U.S. Constitution
See other U.S. Constitution Articles
Title: States Don’t Have to Comply: The Anti-Commandeering Doctrine
Source:
[None]
URL Source: [None]
Published: Nov 9, 2015
Author: editorial
Post Date: 2015-11-09 19:06:04 by tpaine
Keywords: None
Views: 4179
Comments: 27
States Don’t Have to Comply: The Anti-Commandeering Doctrine
Most Americans believe that the federal government stands absolutely supreme.
Nobody can question its dictates.
Nobody can refuse its edicts.
Nobody can resist its commands.
This is simply not true.
Laws passed in pursuance of the Constitution do stand as the supreme law of the land. But that doesn’t in any way imply the federal government lords over everything and everybody in America.
First off, as James Madison asserted in Federalist 45, the powers of the federal government are “few and defined.” So federal power actually extends into only a few spheres. Most power and authority was left to the states and the people.
Second, even within those areas that the federal government does exercise authority, it cannot force state or local governments to cooperate in enforcement or implementation. The feds must exercise their authority on their own, unless the state and local governments choose to assist.
Simply put, the federal government cannot force state or local governments to act against their will.
This is known as the anti-commandeering doctrine, and it is well established in constitutional jurisprudence. Four Supreme Court opinions dating back to 1842 serve as the foundation for this legal doctrine.
In Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it.
The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.
In the early 90s, the state of New York sued the federal government asserting provisions in the Low-Level Radioactive Waste Policy Amendments Act of 1985 were coercive and violated its sovereignty under the Tenth Amendment. The Court majority in New York v. United States (1992) agreed, holding that “because the Act’s take title provision offers the States a ‘choice’ between the two unconstitutionally coercive alternatives–either accepting ownership of waste or regulating according to Congress’ instructions–the provision lies outside Congress’ enumerated powers and is inconsistent with the Tenth Amendment.”
Sandra Day O’Connor wrote for the majority in the 6-3 decision.
As an initial matter, Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”
She later expounded on this point.
While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.
O’Connor argues that standing alone, both options offered to the State of New York for dealing with radioactive waste in the act represented an unconstitutional overreach. Therefore, forcing the state to choose between the two is also unconstitutional.
A choice between two unconstitutionally coercive regulatory techniques is no choice at all. Either way, “the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”
Printz v. United States (1997) serves as the lynchpin for the anti-commandeering doctrine. At issue was a provision in the Brady Gun Bill that required county law enforcement officers to administer part of the background check program. Sheriffs Jay Printz and Richard Mack sued, arguing these provisions unconstitutionally forced them to administer a federal program. Justice Antonin Scalia agreed, writing in the majority opinion “it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme.”
Citing the New York case, the court majority declared this provision of the Brady Gun Bill unconstitutional, expanding the reach of the anti-commandeering doctrine.
We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-bycase weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.
Finally, the Court ruled that the federal government cannot force the states to act against their will by withholding funds in a coercive manner. In Independent Business v. Sebelius (2012), the Court held that the federal government can not compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place. Justice Roberts argued that allowing Congress to essentially punish states that refused to go along violates constitutional separation of powers.
The legitimacy of Congress’s exercise of the spending power “thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Pennhurst, supra, at 17. Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system. That system “rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ ” Bond, 564 U. S., at ___ (slip op., at 8) (quoting Alden v. Maine, 527 U. S. 706, 758 (1999) ). For this reason, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, supra, at 162. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.
Taken together, these four cases firmly establish a legal doctrine holding that the federal government has no authority to force states to cooperate in implementing or enforcing its acts. Even lawyers cannot dispute the legitimacy of nullification through noncooperation.
Madison supplied the blueprint for resisting federal power in Federalist 46. The “Father of the Constitution” outlines several steps states can take to stop “an unwarrantable measure,” or “even a warrantable measure” of the federal government. Anticipating the anti-commandeering doctrine, Madison calls for “refusal to cooperate with officers of the Union” as a method of resistance.
