By Harold Pease, Ph. D
States should not sue the federal Government to obtain rights they already have under the Tenth Amendment of the Constitution because doing so undermines—potentially to oblivion—that Amendment. It reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The proper constitutional state response to the Obama directive of May 12, 2016, allowing transgender students in public schools to use bathrooms and locker rooms consistent with their chosen gender identity, should be to ignore it and forward a letter to the president reminding him that transgender bathrooms, or anything like unto them, are nowhere listed in the enumerated powers of the Constitution Article I, Section, 8 and have not been added by way of amendment.
States using the 10th Amendment should also encourage other states to do the same thing. If the eleven states presently suing the federal government for abuse of power instead took this course, the president would back off—proportionally, more so, as states refusing compliance on constitutional grounds, enlarged. This approach not only does not allow the federal government to weaken the 10th Amendment, but frees the state from costly litigation and the schools from costly implementation. Resolvement is also immediate. Progression through the lower courts to the Supreme Court takes years for resolvement, which is not likely to happen in the Obama Administration. While we wait the administrative objective is, in effect, fait accompli.
The choice to litigate rather than use the 10th Amendment not only implies that the federal government might have some measure of jurisdiction but allows a federal branch of that government sole power to decide. Rare has been the modern Supreme Court decision that limits federal power or protects the separation of power between the federal government and state government. Consider recent decisions on national health care, also not an enumerated power and therefore 100% a state power. State protection of state sovereignty becomes impossible should the Court rule against suing states. States will have neutralized themselves.
Those advocating the litigation process have forgotten the role of federalism in our republic—that two governments, one primarily for foreign affairs, the other for domestic affairs, each coequal, were established in the Constitution. This was the first separation of powers—those not specifically given by the states to the Federal Government belonged to the states. It supersedes the second division of power that of the creation of the legislative, executive, and judicial branches in the Constitution, which then divides the power left to the federal government. The Founders viewed the enumeration of responsibilities in the three branches they created as sufficient.
Fortunately the states, fearing a future over-reaching federal government, insisted on an amendment in the Bill of Rights restating what was then the obvious, before they would ratifying the Constitution. This, in order to protect more fully the separation that had been established—their right to be coequal—thus the 10th Amendment to the Constitution. Thomas Jefferson explained it best when he said, “The states are not subordinate to the national government but rather the two are coordinate departments of one single and integral whole…. The one is domestic the other the foreign branch of the same government.”
The Supreme Court serves a very important role as the umpire in keeping the division of power between the three branches separate but cannot nullify or adjudicate to oblivion the first separation of power, that between the two coequal governments. If a power is not enumerated in the Constitution, having been given to the federal government by consent of the states, in a process outlined in Article V, it belongs to the state and no decision of the Supreme Court can change this. Keep in mind that judicial review, now the peg post to hang most Supreme Court decisions, was not effectively established until Marbury vs. Madison in 1803, thirteen years after the Constitution went into effect and long after the establishment of State authority to nullify federal over-reach.
Perhaps Alexander Hamilton said it best when he wrote that every act outside of enumerated authority is contrary to the Constitution and thus is void. Hamilton continues, “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm … that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid” (The Federalist, No. 78, p. 467).
Again, States should not sue the federal government over transgender bathrooms or anything else to obtain rights they already have under the Tenth Amendment of the Constitution. What they need instead are governors and legislatures with a better understanding of the document and “fire in their bellies” to protect the Constitution they have sworn by oath to preserve. The federal directive for transgender bathrooms is the most outrageous abuse of the enumeration clause of the Constitution ever and therefore the most likely abuse to gain public support for state nullification. It is passed time to use the Tenth. Have we governors that will do it?
By Harold Pease, Ph. D
A federal judge just ruled that Congress never appropriated the funding for the cost-sharing reductions in Obamacare. Judge Rosemary Collyer, citing Article I, Section 7, Clause 1, “All Bills for raising Revenue shall originate in the House of Representatives…” reminding the President that “Congress is the only source for such an appropriation, and no public money can be spent without one.”
