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Neutralizing the New Deal? Destroying the United States? Neo-Secessionism and the Peach Fuzz Fascist

Dave Emory’s entire life­time of work is avail­able on a flash drive that can be obtained here. (The flash drive includes the anti-fascist books avail­able on this site.)

COMMENT: A very important story highlights what we feel is a major thrust of the psy-op for which Edward Snowden–the Peach Fuzz Fascist–is fronting.

A right-wing libertarian political milieu is working to have states cut-off electricity to the NSA, this in response to the Snowden disclosures.

As the authors of the story note: “The bill is rooted in a the­ory that, in James Madison’s words, would speed­ily put an end to the Union itself. More imme­di­ately, it could empower con­ser­v­a­tive state law­mak­ers to cut off Medicare, Med­ic­aid or Social Secu­rity, to frus­trate civil rights enforce­ment or even to pre­vent fed­eral law enforce­ment from inves­ti­gat­ing criminals.”

Advanced by the Tenth Amendment Center, the legislation; poses a seri­ous threat to that lib­eral touch­stone, a fed­eral reg­u­la­tory and wel­fare state equal to the prob­lems of grow­ing cor­po­rate power and poverty.

Not surprisingly, the Tenth Amendment Center heavily overlaps elements associated with the League of the South and the neo-Confederate movement. Those elements, in turn, are inextricably linked with the Ludwig von Mises Institute, the “Paulistinian Libertarian Organization and The Peach Fuzz Fascist himself [Snowden]. Citizen Greenwald has defended birds of the same feather.

Furthering their goal of destabilizing the Obama administration, the GOP plans on holding hearings on the NSA in order to generate political capital.

“Beware Of Lib­er­tar­i­ans Bear­ing Gifts: Why A Bipar­ti­san Move Against The NSA Could Kill The New Deal” by Zack Beauchamp and Ian Mill­hiser; Think Progress; 1/24/2014.

What does the NSA need if it wants to spy on you? Even before legal per­mis­sion, there’s the basics: elec­tric­ity to run its com­put­ers and water to feed the servers that stores the reams of data they acquire. Enter­pris­ing state leg­is­la­tors in six states have seized upon this almost-too-obvious insight, and used it to draft leg­is­la­tion that would quite lit­er­ally turn off the NSA’s lights in their states.

This might seem like a good idea to NSA crit­ics unhappy with Pres­i­dent Obama’s reform pro­pos­als, but the con­sti­tu­tional the­ory it depends on is pro­foundly dan­ger­ous. It poses a seri­ous threat to that lib­eral touch­stone, a fed­eral reg­u­la­tory and wel­fare state equal to the prob­lems of grow­ing cor­po­rate power and poverty.

Ulti­mately, this pro­posal to depower the NSA reveals that there’s only so much that can be accom­plished by right-left coali­tions. Unless each side can agree to aban­don tac­tics that threaten the other’s sacred cows, the mem­bers of these coali­tions must con­stantly be on guard against the man stand­ing behind them wait­ing to stick a knife in their back.

Turn­ing Off The Lights

Each of the six states (Kansas, Indi­ana, Mis­souri, Wash­ing­ton, Okla­homa, and Cal­i­for­nia) base their pro­pos­als on model leg­is­la­tion devel­oped by the OffNow coali­tion, a group orga­nized by the rad­i­cally lib­er­tar­ian Tenth Amend­ment Cen­ter. So too will leg­is­la­tors in the next three states (Michi­gan, Ari­zona, and Utah) that plan to pro­pose lights-off leg­is­la­tion. So OffNow, and by exten­sion the Tenth Amend­ment cen­ter, is more-or-less run­ning the show here.

How does the leg­is­la­tion work? Basi­cally, it pro­hibits any state entity and many cor­po­ra­tions from:

Provid[ing] ser­vices, or participat[ing] or assist[ing] in any way with the pro­vid­ing of ser­vices to a fed­eral agency, fed­eral agent, or cor­po­ra­tion pro­vid­ing ser­vices to the fed­eral gov­ern­ment which is involved in the col­lec­tion of elec­tronic data or meta­data of any person(s) pur­suant to any action not based on a war­rant that par­tic­u­larly describes the person(s), place(s) and thing(s) to be searched or seized.