Madison’s blueprint, supported by the anti-commandeering doctrine, provides a powerful tool that states can use to stop unconstitutional federal acts in their tracks. In fact, during the federal government shutdown, the National Association of Governors admitted, “States are partners with the federal government in implementing most federal programs.” That means states can create impediments to enforcing and implementing “most federal programs.”
Become a member and support the TAC!
By simply refusing to provide material support to NSA spying, indefinite detention, unconstitutional violations of the Second Amendment and other unwarrantable acts, states have the power to render these actions unenforceable.
In other words, they can nullify them.
Even the Supreme Court agrees.
To take action, click HERE.
Post Comment Private Reply Ignore Thread
Top • Page Up • Full Thread • Page Down • Bottom/Latest
#1. To: misterwhite, nolu chan, roscoe, grandisland, gatlin, Y'ALL (#0)
libertysflame.com/cgi-bin/latestarticles.cgi?cn=10
Oregon County Passes Measure Directing Sheriff To Block State And Federal Gun Laws
Any comments?
#2. To: tpaine (#0)
Laws apply only as long as the PEOPLE insist they do. We have become a nation of compliant sheep.
Psalm 37
#3. To: Don, Y'ALL, misterwhite, nolu chan, roscoe, grandisland, gatlin (#2)
Laws apply only as long as the PEOPLE insist they do. We have become a nation of compliant sheep.
The sheep you refer to (at LF) are listed above.
Hell, most of them are so timid, they pretend that they can't read my posts...
#4. To: tpaine (#0)
In Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it.
Story is correct.
However, not being required to enforce a Federal law is vastly different from not being required to comply with a Federal law.
The Federal government cannot force all 50 states to set a minimum drinking age of 21. All 50 states volunteered.
The Federal drug laws are not nullified in any state. There can still be a Federal bust. With a different President, and Justice department, so-called sanctuary cities could be given an attitude adjustment.
#5. To: tpaine (#3)
Hell, most of them are so timid, they pretend that they can't read my posts...
... without laughing.
#6. To: nolu chan (#4)
Laws passed in pursuance of the Constitution do stand as the supreme law of the land. But that doesn’t in any way imply the federal government lords over everything and everybody in America.First off, as James Madison asserted in Federalist 45, the powers of the federal government are “few and defined.” So federal power actually extends into only a few spheres. Most power and authority was left to the states and the people.
Second, even within those areas that the federal government does exercise authority, it cannot force state or local governments to cooperate in enforcement or implementation. The feds must exercise their authority on their own, unless the state and local governments choose to assist.
Simply put, the federal government cannot force state or local governments to act against their will.
Nolu Chan, LF's foremost wannabe lawyer, disputes Madison's assertions..
--- not being required to enforce a Federal law is vastly different from not being required to comply with a Federal law. -- The Federal drug laws are not nullified in any state. There can still be a Federal bust.Yep, and the feds unconstitutional 'busts' are being done at their own peril. Eventually, our States, and our Constitution will prevail, and you socialist/fascists will pay for your criminal prohibitions.
#7. To: tpaine (#6)
Simply put, the federal government cannot force state or local governments to act against their will.Nolu Chan, LF's foremost wannabe lawyer, disputes Madison's assertions..
--- not being required to enforce a Federal law is vastly different from not being required to comply with a Federal law.
-- The Federal drug laws are not nullified in any state. There can still be a Federal bust.Yep, and the feds unconstitutional 'busts' are being done at their own peril. Eventually, our States, and our Constitution will prevail, and you socialist/fascists will pay for your criminal prohibitions.
Madison missed the civil war and the the post-war amendments to the Constitution, as did you apparently.
The Federal government forces states to act against their will every day. Not all the states volunteered for same-sex marriage, or legal abortion, school integration, or Obamacare.
