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Trump Saves U.S. from the Trans Pacific Partnership

By Harold Pease, Ph. D

For readers who do not understand the international trade deals of the last 25 years, notably NAFTA, GATT and TPP, you will never fully grasp what President Donald J. Trump has just done for the Constitution and against the proponents of globalism. In his first day in office, pulling the United States out of the proposed Trans Pacific Partnership, he has done more to return us to constitutional integrity and to international free market economics than the last four presidents combined. Space permits our confining ourselves to the threat averted to the Constitution.

International trade deals have historically been a mix of oxymoron’s: Republicans for and Democrats against, with the actual trade deals finalized and implemented by Democrat presidents Bill Clinton and Barack Obama. Unions, considered left, and Tea Party folks, considered right, have been consistent opponents, as have constitutionalists. Thus, Senators Elizabeth Warren and Rand Paul are on the same side, the former yelling in opposition to the TPP, “No more secret trade deals!” And, “No more special deals for multinational corporations!!”—Both accusing Obama of selling us out.

In 2013, the Washington Post was the largest newspaper to print some of the “secret” parts of the TPP observing that by then, after nearly a decade of negotiation and 19 secret meetings, had become a regional government document of a hefty 5,600 pages. “Which when finished, will govern 40 percent of U.S. imports and exports” and “26 percent of the world’s trade.” It will be the law of the land for the United States and 11 other countries in the Asia-Pacific region—without the input of a single member of Congress. This in violation of Article I, Section I of the U.S. Constitution that mandates that all legislative powers reside in the House and Senate and in no other body. In fact, until 2015 members of Congress had not been allowed to even see the treaty whereas privileged corporations had no problem with access.

The paper continued, “The treaty has 29 chapters, dealing with everything from financial services to telecommunications to sanitary standards for food,” demonstrating the wide variety of areas believed to be affected by it, but again, it is the secretive nature of it that is most offensive. Apparently TPP participants signed “a confidentiality agreement requiring them to share proposals only with ‘government officials and individuals who are part of the government’s domestic trade advisory process’.” That excluded you, the media, Congress, and me.

The Post acknowledged that the agreement “encompass a broad range of regulatory and legal issues, making them a much more central part of foreign policy and even domestic lawmaking.” Such is curious. The Constitution requires the approval of your two U. S. Senators and your House member for every regulation upon you. There exists no language in the Constitution that any other individual or body—especially an international body—can perform this function. And, international law should not affect “domestic lawmaking.” You have the right to know that these three have read every rule emanating from the federal government upon you. The admission that the TPP will influence foreign policy is interesting as only the U.S. Senate may influence foreign policy as per Article II, Section II.   Giving a “more central part of foreign policy” to an international agency would have virtually voided the Constitution in this area.

The Post identified “60 senators (who) have asked for the final agreement to address currency manipulation.” Senators Elizabeth Warren and Ron Wyden, both Democrats, have been especially vocal about the Obama “Administration’s refusal to make draft text available.” Wikileaks published the chapter on intellectual property raising “many questions about copyright protections.” Obviously this treaty, while billed as just a trade agreement, included music, film, books, the Internet and appeared to restrict everything in the industry. And this was but one of 29 chapters.

The implementation procedure of the globalists was to gain consensus among the countries signing it, all had by February 4, 2016, then present it Fast Track and without debate to both branches of Congress for a simple up or down vote.   Again, this procedure flies in the face of the Constitution. Treaty making, an agreement between two or more countries, is a shared power between the president and the senate. The president “shall have power, by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur.” President Barack Obama did not seek Senate advice; indeed he has not even allowed the Senate to read his treaty prior to November 5, 2015, even then he accepted no changes in it. Then he presented it to both houses for a simple majority vote instead of only to the Senate for a two-thirds vote as constitutionally mandated.

Law by a single man excluding Congress is unconstitutional. International law imposed by an army of unelected bureaucrats is not freedom. The Trans Pacific Partnership would have siphoned decision-making power from the elected to the non-elected in a foreign land and would have affected every American. A signature by any member of Congress or by a president would have violated his oath of office “to preserve, protect and defend the Constitution of the United States.” Thank God Senate Majority Leader Mitch McConnell did not present it to the Senate when finished and President Trump took it off the table entirely.