Apparently, President Barack Obama realizing that his program to fund those unable to afford healthcare unless subsidized by the taxpayer, like food stamps, had not been appropriated by the House of Representatives, as required by the Constitution, defiantly looked for ways to do it anyway. That body denied his request that they do so in their fiscal 2014 budget. Rather than accept the fact that this is the only body that can approve expenditures constitutionally, the President began to pour billions into it, in effect raising revenue. Since the inception of nationalized healthcare the House had voted more than 70 times for its repeal so subsidizing what they considered a failed program was not going to happen. When, through executive orders Obama funded it anyway, House Speaker John Boehner filed a lawsuit challenging the executive branch’s ability to alter legislation once approved by Congress.
The judge’s ruling to stop further reimbursements to insurance companies who reduced health insurance for those thought to be unable to pay in exchange for the government’s promise to pay the difference out of tax funds, is delayed while the case is appealed to the D. C. Circuit Court of Appeals. Affected are approximately 57% of the people who signed up (estimated 5 million) for coverage through the federal exchange web page. Without the subsidies healthcare costs will rise substantially, although the taxpayer should get a break.
There are few parts of the Constitution more clear than, “All bills for raising revenue shall originate in the House of Representatives.” This means that any law, which extracts money from the backs of the American worker, can only originate from the House.
So why should you care if the president defies this small part of the Constitution? For thousands of years, until the Constitution, governments taxed their citizens whenever and whatever they wished. The people had no say. If the Egyptian Pharaoh wanted bricks without straw from the Israelites, for instance, so be it. Rulers lived lavishly off the wealth extracted from their poor subjects with little or no mercy toward them—lavish physical structures and frivolous wars of conquest were too often the norm. The Founders wisely took this power from the rich and gave it to the poor themselves by requiring that the poor, then the majority, had to consent to any taxation over them. The power to tax is the only constitutional power exclusively given to the masses. The House of Representatives was the only branch of government designed to actually represent them as it is based upon population. The Senate was to represent the states, the people only indirectly.
As far as I know the United States is the only country in world history that had this protection from their government placing its tax base with the masses that pay the taxes. It is a priceless freedom. If we are over-taxed in the United States we have chosen to be and one body alone is responsible—The House of Representatives. And, if over-taxed, a correction by the masses can follow quickly as all members of this body come up for reelection on the same date—every two years.
No tax can constitutionally originate with the President or the Supreme Court, not even the Senate, although it can modify as on other bills once originated by the House. The House is also in charge of spending—even defunding something previously funded. The power of the purse (both taxing and spending) is one of the most important powers of the Constitution. We must not let this freedom dwindle or allow the line between the two legislative branches to be blurred into oblivion.
Addressing this subject James Madison, the father of the Constitution, observed, “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” The U.S. Constitution mandates that “the House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of government.” This power alone he added, “can overcome all the overgrown prerogatives of the other branches of the government. They, in a word, hold the purse… (The Federalist 58).”
This may seem like a small thing but the people really do not want to surrender their freedom from excessive taxation, which, prior to this constitutional clause did not exist. No president should take this power unto himself by obligating the House through his defiant spending in opposition to existing law prohibiting such. Losing this is serious because, once gone, it is unlikely to be retrieved. Thank God Judge Rosemary Collyer understood this. Hopefully the D. C. Circuit Court of Appeals will as well when appealed to by the President.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College.
By Harold Pease, Ph. D
Liberty Under Fire has examined the candidates for president as to their intention to give first consideration in problem solving to the Constitution. Many of the problems now facing this nation and the expensive, time-consuming lawsuits to bring the Barack Obama administration in line with it, are due to his not following the Constitution. Our current constitutional crisis is more serious than any other concern, including ISIS.
Our readers in Iowa and New Hampshire, who will be expressing themselves very soon in the first two presidential primaries, should know that defending the Constitution must be first priority in this Presidential election. Constitutional integrity will solve our problems very nicely. Another four years without such may leave the Constitution so defiled as to not be recoverable.