The States cannot even decide who are citizens of the State. For a century and a half, that has been dictated to them. Federal law dictates all manner of things to the States, whether the tpaine Court of the Imagination approves or not. The States need not act as an enforcement agency for Federal law, but they have no lawful authority to act in defiance of Federal law.
Amendment 14
Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
#8. To: nolu chan (#7)
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law
How taking away freedom to drink alcohol or to smoke pot can be interpreted as protection of privileges or immunities or liberty or property against abridgement by the states?
#9. To: nolu chan, A Pole, tpaine, *Bill of Rights-Constitution* (#7)
The Congress shall have power to enforce, by appropriate legislation, the provisions of
The key word there is, appropriate. Legislation to violate the 10th amendment, or any other part of the US Constitution is NOT appropriate.
"We (government) need to do a lot less, a lot sooner" ~Ron Paul#10. To: nolu chan (#4)
"The Federal government cannot force all 50 states to set a minimum drinking age of 21. All 50 states volunteered."
The states "volunteered" after the federal government threatened to withhold federal highway funds if they didn't.
Not much different than the way people "volunteered" to sign up for Obamacare.
#11. To: misterwhite (#10)
The states "volunteered" after the federal government threatened to withhold federal highway funds if they didn't.
No invasion by the U.S. Army?
#12. To: Roscoe (#11)
"No invasion by the U.S. Army?"
It was close.
It was reminiscent of The Missiles of October. The President threatened the states with Operation Jade Helm 3. Initially, the states held firm, slamming their 10th amendment shoes on the table, promising to bury the U.S. government. (Figuratively, of course.)
But then they gave in, wimps that they are.
#13. To: misterwhite (#10)
Not much different than the way people "volunteered" to sign up for Obamacare.
Not much different than the way people "volunteered" to sign up for Obamacare.
The people do not have to buy insurance. There is no "punishment" if they do not. Any "punishment" would be unconstitutional. SCOTUS creatively interpreted the law to say that what had appeared to be a "punishment" was a tax.
As Obamacare gets more and more expensive, the size of that tax may grow so large that a court could find it punitive, in which case it would be unconstitutional.
Any state can still have a drinking age under 21 without violating any Federal law. The Feds stated they would withhold highway funding, just as you say. With that strong "encouragement," all non-compliant states "voluntarily" raised their drinking age to 21.
It's legal. Defendants are frequently overcharged and offered a plea agreement to something that carries significantly less time. The innocent defendant can roll the dice on a jury, or volunteer to take the offer.
And then, there is the Alford plea. "A guilty plea that represents a voluntary and intelligent choice among the alternatives available to a defendant, especially one represented by competent counsel, is not compelled within the meaning of the Fifth Amendment because it was entered to avoid the possibility of the death penalty." Alford "pleaded guilty, although disclaiming guilt, because of the threat of the death penalty, and was sentenced to 30 years' imprisonment."
Legally, that is "voluntary."
loc.heinonline.org/loc/Page?handle=hein.usreports/usrep400&id=127#127
U.S. Supreme CourtNorth Carolina v. Alford, 400 U.S. 25 (1970)
North Carolina v. Alford
No. 14
Argued November 17, 1969
Reargued October 14, 1970
Decided November 23, 1970
400 U.S. 25
APPEAL FROM THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Syllabus
Appellee was indicted for the capital crime of first-degree murder. At that time, North Carolina law provided for the penalty of life imprisonment when a plea of guilty was accepted to a first-degree murder charge; for the death penalty following a jury verdict of guilty, unless the jury recommended life imprisonment; and for a penalty of from two to 30 years' imprisonment for second-degree murder. Appellee's attorney, in the face of strong evidence of guilt, recommended a guilty plea, but left the decision to appellee. The prosecutor agreed to accept a plea of guilty to second-degree murder. The trial court heard damaging evidence from certain witnesses before accepting a plea. Appellee pleaded guilty, although disclaiming guilt, because of the threat of the death penalty, and was sentenced to 30 years' imprisonment. The Court of Appeals, on an appeal from a denial of a writ of habeas corpus, found that appellee's guilty plea was involuntary because it was motivated principally by fear of the death penalty.