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 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

Use the Constitution to Recover Confiscated State Land

Harold Pease, Ph. D

Utah stands out in its desire to retain public land not given it when it became a state and in using original intent in interpreting the Constitution, but her leaders do not understand the Constitution well enough to see that the Constitution already corrects the problem if used as designed. This ignorance dangerously undermines the Constitution.

Fourteen of Utah’s highest elected leaders, with sabers rattling threatening retaliation, bemoaned the President’s executive order removing from Utah’s public use an area the size of New Hampshire. Senators Mike Lee and Orrin Hatch plan to reintroduce legislation-exempting Utah from the Antiquities Act. Both hope the Trump Administration will help them reverse the Obama executive order. State Attorney General Sean Reyes wants to sue the federal government but this action failed with respect to the Grand Staircase National Monument. Other options suggested include defunding the monument, or through Congress, reducing its monumental size from 1.35 million acres to something more reasonable. Governor Gary Herbert gave the weakest response, offering no remedy.

All of this anger will result in votes in their next elections but none of it will result in an ounce of change. If not rescinded by Trump, the Monument will still be in place long after these politicians have been replaced. These solutions only complicate the problem enlarging the power of the federal government for the next confiscation challenge whether by Trump or yet a future Clinton or Obama.

Why not use the Tenth Amendment to the Constitution that restricts the federal government, (the executive, legislative and judicial branches) to the enumerated clause of Section I Clause 8, which lists the areas in which the federal government can legislate, execute, and adjudicate? All powers not specifically listed, or added later to the Constitution by way of the Amendment process outlined in Article V, are left to the States.

This clause divides all federal power into the four following areas: Congress has power to tax, pay debt, provide for the general welfare and common defense. So as to restrict the federal government from enlarging its power, which is its natural tendency to do, the last two grants of power of the four each had an additional eight clauses giving clarity to what was meant by general welfare and national defense. Clause 17 restricts the federal government to only 10 square miles for a capital and allows other property for military purposes. Other than this there exists no federal land outside territory awaiting statehood as per Article IV, Section 3, Clause 2.

Even with this clarification states, fearing that the federal government might still like to grow at their expense, refused to ratify the Constitution without additional restrictions harnessing it more fully to the enumerated powers, hence the Bill of Rights. These end with the handcuffs of Amendment 10: “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 response to the most recent monument declarations, Bears Ears and Gold Butte (and in any other state where the state government has to protect its authority), as is the cases for Utah and Nevada, is to refuse to recognize it and boldly so state. It is quick and final. The solution is definitely not to sue the federal government as this only places the decision in another branch of the same federal government, which almost always rules to increase federal power. Once rendered there, it only makes it more difficult to not comply. It is not to hope that Trump will rescind it because it asks another federal entity to do what the executive branch never had power to do in the first place. It is not to ask Congress to declare that the monuments be smaller in size as that implies that they had the power to create them in the first place. None of these is likely to work. What works is to honor the Constitution and declare boldly that the federal government has no constitutional authority to own, manage or control property outside national defense within its state boundaries.

Founding Fathers Thomas Jefferson, James Madison, and Alexander Hamilton were each especially vocal with respect to states having the authority to “Just Say No!” to federal law not enumerated. 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. Today 30 states currently have laws legalizing marijuana in some form despite objecting federal law, and most states continue to refuse to implement the federal Real ID Act. Without new amendments to the Constitution these, and many more issues, remain state issues.

Remember the states created the federal government in the first place and they created a system called federalism which recognized the principle of dual sovereignty, neither is master or slave to the other. Each viewed state nullification as an important check on unacceptable federal assumption of state powers. No branch of the federal government, not even the Supreme Court, has the constitutional authority to destroy this check. The Constitution will recover confiscated state property if governors have the fortitude to use it. Tell Governors Herbert and Brian Sandoval to use it.

