Michigan the Latest to Chip Away At Federal Supremacy

Last week while most continued to enjoy Christmas with family and friends, the Michigan state legislature enacted significant legislation.  It nullified part of an act of Congress.

Michigan targeted section 1021 of the National Defense Authorization Act which provided for indefinite detention of US citizens.  Governor Rick Snyder, while signing the legislation, noted that even a warrant for detention could not be enforced in Michigan.  Supporters say that the Michigan legislation reaffirms both 5th Amendment rights of due process and 10th Amendment protections of state sovereignty.

This follows on the heels of a South Carolina bill annulling Obamacare within that state.  It passed major hurdles this month and is expected to land on Governor Nikki Haley's desk in January.  There is no doubt that she will sign the legislation.

Nullification has returned from the history books into the undercurrent of state politics.  The doctrine originated with arch slavery defender John C. Calhoun, but was applied to a destructive tariff in the 1830s. Northerners resurrected the ideal while searching for ways to strike down the notorious Fugitive Slave Act in the 1850s.

It was never stricken down by any court of law or force of arms.  Congressional action repealing the Tariff of Abominations in the 1830s placated South Carolina, which suspended the nullification acts.

The main obstacle to nullification lies in the Supreme Court case of McCullough v. Maryland.  This case placed broad limits on the authority of well-established state governments to curtail the actions of weak federal agencies.  After 200 years of federal growth and state weakening, cases arising from nullification acts may be vital to defining down this landmark ruling and carving out a stronger state position.

Acts of nullification generally attack federal authority assumed under the commerce clause. This covers anti-drug actions, the Environmental Protection Agency, and almost any other regulatory part of the Executive Branch. The Constitution states that Congress has the power to regulate interstate commerce and has adopted the broadest possible interpretation of it.  Defining down this interpretation is also essential.

The year 2014 will start off with debt crises, foreign crises, and presidential speculation.  Coming up fast, however, is the showdown between federal and state power.

Inspector General's Report At Department of Justice Mimics Libertarian and Conservative Concerns

Above the Law recently summarized a report by the inspector general of the Department of Justice.  The conclusions reached sound like they came from the pages of Reason and other outlets.

It notes that every dollar spent on prisons is a dollar not spent on enforcement and prevention efforts.  It quotes the assistant attorney general who called prison costs "unsustainable."  In addition to Above the Law's analysis, it is interesting to find the opportunity cost argument used by the government.  Perhaps the sequester made some agencies realize that even a federal budget is finite.

Part of the prison cost will require some rethinking.  The writer explains that quite a few prisoners of means live in cells on the taxpayers' dime well into old age.  Could other options be available for non violent felons besides prison, at least in these circumstances.

The American Bar Association warned in 1998 that overfederalization "strains the fabric of the federal and state system."  It also noted that "there are powerful reasons for the fundamental limitations on federal criminal law."  General police power over day to day crime, according to constitutional law, is better left under the control of the states.  State courts can lose their importance, while federal courts become overburdened.  The ABA cites a number of other hazards of putting more police power in the hands of the federal government.

The inspector general warns that these chickens have come home to roost.  The federal government now can prosecute over 4,000 criminal offenses in federal law.  Add to that 10-100,000 possible federal regulations that could carry federal criminal penalties.  Moving back to state prosecutions of criminal law can "alleviate the budget crisis posed by the federal prison system."

Reevaluating federal prosecution of criminal law is the first step.  Next comes rethinking the mindset that allowed and encouraged this overreach in the first place.  An unrestrained federal leviathan is rampaging through our society.  Curbing the law enforcement prerogatives of this beast is one step toward restoring the proper proportion of power.

Neo-Confederates?

The scribes at West Virginia Blue, with their usual grasp of history and facts, have dubbed those supporting the Intrastate Coal and Use Act "Neo-Confederates." This must come from the fact that they are citing the Tenth Amendment and its defense of states' rights.

The Confederates did cite states' rights in defense of their cause, as did the legislators in the last session. That must mean that abolitionists in the North between 1850 and the Civil War were Confederates beofre the fact. In 1850, Congress passed a Fugitive Slave Act that expanded the law enforcement powers of United states Marshals and infringed upon property rights. Abolitionists cited states' rights in opposition. This makes them pre Confederates, according to the Democratic blog.

