Publisher's Note: Diane Rufino has supplied us with a most interesting concept: Should individual states ever consider secession as a last resort to seek remedy?
It is a rather long treatise on the subject so I have broken it into chapters. This is the fourth chapter. Reading the first chapter, the second chapter, and the third chapter is a prerequisite to understanding the fourth.
: Is it true that both California and Texas have such a right in the agreements they signed to join the Union?
--> I have read that this is not true. There are no direct provisions. However, in both the original (1836) and the current (1876) Texas Constitutions, Article I states that "All political power is inherent in the people ... they have at all times the inalienable right to alter their government in such manner as they might think proper."
QUESTION: What are states currently doing about States' rights?
--> Direct Challenges to Immigration and Healthcare
--> Nullification Schemes (including the Repeal Amendment to the US Constitution)
--> Repeal of 17th Amendment (Rick Perry is talking about this; also, Tea Party is expected to force this issue)
--> Embracing the Tea Party movement (limited government; States' rights)
(A). On March 24, 2010, Virginia signed into law the Healthcare Freedom Act.
1). It protects its citizens from being forced to purchase health insurance or participate in any health care system against their will.
2). It is a "nullification" bill
3). Virginia was the first state to pass such a law (It is believed that 38 states have or still plan to do so; Governor Perdue vetoed the NC Healthcare Freedom Bill)
4). On March 23, Virginia's Attorney General Ken Cuccinelli filed a lawsuit against the government challenging the legality of the health care legislation (Obamacare). The lawsuit claims Congress exceeds its powers under the Commerce Clause.
5). The VA Healthcare Freedom Act provided "standing" to challenge the Individual Mandate. Cuccinelli argued that the state of Virginia, as a valid exercise of state power under the 10th Amendment, has the right to regulate healthcare for its people and the federal government has no such constitutional power to compel citizens to do so under the Commerce Clause.
6). Cuccinelli is an activist state Attorney General who filed the lawsuit to challenge the power of the Congress under the Commerce Clause.
7). He said: "I don't think in my lifetime we've seen one statute that so erodes liberty than this health care bill. Certainly, we view our lawsuit as being not merely about health care. That's actually secondary to the real important aspect of the case, and that is to protect the Constitution, as we essentially define the outer limits of federal power. If we lose, it's very much the end of federalism as we've known it for over 220 years."
-- Cuccinelli vows to fight to restrain the federal government, which he calls "the schoolyard bully across the Potomac."
-- He doesn't hide his disdain for the Obama administration. He says: "They have no respect for the law, for the Constitution, no respect for the states. And no respect for the courts."
-- He believes States' Attorney Generals have a huge responsibility. "They are the last line of defense when there are no principle protectors of the Constitution."
-- He believes they must step up on behalf of their states and states in general to restrain the federal government.
-- As Frank Choderov wrote in 1952: "If for no other reason, personal pride should prompt every governor and state legislator to take a secessionist attitude. They were not elected to be lackeys of the federal bureaucracy."
And all States should take sides with Attorney General Cuccinelli or with Florida and the 26 other states challenging the federal healthcare bill. This is not only a matter deeply entrenched in a States' sovereign powers but it is such an offensive intrusion in an individual's life and affairs that that it is exactly the type of violation of individual liberty that a State was expected to protect against. The balance of power established explicitly by the 10th Amendment was to keep power over the individual closest to them... that is, with the states and local governments.
To appreciate how scary the government's position is with respect to its right to mandate compliance with its healthcare scheme, just look at the decision it is basing its defense of the healthcare bill on - Wickard v. Filburn.
In 1942, in a case known as Wickard v. Filburn, the government won a great battle in having control over private property. [The 16th Amendment income tax decision - Brushaber v. Union Pacific Railroad (1916) - was another huge victory, but that's a topic for another day]. Wickard v. Filburn was one of the scariest decisions handed down by the Supreme Court, the justices read a greatly enlarged grant of Congressional power into the Commerce Clause, in contradiction to our Founding Fathers. The case addressed the constitutionality of the second Agricultural Adjustment Act of 1938, which was part of FDR's New Deal. The Act empowered the federal government to set quotas and prices for agricultural products moving in interstate commerce, presumably to help farmers suffering from both the Depression and the dust bowl weather cycle of the mid-thirties, as well as to insulate consumers from price-gouging. Filburn was one such a farmer. He essentially was a dairy farmer who maintained a small dairy herd and some chickens on his Ohio farm. He sold milk, poultry, and eggs on the open market. He also planted feed for his livestock, including a small patch of wheat to feed the chickens, and to grind into flour for his own use. None of the wheat left his farm. Unfortunately he made the mistake of planting 12 acres more than the federal quota allowed in 1941. From this additional 12 acres, he collected a harvest of 239 bushels, which he consumed all on-farm. He was penalized 49¢ per bushel by the government, which represented a "tax" rate of about 57% of that year's average market price. Enraged, and believing that the government is only entitled to regulate items that go across interstate lines, Filburn sued. He challenged the Act on the basis that the Commerce Clause did not empower Congress to regulate crops that were used for personal consumption and never left the farm (never entered interstate commerce). The government's position was that it had broad power under the Commerce Clause, including the power to fine (tax) surplus farm production.
