State Nullification of Federal Overreach
Federalism cannot be effectively reasserted through the federal judiciary. State governments must be responsible enough to take their duties under the 10th amendment seriously, and not permit the federal government to intrude on them. It is inviting to slough off some of the responsibilities and expenses on the federal government, but that is an illusion; there is no cost-control on federal vote-buying programs, and the administrative cost of the bureaucracy is huge. Even churches have been co-opted in their charitable duties by federal handout programs which have no moral component in their generosity.
 Most of the Cabinet departments concern themselves with matters which were not delegated to the federal government in Article 1 Section 8. They were created by taking advantage of John Marshallâs expansive reading of the Constitution, particularly in McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824). In the McCulloch case, his decision held that the federal government could do anything which was not prohibited by the Constitution. He stated that though the Constitution did not empower Congress to establish a bank or create a corporation, the 10th Amendment did not say âexpressly delegatedâ and thus left any un-enumerated power in limbo and subject to being assumed by the federal government. He further enlarged the role of the federal government by ruling in the Gibbons case that the 18th clause of Article 1 Section 8 was not a means of carrying the previous 17 clauses into execution, but was a delegation of an unlimited power to make laws without limitation by the preceding 17 clauses.
In these decisions, Justice Marshall was unwittingly opening the way for implementation of the divine right of kings and a congressional ruling class through the legislative process. When FDR came along and had the opportunity to implement the suggestions of his Marxist advisers (see âThe Forgotten Manâ by Amity Schlaes), he built on Marshallâs judicial precedents and Woodrow Wilsonâs elitist tendencies to replace private initiative and inventiveness with federally imposed policies.
State nullification of federal laws, regulations, mandates, and presidential orders seems to be the only way of correcting such invalid judicial precedents, which are now used by all three branches of the federal government. With this administrationâs policies and spending priorities, it may already be too late to prevent the U.S. from being placed in some sort of receivership and under the supervision of the World Bank or the IMF. There is precedent for that in the recent history of some Third World nations, whose debt was more easily manageable than ours.
The state governments are not mere appendages of the federal government. It was created by the states. Now the federal government is taking actions which are contrary to the interests of the states and their citizens. The states have the duty, the power, and the right to protect their citizens from the incompetence, bias, or malfeasance of the federal government.
Some of the current problems are:
1. Use of the EPA to shut down oil drilling in the Gulf (25% of our supply), North Dakota, and Alaska on various unproven pretexts, driving up energy and transportation costs
2. Use of the Endangered Species Act to to threaten oil and gas exploration in west Texas and New Mexico, for a lizard which inhabits thousands of square miles
3. Use of the National Labor Relations Board to prevent opening of a large Boeing facility in the right-to-work state of South Carolina, killing jobs
4. Failure of the federal government to control immigration on the southern border, facilitating violence and drug importation by Mexican cartels
5. Imposing limitations and compulsions in health insurance and medical care by the so-called âObamacareâ
These and other similar actions, and the federal policies which drive these actions, far exceed the enumerated powers delegated by the states to the federal government. The state governments must read the Tenth Amendment, call a halt to this situation, and roll back this presumptuous expansion of federal power. Single states can and should declare non-acceptance of, and non-cooperation with, those federal agencies which threaten the statesâ solvency and their citizensâ rights. The more states that will act together in their mutual defense, the more leverage they will have, and the harder it will be for the media supporters of federal power to demonize them. We see this in the 26-state Obamacare suit. Citizens will realize that some level of government is finally on their side, and this will interest the voters. To paraphrase Ben Franklin, the states must hang together or they will all be strangled separately.
The Constitution is a structure for governance. It was based on an ethical and moral code older and deeper than itself, and it attempts to limit the damage that can be done to the nation by imperfect, and even ill-intentioned, human beings. The Constitution does not supersede that code or abandon its principles. The federal government was created as an agent of the states, to deal with foreign countries and minimize conflicts of interest between states. It is a basic ethical principle that an agent cannot act with greater power than was delegated to the agent. Legislation, regulations, and executive orders are all subject to challenge on that basis. It is a basic principle that when two parties have a disagreement, they must either find a mutually acceptable impartial judge or mediator, or go their separate ways if the use of force is to be avoided. Since the Supreme Court is part of one of the disagreeing parties, it cannot be considered impartial and must recuse itself. The Constitution does not explicitly give it the power to rule on the constitutionality of a law; that is an area into which it has expanded its powers through an incremental series of rulings.
If a part of the federal government has the sole authority to declare what are the limits of that governmentâs power, then we have been returned to the divine right of kings, to a time before the Constitution, before the Magna Carta, even before Moses - when Pharaoh was the literal owner of all the money, livestock, land, and people, and did with them as he pleased. So much for life, liberty, and the pursuit of happiness. This would be another âFive Thousand Year Leapâ - backwards.