Held: The trial judge did not commit constitutional error in accepting appellee's guilty plea. Pp. 400 U. S. 31-39.
(a) A guilty plea that represents a voluntary and intelligent choice among the alternatives available to a defendant, especially one represented by competent counsel, is not compelled within the meaning of the Fifth Amendment because it was entered to avoid the possibility of the death penalty. Brady v. United States, 397 U. S. 742. P. 400 U. S. 31.
[...]
#14. To: nolu chan, tpaine (#13)
The people do not have to buy insurance. There is no "punishment" if they do not. Any "punishment" would be unconstitutional. SCOTUS creatively interpreted the law to say that what had appeared to be a "punishment" was a tax.
Tpaine also uses arguments like that. You dismiss them and post the courts opinion and say he is wrong.
I agree with you here though.
#15. To: nolu chan (#13)
"The people do not have to buy insurance."
Neither do the states have to change their drinking age. That was my point.
#16. To: nolu chan, Y'ALL (#7)
From the article: ---
Laws passed in pursuance of the Constitution do stand as the supreme law of the land. But that doesn’t in any way imply the federal government lords over everything and everybody in America.
Simply put, the federal government cannot force state or local governments to act against their will.
Nolu Chan, LF's foremost wannabe lawyer, disputes Madison's assertions..
Nolu -- not being required to enforce a Federal law is vastly different from not being required to comply with a Federal law. -- The Federal drug laws are not nullified in any state. There can still be a Federal bust.
Yep, and the feds unconstitutional 'busts' are being done at their own peril. Eventually, our States, and our Constitution will prevail, and you socialist/fascists will pay for your criminal prohibitions.
Madison missed the civil war and the the post-war amendments to the Constitution, as did you apparently.
Nothing in the 14th, or any other Amendment, gives the feds the power to act against States legitimate powers under our Constitution.
The Federal government forces states to act against their will every day. Not all the states volunteered for same-sex marriage, or legal abortion, school integration, or Obamacare.
Every issue you specified is a SCOTUS opinion, subject to revision by congress or by the States, or by the people. -- ' Simply put, the federal government/scotus cannot force state or local governments (or the people) to act against their (constitutional) will'.
The States cannot even decide who are citizens of the State. For a century and a half, that has been dictated to them. Federal law dictates all manner of things to the States, whether the tpaine Court of the Imagination approves or not. The States need not act as an enforcement agency for Federal law, but they have no lawful authority to act in defiance of Federal law.
Thus speaks the nolu chan 'court of imaginings'...
#17. To: A K A Stone (#14)
nolu chan admits: ---
The people do not have to buy insurance. There is no "punishment" if they do not. Any "punishment" would be unconstitutional. SCOTUS creatively interpreted the law to say that what had appeared to be a "punishment" was a tax.
A K A -- Tpaine also uses arguments like that. You dismiss them and post the courts opinion and say he is wrong.
Nolu posts lengthy legal opinions in an attempt to obfuscate the issues.
I agree with you here though. --- A K A Stone
Why?
#18. To: hondo68 (#9)
The key word there is, appropriate. Legislation to violate the 10th amendment, or any other part of the US Constitution is NOT appropriate.
The key fact here is that it is the Federal government that has the power to decide what is, or is not, appropriate.
#19. To: nolu chan (#18)
The key fact here is that it is the Federal government that has the power to decide what is, or is not, appropriate.
Has the power or has the right?
#20. To: nolu chan, We The People, aka BOSS, el jefe, chief, master (#18)
the Federal government that has the power to decide what is, or is not, appropriate
"reserved to the States respectively, or to the people"
Wrong. They only have the powers delegated to them by we the people. If it ain't in the Constitution, it's a usurpation of power.