To our many Democrat friends, your party has provided much historical strength especially in upholding Amendments 1, 4, 5, and 8 of the Bill of Rights. In the 20th Century your greatest contribution was in extending equality to blacks. Today most blacks support your party in appreciation. But in four Democratic sponsored presidential debates not one of your candidates (Hillary Clinton, Bernie Sanders, and Martin O’Malley) even spoke of our present constitutional crisis. Not one of them gave any indication that it would be considered in problem solving. Indeed, more taxes and more government—even government by decree—was always their remedy.
Unfortunately, the Republican solution to problem solving is only mildly better. They too problem solve with high taxes and unlimited government. They too abandoned the concepts of a republic and federalism years ago. They too pay no attention to the list of appropriate areas of legislation in Article I, Section 8 and Amendments 9 and 10 that gives all power not identified in the Constitution to the states. Republican presidents too, with their executive orders, usurp the powers of Congress as the only lawmaking body. A President Trump’s executive orders would differ from a President Hillary Clinton’s only in that his would be “good ones rather than bad ones,” as Trump explained.
On Second Amendment issues all the Republicans candidates are better than any of the Democratic candidates. Remember, Amendments cannot constitutionally be changed by warping its original meaning or by any law made by Congress or by executive order. If it needs to be changed that can only happen by another amendment and that requires 3/4th of the states to approve as per Article V.
On abortion issues Carly Fiorina has the most constitutional response, it should be returned to the states. There exists no language in the Constitution giving the practice national authority and as such constitutionally falls under the 10th Amendment. Ted Cruz, however, has the most actual experience in court with respect to preserving constitutional integrity on the subject. All others say that they are pro-life but would use national power to enforce that view.
With respect to the management of our currency, constitutionally given only to Congress with no authority for them to hand it off to the banking elite who most benefit by its management, most republican candidates are critical but in favor of the Federal Reserve. Only Rand Paul, Ted Cruz and Marco Rubio demand that the books be opened to Congress, Cruz and Rubio cosponsoring Paul’s legislation to do just this.
There exists no constitutional language whatever giving the federal government any say in health issues. As such it is a state issue as per Amendment 10. All Republican presidential candidates say that they oppose Obamacare but what they would do about it as president differs. Least likely to do anything about it is Jeb Bush. Most likely to work to have it totally repealed is Ted Cruz and Rand Paul. Trump and Rubio would repeal and replace. Replace means a Republican version of the same thing, which would be just as unconstitutional as that of Obama’s healthcare.
Candidates most likely to reverse Obama’s unconstitutional executive amnesty order are Ted Cruz and Donald Trump. Candidates least likely to do so are Jeb Bush, John Kasich and Chris Christie. Only Cruz and Trump have the correct constitutional interpretation of the 14th Amendment dealing with immigration.
On the Trans- Pacific Partnership Treaty most Republican Presidential candidates are in favor with Marco Rubio referring to it as being “a pillar of his presidency.”
Trump calls it as a “disaster” and “pathetic.” Rand Paul opposes it because it was done in secret and was unavailable to the people. Only Ted Cruz talks about opposition to it on constitutional grounds.
With respect to 4th Amendment issues of privacy and NSA surveillance on Americans, Rand Paul and Ted Cruz each sponsored legislation in opposition to it or limiting of its practice. Ben Carson and Mike Huckabee think spying on our own citizens without a warrant is unconstitutional. Others support or at least do not voice opposition to the practice.
In these instances, and many more, the presidential candidate presently defending the Constitution, and most likely to use the Constitution in problem solving as president, is clearly Ted Cruz, with Rand Paul a close second. Least likely include Jeb Bush, Chris Christie, John Kasich and Marco Rubio.
By Harold Pease, Ph. D
On October 26, 2015, the Pacific Legal Foundation filed a new challenge with the Supreme Court contending that ObamaCare violates the Constitution that requires all tax-raising bills to originate in the House of Representatives. They argue that it was raised by the Senate who took an unrelated House bill to aid veterans, gutted it, and replaced it with their own ObamaCare language; a charge that has not been denied.
At issue is Article I, Section 7 of the U. S. Constitution, known as the Origination Clause, that reads: “all bills for raising revenue shall originate in the House of Representatives.” This means that any law, which extracts money from the American people, can only come from the House. The problem is The Patient Protection and Affordable Care Act, known as Obamacare, originated in the U.S. Senate not in the House as constitutionally required and is now one of the largest tax bills in U.S. History.