Unfortunately, by 1942 when his case made its way to the U.S. Supreme Court, the judicial composition made it the most progressive Court of the 20th century. The Court included such justices as Hugo Black, Harlan Stone, William Douglas, Felix Frankfurter, and Robert Jackson. All but one justice had been appointed by President Roosevelt and the Court was clearly in his corner philosophically. Their unanimous decision in this case reflected the New Deal's premise of unfettered government regulation.
Writing for a unanimous Court, Justice Robert Jackson (who would later serve, brilliantly and eloquently, as chief prosecutor at the Nuremberg War Crimes Tribunal) held that even un-marketed excess production has an effect on interstate commerce. As such, it can (or could) be regulated under the federal government's commerce power, granted in Article I, section 8 of the Constitution, which permits Congress to "regulate Commerce . . . among the several States." Filburn's excess production, of itself, was insignificant, but when combined with other un-marketed excess wheat production, it had a clear impact on interstate commerce. Jackson wrote: "The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply.... That Filburn's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, taken together with that of many others similarly situated, is far from trivial. Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing [the Second Agricultural Act's purpose to stimulate trade at increased prices." The rule laid down by Justice Jackson is that even if an activity is local and not regarded as commerce, it may still be regarded as such if, in the aggregate, it exerts a substantial economic effect, whether directly or indirectly, on interstate commerce. [This, by the way, is the very argument that the government is using to defend the Individual Mandate in the Patient Protection & Affordable Care Act, or Obamacare].
In simple terms, this is what the case boiled down to... Farmer Filburn grew wheat that he intended only for his own use, either for his family or to feed his animals. That wheat never "entered" the flow of commerce. It never crossed a state line, let alone even a county line. Ownership and control of property was one of the fundamental human liberties our Founders sought to protect from the reach of government. In fact, government was understood to be morally obligated to protect it, just as its owner would be allowed to protect it in the absence of government. For ownership of property to be complete, the "bundle of rights" associated with that property would include those to title, control, use, and ability to dispose. Those who've studied property law will remember the notion that owners of property (outright ownership) are entitled to the full and most beneficial use of their property - of course subject to the rule that their use and enjoyment doesn't burden another's use and enjoyment of their property (nuisance, for example). What the Supreme Court said in this case, in its convoluted reasoning, is that if Farmer Filburn hadn't grown that extra wheat, then he would have gone to the market and purchased it. Then he would have been actively involved in commerce. In other words, the Court was saying that the government can compel a person to become actively involved in the flow of commerce. If that isn't scary enough, ask yourself this: Why should the government require you to purchase from another what you can grow or produce yourself?
The fact is that the progressive Court had long considered the implications of the Commerce Clause and how broadly it should be interpreted. Consider how sharply the Court changed their views from year 1935 to 1942. In 1935, in the case, Schecter Poultry Corp. v. United States, a constitutional challenge was presented to FDR's National Industrial Recovery Act which empowered the President to implement industrial codes to regulate weekly employment hours, wages, and minimum ages of employees. The Supreme Court struck the law down as exceeding the powers delegated to Congress and to the President. Writing for the unanimous Court, Chief Justice Hughes said: "The delegation of legislative power sought to be made to the President by § 3 of the National Industrial Recovery Act of June 16, 1933, is unconstitutional. Congress is not permitted by the Constitution to abdicate, or to transfer to others, the essential legislative functions with which it is vested. The Act itself is also unconstitutional because it exceeds the power of Congress to regulate interstate commerce and invades the power reserved exclusively to the States... If the Commerce Clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government. Indeed, on such a theory, even the development of the State's commercial facilities would be subject to federal control." [Schecter, pg 546]. Hughes prefaced the decision by noting: "Extraordinary conditions, such as an economic crisis, may call for extraordinary remedies, but they cannot create or enlarge constitutional power." This comment particularly irritated the President. If the high Court was going to strike down his New Deal legislation, then he would replace the "nine old men" of the Court whose view of the Constitution reflected the "horse and buggy days," through legislation. In fact, he proposed a bill which would require that for every Supreme Court justice who refused to step down when he reached the age of 70, one additional justice would be appointed. (6 justices were age 70 or older at the time). Debate over the bill was intense and it was eventually rejected.