Else­where, the leg­is­la­tion pro­vides that any cor­po­ra­tion “that pro­vides ser­vices to or on behalf of this state” which vio­lates this pro­hi­bi­tion “shall be for­ever inel­i­gi­ble to act on behalf of, or pro­vide ser­vices to, this state or any polit­i­cal sub­di­vi­sion of this state.” So if a state’s util­i­ties — elec­tric­ity, water, sewage and so forth — are owned by the state, they are for­bid­den from pro­vid­ing any ser­vice to the NSA. And if a state’s util­i­ties are pri­vately owned, they must choose between cut­ting off ser­vice to the NSA or per­ma­nently los­ing their abil­ity to do busi­ness with the state.

In most states, this would be largely sym­bolic: the NSA doesn’t have instal­la­tions every­where. But bothWash­ing­ton and Utah house sig­nif­i­cant NSA facil­i­ties, and it would actu­ally be quite painful for the agency to move them.

. . .

The Power To Destroy

The bill is rooted in a the­ory that, in James Madison’s words, would speed­ily put an end to the Union itself. More imme­di­ately, it could empower con­ser­v­a­tive state law­mak­ers to cut off Medicare, Med­ic­aid or Social Secu­rity, to frus­trate civil rights enforce­ment or even to pre­vent fed­eral law enforce­ment from inves­ti­gat­ing criminals.

The Tenth Amend­ment Cen­ter is one of the lead­ing pro­po­nents of “nul­li­fi­ca­tion,” an uncon­sti­tu­tional the­ory which claims that states can uni­lat­er­ally inval­i­date fed­eral laws sim­ply by pass­ing their own law claim­ing that the fed­eral pro­vi­sion is invalid. Yet their pro­posal to cut of water and power to the NSA rests on a slightly dif­fer­ent con­sti­tu­tional the­ory than pure nul­li­fi­ca­tion. Under some­thing known as the “anti-commandeering doc­trine,” the Supreme Court gen­er­ally does not per­mit the fed­eral gov­ern­ment to com­mand a state to take a par­tic­u­lar action. Thus, for exam­ple, if the fed­eral gov­ern­ment wants to crim­i­nal­ize mar­i­juana, then it can order fed­eral agents to arrest mar­i­juana users, or it can encour­age states to pros­e­cute mar­i­juana users by offer­ing them fed­eral funds if they do so, but it can­not sim­ply order a state to pros­e­cute some­one the state does not wish to pros­e­cute. Wash­ing­ton and Col­orado get to have their own drug laws and their police force is under no oblig­a­tion to enforce fed­eral law.

Apply this rule to the NSA, and it fol­lows that the fed­eral gov­ern­ment can­not force a state to have its own domes­tic spy­ing pro­gram, or to loan its own agents to the NSA. If the fed­eral gov­ern­ment wants to engage in sur­veil­lance, it must use its own money and its own offi­cers to do so unless a state vol­un­tar­ily agrees to pro­vide assistance.

But what if a state orders its state-owned power com­pany to deny elec­tric­ity to the NSA? Or if the state refuses to con­tract with any com­pany that also pro­vides basic ser­vices to the fed­eral gov­ern­ment? On the sur­face, these deci­sions seem to be cov­ered by the anti-commandeering doc­trine as well. Why should the fed­eral gov­ern­ment be allowed to direct the state’s busi­ness rela­tions any more than it directs its police force?

Chief Jus­tice John Mar­shall pro­vided a really good answer to this ques­tion nearly two cen­turies ago. In the land­mark case of McCul­loch v. Mary­land, the state of Mary­land attempted to tax a fed­er­ally char­tered bank. Mar­shall wrote for a unan­i­mous Court to explain why state tax­a­tion of fed­eral enti­ties was not allowed. “[T]he power to tax involves the power to destroy,” he explained, and “the power to destroy may defeat and ren­der use­less the power to cre­ate” the bank that the U.S. Con­sti­tu­tion entrusted to the fed­eral gov­ern­ment. More recent Supreme Court deci­sions have explained that states may not enact laws that “stand . . . as an obsta­cle to the accom­plish­ment and exe­cu­tion of the full pur­poses and objec­tives of Con­gress.

