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Brad’s Post: Nullification Is The Civil Disobedience of Federalism

My Post: Civil Disobedience Or Not, Nullification Is Unconstitutional

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• Losing A Good One
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• Today At The Liberty Papers

While there are some interesting structural arguments to be made on behalf of a power of nullification, of course it is not recognized by the text. And my doubts that it was thought by the founders to be a power reserved to the states is fueled by James Madison’s famed Report of 1800 in which he defended the Virginia Resolution objecting to the constitutionality of the Aliens and Sedition Act. I include a lengthy excerpt from Madison’s report in my casebook, including this telling passage near the end. (So readers have the full context, I include the paragraphs in full while putting in bold the more crucial language):

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

I realize this is only one statement by one founder. But if James Madison’s most famous defense of the earliest alleged act of state nullification expressly denies, or at minimum equivocates about whether, there is a literal power of nullification in states, then I would need to see pretty compelling evidence of original meaning to the contrary. And recall that no other state supported the Virginia and Kentucky resolutions. Indeed, Madison’s report was written to respond to criticisms lodged against the effort.

Indeed, if the man who pretty much wrote the Constitution and the Bill of Rights didn’t believe that there was a nullification power inherent in state authority, then that would seem to me to argue pretty succinctly that nullification is a bankrupt constitutional doctrine.

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• Russ Feingold’s 28th Amendment
• Russ Feingold’s 28th Amendment

George Will had a great column this week describing the political battles today as a battle between visions laid down by two men born 105 years apart:

Today, as it has been for a century, American politics is an argument between two Princetonians — James Madison, Class of 1771, and Woodrow Wilson, Class of 1879. Madison was the most profound thinker among the Founders. Wilson, avatar of “progressivism,” was the first president critical of the nation’s founding. Barack Obama’s Wilsonian agenda reflects its namesake’s rejection of limited government.

Lack of “a limiting principle” is the essence of progressivism, according to William Voegeli, contributing editor of the Claremont Review of Books, in his new book “Never Enough: America’s Limitless Welfare State.” The Founders, he writes, believed that free government’s purpose, and the threats to it, are found in nature. The threats are desires for untrammeled power, desires which, Madison said, are “sown in the nature of man.” Government’s limited purpose is to protect the exercise of natural rights that pre-exist government, rights that human reason can ascertain in unchanging principles of conduct and that are essential to the pursuit of happiness.

Wilsonian progressives believe that History is a proper noun, an autonomous thing. It, rather than nature, defines government’s ever-evolving and unlimited purposes. Government exists to dispense an ever-expanding menu of rights — entitlements that serve an open-ended understanding of material and even spiritual well-being.

The name “progressivism” implies criticism of the Founding, which we leave behind as we make progress. And the name is tautological: History is progressive because progress is defined as whatever History produces. History guarantees what the Supreme Court has called “evolving standards of decency that mark the progress of a maturing society.”

(….)

Today, government finds the limitless power of dispensing not in Madison’s Constitution of limited government but in Wilson’s theory that the Constitution actually frees government from limitations. The liberating — for government — idea is that the Constitution is a “living,” evolving document. Wilson’s Constitution is an emancipation proclamation for government, empowering it to regulate all human activities in order to treat all human desires as needs and hence as rights. Unlimited power is entailed by what Voegeli calls government’s “right to discover new rights.”

“Liberalism’s protean understanding of rights,” he says, “complicates and ultimately dooms the idea of a principled refusal to elevate any benefit that we would like people to enjoy to the status of an inviolable right.” Needs breed rights to have the needs addressed, to the point that Lyndon Johnson, an FDR protege, promised that government would provide Americans with “purpose” and “meaning.”

Although progressivism’s ever-lengthening list of rights is as limitless as human needs/desires, one right that never makes the list is the right to keep some inviolable portion of one’s private wealth or income, “regardless,” Voegeli says, “of the lofty purposes social reformers wish to make of it.”

Lacking a limiting principle, progressivism cannot say how big the welfare state should be but must always say that it should be bigger than it currently is. Furthermore, by making a welfare state a fountain of rights requisite for democracy, progressives in effect declare that democratic deliberation about the legitimacy of the welfare state is illegitimate.

(…)

Wilsonian government, meaning (in Wilson’s words) government with “unstinted power,” is hostile to Madison’s Constitution, which, Madison said, obliges government “to control itself.” Thus our choice is between government restraint rooted in respect for nature, or government free to follow History wherever government says History marches.

The Constitution that Madison gave us clearly lays out the direction that he believed we should go. Unfortunately, we’ve been following Wilson’s path for far too long, and the consequences are clear.

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• 1776 v. 1932
• The Forgotten Founder
• The Forgotten Founder
• The Phony “Corporate Rights” Argument Against Citizens United

RICHMOND — The Obama administration asked a federal judge Monday to dismiss Virginia’s challenge of the health-care overhaul law, arguing that the state has no standing to sue over the law and that Congress’s power to regulate interstate trade makes the measure constitutional.