The pinheads in DC are wayward servants. The D&R good 'ol boys club just looks the other way, and pretends that the the Rule of Law really exists.
Thus tyranny marches on in the land of the duped, and home of the slave.
"We (government) need to do a lot less, a lot sooner" ~Ron Paul#21. To: tpaine (#16)
Every issue you specified is a SCOTUS opinion, subject to revision by congress or by the States, or by the people.
There you go, blowing it out of your ass again.
Neither Congress, nor the people, can revise a SCOTUS opinion.
For an opinion interpreting the Constitution, the Congress can do nothing. The people can amend the Constitution. That revises the Constitution, not the SCOTUS opinion based on the Constitution as it was.
For an opinion interpreting a Federal law, the Congress can change the Federal law. That revises the Federal law, not the SCOTUS opinion based on what the law was.
Neither the Congress, nor the people, have ever revised one word of a SCOTUS opinion.
http://thomas.loc.gov/home/histdox/fed_81.html
See Federalist 81:
A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject.
Try to find something on point rather than a three-word quote of non-lawyer Madison, accompanied by nullification bullshit. The Judiciary was covered by attorney Alexander Hamilton at Federalist 78-83.
#22. To: tpaine (#16)
Madison missed the civil war and the the post-war amendments to the Constitution, as did you apparently.Nothing in the 14th, or any other Amendment, gives the feds the power to act against States legitimate powers under our Constitution.
The fact remains that the Federal government exercised powers to destroy, utterly, the elected governments of the southern states and to impose Federally appointed governors. The power was used. The court found that it was impossible for any state to secede from the union and declared their declarations of secession to be null and void. By the Reconstruction Acts, the Federal government dictated all sorts of things to the states.
The Federal government forces states to act against their will every day. Not all the states volunteered for same-sex marriage, or legal abortion, school integration, or Obamacare.
The States cannot even decide who are citizens of the State. For a century and a half, that has been dictated to them. Federal law dictates all manner of things to the States, whether the tpaine Court of the Imagination approves or not. The States need not act as an enforcement agency for Federal law, but they have no lawful authority to act in defiance of Federal law.
#23. To: tpaine (#0)
[Article] First off, as James Madison asserted in Federalist 45, the powers of the federal government are “few and defined.” So federal power actually extends into only a few spheres. Most power and authority was left to the states and the people.Second, even within those areas that the federal government does exercise authority, it cannot force state or local governments to cooperate in enforcement or implementation. The feds must exercise their authority on their own, unless the state and local governments choose to assist.
Simply put, the federal government cannot force state or local governments to act against their will.
That quotes three words by James Madison.
At Federalist 45, in the relevant paragraph, Madison stated:
The Federalist No. 45
Alleged Danger From the Powers of the Union to the State Governments Considered
Saturday, January 26, 1788
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.
Anyone with eyes to see knows that Madison's anonymous sales pitch for the Constitution has little to nothing to do with the facts on the ground in 2015. Madison gave a political theory forecast. It is a fact that Madison's forecast was wrong.
Anyone who thinks that the Federal government cannot force the States to act against their will is living in a dream world.
As for the judiciary, lawyer Alexander Hamilton covered that at Federalist 78-83. Madison was a political theorist, not a lawyer. Your source of legal expertise is not a lawyer either, but has a "non-traditional" degree in mass communications.
#24. To: tpaine (#0)
[Article] First off, as James Madison asserted in Federalist 45, the powers of the federal government are “few and defined.” So federal power actually extends into only a few spheres. Most power and authority was left to the states and the people.Second, even within those areas that the federal government does exercise authority, it cannot force state or local governments to cooperate in enforcement or implementation. The feds must exercise their authority on their own, unless the state and local governments choose to assist.
Simply put, the federal government cannot force state or local governments to act against their will.