If the power to tax includes the power to destroy, so too does the power to cut off water, power and other essen­tial ser­vices to a fed­eral agency such as the NSA. Fed­eral offices could not pos­si­bly man­age the kind of record keep­ing and com­mu­ni­ca­tions nec­es­sary to oper­ate in a mod­ern soci­ety with­out access to elec­tric­ity. Indeed, the OffNow coalition’s web­site is quite explicit about the fact that they believe that the power to cut off util­i­ties is the power to destroy the NSA’s abil­ity to oper­ate — the NSA’s “mas­sive super­com­put­ers mon­i­tor­ing your per­sonal infor­ma­tion are water-cooled. They can’t func­tion with­out the resources to keep them at oper­at­ing tem­per­a­ture. That water is sched­uled to be pro­vided by the Jor­dan Val­ley River Con­ser­vancy Dis­trict, ‘a polit­i­cal sub­di­vi­sion of the state of Utah.’”

This tac­tic, of using state power to pre­vent the fed­eral gov­ern­ment from oper­at­ing, should trou­ble pro­gres­sives regard­less of how they feel about the NSA’s sur­veil­lance pro­gram. If Utah can cut of water or elec­tric­ity to the NSA, what’s to pre­vent Texas from cut­ting off power to fed­eral agen­cies that pro­vide health care to poor peo­ple, or North Car­olina from turn­ing the lights off on fed­eral vot­ing rights attor­neys chal­leng­ing theircom­pre­hen­sive voter sup­pres­sion law?

Burn­ing It Down

Don’t doubt for a minute that, if the Tenth Amend­ment Cen­ter suc­ceeds in estab­lish­ing a prece­dent for nullification-via-power-outages, they will imme­di­ately deploy this and sim­i­lar tac­tics to imple­ment other parts of their sweep­ing lib­er­tar­ian agency. Some of their other ini­tia­tives include bills pur­port­ing to nul­lify fed­eral gun laws and the Afford­able Care Act, as well as a truly sur­real pro­posal to under­mine the Fed­eral Reserve by requir­ing cit­i­zens to pay their state taxes in gold or sil­ver.

Nor are these the least of the Tenth Amend­ment Center’s ambi­tions. A res­o­lu­tion intro­duced in the New Hamp­shire leg­is­la­ture and pushed by the Cen­ter lays out an expan­sive list of poten­tial fed­eral laws that it objects to on con­sti­tu­tional grounds — one of them is “pro­hi­bi­tions of type or quan­tity of arms or ammu­ni­tion” — and then claims that the Con­sti­tu­tion shall become null and void if the fed­eral gov­ern­ment enacts any of the laws the res­o­lu­tion deems objec­tion­able, and “all pow­ers pre­vi­ously del­e­gated to the United States of Amer­ica by the Con­sti­tu­tion for the United States shall revert to the sev­eral States individually.”

The Tenth Amend­ment Cen­ter, in other words, is not sim­ply dis­trust­ful of cen­tral­ized power. They fear the fed­eral gov­ern­ment with such patho­log­i­cal inten­sity that they’ve actu­ally sug­gested dis­solv­ing the Union in its entirety if Con­gress, the Pres­i­dent or the fed­eral judi­ciary takes any action that vio­lates their idio­syn­cratic view of the Con­sti­tu­tion. Their posi­tion on states’ rights makes John C. Cal­houn look like a moderate.

So how­ever attrac­tive rein­ing in the NSA this way might seem, it’s a Tro­jan Horse: a legal strat­egy that has the poten­tial to bring down the major fed­eral accom­plish­ments lib­er­als most deeply cher­ish. Good thing the depower bills are unlikely to pass in any state. Regard­less, how­ever, this inci­dent tells us some­thing impor­tant about the var­i­ous pro­pos­als for a left-libertarian alliance to rein the secu­rity state you see bandied about.

Real­is­ti­cally, that’s the alliance you’d need you take seri­ous, nation­wide action on spy­ing out­side of the exec­u­tive branch; see the vote count on Rep. Justin Amash (R-MI)’s just-barely defeated bill to end NSA meta­data col­lec­tion. It’s the same coali­tion that could help accom­plish wor­thy goals like reform­ing fed­eral drug laws or racist prison sen­tenc­ing guidelines.