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 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

Constitutional Concerns with Obama’s Midnight National Monuments

By Harold Pease Ph. D

Just two weeks ago, December 28, Barack Obama created the Bears Ears National Monument in Southeastern Utah and the Gold Butte National Monument in Nevada just northeast of the outskirts of Las Vegas. He used the 1906 Antiquities Act to set aside 1.35M acres surrounding San Juan County’s Cedar Mesa in Utah and 300,000 acres in southern Nevada. Never mind that the Bears Ears designation was opposed by every elected official in Utah.

In eight years as president Obama has “set aside” (code for human removal) more than 267 million acres of land and water—more than any other president. This acquisition alone is larger than the state of New Hampshire.

What does “set aside” actually mean when implemented? It is the strictest classification of land use. “These areas will be off-limits to mining and mineral exploration, oil and gas drilling, grazing, timber harvest, and even many of the current recreational uses of camping, hiking, hunting, fishing, horseback riding, and off-road vehicle usage that the public previously enjoyed” (William F. Jasper, The Last Word, The New American, p. 44).   All this new regulation and governance with but a stroke of the pen by one man with no constitutional authority to make law— this a prerogative of Congress alone.

The Constitution limits federal ownership of land to 10 miles square for a capital. The only other land that they could acquire had to be for military purposes as specified in the common defense clause of the Constitution, Article I, Section 8, Clause 17 which reads: “and to exercise like Authority over all places purchased by the Consent of the Legislature of the State in which the same shall be for the Erection of Forts, Magazines, Arsenals, dock Yards, and other needful Buildings.”

Any new acquisition, outside the capital, had (1) to be purchased, (2) have the consent of the State Legislature where the land exists, (3) and be for military purposes. As all land acquisition powers are in Article I of the Constitution, with the legislative branch, the president was left out of the process. None of these constitutional requirements were met with respect to any of the national monuments designated by President Barack Obama. None were purchased, none received the consent of the State Legislature, and none are used exclusively for military purposes. Nor have there been any additional amendments to the Constitution authorizing additional federal ownership of land as required for any additional federal power. Constitutionally there exists no federal land outside territory awaiting statehood as per Article IV, Section 3, Clause 2.

One might argue that most, if not all, of the monuments were already on federal land having been acquired when the federal government refused to give to new states all the land that went with statehood when they transitioned from territorial status. That is true. The federal government through this process came to own about a third of the United States. Just because late 19th Century leaders fraudulently acquired the property in the first place, it does not follow that present leaders should expand the fraudulency. Constitutionally all land within state boundaries, unless acquired through the three stipulations noted in the Constitution, belong to the states—no exceptions.

Presidents announcing new monuments normally cite the Antiquities Act of 1906 as the authority to do so and President Theodore Roosevelt as the first to use it in his creation of the Devils Tower National Monument in Wyoming the same year. Although this Act violated the above-cited constitutional land limitations, it, at least was an act of Congress representing the will of Congress in 1906 to which the then president responded. As unconstitutional as this was, Congress, reflecting the voice of many, still made the law and was in charge.

This was not authority for succeeding presidents the next hundred and ten years to hang every federal land confiscation on an antiquated law not authorized in the Constitution without a new constitutional amendment. Thus, in 1906, only one part of the Constitution was violated, Article I, Section 8, Clause 17, with its three limitations on federal land ownership, and that by the 1906 Congress. Presidents using this authority, thereafter by executive order, are not now doing it as the will of Congress or by their direction. They are essentially making law by themselves—a serious violation of the separation of powers doctrine (Article I, Sec. I).

The executive branch has NO authority to make law—any law!!!! Executive Orders are constitutional only when they cite a single, recently passed law of Congress, where that law needs a statement of implementation by the executive branch. Originally they were but interdepartmental directives.

Unfortunately all presidents since Roosevelt used the 1906 law that trumps the Constitution except Richard Nixon, Ronald Reagan, and George Bush. Sadly they were the only ones who followed the clarity of the Constitution with respect to federal ownership of property. That the federal government has created national monuments unconstitutionally on what are state lands, or that both political parties have ignored this part of the Constitution for over a hundred years, does not make federal confiscation now constitutional.   If this process continues, which has been accelerated under Obama, it is likely that the federal government may come to own far more than the third of the landmass that it now owns—perhaps all?