Other pre-Confederates, according to the logic of West Virginia Blue, include Democratic Party founders Thomas Jefferson and James Madison. They were the first to articulate states' rights doctrine. In 1798, they penned the Kentucky and Virginia Resolutions that claimed state courts could find federal laws unconstitutional. The law that created such powerful objections was the Sedition Act. This law made it a crime to satirize or make any untrue statements about the government, its policies, or its officials. In other words, today it would allow the arrest of newspaper editors, the cast and crew of Saturday Night Live, and a lot of bloggers. Who defines what the truth is about the government? The government would! Jefferson and Madison knew no other recourse against such an abominable law rather than to resort to states' rights doctrine. And Madison, being the architect of the Constitution, would know what could and could not be done.

Since we are on the subject of associating ideas with regimes, I wonder if anyone at West Virginia Blue has ever done the following:

Driven on the interstate

Ridden in a jet plane

Used satellite television

Approved of Obama using cruise missiles in Libya

Owned, drove, or simply admired a Volkswagen

If so, this makes them neo-Nazis. The National Socialists came up with the idea of the authobahn, which Eisenhower adapted into the interstate highway system. The German Air Force invented the jet engine. Germans in World War II created the ballistic and cruise missiles; of course ballistic missiles were the basis for the rockets that brought the advance of space flight and satellite deployment. And we all know that Volkswagens were "Hitler's car."

The states' rights principles articulated by Republicans and Democrats in the past session are meant to put checks on an overreaching federal government. A bipartisan group of men and women want to make economic conditions better for everyone, regardless of race. They see the federal government standing in the way at every turn. and just like the co-founders of the Democratic Party, Messrs. Jefferson and Madison, they see states' rights as a shield of liberty when the federal government goes too far.

The "N" Word

Federal action against coal operations in West Virginia has put hundreds of men and women out of work and denied the state its share of potential revenue. The Environmental Protection Agency has initiated a War on Coal to destroy mining operations. Right before Christmas, an EPA action resulted in the layoff of five hundred in Clay County.

What can the State of West Virginia do in response?

This may seem painful, but a way might exist to constitutionally void federal regulations. That is nullification.

Nullification doctrine first emerged in the 1830s from the mind of John C. Calhoun of South Carolina. Federal import taxes raised prices on manufactured goods, crippling farmers. Calhoun suggested that the state legislature pass an ordinance nullifying the tariff within the boundaries of the state. President Andrew Jackson met this action with a military deployment. Since then, nullification of a law passed by Congress has been seen as unconstitutional.

What about state legislative nullification of a federal agency regulation or executive order? The Constitution does recognize Congress's right to pass binding legislation. It does not recognize regulatory law or presidential executive orders. State governments are under no obligation to abide by these so called laws. In fact, the Tenth Amendment protects states from many of the laws that Congress uses to bind their actions today.

All states have to do to regain their sovereignty is to swear off of federal funds for anything. At that point, Congress has very little authority over what a state can or cannot do. West Virginia cannot arrest federal officials inspecting or making reports, but it can pass acts preventing the enforcement of executive branch regulations. Swearing off of federal funds does mean a huge drop in money for roads, schools, and other items. However, the drop in money is offset by the fact that the state no longer would have to spend countless resources on paperwork and unfunded federal mandates.

Nullification is a last ditch tactic because it will provoke a serious contitutional crisis. Thousands will gather soon in Austin, Texas to ask their governor to do that very thing. In the name of freedom, strong steps may have to be taken. The election of 2010 will go a long way towards moving back to a Republic, or forward to crisis.

Tennessee Revives Committees of Correspondence and Begs the Question "Do We Have States Or Colonies?"

In a move that was probably unthinkable as too radical as little as a decade ago, the Governor of Tennessee issued an invitation for other states to join in a "working group" to discuss ways to resist federal government encroachment on state sovereignty.

This represents the next logical step for states, among which include Alaska and West Virginia, that have passed resolutions asserting their rights under the Tenth Amendment. Texas set off fireworks with its governor's offhand suggestion that his state could choose to secede at some point.

Issues include unfunded mandates, unnecessary regulation, and the federal government's explosion of possible new taxes and restrictions. A Georgia gubernatorial candidate has threatened that under his administration, the State Police will arrest any federal authority that attempts to confiscate a firearm. Montana and Ohio are looking into ways to protect firearms fully manufactured in and sold within their state boundaries from federal laws based upon the Interstate Commerce Clause of the Constitution.

Not in recent memory has the state sovereignty movement acted with such vigor. The federal government had never acted with such sweeping force before either. The Constitution protects states through the Tenth Amendment, but Congress uses an expanded interpretation of the Interstate Commerce Clause and threats of suspended highway funding to enforce their will on state government.

Tennessee's invitation does not specifically mention the phrase "committees of correspondence," but it is the same principle. These were set up in the early 1770s to coordinate colonial authorities' against draconian British legislation. Such committees served as the foundation for the Continental Congress that launched the American Revolution.