Virginia Attorney General Ken Cuccinelli II (R) filed suit against the act moments after President Obama signed it into law in March. His suit is separate from a broader effort filed in Florida that includes 20 states.

Cuccinelli argued that Virginia was uniquely positioned to challenge the measure because of a law, adopted by the General Assembly this year, stating that individuals could not be forced to buy health insurance in Virginia.

But in a 39-page brief filed late Monday in U.S. District Court, attorneys acting on behalf of Secretary of Health and Human Services Kathleen Sebelius wrote that Virginia’s law was an attempt to nullify the federal statute and did not create the legal conflict necessary to enable the state to sue.

“If states could manufacture standing in the way Virginia attempts to do here, every policy dispute lost in the legislative arena could be transformed into an issue for decision by the courts,” they wrote.

Federal attorneys argued that individuals, not the state, are affected by the requirement to buy health insurance, meaning that the state has no standing to sue over the issue. Further, they wrote that the mandate causes no injury to the state and will not take effect until 2014, making the legal challenge not yet timely.

In a statement, Cuccinelli conceded that federal laws generally trump state laws, but he said the conflict between the federal law and Virginia’s statute gave him a “duty” to file suit.

The contours of the federal argument in defense of the health-care law have long been clear. But Monday’s motion represented the first opportunity for the Obama administration to submit those arguments to a judge. It came before similar motions in the Florida lawsuit because Cuccinelli filed his suit in the Eastern District of Virginia, known as the “rocket docket” — where attorneys face short timelines from judges to file legal motions.

Virginia has until June 7 to file a response.

The Federal Government’s argument generally can be summarized as follows:

1. Virginia lacks standing to challenge the law
2. The health care reform law, specifically including the insurance mandates, is a property exercise of Congressional power under the Commerce Clause and the Necessary and Proper Clause
3. The insurance mandate is a proper exercise of Congressional power under the taxation power.

Now, it’s entirely possible that the Court could rule that Virginia loses on the first ground, which means the suit would get dismissed without ruling on the actual substances of the lawsuit, but I don’t think that’s likely.

The Judge assigned to the case is Henry Hudson, a Bush appointee to the District Court. I appeared before Judge Hudson many times when he say on the Fairfax County Circuit Court, and I can attest that, however he rules, he will be thorough.

Here’s a copy of the Motion, which I have yet to read in full:

Commonwealth of Virginia v. Sibelius Memorandum In Support Of Motion To Dismiss

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In the Date Clause of article VII (see the high-resolution version of the original), which gives the date as “the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven,” the “Eighty” is capitalized but the rest of the year is not. Aha!

Here’s a close up of the section in question (click to embiggen):

And that’s not the only typo in America’s historical document, a commenter at The Volokh Conspiracy notes that the word British is mis-spelled in the Declaration of Independence/

In think the answer is obvious, we’ve got to give the country back and say hello to Prime Minister Cameron and Her Royal Majesty Queen Elizabeth II.

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WASHINGTON — President Obama, in his latest effort to signal fiscal responsibility against the rising debt, plans this month to ask Congress to give him and future presidents greater power to try to delete individual items from spending bills.

In doing so, Mr. Obama will join a long line of his predecessors who have sought either line-item veto power or, after the Supreme Court in 1998 ruled such a veto unconstitutional, some other rescission authority that passes muster. Congress once again is unlikely to be receptive, though growing antidebt sentiment could give the proposal life.

Before Congress breaks for its Memorial Day recess, the White House will send it proposed legislation “to give the president a new tool to reduce unnecessary or wasteful spending,” according to an administration official who spoke on condition of anonymity.

Under existing law, a president can send Congress a request to rescind items in spending bills after a bill is signed into law, but if Congress does not approve the request within 45 working days, the money must be released. And Congress, traditionally protective of its constitutional power of the purse, usually ignores such presidential requests, killing them.

President George W. Bush did not propose any rescissions, according to the Congressional Research Service. Republicans in Congress have challenged Mr. Obama to do so, but he has not. Under Mr. Obama’s proposed legislation to expedite and strengthen the process in a president’s favor, Congress would have to vote on any rescissions.

A president would have 45 working days after signing a spending bill into law to submit to Congress items to rescind, the administration official said, and Congress would have 25 days to act. The House and Senate would have to vote the package up or down, without amendments.

It’s not clear that this version of the Line-Item Veto would pass Constitutional muster given the Supreme Court’s decision in Clinton v. City of New York, which struck down the last attempt to grant a line-item veto power to the President as violating the Presentment Clause of the Constitution. This version of the veto does have the added requirement that Congress act on the President’s line-item choices, but I’m not sure that would be sufficient to get beyond the Constitutional objections. In the end, the only way to give the President a line-item veto is likely to be via Constitutional Amendment, which is unlikely.

