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January 28, 2014 by Michael Boldin
With a number of States now consideringbills to thwart the implementation of Obamacare or legislation to turn off resources like water and power to National Security Agency facilities around the country, a number of political commentators are weighing in.
For example, Gail Kerr over at The Tennessean wrote about State Senator Mae Beavers’ bill to block Obamacare: “The U.S. Supreme Court ruled in 2012 that President Barack Obama’s Affordable Care Act is constitutional. State laws cannot trump federal laws.”
Jacob Gershman at the Wall Street Journal’s Law Blog suggested the same before having to retract shortly after.
The knee-jerk reaction of many “experts” is to claim that “Federal laws trump State laws when they conflict” whenever they write about a bill designed to take action against a Federal act.
Many of them don’t have a clue what they’re talking about.
The bills in question are not coming into “conflict” with Federal laws at all; they seek to direct State agents and employees to stop participating in the enforcement of various Federal acts.
In Washington State, for example, House Bill 2272 would ban all public employees from participating in any actions that aid the NSA in its mass surveillance programs. While this would immediately ban the use of warrantless data in court proceedings in the States, it has even more significant impact in a State like Washington, because there is a physical NSA facility there that relies on third parties, such as State agencies, to provide electricity or water to stay operational.
A similar bill has been introduced in Tennessee, where the NSA’s encryption-breaking facility at Oak Ridge resides. And another is expected to be introduced soon in Utah, where the new NSA data center requires as much as 1.7 million gallons of water every day to cool the supercomputers. That water is being supplied by the state of Utah.
In a rallying cry that sounds surprisingly simple, supporters know that no water equals no NSA data center.
Back in Tennessee, Senate Bill 1888 states, in part, “No state entity shall establish or administer, or assist in establishing or administering, any specific regulatory scheme to operate the federal Patient Protection and Affordable Care Act of 2010, or any subsequent federal amendment to such act, in this state.”
Analyzing such state bills, FOX News Senior Judicial Analyst Judge Andrew Napolitano considered them an effective strategy against the Affordable Care Act. “If enough states do this, it will gut Obamacare because the federal government doesn’t have the resources… to go into each of the states if they start refusing,” he said.
In Florida yesterday, a bill was introduced in the State House to ban the entire State from enforcing or assisting in the enforcement of Federal gun control measures — all of them — past, present or future.
Napolitano last year urged States to do just this, suggesting that the Federal government simply does not have the manpower to carry out these measures. Such a bill in a single State, he said, would make “federal gun laws nearly impossible to enforce.”
The Legal Doctrine
Is this legal?
In short, absolutely. The State laws do not come into conflict with Federal laws in any legal sense.
All of these proposals are based on the widely accepted legal principle known as the “anti-commandeering doctrine.”
This means the Federal government cannot require a State to carry out Federal acts. The Federal government can pass a law and try to enforce it, but your State isn’t required to help them.
The Supreme Court has repeatedly affirmed anti-commandeering, relevant court cases being:
- 1842 Prigg: The court held that States weren’t required to enforce Federal slavery laws.
- 1992 New York: The court held that Congress couldn’t require States to enact specified waste disposal regulations.
- 1997 Printz: The court held that “the Federal Government may not compel the States to enact or administer a federal regulatory program.”
- 2012 Sebelius: The court held that the Federal government could not require the States to expand Medicaid, even under the threat of losing Federal funding.
Constitutional scholar Randy Barnett told National Journal recently: “State governments are free to refrain from cooperating with federal authorities if they so choose. In general, states cannot attack federal operations, but that’s not the same as refusing to help.”
These noncompliance bills do not run afoul of the Supremacy Clause, even if one were to claim that all Federal laws are supreme, instead of just those made “in pursuance” of the delegated powers in the Constitution.
Claiming they do is like claiming people who are boycotting a business are actually setting fire to it instead of just choosing not to shop there.
It’s just as absurd. Saying no to participation is far different than a physical standoff, both legally and practically.
Can It Work?
Simply put, the Federal government cannot force State or local governments to do the bidding of the Federal government. Such a tactic is an extremely effective way to stop a Federal government busting at the seams.
Even the National Governors Association admitted the same recently when it sent out a press release noting that “States are partners with the federal government in implementing most federal programs.”
That means States can create impediments to enforcing and implementing “most federal programs.”
James Madison, the “Father of the Constitution,” advised this very tactic. Madison supplied the blueprint for resisting Federal power in Federalist No. 46. He outlined several steps that States can take to effectively stop “an unwarrantable measure” or “even a warrantable measure” of the Federal government. Anticipating the anti-commandeering doctrine, Madison called for “refusal to cooperate with officers of the Union” as a method of resistance.