In response to the Schecter decision, FDR uttered these words in a press release on May 31, 1935: "Are we going to take the hands of the federal government completely off any effort to adjust the growing of national crops, and go right straight back to the old principle that every farmer is lord of his own farm and can do anything he wants, raise anything, any old time, in any quantity, and sell any time he wants?"
In 1939, in the case Currin v. Wallce, the Supreme Court hinted that Congress' power under the Commerce Clause is plenary or complete. The Court further suggested that Congress could extend its power over virtually any area that might contribute to the "General Welfare."
The Supreme Court continued to debate the proper interpretation of the Commerce Clause and the proper classification of "indirect" activities for purposes of the Congress' reach with respect to interstate commerce. It asked whether the Commerce Clause allows Congress to regulate only goods that move through interstate commerce or whether it allows for the regulation of production and the means of production as well. Seeming to abandon the rule set down in Schecter and moving towards the expansive view reflected in Currin, the Wickard Court finally settled that debate.
After the Wickard decision, economic situations would determine the extent of federal regulation. The case shows he growing willingness of the Supreme Court through the years to lend support to congressional efforts by offering an expansive reading of the Commerce Clause. (The Court also uses the two key clauses of the Fourteenth Amendment - the Equal Protection Clause and the Due Process Clause) in much the same way.
And as explained above, not only was the Supreme Court's expansive reading of the Commerce Clause in Wickard an insult to the American people, but equally disturbing was its the position on an individual's right to use, enjoy, and benefit from his or her own land.
(B). Arizona has taken the lead in challenging the federal government on Immigration. For Arizona, immigration is a matter of state security and safety.
1). On April 23, 2010, Arizona passed S.B.1070, a broad and strict immigration measure which would make the failure to carry immigration documents a crime and give the police broad power to detain anyone suspected of being in the country illegally.
2). The bill followed the cold-blooded shooting death of a local rancher by illegal drug smugglers
3). AZ's illegal immigrant population nearly doubled in less than a decade, with a huge increase in associated illegal violence.
4). A similar bill was vetoed by the former AZ Governor, Janet Napolitano
5). AZ accused the government of not enforcing federal immigration laws
6). John Morton, Obama's head of Immigration and Customs Enforcement (under Homeland Security), said his agency would likely not process suspected illegal immigrants referred to it under S.B.1070.
7). Poll after poll shows that the citizens of Arizona and America support S.B. 1070 by at least a 2-1 margin
Stand Down with the Federal Government -
1). On April 23, 2010, US Attorney General Eric Holder filed suit against Arizona to block S.B.1070
2). He threatened to file a second lawsuit challenging that its provisions amount to unlawful "racial profiling." (depending how the first one plays out)
3). The government intended to declare S.B.1070 invalid and to preliminarily and then permanently enjoin its enforcement.
4). It asserted that S.B.1070 is preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution.
5). On July 28, 2010, Judge Susan Bolton found in favor of the government's position and blocked most of the key provisions of S.B.1070
6). On April 16, 2011, the federal Court of Appeals for the 9th Circuit affirmed the decision. [the 9th Circuit is the most liberal of the 13 federal appellate courts and one of the most activist in the nation. It held the Pledge of Allegiance to be unconstitutional]
7). Governor Brewer intends to fight on and take the case to the Supreme Court under a States' rights argument (10th Amendment)
The 9th Circuit Hands Down an Activist Decision Against the Rights of AZ -
1). The decision went as far as to cite the views of anti-American dictators as a justification for holding against S.B.1070
2). Justice Richard Paez, who wrote the decision, argued that the law has "created actual foreign policy problems." Among the "problems" he cited was the disapproval of the Mexican government, the United Nations Human Rights commissioners, the government of Bolivia, and the Organization of American States. The UN Commission on Human Rights just happens to include such dictatorships such as Cuba and Saudi Arabia. And the Organization of American States includes such members as Cuba and the socialist dictatorships of Bolivia and Venezuela
3). The United States has not had diplomatic relations with Cuba for more than fifty years. In 2008, Bolivian President Evo Morales said that all Latin American nations should expel American ambassadors and cheered on a mob who tried to burn down our embassy. He said, "I don't mind being a permanent nightmare for the United States." Venezuela's dictator Hugo Chavez has spewed so much anti-American rhetoric that even Barack Obama expelled their ambassador just three months ago. Chavez had called Bush the "devil" and Obama "Satan."
4). The idea that the S.B.1070 will affect our relationships with these countries is preposterous.
5). Judge John Noonan wrote a concurring opinion against Arizona in which he argued that S.B.1070 would upset our relations with Mexico, which he called a "policy...of cordiality, friendship and cooperation." Really?
[Senator Russell Pearce, "9th Circuit Court of Appeals' S.B.1070 Decision Demonstrates Contempt for Constitution," Intellectual Conservative, April 16, 2011]