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 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

States Nullifying NDAA “Indefinite Detention” Growing

By Harold Pease, Ph. D

The National Defense Authorization Act (NDAA) funding national defense and updated every December despite a few modifications continues to “require the military to hold suspected terrorists linked to Al Qaeda or its affiliates, even those captured on U. S. soil, indefinitely” and without trial, on the say so of the military through the President alone. Moreover, even U.S. citizens could be removed to Guantanamo Bay, Cuba against their will and deprived of their constitutional rights. The law gave no protection from a revolving definition of terrorism to anti-government, perhaps even Tea Partiers.

The threat of potential incarceration without recourse to a lawyer, judge and jury is very serious. It violates Article III. “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” It also emasculates Amendments 4, 5, 6 and 8 of the Bill of Rights. The military performing police duty, heretofore rendered by civil authorities, is unconscionable in a free society.

Amendment 4 deals with searches and seizures and reads in part “no warrants shall issue, but upon probable cause, supported by oath or affirmation…” Warrants give civil authority the power to arrest only when the reason for the search (probable cause) has been reviewed and authorized, normally by an elected judge, who has given an oath to uphold the Constitution. He stands between the plaintiff and the defendant as the protector of constitutional law. There is no role for the military even with a President’s authorization. Freedom dies when this amendment dies.

Amendment 5 has several parts that are affected by this law but space limits my coverage to just a couple. Infamous or serious crimes mandate a grand jury, twelve or more citizens to evaluate the evidence before proceeding, which will not exist in a military arrest and extradition to Guantanamo Bay process. Moreover, one cannot “be deprived of life, liberty, or property, without due process of law.” Due process is the civilian judicial system.

Amendment 6 deals with criminal court procedures where “the accused shall enjoy the right to … a public trial, by an impartial jury of the state and district wherein the crime shall have been committed … to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel in his defense.” This law destroys the Sixth Amendment to the Constitution for those thought to be enemies of the state by a president. There will be no “impartial jury,” no “obtaining witnesses in his favor,” no “counsel in his defense,” and Cuba is hardly within “the state and district wherein the crime shall have been committed.”

Finally the NDAA obliterates Amendment 8 for those the President and his military define as terrorists. The protection against cruel and unusual punishment for them ends and torture becomes justified. The military will not care about excessive fines or bail, also parts of the eighth amendment. The possibility of “indefinite detention” or transfer to an unnamed foreign entity for unspecified purposes under military, rather than civilian jurisdiction, is “cruel and unusual punishment.” As is having a missile fired upon you by a predator drone based upon secret evidence presumed to be true by one man—the president

Sadly both Democrats and Republicans, despite their oath to preserve the Constitution, are responsible for this bill. With bipartisan support it is unlikely to be reversed. But there is another just as powerful way found in the Tenth Amendment to return to the Constitution. The use of The Liberty Preservation Act, “which bans participation with or assistance in any way with any federal act which purports to authorize the indefinite detention of a person within the United States.”

Virginia, home of Declaration of Independence author, Thomas Jefferson, and the Father of the Constitution, James Madison, was appropriately the first state in the Union to nullify the NDAA in a 96-4 and 39-1 vote in its House and Senate respectively. Done March 1, 2013, just two months after Obama signed it into law. Alaska joined Virginia in July followed by California in October of the same year, Governor Jerry Brown stating. “It is the policy of this state to refuse to provide material support for or to participate in any way with the implementation within this state of any federal law that purports to authorize indefinite detention of a person within California.”

Michigan followed December 27, 2013. Appropriately it was the first state in the Union to use the 10th Amendment to defy the unconstitutional Fugitive Slave Act of 1855, which refused to return runaway slaves to the South and their masters. Michigan will not participate in “holding a US citizen without Habeas Corpus.”

According to the Tenth Amendment Center, a non-partisan organization that keeps track of state nullification efforts, “16 states have introduced or passed non-compliance resolutions or bills resisting the NDAA.” They also provide a model for resistance called the Liberty Preservation Act for other states wishing to implement this part of the Constitution. Texas proposes the toughest penalties on federal agents attempting to implement NDAA law in their state, a jail term “not to exceed one year, a fine of not more than $10,000, or both the confinement and the fine.”

