Government shutdown and debt ceiling FAQ

by Jon Roland, Constitution Society

There have been a number of Frequently Asked Questions pages posted on the Net concerning the government “shutdown” and debt ceiling, which provide commonly conceived “answers”, but it seems fitting to provide some more constitutionally enlightened answers to some of those questions:

  1. If there is no congressional appropriation, how can the government keep spending money on “essential” operations? Constitutionally, it can’t. There is no constitutional exception for “essential” operations. If government complied with the Constitution, it would have to shut down all spending and proceed entirely using unpaid volunteers, as it did in the beginning.
  2. How can some spending be outside the appropriation process? Constitutionally it can’t. It is done on the rationalization that the Constitution does not explicitly forbid setting up “independent” agencies that may be “self-funded” from their own taxes or fees, or forbid multi-year appropriations for other than the Army, but the Constitution doesn’t authorize those things, either, and one cannot logically infer a power from the omission of a prohibition on its exercise. The design established by the Constitution requires all revenues go into the Treasury, and all disbursements to be made under appropriations that may not extend beyond the terms of Congress, which are two year periods.
  3. Why can’t government workers volunteer? Constitutionally, there is no authority to stop them from doing so, although there is a 19th century criminal statute that forbids it. The statute could constitutionally forbid volunteers to use government-owned assets, but the only authority to forbid voluntary action would be to fire them, and they could then volunteer as non-employees using their own resources. Of course, if government prosecutors are “furloughed” there would be no one to enforce the statute. Somehow, one suspects it is a dead letter.
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NullifyNSA: Michael Boldin on the Scott Horton Show

Michael Boldin, founder and executive director of the Tenth Amendment Center, discusses the states’ rights approach to fighting NSA spying on Americans; the unlikely coalition that pushed through the NDAA-defying California Liberty Preservation Act (AB-351); and using anti-commandeering court precedents to withhold water and power from NSA data centers in Utah and Texas.

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With Shutdown, Incentives for Forfeiture Rise for Law Enforcement

By Eapen Thampy

While there are many implications of a potential shutdown of the federal government, one thing that won’t stop is the use of federal asset seizure and forfeiture by law enforcement. That’s because Congress doesn’t fund that activity through appropriations; that money comes out of the Asset Forfeiture Fund, controlled by the Department of Justice. Indeed, these kind of budget battles increase the use of forfeiture by law enforcement agencies looking to sustain budgets when Congress won’t pay the bills. In other words, the rights of Americans to private property may soon come under greater and sustained assault. The need for reform has never been greater.

Asset forfeiture hasn’t always been a major revenue stream for law enforcement. Indeed, that policy proposal came before Congress in 1983, when the Comprehensive Crime Control Act was under consideration. During a May 1983 hearing of the Senate Judiciary Committee Assistant Treasury Secretary John Walker, Jr. proposed giving forfeiture funds to the Departments of Justice and Treasury during this exchange with the late Sen. Arlen Specter (R-PA):

Mr. Walker. The bill would also improve the method of payment for expenses incurred by the Government in conducting forfeiture actions by establishing forfeiture funds in the Departments of Justice and Treasury.

The establishment of these funds would allow the Government to conduct forfeiture actions with much greater dispatch while promoting overall cost savings. Better storage and maintenance of seized property would result, because Justice and Treasury would be able to balance forfeiture expenses with forfeiture proceeds.

Senator Specter [presiding]. How much do you think it likely that the Government would take in on forfeiture proceeds, Mr. Walker?

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A Grand Bargain for Liberty?

by Ron Paul

As I write this, it appears that the federal government is about to shut down because the House and Senate cannot agree on whether to add language defunding or delaying Obamacare to the “Continuing Resolution”. Despite all the hand-wringing heard in DC, a short-term government shut down (which doesn’t actually shut down the government) will not cause the country to collapse.

And the American people would benefit if Obamacare was defeated or even delayed.

Obamacare saddles the American health care system with new spending and mandates which will raise the price and lower the quality of health care. Denying funds to this program may give Congress time to replace this bill with free-market reforms that put patients and physicians back in charge of health care. Defunding the bill before it becomes implemented can spare the American people from falling under the worst effects of this law.

As heartened as we should be by the fight against Obamacare, we should be equally disheartened by the fact that so few in DC are talking about making real cuts in federal spending. Even fewer are talking about reductions in the most logical place to reduce spending: the military-industrial complex.  The US military budget constitutes almost 50 percent of the total worldwide military spending.  Yet to listen to some in Congress, one would think that America was one canceled multi-million dollar helicopter contract away from being left totally defenseless.

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New California Law Rejects NDAA Indefinite Detention

As reported by Nick Hankoff at the California Tenth Amendment Center today, AB351, the California Liberty Preservation Act has been signed into law by Governor Jerry Brown:

Assembly Bill 351, commonly called the California Liberty Preservation Act, has been signed into law by Governor Jerry Brown making it statewide policy to refuse compliance with federal attempts to enforce “indefinite detention” made famous by the National Defense Authorization Act of 2012 (NDAA). What began as a marginal issue with little legislative support has unified Californians of all persuasions and brought attention to the proper role the people and their states play in a constitutional republic.

AB351 now makes it state policy to reject “indefinite detention” powers from the federal government.   It reads, in part:

It is the policy of this state to refuse to provide material support for or to participate in any way with the implementation within this state of any federal law that purports to authorize indefinite detention of a person within California. [emphasis added]

This language of AB351 goes far beyond what has been considered in most other states, which focus solely on indefinite detention powers under the 2012 National Defense Authorization Act (NDAA), and nothing else.  Donnelly’s legislation broadened the scope by recognizing that indefinite detention should not be complied with no matter what federal law is used to justify it.  Donnelly confirmed this broad scope, “AB351 will prevent California from implementing indefinite detention for any reason.”

This can make a HUGE dent in any federal effort to detain without due process in California.  As Judge Andrew Napolitano has said recently, such widespread noncompliance can make a federal law “nearly impossible to enforce” (video here). Quite simply, the federal government is going to have an extremely difficult time – at best – carrying out indefinite detention in California without the assistance of California.

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States’ rights and the fight to save our Republic

Tenth Amendment Center national communications director Mike Maharrey went on the ClarkCast radio show last weekend to talk about the n-word – nullification.

They focused their discussion on Maharrey’s book Our Last Hope: Rediscovering the Lost Path to Liberty. In the book, Maharrey makes the moral, philosophical, and constitutional case for nullification.

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Internet Sales Tax Could Crush Small Businesses

by Ron Paul

One unique aspect of my homeschool curriculum is that students can start and manage their own online business. Students will be responsible for deciding what products or services to offer, getting the business up and running, and marketing the business’s products. Students and their families will get to keep the profits made from the business. Hopefully, participants in this program will develop a business that can either provide them with a full-time career or a way to supplement their income.

Internet commerce is the most dynamic and rapidly growing sector of the American economy. Not surprisingly, the Internet is also relatively free of taxes and regulations, although many in Washington are working to change that. For example, earlier this year the Senate passed the Marketplace Fairness Act, more accurately referred to as the national Internet sales tax act. This bill, which passed the Senate earlier this year, would require Internet businesses to collect sales tax for all 10,000 American jurisdictions that assess sales taxes. Internet business would thus be subject to audits from 46 states, six territories, and over 500 Native American tribal nations.

Proponents of the bill deny it will hurt small business because the bill only applies to Internet business that make over a million dollars in out-of-state revenue. However, many small Internet businesses with over a million dollars in out-of-state revenues operate on extremely thin profit margins, so even the slightest increase in expenses could put them out of businesses.

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