On issues like those — where the pol­icy fix is legally sim­ple, and the goals are fully shared — the left-libertarian alliance has the poten­tial to do a lot of good. But the state-level drive to turn off the NSA’s lights demon­strates the lim­its of this mar­riage. Law­mak­ing nec­es­sar­ily sets prece­dents. In some cases, those prece­dents come from the judi­ciary — giv­ing offi­cial sanc­tion to tac­tics once acknowl­edged to be uncon­sti­tu­tional. But the mere act of enact­ing a law and get­ting away with it can nor­mal­ize rad­i­cal tac­tics as well. Hid­den pro­vi­sions of a law or the legal the­ory behind it can change the coun­try as surely as the legislation’s intended end. . . .

“‘Nul­li­fi­ca­tion’ Con­fer­ence Attracts Far-Right Extrem­ists” by Hate­watch Staff; Hate Watch [South­ern Poverty Law Cen­ter]; 10/24/2011.

On the eve of a Nul­li­fi­ca­tion Now! con­fer­ence in Jack­sonville, Fla., last week, the Tenth Amend­ment Cen­ter issued a warn­ing: The South­ern Poverty Law Cen­ter was send­ing some­one to report that “those of us who want polit­i­cal decen­tral­iza­tion as the Con­sti­tu­tion requires [are] ‘dan­ger­ous.’” Then, when the con­fer­ence began, every speaker repeated the warn­ing. Some­one from the SPLC was there, they said.

And you know what? We were.

We were there when Oath Keep­ers founder Stew­art Rhodes warned that the fed­eral gov­ern­ment was lay­ing the ground­work to freely kill Amer­i­can cit­i­zens. We were there when John Bush, who runs the Foun­da­tion for a Free Soci­ety in Austin, Texas, stoked the audience’s already inflamed fears that a one-world gov­ern­ment was com­ing in the form of a U.N. plan for sus­tain­able growth. We were there when Doug Tjaden, direc­tor of the Sound Money Cen­ter, called for the nul­li­fi­ca­tion of the Fed­eral Reserve. “Nul­li­fi­ca­tion of any fed­eral law will only have long last­ing effect if we take away the bankers’ abil­ity to buy back our lib­erty,” he said with a thump of his fist on the podium.

Roughly 100 peo­ple attended the con­fer­ence orga­nized by the Los Angeles-based Tenth Amend­ment Cen­ter, a group focused on how to weaken the reach of the fed­eral gov­ern­ment through nul­li­fi­ca­tion. Their cen­tral idea—that each state has the con­sti­tu­tional right to inval­i­date and dis­re­gard vir­tu­ally any fed­eral law—relies on a spu­ri­ous inter­pre­ta­tion of the Tenth Amend­ment, which reserves to the states and the peo­ple any power not explic­itly given to the fed­eral gov­ern­ment, and flies in the face of more than two cen­turies of jurisprudence.

Much of the con­fer­ence seemed to be focused on dis­tanc­ing the move­ment from those mem­bers of the extreme right that tend to be the most attracted to the nul­li­fi­ca­tion con­cept.

That’s hard to do when the League of the South (LOS) has a table at the event, which it did. It was attended by Michael Tubbs, a for­mer Green Beret demo­li­tions expert who, in 1987, robbed two fel­low sol­diers of their M-16 rifles dur­ing a rou­tine exer­cise at Fort Bragg, N.C., in the name of the Ku Klux Klan. Tubbs is pres­i­dent of the Florida chap­ter of the LOS, which envi­sions a sec­ond South­ern seces­sion and holds to a dis­tinctly white suprema­cist ideology.

There were also rep­re­sen­ta­tives from groups advo­cat­ing for the legal­iza­tion of raw milk—to limit the government’s reg­u­la­tory power to ensure food safety—and for the Oath Keep­ers, a group that ped­dles antigov­ern­ment “Patriot” para­noia about fed­eral tyranny.

The force behind much of that para­noia is Rhodes, a for­mer Army para­trooper and Yale-educated lawyer who founded Oath Keep­ers. Rhodes cau­tioned that the recent killing of Anwar al-Awlaki, a rad­i­cal, U.S.-born Mus­lim cleric who had been des­ig­nated by the U.S. gov­ern­ment as a global ter­ror­ist, was merely a pre­view of what will even­tu­ally befall Amer­i­cans cit­i­zens at home. Assas­si­na­tion? Kid­nap­ping? Intern­ment? All will be pos­si­ble in the tyran­ni­cal future the far right fears is unavoid­able. “I’m not being para­noid. I’m just con­nect­ing the dots,” Rhodes said. “It will be done at home. Mark my words.” . . . .