So why does this matter, a tax is a tax? For thousands of years governments taxed their citizens with no limits. Rulers lived lavishly off the wealth extracted from their poor subjects with little or no mercy toward them—lavish physical structures and frivolous wars of conquest were too often the norm. The Founders wisely took this power from the rich and gave it to the poor themselves by requiring that the poor, then the majority, had to consent to any taxation over them. The power to tax is the only constitutional power exclusively given to the masses. The House of Representatives was the only branch of government designed to actually represent them as it is based upon population. The Senate was to represent the states, the people only indirectly.
As far as I know the United States is the first, possibly the only, country in world history that puts its tax base with the masses who pay the taxes. It is a priceless freedom. If we are over-taxed in the United States we have chosen to be and one body alone is responsible—the House of Representatives. No tax can constitutionally originate with the President or the Supreme Court, (even if Justice John G. Roberts, Jr. says that it is okay), not even the Senate, although it can modify as on other bills once originated by the House. The House is also in charge of spending. We must not let this freedom dwindle or allow the line between the two legislative branches to be blurred into oblivion.
In the Supreme Court’s decision of June 2012, it took great pains to establish that Obamacare is not a law passed under the Commerce Clause; this is a tax they ruled. Whether a fine, as the Administration argued throughout the case, or a tax as Roberts insisted, it is an extraction of money from the masses and therefore a tax and therefore must originate from the House, not the Senate. The philosophical switch created by Roberts made the constitutional error far more glaring. By letting origin slide the House looses its clear distinction on the origin of taxes and the people their right of first approval of taxation for generations yet unborn and probably forever.
What is worse it smacks of a sloppy cover-up by then Senate Majority Leader Harry Reid. Now that the Supreme Court made healthcare constitutional by deeming it a tax, it mandated a House of Representative origin rather than the Senate. A House version HR 3200 was available but Reid did not like it favoring his own HR 3962, The Patient Protection and Affordable Health Choices Act. Prior to the Supreme Courts tax ruling the tax was called a fine, not a tax, so he reasoned that it did not make any difference which legislative body originated the fine. The ruling necessitated resurrecting a bill that had passed the House first but had not been acted upon in the Senate, the Service Members Home Ownership Tax Act of 2009 HR 3590, deleting its contents and pasting in the contents of the Senate’s bill HR 3962.
The Home Ownership Tax Act was a tax providing a first time home buyer’s credit to members of the Armed Services, never mind that it had nothing to do with healthcare and now, after being deleted leaving only the empty shell, had nothing to do with the Armed Services or home buying either. The only thing that Reid kept was the original date, September 17, 2009, which now deceptively confirmed that it preceded Senate action. Accomplices to Reid were the original authors of the deleted bill: Congressman Charlie Rangel of NY, and Senator Clare McCaskill of MO. “This is the kind of morphing that reeks of illegitimacy and fraudulency,” declared The Washington Times, April 8, 2013. And it does. The level of corruption in the Democratic Party to get this thing through is almost incomprehensible.
What is worse, if Reid had indeed simply pasted in his own bill into the dead Service Members Home Ownership Tax Act, as believed and not denied, this tax bill HR 3962, the one that became Obamacare, has never actually been before the House of Representatives, the only body actually authorized to originate a tax. Obamacare may be the only revenue-raising bill in American history originated, processed, and implemented by the Senate and President alone.
Nothing could be more unconstitutional!! If left unchallenged Obamacare severely damages Article I, Section 7 of the Constitution. Hopefully the Supreme Court will protect the Constitution as first priority rather than a piece of legislation fraudulently framed and blatantly unconstitutional in numerous parts. Unfortunately the Supreme Court moves very slowly and this challenge is not likely to be resolved until 2017.
