Supreme Court Overturns Thomas Jefferson. Time to Nullify!
by JBS President John F. McManus
There is no mention in the Constitution of federal power to start a medical care program. Likewise, there is no place in the Constitution authorizing any branch of the federal government to redefine marriage away from its millennia-old assertion that a union is of one man and one woman. But the Supreme Court has just sanctioned these federal power grabs adding both to an already frightening accumulation of federal dominance.
Thomas Jefferson commented on this kind of possibility when he wrote:
When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government [branch] upon another and will become as venal and oppressive as the government from which we separated.
It is hardly an excess to conclude that these two power grabs are not alone, and that all government is being “drawn to Washington.”
Our nation’s third President looked ahead and worried about such an accumulation of power by the federal courts. In 1821, twelve years after he left the Presidency, Jefferson wrote:
It has long been my opinion … that the germ of dissolution of our federal government is in the constitution of the federal judiciary … working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one.
When Congress wrote the Affordable Care Act (that’s the official name for ObamaCare), its text stated that tax credit subsidies were to be given to people living where a marketplace for the insurance, called an exchange, had been “established by the state.” Some sharp eyes noted that the federal government, not the states, was already operating the sites where people could sign up. In other words, the feds were breaking the law that clearly said these exchanges were to be state-run. A suit, known as King v. Burwell, went all the way to the Supreme Court. Legal scholars felt correctly that a victory for the plaintiffs would wreck ObamaCare. Fans of federal involvement in the medical industry knew that something had to be done.
And it was done – in a way that even Mr. Jefferson himself would likely not have ever imagined. The Court ruled 6 to 3 in an opinion written by Chief Justice John Roberts that those who created the law didn’t mean what they had stated, and that “established by the state” didn’t mean that the exchanges (the insurance marketplaces) had to be under state jurisdiction.
What happened here is a continuation of revolutionary court action: the Supreme Court actually re-wrote the law. Justice Scalia’s dissent noted that the words “by the state” were removed from the law “seven times.” The Supreme Court has no authorization to make law because the Constitution’s very first sentence states, “All legislative powers … shall be vested in Congress….” In effect, the current Supreme Court has changed the Constitution’s word “all” to mean “some, if we think it’s necessary.” It has no authority to do so.
So what should be done? States should continue to nullify this clearly unconstitutional law. More and more Americans are clamoring for the states to stand up to the feds. State legislators should oblige them. Our newest video on nullification demonstrates how nullification works and why it works well.
Also, the Constitution, that still stands and to which each Supreme Court justice and each member of Congress still swears a solemn oath to honor, deals with a potentially rogue court in Article III, Section 2. It states: “… the supreme court shall have appellate jurisdiction … with such exceptions, and under such regulations as the Congress shall make.”
In other words, the Congress that has just been insulted by the Supreme Court’s arrogance in rewriting its law can pass a measure barring the Supreme Court from having anything to say about the matter. If it followed this path, Thomas Jefferson would rest more easily. And so would all Americans who don’t want the federal government to control the medical profession via ObamaCare.
Mr. McManus served in the U.S. Marine Corps in the late 1950s and joined the staff of The John Birch Society in August 1966. He has served various roles for the organization including Field Coordinator, Director of Public Affairs, and now President. He remains the Society’s chief media representative throughout the nation and has appeared on hundreds of radio and television programs. Mr. McManus is also Publisher of The New American magazine and author of a number of educational DVDs and books.
Nullification of Oppressive Federal Laws is Catching On
by JBS President John F. McManus
Earlier in 2014, the Kansas state legislature enacted a law stating that some federal gun control regulations would not be obeyed in Kansas. U.S. Attorney General Eric Holder immediately notified Governor Sam Brownback that this new state law was unconstitutional. He cited Article VI of the U.S. Constitution, specifically its “Supremacy Clause,” to support his stand.
As is customary among federal officials, Holder relied on only a portion of this clause, the part stating that laws of the United States “shall be the supreme law of the land” binding all the states. But a more complete look at this clause shows that federal laws are legitimate only if “made in pursuance thereof” of the Constitution. In other words, if a federal law is not in keeping with, or exceeds, the powers granted in the Constitution, it can rightly be declared illegitimate and not obeyed.
Though not employing the word, Kansas actually issued a decree of nullification regarding the pertinent gun control regulations issued by the federal government. Is nullification of a federal law permissible? Thomas Jefferson thought so. In the 1798 Kentucky Resolutions he penned to help the Kentuckians gain statehood, he wrote:
That a nullification, by those sovereignties [states] of all unauthorized acts done under the color of that instrument [the Constitution] is a rightful remedy.
