Dakota Beacon

Summary

Dr. Woods, in this classic review of history, painstakingly reminds us of the authorized and prohibited powers of the federal government of the United States, of the individual states, and of the citizens of the United States, as defined by our Constitution.

By definition, reference in this book review to our “Constitution” means the Constitution of the United States, including its ratified amendments, the first ten of which are called the “Bill of Rights”.

Civics 101

The Constitution was established by elected representatives of the individual states that desired to be united in the manner set forth by the document.

The Constitution delegates the powers of the federal government of the United States.

The Constitution also prohibits some powers from being assumed by the individual states.

The tenth amendment of the Constitution states that the powers not delegated by the Constitution to the federal government, nor prohibited by the Constitution from being assumed by the individual states, are reserved to the individual states or to the people.

Article I of the Constitution defines legislative powers vested in a Congress consisting of a Senate and a House of Representatives.

Article II of the Constitution defines executive powers vested in a President and Vice President.

Article III of the Constitution defines the judicial powers vested in a Supreme Court and such inferior courts as established by Congress.

Section 2 of Article III extends judicial power to all Cases, in law and equity, arising under the Constitution, the Laws of the United States, and Treaties made under the Authority of the United States, as well as controversies to which the United States shall be a party. Controversies concerning the constitutionality of a federal law as disputed by one or more states are not explicitly included in Section 2, an implicit indication that each state retains the right not only to question the constitutionality of any federal law, but also to ignore the law (or portions of it) if the state deems such to be unconstitutional. Remember, any power not granted to the federal government by the Constitution nor prohibited to the states, is retained by the states or the people.

Is the Supreme Court always the “Law of the Land”?

The federal government is not the exclusive judge of the extent of the powers delegated to it. The independent states that joined together to establish the United States, along with those states that were subsequently admitted to the union, have the unquestionable right to judge the infractions to the Constitution. When the duly elected representatives of one or more states determines that an act of the federal government does not lie within the powers granted to the federal government by the Constitution, said state or states have the undeniable right to positively defy such act as a rightful remedy. This right has been called the right of “Nullification”. Nullification has been practiced throughout the history of the United States and continues to be practiced today.

While the Supreme Court has the right to hear controversies between the federal government of the United States and an individual state or states, such state or states have the right, if not the duty, to nullify the action of the Supreme Court when deemed unconstitutional by such state or states.

Recent Examples of “Nullification”

Illegal Immigration Reform and Immigrant Responsibility Act (IIRIR) of 1996

Sanctuary Cities, Sanctuary Counties and Sanctuary States are defying this federal law that requires various government agencies to assist federal Homeland Security’s Immigration and Customs Enforcement (ICE) agency regarding the questioning and identification of illegal immigrants. The states of Maine, Oregon and Vermont have, to one degree of another made resistance to the legislation a statewide mandate. Well over 100 cities in the United States have adopted local laws in defiance of this federal law.

Real ID Act of 2005

The REAL ID Act of 2005 was enacted by congress May 11, 2005. It modified federal law pertaining to security, authentication, and issuance procedure standards for state driver’s licenses and identification (ID) cards, as well as various immigration issues pertaining to terrorism. As of October 2009, 25 states have approved resolutions or binding legislation not to participate in the program.

What prevents federal authorities from enforcing these laws?

The Constitution does state, in Article I, Section 8, that congress shall have the power to establish a uniform Rule of Naturalization. So to say that an individual state, county, or city has a right to defy federal immigration law is a stretch. However, a good argument can be made to support the right of a state to fully augment federal law with state legislation as Arizona has recently done. Other states are following Arizona’s lead. And a compelling argument can be made to support federal interdiction into “sanctuary activities”. This author, however, believes that federal immigration law must be returned to that which existed prior to 1921 in order for public support of such law to be forthcoming or even expected. Until then, publicly “unwelcome” federal intervention is not likely.

Clearly, the Real ID Act is not a power that is explicitly provided in our Constitution. To enforce its provisions would essentially be an act of war by the federal government upon an individual state. We have had one civil war. It is unlikely that any politician will entertain even the remote possibility of another one. This legislation is very likely to be eventually repealed.

The American people are somewhat allergic to federal intervention by forceful means into those issues that are not of grave concern to an individual state’s or the nation’s existence. Both of these examples of Nullification appear to fall under such category.

What is the theory behind justifiable action by individual states to Nullify federal law?

• The states collaborated in creating our Constitution.
• The Executive, Legislative, and Judicial branches of the federal government, including the Supreme Court are creations of the Constitution.
• Since the states created the Constitution, including the branches of the federal government, the states are bound to the Constitution, but not to an erroneous decision of the Supreme Court that is deemed by such state or states to be unconstitutional.
• An individual state’s judicial branch is so fraternally attached to the federal judiciary as to deem its impartiality to be highly unlikely in matters concerning the constitutionality of federal law.
• A state is, by itself (through its elected legislative and executive branches), the final authority concerning whether a federal law is in conformance with the Constitution or not.

What does this entire “Nullification discussion” mean and why is it of concern now?

If 39 or more states deem the recently passed health care law to be unconstitutional, they may decide to take action to nullify the law by coordinated action of their legislatures and governors. When 39 or even a relatively few states act to ignore the requirements of a law, there can be no question as to its ultimate fate… repeal by congress and subsequent replacement by law(s) that the states can live with. The next congress that convenes in January (with the entire House and 23 Democrat Senators up for re-election in 2012) may decide to avoid the political upheaval associated with the healthcare reform law, repeal it, and collaborate to pass a simple law that addresses concerns that both political  parties can agree to. And a new healthcare law had better include a recommended tort reform model (patterned after that of Texas), including strong incentives for implementation, for the states to seriously consider, if a public “uprising” is to be avoided. Clearly a growing majority of Americans are fed up with Congress’s obliviousness to  public opinion on heathcare.