The progressives cry âthe system does not workâ and must be transformed, referring to the free-enterprise or âcapitalistâ system. Indeed the system we now have does not work, but it is not free-enterprise capitalism. It is a hybrid, created when the progressives combined Marxism and capitalism under FDR. That cross-pollination is well documented in âThe Forgotten Manâ by Amity Schlaes. The noted Russian economist Nikolai Kondratieff was asked by Stalin to analyze capitalism and compare its strengths and weaknesses with Marxism. Kondratieff concluded that capitalism was stronger because it was self-renewing through its economic cycles,which cleaned out obsolescence and inefficiency and brought innovations, while Marxism did no such thing. For that, he was exiled to the gulag where he died about 1938. While his work focused on long-term economic cycles and their effects in society, similar effects may be observed in our shorter cycles of recession and recovery as well.
He did not foresee the hybrid that FDR created, where government âmanagesâ capitalism, picking winners and losers by subsidies and regulations. This might be termed âState-administered Capitalismâ since the term âLiberal Fascismâ was already taken as the title of Jonah Goldbergâs excellent book, where he details its use of a willing news media to treat opinions as facts, change the meaning of words, demonize opponents, and ignore or suppress politically incorrect, inconvenient facts.
It is worth noting that the big success stories of recent decades have been in unregulated industries: personal computers, software, electronic devices and cell phones, the internet, and talk radio. Now government views free speech and internet communication as a threat, and the FCC is rushing to impose regulation on them. The un-success stories of regulation are ignored: Barney Frank and Chris Dodd legislated what would be right and wrong in the mortgage market, forcing lenders to make loans that could not be repaid because it was âthe right thing to doâ - and brought the real estate and stock-market collapse. Government-directed regulation of emissions, fuel economy, and safety devices have inflated vehicle prices as much as union pensions have, while inhibiting any competitive innovations in those areas.
Now regulations are imposed to halt domestic oil drilling and penalize coal-fired electricity, which drives up fuel and energy costs - perhaps to the point that private cars may become unusable. They also drive up food prices through agricultural and transportation fuel costs. The cost and inefficiency of mass transit and high-speed rail are ignored. Regulations are presented through the media as being the âright thing to doâ to prevent some person or industry from making profits. Profit is portrayed as theft, when it is the only way industry can pay for innovations without borrowing money - or getting government subsidies.
Pretentious moralizing by government spokesmen is an ever-present threat, especially when Marxists have learned to use religious phrases to camouflage their actual intentions. Things took a bad turn when the mortgage industry was forced to accept government as the moral arbiter on home loan eligibility, placing political pressure above financial stability. Government subsidies and cover-ups can keep corruption and poor management going until the consequences are really serious.
Economic cycles used to uncover and collapse problems before they became huge. Now the Federal Reserve system tries to control economic cycles by manipulating interest rates and money supply, but all politicians want to keep rates low and halt the economic cycles. Low rates combined with a politically managed, inefficient and uncertain economy make U. S. debt a poor investment for foreign nations. Now we are buying our own borrowing, in effect paying one government credit-card with another government credit-card, which will lead to inflation and higher interest rates. That reduces the value of all bonds, and makes the inevitable interest payments even larger.
While free-enterprise capitalism contained the seeds of its own renewal, the present hybrid system does not. The modified genes must be removed. Just as Christianity has from time to time fallen away from its principles (selling indulgences, the Inquisition, being co-opted by kings and dictators) and has been reformed by those who returned to its source, so now free enterprise and personal liberty have been co-opted by government and must be restored. The federal government will not evolve in that direction. It must be confronted with its own failure, by free individuals who will not stop pointing out the failure and all the government leaders and agencies that brought it on. This can best be done by acting through the governments of those states which do not have large debts and deficits pulling them down. Those states are in the strongest position, but any state whose legislature and governor have principles can act.
A recent book sets forth the principle on which the states can resist federal tyranny. This principle can be the foundation for revitalizing or replacing the Republican Party at the state, and eventually national, levels. The book also helps us understand why the RINOs in Congress must be replaced, regardless of seniority.
NULLIFICATION, by Thomas E. Woods(about $15.00 at amazon.com)
Here are historical precedents and legal arguments for the ability (and duty) of the states to ignore (nullify) and prevent enforcement of federal laws and demands that go beyond the powers enumerated in the Constitution. The need for this became evident to Thomas Jefferson even before his presidency. Key points are:
(1) The Constitution is a contract between the states and the federal government, creating the latter and delegating to it a specific list of powers and responsibilities. The terms of the contract can be changed only by amendments approved by Ÿ of the states, not by unilateral declarations or actions on the part of the federal government. Article 6, however, does make us vulnerable to international treaties and those must be viewed with suspicion. (Note: The United Nations is not a sovereign nation and therefore is not a valid party to an international treaty.)
