.
Virginia ratifying convention delegate George Nichols spelled out the principle when he assured his fellow delegates that Virginia would be “exonerated” if the federal government tried to exercise undelegated powers.

If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent, to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted — I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them.

Who first formalized the principles of nullification?

Thomas Jefferson and James Madison first formally articulated the doctrine in the Kentucky and Virginia Resolutions of 1798, responding to the clearly unconstitutional Alien and Sedition Acts. Continue Reading →

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.

Continue Reading →

COLUMBIA, S.C. (Jan. 9, 2012) – Hundreds of people rallied at the South Carolina state capitol building yesterday, calling on state lawmakers to nullify the Patient Protection and Affordable Care Act.

South Carolina Republican Liberty Caucus secretary Daniel Encarnacion estimated 300 to 400 showed up to demand the state do everything within its power to stop implementation of Obamacare in South Carolina. Others put the crowd at over 500 people.

Encarnacion said the huge turnout left an impression on lawmakers and put the Obamacare nullification bill, H3101, on the front burner.

“The GOP leadership was left scrambling,” he said. “The biggest sign of our success is the GOP leadership also had one of their lemmings introduce a bill to nullify Obamacare. It is a diversion bill, however. It nullifies it, but doesn’t have the criminal penalties. It has no enforcement mechanism. But it demonstrates what several hundred people showing up and knocking on legislators’ doors can do. Now we just have to keep up the pressure.”

In response, South Carolina Republican Party Chairman Chad Connelly released a statement in support of PPACA nullification.

“South Carolina cannot afford to sit idly by while Obamacare is implemented in our state. Numerous bills have already been filed in our state legislature to prevent the implementation of the so-called Patient Protection and Affordable Care Act,” he said. “The SCGOP fully supports our state legislators as they defend states’ rights and the Tenth Amendment.”

One South Carolina mother brought four of her five children to the rally. She said health care was a huge issue for her because one of her daughters suffers from a chronic disease. She fears the implementation of the health care act will actually make it harder to obtain good treatment for her child because of its impact on the entire health care system. Continue Reading →

FRANKFORT, Ky. – Just over a year ago, a legend in Kentucky politics passed away.

Lexington lawyer Gatewood Galbraith was a perennial gubernatorial candidate, running for the highest office in the Commonwealth five times. He also took a shot at Congress twice and made an unsuccessful bid for state Agricultural Commissioner. The lack of election success never seemed to faze the unflappable Galbraith. He often quipped, “If I was going to lie to you, I’d already be elected.”

TALLAHASSEE, Fla. – The Florida legislature will consider a bill in the 2013 session that would protect residents and visitors from prying eyes in the sky.

Sen. Joe Negron (R-Palm City) filed SB92 last month. If passed, the Freedom from Unwarranted Surveillance Act would prohibit the use of domestic drones over the Sunshine State.

“A law enforcement agency may not use a drone to gather evidence or other information.”

The bill opens the door for any person whose privacy is violated by a drone to take civil action and would also make any evidence gathered in violation of the act inadmissible in court.

Continue Reading →

Thursday marked the beginning of the 113^th session of Congress, kicking off with Congress-critter swear-in day.

All of the House members and one-third of the Senate took their oaths of office at noon.

I wonder if a Guiness Book of World Record category exists for most people simultaneously telling a lie  in one place?

But I digress.

Americans often complain about a lack of bipartisanship in Congress. For example, check out the lead paragraph in this AP story.

Congress ushers in new and old Thursday, with dozens of eager freshmen determined to change Washington and the harsh reality of another stretch of bitterly divided government.

Well, today should make these folks pretty happy. Because on swearing in day, we saw Congress come together in virtual unanimity and agree that oaths don’t mean squat.

Here are the words those Congress-critters uttered. Continue Reading →

On Dec. 30, the New York Times editorial page featured what has to qualify as one of the most intellectually vapid columns of the year. And considering the source, that’s saying something!

Louis Michael Seidman says we simply must do away with our blind obedience to the Constitution!

As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

Huh? Obedience to the Constitution? Really?

Since when?

The federal government has utterly ignored constitutional limits for the last 100 years or more. With the logical acumen of a 13-year-old, Seidman makes this very point, spending a large portion of his allotted space in the Grey Lady chronicling federal usurpation of power. This constitutional law professor from Georgetown University winds up his dissertation on constitutional infidelity with this brilliant observation.

In the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

Huh?

So let me follow the Seidman logic trail here. We’re teetering on the edge of fiscal chaos. The American system is broken. And it’s all because of our obedience to the Constitution. But nobody really takes the Constitution seriously. Really, they never have. That led us to where we are today: prosperous, without a hint of chaos or totalitarianism. But the system is broken. And we need to ignore the evil Constitution to get things back on the right track.

Wow.

Did this maven of dime store academia get his constitutional law degree out of a Cracker Jack Box? Continue Reading →