Richard Moore

A couple of points about yesterday's filibuster.

The first thing is, of course, to salute Sen. Rand Paul for his stand for the U.S. Constitution in general and against the Obama administration's drone policy in particular. You can agree with Sen. Paul or not – and I do more often than not – but either way he has struck a renewed blow for intellectual integrity. Read more...

Posted Feb. 12, 2013 by Richard Moore

With the election over, and the ascension of Barack Obama to Supreme Leader – at least in his own mind – and without any pretense left now, a line has been drawn in the sand in this country.

It is a very unambiguous dividing line. Are we to be a statist regime, in which the government collective controls all and "takes care" of its subjects, or are we to be a nation of free individuals, governing ourselves through republican democracy and by the principles of liberty enshrined in the U.S. Constitution?

As of this writing, the statists are on the march and have the advantage. The constitution has been vandalized and scarred almost beyond recognition. The president's mantra, "we can't wait," has been revolutionized into "I don't want to wait," and in so doing he is seizing the powers of both the legislative and judicial branches.

Three recent instances makes this an irrefutable proposition.

After an appeals court declared Mr. Obama's recess appointments to the National Labor Relations Board unconstitutional, the administration did nothing – except declare it would ignore the court. Mr. Obama's contempt of the judiciary is well known: his scolding of the Supreme Court as the justices sat before him during the State of the State, his warning to the high court during the Obamacare challenge not to dare overturn it. But with the NLRB ruling, Mr. Obama has moved not merely to rebuke but to defy.

The NLRB simply declared after the ruling it would continue to enforce the approximately 200 decisions it illegally rendered, and would carry on business as usual with its illegal appointees. This is how Mark Gaston Pearce, the NLRB chairman, put it: "The Board respectfully disagrees with today's decision and believes that the President's position in the matter will ultimately be upheld....In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions."

Mr. Obama?s spokesman, Jay Carney, made a similar pronouncement from the White House. In other words, Mr. Obama has made his interpretation of the law, and that is the one that counts. The court shall be ignored.

Then there's climate change. After Mr. Obama's inaugural address, in which the president sent Chris Matthewsian tingles up the legs of leftist environmentalists by saying climate change would be a second-term priority, his point person on the issue in Congress, California Democratic Sen. Barabara Boxer, proudly announced the strategy. It would all be accomplished by executive fiat.

"A lot of you press me on: "Where is the bill on climate change? Where is the bill??" Boxer said. "There doesn't have to be a bill. There will be many approaches, but I'm telling you right now, EPA has the authority in the transportation sector, in the electricity sector, and the industrial sector under the Clean Air Act."

When it comes to the transportation sector, the electricity sector, the industrial sector – the entire economy – the president, and the president alone, rules.

Finally, and most important, the president's 23 executive actions to eviscerate gun rights showcase for all the president's naked ambition. The state-run media has dutifully reported how benign those actions are, and that is true for a few, but others are anything but.  

Mr. Obama appears to write law on some counts, at least potentially so. For instance, he proposes rulemaking to give law enforcement officials the ability to run full background checks on an individual before returning a seized gun to that person. The language is open to interpretation, and the devil will be in the rule's details, but it could open the door for police to run background checks not only on people from which the police have seized a gun during some official action but on legal gun owners who have done nothing wrong.

What if a person reports a gun as being stolen, and police later recover, or "seize," that gun in a police action? Under the Obama rule, could they now run a background check on the gun's rightful, legal owner before returning the firearm?

Police agencies are now prohibited from running a NICS check when transferring or returning weapons previously confiscated, seized or recovered, and the prohibition exists for a good reason: the very real possibility of abuse. If such checks are to be allowed, the merits and demerits of removing the prohibition need to be debated and voted upon by Congress, not made by presidential decree.

Even more insidious is the president's clarification that nothing in Obamacare prevents a doctor from asking patients about guns in their homes. Conservatives had incorrectly made that charge, misinterpreting a provision prohibiting the government and insurance companies from collecting information about legal gun ownership and ammunition. So, as liberals have pointed out, the president set the record straight.

But, dangerously, Mr. Obama didn't stop there. He went on to say doctors can and should ask those questions, not only when mental illness is expected but when young children are in the home. That establishes as federal policy the right of doctors to ask intrusive questions. The problem is, multiple states are considering or have passed laws prohibiting such dialogue except in limited circumstances. The president's move appears designed – and conservatives should focus on this – to preempt such legislation on the state level.