By Harold Pease, Ph. D
The fact that my congressman, Kevin McCarthy, could not secure 218 Republican House votes to replace Speaker John A. Boehner, after virtually being nominated by him, did not surprise me—he earned it. He is an extremely likeable fellow and certainly a leader but he has two flaws that came to hurt him. McCarthy is first for himself, an opportunist (as his inordinately fast rise to power indicates), and second, he is for the Republican Party at all costs. Normally this is how most politicians of both political parties look at things and it has worked well for them and him, until now.
Unfortunately the Constitution is not of first consideration in problem solving and legislation, his path is strewn with compromises that weaken or damage it. In vote after vote, as with Boehner, there exist no fight in his belly to defend it as first priority, even if what they propose cannot survive the Senate or a Presidential veto. Even if programs that are not easily constitutionally defended like, Obamacare, executive amnesty, or more recently, Planned Parenthood, are left without funding. He is too easily persuaded with “we do not have the votes,” giving an automatic win without a serious fight to those who have little or no respect for the Constitution.
There are two problems with “no constitutional fight in the belly” members of Congress, first the significant weakening of the Constitution from decade to decade in its ability to protect us from ever-bigger government until the Constitution becomes irrelevant. My heavens!! The President, who has no Constitutional law making power, through executive order, makes about half of the rules by which this nation is governed, while the Legislative Branch sits on its butt whining, “We cannot push this because the President will veto it.” My point!! We have compromised freedom away to the point where soon we will have nothing left to give up.
Second, as the country, as represented by the increase of Tea Party House members elected every two years beginning in 2010, is catching on to our loss of liberty and begging the Boehner’s and McCarthy’s to stand with them, they are not. Thus the divide in the Republican Party and, whomever replaces Boehner as Speaker will inherit the same contempt if he refuses to represent, as first priority, the Constitution in future lawmaking and issue resolvement.
Ironically both received warnings of the new political awakening and things could have been much different for Boehner and McCarthy had they listened. Both attended the first Bakersfield Tea Party rally in early 2009 where between three and five thousand angry voters gathered at the Liberty Bell to protest the policies of George W. Bush and his successor Barack Obama, which appeared to be too similar and both in opposition to limited government, the Constitution and the free market. Instead of viewing the proceedings with their constituents, they separated themselves to a third story window room in a government building next to Liberty Bell. I watched them from below as I joined other prominent community spokespersons in defense of the Constitution, limited government and the free market. It was a mistake.
In his August Congressional break that followed, Congressman McCarthy addressed several hundred people at California State University, Bakersfield kindly answering every question submitted from his, mostly Tea Party constituents. When the meeting time ended he graciously stayed on the floor until everyone had an opportunity to ask his or her question. He said all the right things with respect to his total opposition to Obamacare. He would go back to Washington and kill it. Long after the meeting had ended I was able to express my fear to him that he opposed a Democratic National Health Care Plan but did not oppose a Republican National Health Care Plan. “Since the word heath, or anything like it, is not in Article I, Section 8,” I asked, “and authority not thereafter added by way of an amendment to the Constitution,” he should return to Washington D.C. and oppose either party initiating, without authority, any federal policies on health. He was noticeably disturbed and said, “He would do what is necessary.” I knew than that adherence to the Constitution was not his first concern.
Now Congressman McCarthy, you know why you could not get the needed 218 votes to become the next Speaker of the House of Representatives. You did not listen to your constituency or the wave of Americans wanting to get back to America’s basics. But I still have hope in you. If you can get beyond yourself, get beyond your party (that gave us the Environmental Protection Agency and No Child Left Behind and so many other programs not constitutionally based) and get competent constitutional advisers, some of us would like to be led by you. We need your incredible leadership skills and your friendly countenance on the side of liberty protected by the Constitution. Show us that you can be trusted to adhere to the Constitution, limited government and the free market. The movement for these things is not going away.
If you listen this time you could, in the future, become the most influential Speaker of the House in our history and one of our greatest patriots. Show some constitutional fight in your belly. This time listen to your people, honor your oath to protect and defend the Constitution, and help take back our country and Constitution before it is too late.
By Harold Pease, Ph. D
When the Supreme Court no longer rules by the Constitution what must states do to force them to do so? It is called nullification and previously has been used to do just that in the 1800’s and more subtly in the last two decades.