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 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

5th Anniversary of NDAA “Indefinite Detention” Law

Harold Pease, Ph. D

On December 31, 2011, New Year’s Eve, President Barack Obama signed into law the most constitutionally damaging law in American history, the National Defense Authorization Act of 2012. This New Year’s Eve we note its 5th Anniversary. Previous annual appropriations bills funding national defense were mostly procedural but it was the addition of two sections, buried deep within the over 600 page document, that potentially gutted the Bill of Rights for American citizens thought by the President to be assisting the enemy, that so upset constitutionalists and libertarians.

Subsections 1021–1022 of Title X, Subtitle D, entitled “Counter-Terrorism,” authorized the president to apply the Authorization for Use of Military Force, the 2001 congressional document used to justify war on Iraq, now broadly to all thought to be terrorists—including Americans living in the states far from any battlefield. The military would be used to find, arrest and “detain covered persons…pending disposition under the law of war.” Translated, this means military tribunals and prisons and no Bill of Rights. U.S. law; local law enforcement agents, juries, courts and judges would be excluded, all on the whim of but one man—the president. Moreover there exists no requirement to notify local authority when one is “kidnaped” (captured and detained), or transferred out of the country, as for example to Guantanamo Bay, or detained indefinitely. President Obama did promise that he would not use it against US citizens. This power will be transferred to Donald Trump January 20, 2017.

Constitutionalists and libertarians, notably Senator Rand Paul and Dianne Feinstein, have worked hard to at least modify these two sections. Newer versions do have Sections 1031-1033 that portend to affirm the rights of due process and habeas corpus but opponents of newer NDAA’s are certain that it is not enough to get back to pre 2011 constitutional protections. Senator Feinstein noted that her goal “was to ensure the military won’t be roaming our streets looking for suspected terrorists.”

The Posse Comitatus Act of 1878, following the Civil War, forbade the U.S. military from performing law enforcement functions on American soil. The American Civil Liberties Union warned in 2011, “Since the bill puts military detention authority on steroids and makes it permanent, American citizens and others are at greater risk of being locked away by the military without charge or trial if this bill becomes law.” When asked if it were possible for an American to be shipped to Guantanamo Bay, Senator John McCain said yes. Senator Lindsey Graham was more blunt. “When they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”

With at least three generals in the Trump cabinet it is questionable whether they will advise Trump to return to the constitutional protections heretofore in place. But it will be a major test of his sincerity respecting separating himself from the establishment, both Republican and Democratic, who together, have imposed this upon all Americans. Cosponsors of the disturbing changes were Senators Carl Levin and John McCain, the latter Trump deeply offended in his presidential campaign. Neither is likely to abandon what they created without a serious fight.

Some things are very clear in the sections disputed. The terms “terrorists” and “affiliates” are not adequately defined, the President is given too much power, and they violate the U.S. Constitution, which everyone voting affirmatively swore to uphold. It is hard to trust the government’s definition of terrorist when Vice President Joe Biden, once referred to Tea Partiers as terrorists and former House Speaker Nancy Pelosi, as mobsters (a term also implying a threat to society). What guarantee do we have that the “new” enemy does not simply rotate to anyone defined as “anti-government,” citizen or not?

Presidents have not proved particularly trustworthy in the past with respect to the Constitution and civil liberty. Franklin D. Roosevelt, with the stroke of a pen, detained over 110,000 Japanese Americans in “relocation camps” (Japanese-Americans called them concentration camps) in World War II on the basis of race and potential terrorism. Why should we have confidence in any president to not use this power as “seemeth” him good?

The Writ of Habeas Corpus found in Article I, Section 9 recognized that some day war might exist on our soil and that the accused had rights that might have to be momentarily delayed until recognized civilian authority could reasonably attend to them. It allowed this delay in only two circumstances “when in cases of rebellion or invasion the public safety may require it.” Section 9 provides a list of powers specifically denied Congress; nor were they given to the President in Article II. This strongly suggests no federal role outside the two parameters, rebellion or invasion. The removal of any civilian role and the carting off of U.S. citizens to a foreign place without benefit of civilian judge or jury obliterates this right.