(2) Alexander Hamilton in Federalist #78: âevery act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void.âAnd in Article 6, âThis Constitution, and the laws of the United States which shall be made IN PURSUANCE THEREOF (emphasis added)âŠshall be the supreme law of the landâ. This âsupremacy clauseâ does not say that laws contrary to the delegated powers shall be the supreme law of the land.
(3) If a law exceeds the delegated federal authority it is unconstitutional and void, and it is up to the states to declare it so and refuse to enforce it. The states must shield their people from such laws.
(4) The Supreme Court, since it is a part of the federal government and thus is one of the parties involved, cannot decide a dispute between the states and the federal government; the states must guard those powers which were reserved to them and their people in the 9th and 10th amendments. There is no impartial outside authority capable of acting as judge between the parties to that contract.
Nullification was endorsed by the Wisconsin legislature in 1859, in a case preventing the enforcement of the Fugitive Slave Act of 1850. That act required bystanders to assist in capturing and returning escaped slaves. Wisconsin declared the U. S. Supreme Court's demands "without authority, void, and of no force". Now the state governments must be called upon to defend their citizens against enslavement by federal laws and regulators, and by compulsory unionism. Freedom of association does not mean compulsory association.
The implications of this book are of interest to the Tea Party and 9/12 groups. All state and local level Tea Party candidates should read it. The founders believed that the virtue of the people was the key to successfully fighting the Revolutionary War and establishing a new and better form of government. They proceeded when they saw that enough citizens and merchants were willing to take losses and do without things to oppose the Stamp Act and the tea taxes.
We have fallen far from that level of virtue and understanding. Jeffersonâs idea of state nullification as the necessary control on federal government power now requires our restoration to a higher level of individual virtue and understanding, so that the citizens can indeed elect people who understand and will observe those original enumerated limitations. This is the great educational challenge of our time.
Tea Party-backed candidates must take these principles into the state governments, which can then restrain the federal government while its incumbents are replaced in the election cycle by more-principled citizens. Then we must keep replacing ourselves in offices at all levels, bringing back the concept of the founders that government is a temporary service, not a career. However, state regulatory agencies tend to fall into the hands of agenda-driven nut cases (e.g., California), and they need to clean up their own act too.
The federal government has the highest level of fiscal and moral temptation ever placed before individuals in all of human history. It offers decades of power, privilege, and luxury, a huge pension and complete health insurance, even for those who fail to collect enough bribes and favors to become independently wealthy. Enormous sums of other peopleâs money are placed under the control of a few people, and those few can usually escape blame for any consequences of how the money is spent by the agencies they create or subsidize. Unlimited opportunities to bribe, coerce, and threaten are available through its myriad of agencies with webs of selectively interpreted and enforced regulations. If we believe that people have immortal souls that are subject to judgement for their actions, we should do the kindness to minimize the time that they are subject to such serious temptation. It is not a good thing to elect others to long-term moral jeopardy.
Several âstates of national emergencyâ have been declared since 1933, and none have been ended, leaving the federal government with a situation in which it might claim almost any power. The 1933 declaration was reviewed by the Senate in 1973, but the Senate did nothing about it. The state governments should also protect their reserved powers from encroachment on those pretexts.
âAdministrative lawâ was invented within the regulatory process, wherein executive-branch agencies can act as legislators (defining rules and regulations), executives (implementing them), and judges (punishing those who do not comply), without ever having to prove justification for their regulations. That is what the âseparation of powersâ into three branches was designed to prevent - arbitrary rule by unelected officials. State governments must assert their authority to nullify this state of affairs, and resist all federal attempts to financially bribe or penalize them. The coming interest-rate spiral or currency devaluation will make this difficult, and civil disorder may compound the difficulty.
Now there remains one more chance: respond to the challenge, restore virtue, restore the Constitutionâs original intent, and regain your freedom; or remain on the current path, submit to serfdom, and be slaves on the progressive plantation - doing whatever they tell us to do, paying whatever taxes they demand, and doing without whatever they tell us to do without.
If this generation submits, it may be 70 years as it was in the Soviet Union before a generation suffers enough and becomes desperate enough for what will be a much more difficult and costly effort. Today we see Ayn Randâs prophetic âAtlas Shruggedâ in progress, but not resolved. If we have not the courage of our founders, a later generation will fulfill the prophecy of her first book, âAnthemâ.