This same process was used effectively by Northern Abolitionists in resistance to the Fugitive Slave Act of 1850. And in Colorado, the whole world is able to see firsthand just how effective the States can be when they refuse to go along with Federal “laws.”
We should follow their courageous path against every other unConstitutional Federal act as well.
Moving forward, burning up the phone lines to your State House and asking legislators to introduce bills to refuse to participate in Federal acts like Obamacare, the NSA or gun control, can turn the tide toward liberty.
Many, if not most, Federal programs rely heavily on this kind of cooperation. Therefore, enacting anti-commandeering laws on various issues around the country can have the effect of a practical nullification — rendering Federal acts “nearly impossible to enforce.”
Image via Wikimedia Commons
This morning, US District Judge Willaum Pauley ruled that the National Security Agency’s dragnet phone surveillance is legal—just weeks after US District Court Judge Richard Leon ruled the NSA program was unconstitutional.
According to the Associated Press, Judge Pauley determined the September 11 terrorist attacks might have been prevented if bulk telephone data mining had been in place. In ruling that mass surveillance is legal, Pauley dismissed an ACLU lawsuit that argued the government’s interpretation of the Patriot Act’s powers was far too broad to justify the mass data mining of Americans’ electronic communications.
“The government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world,” wrote Pauley. “It launched a number of counter-measures, including a bulk telephony metadata collection program—a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.”
Could this be a preview of how the Supreme Court might rule on the surveillance question? Judge Leon’s decision, while encouraging to many observers, feels like a judicial anomaly. More often than not, courts favor the US intelligence complex. There is little reason to believe the Supreme Court’s ideologically conservative majority would suddenly reverse course on surveillance.
In February of this year—months before Edward Snowden’s stunning NSA leaks—the Supreme Court dismissed a lawsuit brought by Amnesty International and other groups. The defendants argued that journalists, human rights advocates, and lawyers would be harmed by the NSA’s surveillance of their foreign communications. Judge Samuel Alito, delivering the Supreme Court’s opinion, concluded that the defendants did not have standing. “They cannot demonstrate that the future injury they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of non-imminent harm,” wrote Alito.
Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsberg dissented, questioning the majority’s decision. In their opinion, the defendants might well have standing for “future injury.” The minority also suggested that the defendants could have incurred costs in countering NSA surveillance. The ideological split in the nation’s highest court probably doesn’t bode well for any future Supreme Court case on surveillance.
Add to this the Supreme Court’s November dismissal of an Electronic Privacy Information Center (EPIC) lawsuit claiming the Foreign Intelligence Surveillance Court (FISC) exceeded its legal authority in ordering Verizon to hand over telephone metadata. EPIC, as a Verizon customer, argued that it had legal standing, and was harmed by Verizon’s data handover, an argument that did not sway the court. This was the Supreme Court’s first opportunity to address NSA surveillance in the wake of Snowden’s leaks, and they brushed it aside.
While multiple surveillance reform bills are in committee on Capitol Hill, this could be exactly what some government officials want. A pro-surveillance Supreme Court ruling would effectively take the power out of the hands of legislative reformers. Senator Dianne Feinstein, who crafted her own bill to preserve and enhance the NSA’s powers, suggested as much in her response to Leon’s ruling.
“Only the Supreme Court can resolve the question on the constitutionality of the NSA’s program,” Feinstein wrote in a statement. “I welcome a Supreme Court review since it has been more than 30 years since the court’s original decision of constitutionality, and I believe it is crucial to settling the issue once and for all. In the meantime, the call records program remains in effect.”
When a pro-surveillance legislator like Feinstein calls for a Supreme Court case on the issue, it suggests confidence that the court will tow the government line. So, if the Supreme Court takes up surveillance in 2014, we could see the court’s recent surveillance rulings and Judge Pauley’s decision dictate their decision. And if the high court does rule surveillance constitutional, we’ll all suffer the consequences.
…supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony…
Landmark ruling comes 34 years after the Supreme Court last upheld Canada’s anti-prostitution laws [Reuters]
|Canada’s top court has overturned all restrictions on prostitution, declaring that existing laws violated sex workers’ right to safety.The Supreme Court of Canada struck down bans on brothels, street solicitation, and living on the earnings of prostitution in a unanimous 9-0 decision on Friday, and gave the Canadian government one year to re-write the country’s prostitution laws.
While prostitution itself is technically legal in Canada, most prostitution-related activities were previously considered criminal offences.
In the decision, Chief Justice Beverley McLachlin said many prostitutes “have no meaningful choice” but to “engage in the risky economic activity of prostitution,” and that the law should not make such activities more dangerous.
“It makes no difference that the conduct of pimps and johns is the immediate source of the harms suffered by prostitutes,” McLachlin wrote.
“The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks.”
