State-Led Nullification: Analyzing Federal Usurpations and Intervention Points

1. The federal usurpations that are susceptible to state-led nullification Austin Constitution Meetup August 23, 2010 Led by Jon Roland What can be nullified?

2. Analytic outline • Usurpation • Alleged authority for usurpation • Impact on people • Co-operation at state level required • Intervention points available with and without Nullification Commission (NC) • Likely scenarios

3. Some historical examples • Alien and Sedition Acts 1798 • South Carolina v. Tariff 1832 • Fugitive Slave Acts ~1850-61 • Resistance to Prohibition 1919-33 • RealID (current) • Medical marijuana (MM) (current)

4. RealID Act • Requires states to issue driver licenses and state ID that conform to federal requirements for centralized identification, without funding • Alleged authority is to withhold entry into federal facilities and onto commercial aircraft to those not having the ID • Alleged authority to control aircraft based on Commerce, Necessary & Proper, Wickard.

5. Resistance to RealID • Many states refusing to fund compliance, but some are complying • Feds hinting at withholding funds to states for other purposes unless they comply, taking advantage of economic distress • But lawsuits blocked by lack of standing • Act still on books but too many states blocking compliance, so it is in legal limbo

6. RealID if had NC • Citizen could have complained to NC before RealID Act passed. • NC would not find Act null if not passed yet, but could conduct hearings, call witnesses. • Proponents would have to confront opponents in NC hearing in different way than in stacked committee hearings of Congress. • Faced with likely nullification, Act would likely have been withdrawn.

7. Medical Marijuana (MM) • Illegal under federal acts, based on Commerce, Necessary & Proper, Wickard. • Some states legalized under their own laws. • When feds prosecuted for what state authorized, juries refused to convict. • Feds decided to stop prosecuting in those states, but still can. • NC would have gotten that result faster.

8. Health Care Act (HCA) • Mandates people get health insurance or pay fine. • Some proposed state legislation blocking collection of the fines. • But IRS may not file liens or take collection actions for fines, so fines to block. • However, IRS can deduct fines first, then charge people for not paying taxes. • So is state going to block income tax collection?

9. Income Tax & the NC • Citizen could complain Federal Income Tax on Labor (FITL) unconstitutional. • NC could hear issues in ways Congress and the courts refuse to, and find it unconstitutional. • IRS files liens with state court clerks, which NC could block. • State agencies and contractors withhold taxes, which NC could block.

10. FITL continued • IRS attaches money from bank accounts, but NC could have state bank charters suspended. • NC could encourage juries not to convict, but IRS still has civil actions. • IRS gets your money, then makes you sue them to get it back, with a jury possible but blocked. • Without NC, cannot afford the cost of suit, but NC could authorize paying attorneys for that.

11. Choosing battles • The FITL is not one of the first usurpations the NC should tackle. • It could hold hearings, but defer the finding, putting pressure on Congress to replace the FITL. • Hearings would provoke public discussion, and lead juries to refuse to convict even without the finding. • Without criminal convictions, collections would fade.

12. Federal education funds • Mandates depend on accepting federal funds. • State standards higher than federal in areas like civics. • NC could find federal funding only valid for militia. • Teacher unions could decide whether they want to train warriors and enforcers of the Constitution.

13. Environmental protection • Feds and state differ on standards. • Fed EPA based on Commerce, Necessary & Proper, Wickard. • NC would make businesses choose between State and EPA, line up their support for State. • Most federal enforcement administrative, so juries don't get to decide, except for criminal cases.

14. Gun control 1 • Alleged authority for NFA 1934 was Tax Clause, for GCA 1968 was Commerce, Necessary & Proper, Wickard. • Some states have advanced legislation to exclude intrastate firearms from federal regulation, but feds can just ignore that and prosecute in their courts. • States could refuse to disable RKBA for convicts, but feds don't recognize that as standard.

15. Gun control 2 • States could license intrastate firearms dealers, not required to be federal dealers, setting up conflict like that for MM. • NC could find lack of militia unconstitutional, and all noncriminal citizens law enforcement agents, which would make them all “peace officer” exceptions to federal statutes. • NC could encourage juries not to convict.

16. Money 1 • Citizen complaint to NC could bring finding that only gold & silver are legal tender within State. • State would then have to tax and spend only in gold and silver, not in Federal Reserve Notes (FRNs). • Civilians would then start demanding debts be paid in gold or silver. • Feds would become isolated into a FRN zone while the rest of the country abandons FRNs.

17. Money 2 • But taking on entire monetary system at once would backfire. • Better to take up complaint from one citizen that Federal Reserve Bank won't redeem a $1 bill for silver, threaten to withhold cooperation on something, until fed relents. • Then do it for a $10 bill, etc., with much fanfare, until politicians begin to see where it is going.

18. Summary • Not all federal usurpations are readily susceptible to state-led nullification. • The most susceptible are those that require the cooperation of state agents. • State-led jury nullification can work for some, but not all federal actions submitted to juries. • For some usurpations, the best that can be done is declaratory, throwing the issue to the people of other states and the political process.