The only words of James Madison there, all three of them, are "few and defined." The only link provided goes to the home page of some group styling itself as the Tenth Amendment Center.
http://tenthamendmentcenter.com/articles/page/35/
This post at a site advocating State Nullification is what passes for legal authority in the tpaine Court of the Imagination.
It does have an author, Mike Maharrey.
http://tenthamendmentcenter.com/about/team/
Mike Maharrey is the Communications Director for the Tenth Amendment Center. He earned a B.A. in Mass Communications and Media Studies from the University of South Florida St. Petersburg. He has covered local and state politics for several publications in both Kentucky and Florida, and won two Kentucky Press Association awards as a sports writer in 2009. Mike currently produces web content for a Lexington television station.A native Kentucian and an adopted Floridian, Mike currently lives in Lexington with his wife and three children. A long time hockey player, he is equally passionate about protecting and preserving the Constitution and keeping pucks out of his net on the ice.
http://www.michaelmaharrey.com/sample-page/
BiographyMichael Maharrey serves as the national communications director for the Tenth Amendment Center.
Hailing from Lexington, Ky., he’s extremely proud that his home state originated the Principles of ’98, laying the groundwork for state nullification of unconstitutional acts.
Michael is the author of three books. Our Last Hope – Rediscovering the Lost Path to Liberty, makes the historical, philosophical and moral case for nullification. Smashing Myths: Understanding Madison’s Notes on Nullification digs deep into James Madison’s views on nullification, focusing on his writing’s later in life. Finally, Michael joined Tenth Amendment Center executive director Michael Boldin in penning Nullification Objections: Dismantling the Opposition, a book that takes apart the common objections to nullification one at a time.
Michael earned a degree in Mass Communications and Media Studies from the University of South Florida St. Petersburg. As a non-traditional student, he won several academic awards and was a member of the school’s ethics bowl team that placed eighth in the nation. Mike played for the USF ice hockey team at the ripe old age of 40, earning American Collegiate Hockey Association Academic All-American honors. He also holds a B.S. degree in Accounting from the University of Kentucky. Along with his formal schooling, he’s had the opportunity to associate with and study under some of the top academics in constitutional history and our founding principles.
http://tenthamendmentcenter.com/2015/10/25/constitution-101-executive-power/
Mike Maharrey, Constitution 101: Executive Power, October 25, 2015
Modern presidents exercise powers far beyond those delegated to them in the Constitution and constantly usurp legislative authority. Much of the blame lies with Congress. It often delegates legislative authority to the president by writing vague, open-ended laws that expand executive authority into the legislative realm. Congress’ delegation of war powers to the executive branch provides one of the best examples.In the American system, Congress should serve as the most powerful branch, as it most directly represents the people. Instead, America has evolved into a system very much like the one the revolutionaries sought to destroy.
Woulda, coulda, shoulda. As Maharrey admits, "America has evolved into a system very much like the one the revolutionaries sought to destroy." That is the fact.
So "Congress should serve as the most powerful branch." It doesn't.
Mike Maharrey, A Revolution in Thought: The 2015 State of the Nullification Movement Report, October 26, 2015
From its early days as a rejection of federal power on a single-issue, the movement grew organically into a loose coalition of disparate groups taking similar actions on wide variety issues spanning the political spectrum. As little as five years ago, a handful of bills, many of them merely resolutions affirming the Tenth Amendment, counted as a “good year” for nullification.[...]
Today’s nullification movement is revolutionary because it offers the hope of smashing the established political order; an alternative to “voting the bums out” only to see them replaced by new “bums” who violate the Constitution in more costly and dangerous ways each year, or relying on the federal government to limit its own power.
This revolution of thought may still seem small at this time, but as the report shows, it grows a little bit every day.
Maharrey is right, the nullification movement may be thought of as small. The established political order is big. Nullification is not the recognized law, and no meaningful presidential candidate so much as gives it a passing nod. The revolution is so small that very few even know it exists.