As all of this unfolds, and it is just the tip of the iceberg, the other two federal branches of government should stand up to what is in effect a coup d'etat in a slow cooker, but they are paralyzed by the presence of the president. The appellate court in the NLRB case could have issued an injunction against further decision-making by those appointees, could have voided the illegitimate decisions, and exposed the president's illegal intentions.

Yet it did not. This is a continuation of the cowardice of the federal courts, as best expressed by chief justice John Robert?s egregious ruling on Obamacare last year.

Congress is no better, refusing to seriously challenge the president on his usurpation of powers. Only Sen. Rand Paul of Kentucky and Rep. Steve Stockman of Texas are calling attention to the issue, and they have exactly two chances of getting Congress to stand up for its constitutional powers: None at all and less than none at all.

We stand, then, on the precipice of a real constitutional crisis, not like recent manufactured crises (silly liberal claims that reallocation of Electoral College votes would provoke a ?crisis?) or minor crises (gridlock leading to a temporary shutdown of the federal government).

Simply put, this is not a crisis of constitutional operation in which the various players can?t agree and the machinery ceases to work well for a short time. This is, as constitutional scholar Keith Whittington called it, a crisis of constitutional fidelity: ?Crises of constitutional fidelity arise when important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions.?

This is precisely what we have now.

It is not a crisis likely to be resolved at the federal level, as I have suggested. Does that mean it cannot be resolved?

Of course not, but it does mean the states – invoking their rights as set down in the Tenth Amendment – must rise up to defend freedom. These days states are becoming the very expression of individual liberty and may well represent the final firewall against federal oppression.

The natural alliance between the states and the people was foreseen by the authors of the Tenth Amendment, who predicted it in its very wording: "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."

In the end, the Founding Fathers knew quite well the federal government would pose the most likely threat to individual liberty, while states would provide the best vehicle for the defense of liberty.

States are already battling the federal government on many fronts. The most obvious example is Obamacare. Handcuffed by the U.S. Supreme Court – after 28 states dueled the federal government in court – a majority of states have nonetheless held to their belief that health care is not one of the federal government's constitutionally enumerated powers, and so have refused to establish and run what is a federal health care insurance exchange except in name only.

A number of states, too, have moved to protect their sovereignty and the integrity of their borders by enforcing federal immigration laws, laws the federal government itself refuses to enforce. That has brought court challenges by the feds, as has various states' attempts to pass Voter ID laws.

If one looks at the landscape, the flashpoints between state and federal authority are growing all the time; the line being drawn in the sand is perhaps the deepest it has been since the 1850s.

All of which brings us to nullification.  While state challenges to federal authority in court are useful, and while states' refusals to fund certain federal operations or to implement federal policies such as Obamacare can be effective on specific matters, they are not enough.

Ultimately, and this is the case with Mr. Obama's executive actions on guns, the states must act to nullify federal law, that is, to pass legislation declaring those laws and actions to be unconstitutional and therefore unenforceable.

Liberals will argue, and most federal courts have agreed, the states have no right under the constitution's Supremacy Clause to do any such thing. Here's the text: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

Thus federal law trumps state law, and only federal courts can strike them down, so no legitimate argument for nullification exists.

Except one does. Thomas Jefferson made it long ago. In 1798, in the Kentucky resolutions, Jefferson declared nullification to be the "rightful remedy" when states are faced with a federal government gone rogue. Jefferson also rejected as absurd the idea that a federal law was constitutional just because federal courts declared it so:

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy," Jefferson wrote in 1820. "Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

Indeed, the notion that states must automatically roll over to federal court decisions defies logic, for such states would have no sovereignty, one of the core principles the constitution protects. As the specific language of the Supremacy Clause makes clear, only those laws "which shall be made in pursuance" of the constitution are supreme.

The states must be free to reject those laws they deem not in such pursuance if the notion of state sovereignty is to have any meaning whatsoever.

Nullification, and the increasing resistance of states to federal oppression, is now and once again the clear path before us, if liberty is to be preserved. Beyond it, should that route be obstructed by the debris of stormy tyranny, lies yet another type of constitutional crisis.

It is the crisis of exceptional protest, that is to say, the mobilization of patriots in the streets.

First published in The Lakeland Times