After he served as President, James Madison offered his view about a state’s power to nullify a federal law in 1834:
… nullification of a law can … belong rightfully to a single state as one of the parties of the Constitution; the state not ceasing to avow its adherence to the Constitution.
Though Attorney General Holder expressed his objection to the Kansas law, he hasn’t taken any action. But the Brady Campaign to Prevent Gun Violence, a private organization, has filed a lawsuit seeking to overturn what Kansas has done. In keeping with the Holder view, this anti-gun ownership group is relying on only a portion of the Supremacy Clause while ignoring the requirement that a federal law must be “in pursuance thereof” of the Constitution.
The actual Kansas law being challenged calls for prosecution of any law enforcement official (federal, state or even local) who seeks to enforce federal regulations over firearms made, sold and owned in Kansas. Attorney General Holder will surely watch this case from the sidelines. But so too will millions of Americans who value the private ownership of weapons, a right protected by the Second Amendment.
A related matter may become an issue in this case. It is who shall determine the meaning of constitutional clauses. America has long relied on a belief that the federal judiciary alone has the power to state what any portion of the Constitution actually means. But nowhere in the document itself can any such attitude be found. Leaving such an important matter to the federal judiciary has resulted in judicial mischief.
State nullification of unconstitutional federal laws and regulations is based on the recognition that sovereign states created the national government and delegated to that government only those few powers enumerated in the Constitution. It would surely be helpful for the cause of liberty for this intent to be reinforced along with acceptance of a state’s right to nullify a bad federal law. We can hope that the Brady Campaign’s suit against Kansas will lead to a reaffirmation of state power and a diminution of federal overreach. Like Eric Holder, we shall be watching this very important case.
Learn more about nullification by reading Thomas E Woods Jr.’s book, “Nullification”.
New Taxes in ObamaCare
by JBS President John F. McManus
There are plenty of sound reasons why Congress and the Supreme Court should never have saddled the American people with ObamaCare. Beyond the simple fact that the federal government has no authorization to meddle in the fields of health and medicine, Senator David Vitter (R-La.) has provided several more reasons to detest the law.
He deliberately chose the widely dreaded Tax Day of April 15 to send a letter to his constituents about new taxes contained within President Obama’s invasion into the field of medical care. The Louisiana senator stated his awareness that April 15th “is always one of the most painful days of the year.” But he wanted to let fellow Louisianans know that ObamaCare has “20 new taxes.”
Pointing to what he termed “the more egregious” levies contained in ObamaCare,” Vitter listed only four of the twenty. These are:
- The Medicine Cabinet Tax. ObamaCare does away with a citizen’s use of pre-tax dollars in a health savings account, a flexible spending account, or a health reimbursement account to purchase over-the-counter medicines.
- The “Special Needs Kids” Tax. Many parents of special needs children have relied on allowable flexible spending accounts to pay for special needs education. The amount a family can use for this purpose has been cut significantly.
- The Employee Mandate Tax. Employers who do not offer health care coverage must now pay $2,000 or more for each full-time employee.
- The Individual Mandate Tax. Any person who does not have health insurance and doesn’t participate in ObamaCare will be taxed.
As painful as it may be to learn of these new taxes, Vitter then pointed to the outrageous arrangement whereby members of Congress have exempted themselves and their staffs from participating in the new healthcare program. Instead, as he noted, each of these federal employees receives a “lucrative health care subsidy” with which to purchase his own healthcare program. Obviously, these privileged government personnel don’t have to live under the provisions of ObamaCare. Vitter notes in his message that he has personally refused the subsidy.
The Vitter letter contains his no-holds-barred assertion that there’s a need to “repeal” ObamaCare. It’s comforting to know that a U.S. senator holds such a view because that’s precisely what is needed. But expecting the current Congress to take such a step is unrealistic. Perhaps membership of the new Congress scheduled for election in November will contain enough Vitter-like individuals who will, indeed, cancel one of the most dangerous, costly, and unconstitutional programs ever created.
Go to our “Choose Freedom — STOP ObamaCare” action project page to learn more about stopping ObamaCare and how your state legislature can nullify the ObamaCare law in your state.