The threat of potential incarceration without recourse to a lawyer, judge and trial is very serious. The military performing police duties previously rendered by civil authorities is unconscionable in a free society. Ninety-three senators voted for this bill. Only seven understood the Constitution well enough to defend it and vote no. These were Democrats Tom Harkin, Jeff Merkley, Ron Wyden and Republicans Rand Paul, Thomas Coburn, Mike Lee.

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 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

California Uses Nullification Doctrine to Protect Illegals

Harold Pease, Ph. D

American cities are in rebellion. Since the election of Donald Trump, mayors have lined up by the dozens and announced that they will not assist the federal government in the deportation of illegals. Universities followed, declaring themselves off-limits to federal law. None of this is protected by the Constitution. But now California is using the Tenth Amendment, the nullification doctrine, to become a sanctuary state and defy federal law as well. Is it constitutional?

Sanctuary cities defying federal law are nothing new. They did it under President Barack Obama with his encouragement. Estimates of illegals with criminal convictions released to the streets during the Obama tenure range as high as 68,000. Probably most hang out in sanctuary cities that seemingly plan on preventing their deportation. More than 600 of these were released back into the public more than twice. On August 19, 2015, 193 with homicide convictions and 426 with sexual assault convictions were released by the Obama Administration. One, 45-year-old Juan Francisco Lopez Sanchez, with seven felonies and having been deported five times, murdered Kate Steinle, July 5, 2015. More than 340 cities have laws shielding illegal aliens from federal law.

Two constitutional problems exist: as mentioned, the Constitution does not give cities any right to defy the laws of the land emanating from Congress (the only law making part of the federal government), nor should cities or states follow law made solely by the president, as for example executive amnesty. Every mayor has taken a solemn oath “to preserve, protect and defend the Constitution of the United States.” The existence of sanctuary cities is as clear a constitutional violation as exists.

But a state is exempted from federal law that is not constitutionally based by two parts of the Constitution: Article I, Section 8 and Amendment 10. The first, known as the enumeration clause, lists the areas where Congress can make law. Any extension of this list requires an Amendment to the Constitution as all other power remains with the states. Amendment 10 clarifies this relationship more firmly. 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.”

So states can refuse to obey federal law and should do so to keep the federal government from absorbing the jurisdiction left to them, “powers not delegated” to the federal government. Remember our Founders created a system of dual governance between the states and the federal government with neither being master or slave.

Founding Fathers Thomas Jefferson, James Madison, and Alexander Hamilton were each especially vocal with respect to states having the authority to “Just Say No!” to federal law not enumerated. 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, first strongly implied in the Constitution and then more firmly stated in the 10th Amendment, is being used by states to prevent the federal government’s overreach of enumerated powers. Thirty states and the District of Columbia currently have laws legalizing marijuana in some form, usually medical, openly defying federal law and on November 8, California, Massachusetts, and Nevada joined Alaska, Oregon, Washington and Colorado completely legalizing marijuana for recreational use as well. Whether my reader views this as good or bad, the fact still remains that without a new amendment to the Constitution this issue remains a state issue. States’ refusal to implement the Real ID Act, passed in 2005, which established new federal standards for state-issued drivers licenses, is a form of nullification as well.

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.

The use of marijuana, and the ID Act are not within the scope of enumerated powers and thus belong to the states. President Obama’s reinterpretation of the 2nd Amendment rightfully was ignored by the states. Health, education, and marriage, or anything remotely like unto them, can not be found in the Constitution as federal powers and thus, as per Amendment 10, remain state functions only—regardless of what five rogue justices on the Supreme Court may rule. Any other interpretation would lead the federal government to legislate any thing it wished, end federalism (dual government), and in time destroy all the other checks and balances in the Constitution.

Now California is using the doctrine of nullification to defy federal law on immigration, as it rules itself a sanctuary state. The problem is immigration is clearly constitutionally left to the federal government alone. Article I, Section 8, Clause 4 gives the federal government the right, To establish an uniform Rule of Naturalization.” It has and thus states cannot defy it. Moreover, eight of the 18 clauses listed as the powers of Congress deal with national security and border security defines even the existence of a nation. The Constitution puts an end to the issue in Article 6: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

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 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.