Recent Supreme Court rulings with respect to the Affordable Care Act and marriage clearly demonstrate that the Supreme Court no longer honors Article I (requiring that only the Congress make all the law, their rulings can not have the effect of making new law), Article 1, Section 8 (the list identifying federal functions), and the 10th Amendment (reserving to the states all other powers not listed or added to the list by a specific amendment). Neither health nor marriage, or anything remotely like unto them, can be found in the Constitution as federal powers and thus, as per Amendment 10, remain state functions only.
Two years ago 28 states sued the federal government for constitutional over-reach by forcing citizens to buy something that they did not wish to buy called a mandate. The John Robert’s Court, rather than rule this requirement constitutional or unconstitutional, redefined the mandate a tax, (an argument consistently denied by proponents of the law) and thus the Supreme Court effectively made law, a function constitutionally left only to Congress in Article I. In a show of defiance to the Affordable Care Act, this decision prompted 34 states (all but 16) to refuse to establish state exchanges when given a choice by the Court; essentially “If you want it you create it.” They did!! The recent Supreme Court ruling then made resisting states provide the Medicare subsidy given the few states that had set up exchanges. No constitutional authority was cited. Again judicial legislation!! The reason cited by Justice John Roberts was essentially, “Congress created it so we will save it.”
At this point the only power left to the states is the 10th Amendment to the Constitution which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The 28 states initially suing the Federal Government for violating this part of the Constitution and the 34 states resisting the judicial edict to conform must use the Doctrine of Nullification to save the amendment and the Constitution. The issue is that serious! They have no other real choice for a court that no longer uses the Constitution as its sole base for ruling. Federalism, a key part of our republic, is dead otherwise.
The constitutional argument is the same for the Supreme Courts recent ruling legalizing same-sex marriage in all 50 states. Again, the Court disregarded Article I, Section 8, and Amendments 1 and 10 and utterly discarded the philosophy of federalism and the will of the people expressed in every election concerning the matter. Everything in the Constitution prior to 1868 was discarded, even betrayed, in favor of four words in Amendment 14 adopted 78 years later and intended only to extend the Bill of Rights to former slaves. The phases “due process” and “equal protection,” not defined, became fertile soil for federal government’s natural tendency to grow many times beyond original intent—each expansion becoming the rational for even more expansion. Today the Justices have used it to apply to an issue that would be entirely foreign to the framers of the 14 Amendment and to the Founding Fathers a lifetime before.
So again, the states have but one recourse to save the Constitution, federalism and the popular will of the people—nullification. But they must stand together and with one voice say, “not in our state.” States accepting same sex marriage can continue to do so constitutionally but the federal government, without an amendment to the Constitution transferring marriage authority from the states to the federal government, may not do so constitutionally no matter what a combination of five rogues justices say.
Founding Fathers Thomas Jefferson, James Madison, and Alexander Hamilton were especially expressive with respect to the use of nullification but what is clear in their writings is that states do have the authority to “Just Say No!” under the 10th Amendment. Such was used in 1798 in the Kentucky and Virginia Resolves, in 1832 in the Nullification Crisis in South Carolina, and more successfully with the northern states, especially Wisconsin, in 1854 over the highly unconstitutional Fugitive Slave Act.
More recently the 10th Amendment and resulting Doctrine of Nullification is beginning to be used by some states to prevent the federal government’s overreach of constitutional powers. Federal medical marijuana laws are openly defied by many states notably: Alaska, Oregon, Washington, and Colorado. Twenty-three states and the District of Columbia currently have laws legalizing marijuana in some form. States’ refusal to implement the Real ID Act, passed years ago, is a form of nullification. When enough states say no, the feds back away. In 2013, nine State Sheriffs’ Associations put the Executive and Legislative Branches on notice that they support the traditional interpretation of the 2nd Amendment of the Bill of Rights and 336 elected county sheriffs inferred that they would protect their people on this issue—even against federal agents coming into their counties. Barack Obama and the Justice Department backed away.
States you must use the Constitution to save the Constitution. In unison you must say, “We refuse to honor these clearly unconstitutional rulings in our state.”