The legal challenge to Canada’s prostitution laws was brought by a group of sex workers who argued that the now-overturned restrictions put them in danger.
Katrina Pacey, a lawyer for the petitioners, called it “an unbelievably important day for the sex workers but also for human rights.”
“The court recognized that sex workers have the right to protect themselves and their safety,” she said.
Last year, a lower court in the province of Ontario struck down the ban on brothels on the grounds that it exposed sex workers to more danger.
Friday’s ruling comes 34 years after the Supreme Court last upheld Canada’s anti-prostitution laws.
Prostitution is legal in much of Europe and Latin America, and brothels are legal in numerous countries, including the Netherlands, Germany and Switzerland.
The Supreme Court rejected an earlier life sentence imposed by the country’s war crimes tribunal [File/Reuters]
|Bangladesh has hanged opposition leader Abdul Quader Mollah over war crimes, making him the first person to be put to death for massacres committed during the country’s bloody 1971 war of independence.
Abdul Quader Mollah, 65, a senior leader of the Jamaat-e-Islami (JI) party, was hanged on Thursday at 10.01 pm (1601 GMT) in a jail in the capital Dhaka, government officials said.
The legal case against Mollah has heightened political tension in Bangladesh less than a month before elections are due. Jamaat-e-Islami is barred from contesting elections but plays a key role in the opposition movement led by the Bangladesh Nationalist Party (BNP).
Security was tight around the jail where Mollah was hanged. Extra police and paramilitary guards were deployed on the streets of Dhaka, while hundreds of people gathered at a major intersection in the city to celebrate the execution.
Moqbul Ahmed, JI’s acting leader, said in a statement on the party’s website that people would revenge Mollah’s execution by deepening the role of Islam in Bangladesh. The party called a nationwide general strike for Sunday.
Al Jazeera’s Tanvir Chowdhury, reporting from Dhaka, said that judges ancestral homes had been attacked in the wake of the decision.
Micro-level civil war
“It has been a very tense atmosphere in which this review is going on,” our correspondent said.
“People are worried, it’s almost like a micro-level civil war.”
While a strong reaction to the decision from JI was expected on the streets of Dhaka, the city remained relatively calm.
But at least five people were killed earlier on Thursday near the port city of Chittagong as clashes broke out between opposition activists and police.
Party activists also clashed with police, torched or smashed vehicles, and exploded homemade bombs in the cities of Sylhet and Rajshahi, TV stations reported.
Scores of people were injured in the latest violence to hit the South Asian country, which has seen weeks of escalating tension as it struggles to overcome extreme poverty and rancorous politics.
In eastern Bangladesh, security officials opened fire to disperse opposition activists, leaving at least three people dead and 15 others wounded, Dhaka’s leading Bengali-language newspaper, Prothom Alo, reported.
The violence broke out in Laxmipur district, 95km east of Dhaka, during a nationwide opposition blockade after elite security forces raided and searched the home of an opposition leader, the report said.
Life sentence overturned
The Supreme Court passed the order of a review petition filed by Mollah against its verdict, awarding him the death penalty for his wartime offences. He had originally been due to be hanged at 18:00GMT on Tuesday, his lawyer said, but the court delayed the execution to consider his petition.
His original life sentence had been overturned by the Supreme Court in September, after mass protests called for him to be hanged.
A panel of five judges led by Chief Justice Mohammad Mojammel Hossain rejected the petition after hearing arguments on the appeal against the death penalty, a state prosecutor said.
Mollah is one of five opposition leaders condemned to death by Bangladesh’s International Crimes Tribunal (ICT), set up in 2010 to investigate atrocities perpetrated during the 1971 conflict, in which three million people died.
Critics of the tribunal say it has been used as a political tool by Prime Minister Sheikh Hasina, who is locked in a political feud with BNP leader Begum Khaleda Zia, as a way of weakening the opposition ahead of January 5 elections.
“The execution of… Mollah should never have happened,” said Abbas Faiz, Amnesty International’s Bangladesh researcher. “The country is on a razor’s edge… with pre-election tensions running high and almost non-stop street protests.”
But many Bangladeshis support the court, believing that those convicted of war crimes should be punished, underlining how the events of 42 years ago still resonate in the impoverished, divided nation of 160 million people.
- Pakistan PM Sharif: Pervez Musharraf should be tried for treason (wjla.com)
- Court pardons General Musharraf! (abdulruff.wordpress.com)
- Pakistani premier: Musharraf should be tried (star-telegram.com)
- Musharraf’s punishment under High Treason possible (thenewstribe.com)
- Counsel asks SC to sentence Musharraf – Pakistan Daily Times (dailytimes.com.pk)
- You: Treason case hearing against Musharraf adjourned till June 3 (nation.com.pk)