The second problem with the line-item veto is that it is quite clearly a gimmick that will do little to reduce federal spending, or the size of government, as George Will pointed out four years ago when the Bush Administration was proposing the same thing:

First, Josh Bolten, director of the Office of Management and Budget, may be exactly wrong when he says the veto would be a “deterrent” because legislators would be reluctant to sponsor spending that was then singled out for a veto. It is at least as likely that, knowing the president can veto line items, legislators might feel even freer to pack them into legislation, thereby earning constituents’ gratitude for at least trying to deliver.

Second, presidents would buy legislators’ support on other large matters in exchange for not vetoing the legislators’ favorite small items. During the two-year life of the line-item veto, Vice President Al Gore promised that Clinton would use the bargaining leverage it gave him to get legislators to increase welfare spending.

The line-item veto’s primary effect might be political, and inimical to a core conservative value. It would aggravate an imbalance in our constitutional system that has been growing for seven decades: the expansion of executive power at the expense of the legislature. This ongoing development has been driven by wars hot and cold, and by today’s, which is without a foreseeable end.

Perhaps most importantly, 60% of the Federal Budget goes toward items that cannot be subject to the line-item veto:

Mandatory spending and interest = $ 2,148,000,000,000 out of $ 3,518,000,000,000 budget.

It’s a gimmick, folks.

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Not all American citizens, mind you. Just the natural-born American citizens that are the children of illegal immigrants.

At a tea party rally in Ramona in San Diego County over the weekend, Hunter fielded a question about the issue.

“Would you support deportation of natural born American citizens that are the children of illegal aliens?” a man in the audience asked.

“I would have to, yes,” Hunter said.

He continued:

You can look and say, ‘You’re a mean guy. That’s a mean thing to do. That’s not a humanitarian thing to do.’ We simply cannot afford what we’re doing right now.”We just can’t afford it anymore,” Hunter said. “That’s it. And we’re not being mean. We’re just saying it takes more than walking across the border to become an American citizen. It’s within our souls.”

“We just can’t afford it anymore,” Hunter said. “That’s it. And we’re not being mean. We’re just saying it takes more than walking across the border to become an American citizen. It’s within our souls.”

Hunter’s office did not immediately return TPM’s phone call seeking comment.

Hunter also said he thinks Arizona’s controversial new immigration law “is a fantastic starting point.”

Of course he did.

Video:

There’s just one problem with Hunter’s proposal, and it starts with Section One of the 14th Amendment:

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

In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court stated:

[T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

(…)

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.

Moreover, there’s this from one of the framer’s of the 14th Amendment:

The author of the 14th Amendment, Senator Jacob Merritt Howard of Michigan proposed the addition of the jurisdiction phrase and stated that it tracked what he believed was already the law of the land. As such, he stated, “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the family of ambassadors, or foreign ministers accredited to the the Government of the United States, but will include every other class of persons.”

In other words, the children of illegal immigrants are clearly citizens under the 14th Amendment.

You really want to deport American citizens, Congressman ?

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In Part One, Barnett talks principally about the Constitutionality of the health insurance mandates:

In Part Two, Barnett talks about other Constitutional issues implicated by the health care reform law, including Tenth Amendment issues:

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• Ron Paul: Peoples’ Needs, Desires, Wants, Or Demands Are Not Rights
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• Tim Pawlenty Calls For 10th Amendment Response To ObamaCare
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WASHINGTON (AP) — The Supreme Court will decide whether free speech rights are more important than helping parents keep violent material away from children.

The justices agreed Monday to consider reinstating California’s ban on the sale or rental of violent video games to minors, a law the 9th U.S. Circuit Court of Appeals in San Francisco threw out last year on grounds that it violated minors’ constitutional rights.

California Gov. Arnold Schwarzenegger, who signed the law in 2005, said he was pleased the high court would review the appeals court decision. He said, ”We have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions, just as we already do with movies.”

However, the judge who wrote the decision overturning the law said at the time that there was no research showing a connection between violent video games and psychological harm to young people.

The Supreme Court’s decision to hear the case comes only a week after the high court voted overwhelmingly to strike down a federal law banning videos showing animal cruelty. The California case poses similar free speech concerns, although the state law is aimed at protecting children, raising an additional issue

Yes, yes, it’s a familiar argument:

Of course, there already is someone thinking of the children, their parents:

Video games already are labeled with a rating system that lets parents decide what games their children can purchase and play.

Isn’t this a job for the parents, not the state ?

Given the lopsided outcome in the animal cruelty case, it seems that the law would have an uphill battle before the Justices, although its proponents don’t seem to think so:

Leland Yee, the California state senator who wrote the video game ban, said the Supreme Court obviously doesn’t think the animal cruelty video ban and the violent video game ban are comparable. If the justices thought that, he said, they would not be reviewing the 9th Circuit’s decision to throw out the video game ban.

”Clearly, the justices want to look specifically at our narrowly tailored law that simply limits sales of ultra-violent games to kids without prohibiting speech,” said Yee, a San Francisco Democrat.

Maybe, maybe not. Since it only takes four justices to agree to hear a case, that one fact is no indication of how the Court might rule on a case.

Personally, I am hoping they vote to sustain the 9th Circuit’s ruling.

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