The federal government’s power grab over states’ rights continues unabated as evidenced by United States v. Pleau, this time in the State of Rhode Island. For the federal government or the people of the State of RI, there is no question of Jason Pleau’s guilt in the 2010 murder of gas station manager, David Main; nor does there appear to be any question that his act was premeditated. Pleau plead guilty and was sentenced in Rhode Island to life in prison without parole to avoid a federal writ called “habeas corpus ad prosequendum” which was obtained by U.S. Attorney Peter Neronha.

Rhode Island’s governor Lincoln Chafee refused the request under the Interstate Agreement on Detainers Act (IADA) to release the prisoner for a federal trial because of the governor’s stated opposition to capital punishment. On May 7, 2012  the United States First Circuit Court of Appeals, en banc, upheld the writ of habeas corpus ad prosequendum where: 1) given the Supremacy Clause, the states have always lacked the authority to dishonor a writ of ad prosequendum issued by a federal court, and compliance is not merely a matter of cooperation that the governor may withhold; and 2) under United States v. Mauro, 436 U.S. 340 (1978), if a state has never had the authority to refuse the writ, the IADA does not provide it. But have they? Have the states “never had the authority” as the  First Circuit Court of Appeals claims above in referencing U.S. v. Mauro?

The answer to that question can be found in our Constitution, specifically the Tenth Amendment and the Supremacy Clause themselves, which the feds are citing. First, the Supremacy Clause, which states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Citizens who are well versed in the contents of our founding documents know that a key phrase in the Supremacy Clause is the phrase, “which shall be made in Pursuance thereof.”

A constitutional law is one that is made in pursuance of the Constitution. A law which is not made in pursuance of the Constitution is not, in fact, a law; but is ‘null, void, and of no effect’. Such a law also violates the Tenth 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.” In 1798, referring to the federal government, Thomas Jefferson wrote that “whensoever the general government assumes undelegated powers….a nullification of the act is the rightful remedy.” [emphasis added]

Thus, Chafee’s refusal to release Pleau for federal trial is an action “made in pursuance thereof” (the Constitution), specifically the Tenth Amendment. Further, the writ of habeas corpus ad prosequendum and possibly even the IADA should be nullified because the states always did [emphasis added] have the authority to refuse the writ under the Tenth (“in pursuance thereof”), regardless of what the First Circuit Court of Appeals found. The First Circuit is still bound to follow the Constitution and any violation made by it would be null, void, and of no effect.

What is vitally important to understand here is that under the Tenth Amendment the powers delegated to the federal government by the states does not mean the states give up their rights; they “are reserved.” [emphasis added]  Further, when a court, any court, upholds an action which is unconstitutional it not only makes that ruling null and void, but that court should be held to answer its violation of its sworn oath to uphold the Constitution. The First Circuit Court of Appeals is not acting “in pursuance thereof” and its ruling should therefore be vacated

This writer has said it before and will say it again, “America is not broken, America is being taken over.” In fact one of the Appeals Court justices, Judge Michael Boudin, in his dissenting opinion in the Pleau case wrote “State interposition to defeat federal authority vanished with the Civil War.” It did?! One could infer that Judge Boudin may be referring to Reconstruction and one could certainly point to Reconstruction as the pivotal point in our nation’s history for the beginning of this takeover. However, the Reconstruction Act of 1867 was, and remains, unlawful because it was not in pursuance of the Constitution and is therefore” null, void, and of no effect.”

Garrett Epps, in his The American Prospect article A State-Federal Standoff Over The Death Penalty, writes “But the argument has actually been framed in terms of the decidedly strange idea of “dual sovereignty” in which the state and federal governments, like God the Father and God the Holy Ghost, somehow inhabit the same space under the same Constitution remaining one and yet mystically separate at the same time”.

They can do both. The Tenth Amendment 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.” The states, through the compact between them (known as the Constitution), grant these powers to the federal government but ALSO retain them. If the “supreme law of the land” is the Constitution, of which both the Supremacy Clause and Tenth Amendment are a part, then why ignore one in favor of the other?

As commonly happens in states’ rights cases where the federal government claims the Supremacy Clause trumps states rights, time and time again it ignores the Tenth Amendment in its arguments. Many citizens, even those who swear an oath to uphold the Constitution, are of the mistaken belief that the Tenth Amendment is only about states’ rights. Of course, we know that there is more to the Tenth Amendment than that. Since the Tenth Amendment has not been revoked, the states’ rights retained therein have not been superseded, in contrast with the ruling issued by the First Circuit Court of Appeals in the case of U.S. v. Pleau. In cases involving states’ rights the Constitution, specifically the Tenth Amendment,  must always be right; every time, every issue, without exception.

Update as of August 3, 2012:  The U.S. Supreme Court has given the state until Aug. 21 to seek review in the custody battle over accused killer Jason Pleau. Justice Stephen Breyer granted a request to extend the deadline past Aug. 5 to seek review of an appeals-court ruling that Governor Chafee must surrender Pleau to federal custody.

Kelley Hunter contributed to this report

Doug Berge
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