States Show Signs of Recognizing Their Sovereignty
by JBS President John F. McManus
A largely forgotten or ignored feature of the political construction of the United States consists of the undeniable fact that the states created the federal government, not the other way around. The states, of course, existed before the Constitution was even written. The Constitution wouldn’t even exist if it hadn’t been ratified by the required 3/4s of the states. The purpose of this state-created Constitution is very clear: There shall be a national government with strictly limited powers and all other powers shall remain with the states or the people (10th Amendment).
If the states are sovereign and the federal (national) government oversteps its constitutionally limited role, what is a state (or all of the states) to do? One answer is nullification, a little-used procedure that shows signs of becoming strongly prominent.
On March 19th, the state of Idaho demonstrated its understanding that the federal government isn’t all-powerful. A measure known as SB 1332 won passage without any “No” votes in both houses of the state’s legislature. It was then signed into law by the governor. SB 1332 says that there shall be no confiscation of firearms by Idaho law enforcement officers when directed to do so by the federal government. The measure was prompted by the enactment of various measures by the federal government that do indeed threaten a citizen’s right to be armed.
In Georgia, the state legislature came within a whisker of nullifying ObamaCare when the state senate declined to follow the Georgia house’s approval of a measure to nullify that widely unpopular federal measure. Proponents say they will try again. Other states, looking at what has happened in these two states (and others where nullification measures are being considered), are beginning to realize that they are not mere subordinate jurisdictions required to accept robotically and carry out all federal mandates.
Opponents of nullification will cite a portion of the Constitution’s Article VI: “This Constitution and the laws of the United States … shall be the law of the land.” Sounds good but they leave out something. Proponents point to the part of Article VI omitted by the above ellipsis which states “which shall be made in pursuance thereof.” In other words, the federal government cannot create any law whose legitimacy does not follow the provisions of the Constitution itself.
Perhaps some states will begin to take a hard look at such federal mandates regarding education, housing, medical care, energy, and more. There is clearly no authority given in the Constitution for meddling in these and numerous other areas.
State recognition of the power to nullify when the federal government exceeds its constitutionally authorized power could become the nation’s way out of virtually uncontrolled federal domination. To join the movement in your area to do just this, join The John Birch Society today.
Nullification: A Proper Remedy To Federal Overreaching
by JBS President John F. McManus
Is there any recourse when federal power exceeds its constitutional bounds? Do the people and the states have to accept whatever the federal government dictates? What can be done in the face of federal overreaching?
One generally forgotten answer to the above questions is the process known as “nullification.” It holds back federal power, even cancels any excesses federal officials (in all three branches) require of the people and the states.
Nullification involves a state formally telling the federal government that a particular measure it has handed down will not be obeyed. This isn’t anarchy; it’s common sense. It starts with the seemingly forgotten truth that the states created the federal government, not the other way around. When the states agreed to build a federal government, they didn’t give up their sovereignty. They ceded some powers to a central government and retained the rest.
The Tenth Amendment makes this point very clearly: “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.” Only the powers awarded to the federal government by the Constitution are legitimate; any overstepping of those delegated powers is illegitimate. Should the federal government exceed its properly delegated authority, a state through its legislature has the right to say, “NO!” Without such a right, states could be taken into tyranny.
In 1799, Thomas Jefferson was asked to help in composing what became known as “The Kentucky Resolutions.” Having been welcomed as the 15th state in 1792, Kentuckians wanted to define more clearly what relationship existed between themselves and the federal government. In the Kentucky Resolutions, one can read, “Resolved: That a nullification, by those sovereignties of all unauthorized acts done under the color of that instrument [the Constitution] is the rightful remedy.” Jefferson wrote that for his friends in Kentucky and they happily accepted and published it as their own thinking.
Later, in 1834, James Madison issued his “Notes on Nullification.” He stated: “…nullification of a law can … belong rightfully to a single state as one of the parties of the Constitution; the state not ceasing to avow its adherence to the Constitution.” In other words, refusing to accept the dictates of the federal government is the right – even the duty – of a state. And doing so does not in any way distance the state from the Constitution.
With both Madison who has rightly been named “the Father of the Constitution” and Jefferson on the side of nullification as a proper remedy for federal government excess, no one should deny its use in these troubling times.
Moves are underway in several states to issue decrees nullifying portions of ObamaCare – if not the entire measure. Lovers of liberty will support such moves without hesitation. And once many more Americans become aware that nullification is the proper and useful procedure available to rein in a voracious federal government, liberty will have been given a new – and much needed – boost.
For resolutions you can share with your state legislators on a variety of issues, check out our action projects at JBS.org.