Mike Maharrey, This Day in History: Kentucky Resolutions Passed on Nov. 10, 1798, November 10, 2015
Jefferson’s principles have endured for 215 years despite relentless attacks and demagoguery. Americans have appealed to the ideas brilliantly articulated in the Kentucky Resolutions to protect free speech, to promote economic justice, to stop military conscription and to protect the rights of blacks during the fugitive slave era. Jefferson’s words leave no doubt – nullification was the rightful remedy, and it remains so today.
Maharrey is entitled to his opinion that the principles of state nullification have endured. The principles of liberalism, and big, consolidated government have endured and prevailed. As the author noted, "America has evolved into a system very much like the one the revolutionaries sought to destroy," while the nullification "revolution of thought may still seem small at this time."
State nullification has never been a lawful remedy available to the states. It is not recognized as such. Legally, it is a dead letter.
https://en.m.wikipedia.org/wiki/Nullification_(U.S._Constitution)
Nullification, in United States constitutional history, is a legal theory that a state has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional. The theory of nullification has never been legally upheld by federal courts.[1][...]
Federalist No. 78 says that the federal courts have the power "to pronounce legislative acts void, because contrary to the Constitution."[25]
Federalist No. 80 asserts that the final authority to interpret the Constitution and federal law lies in the federal courts, not the states, because of the need for uniformity.[26] Likewise, Federalist No. 22 says that the federal courts should interpret federal law due to the need for uniformity.[27]
Federalist No. 82 says that because of the need for uniformity and the federal government's need to effectively enforce its laws, the Constitution gives the Supreme Court the power to review decisions of state courts in cases arising under the Constitution or federal law.[28]
The Federalist papers therefore indicate that the power to declare federal laws unconstitutional lies in the federal courts, not in the states.
- - - - -
[1] "[S]tates throughout U.S. history have attempted to use variations of the nullification doctrine to invalidate federal law. However, every attempt by states to nullify federal law was clearly rejected by not only the federal government, but also by other states." Card, Ryan, "Can States “Just Say No” to Federal Health Care Reform? The Constitutional and Political Implications of State Attempts to Nullify Federal Law," 2010 B.Y.U. Law Review 1795, 1808 (2010)
[...]
[25] "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute." Federalist No. 78
[26] "The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed." Federalist No. 80.
[27] "Laws are a dead letter without courts to expound and define their true meaning and operation. . . .To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. . . . If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. . . . To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice." Federalist No. 22
[28] Federalist No. 82
#25. To: nolu chan (#21) (Edited)
#26. To: nolu chan (#21)
The Federal government forces states to act against their will every day. Not all the states volunteered for same-sex marriage, or legal abortion, school integration, or Obamacare.
Every issue you specified is a SCOTUS opinion, subject to revision by congress or by the States, or by the people. -- ' Simply put, the federal government/scotus cannot force state or local governments (or the people) to act against their (constitutional) will'.
The people can amend the Constitution. That revises the Constitution, not the SCOTUS opinion based on the Constitution as it was.
You're nitpicking again. The people can revise/amend,- thus, in effect, nullifying the SCOTUS opinion.
For an opinion interpreting a Federal law, the Congress can change the Federal law. That revises the Federal law, not the SCOTUS opinion based on what the law was. --- Neither the Congress, nor the people, have ever revised one word of a SCOTUS opinion.
More nitpicking. -- Who just said: -- "There you go, blowing it out of your ass again." ?
#27. To: hondo68 (#20)
The D&R good 'ol boys club just looks the other way, and pretends that the the Rule of Law really exists.
Obergefell v. Hodges and King v. Burwell were the final nails in that coffin. The Court severed its ties to the Rule of Law.
Top • Page Up • Full Thread • Page Down • Bottom/Latest
[Home] [Headlines] [Latest Articles] [Latest Comments] [Post] [Mail] [Sign-in] [Setup] [Help] [Register]