. . . . The high­light of the day was Thomas E. Woods Jr., the author of Nul­li­fi­ca­tion: How to Resist Fed­eral Tyranny in the 21st Cen­tury. He argued that nul­li­fi­ca­tion was the prin­ci­ple tool of the north­ern abo­li­tion­ists who com­bated slavery—a fact, he said, the pro­gres­sive left con­ve­niently dismisses.

Woods couldn’t avoid call­ing out the SPLC “agent provo­ca­teur” in the audi­ence. To do so, he some­what mock­ingly employed Godwin’s Law to dis­miss any crit­i­cism of nul­li­fi­ca­tion. Godwin’s Law states, essen­tially, that as any dis­cus­sion pro­gresses, the odds increase that some­one will even­tu­ally invoke Hitler. Woods warned that the SPLC and oth­ers would seek to mar­gin­al­ize nul­li­fi­ca­tion by cre­at­ing neg­a­tive associations.

Woods was once a mem­ber of the LOS and remains a senior fel­low at the Lud­wig Von Mises Insti­tute, a con­ser­v­a­tive think tank in Auburn, Ala., that views social jus­tice as destruc­tive. Who needs Hitler when para­noid antigov­ern­ment fig­ures, hair-trigger Aryan mil­i­tants and an aca­d­e­mic extrem­ist are there to glad-hand the audience?

“The New, Snowden-Loving Repub­li­can Party” by David Weigel; Slate; 1/24/2014.

EXCERPT: Benjy Sar­lin has a nice readon the other news emerg­ing from the RNC meet­ing. Sup­port­ers of Ron Paul, chiefly Nevada’s Diana Orrock, were able to sell the whole com­mit­tee on a res­o­lu­tion “renounc­ing” the NSA’s data col­lec­tion pro­grams. As of today, the RNC “encour­ages Repub­li­can law mak­ers to call for a spe­cial com­mit­tee to inves­ti­gate, report, and reveal to the pub­lic the extent of this domes­tic spy­ing” and “calls upon Repub­li­can law­mak­ers to imme­di­ately take action to halt cur­rent uncon­sti­tu­tional sur­veil­lance pro­grams and pro­vide a full pub­lic account­ing of the NSA’s data col­lec­tion pro­grams.” It basi­cally endorses Rep. Justin Amash’s leg­is­la­tion in the House.

Andrew Kaczyn­ski com­mem­o­rates the occa­sionwith a flash­back to the August 2006 RNC attack on the “lib­eral judge” who ruled against another NSA pro­gram, and was “praised by Dems.” Not long after that, one of the party’s endan­gered mod­er­ates, Con­necti­cut Rep. Nancy John­son, attacked her Demo­c­ra­tic oppo­nent for dar­ing to oppose the program.

So it’s taken seven-odd years for the GOP to come fully around and real­ize the groovy pol­i­tics of civil lib­er­ties, but that should have been obvi­ous even before Snowden.

 

Discussion

11 comments for “Neutralizing the New Deal? Destroying the United States? Neo-Secessionism and the Peach Fuzz Fascist”

  1. In tangentially-related news, the Tea Queen is holding court:

    TPM Livewire
    Bachmann: Obama ‘Not A King’ So We’ll Sue Him For Executive Actions

    Dylan Scott – January 29, 2014, 2:41 PM EST

    Rep. Michele Bachmann chastised President Obama for his monarchical ambitions after his State of the Union address Tuesday night and warned that House conservatives were preparing to sue the president if he went too far in exercising his executive power.

    “He’s the president of the United States. He’s not a king,” Bachmann said following Obama’s speech, the Daily Caller reported. “He may think he’s a king, he may declare himself king, but that’s not what he is under our Constitution.”

    Bachmann foreshadowed pending litigation if Obama proceeded with the numerous executive actions that he announced during the address.

    “If he wants to move forward with this unilateral activity, he better be prepared for the lawsuit that the United States Congress will bring to him,” she said, and the National Journal reported that other GOP lawmakers, including Rep. Steve King (R-IA) also voiced support for legal action.

    A Bachmann aide pointed the Daily Caller to existing legislation, introduced in December by Rep. Tom Rice (R-SC), as the potential avenue for instigating a lawsuit against the president. The bill endorses “a civil action for declaratory or injunctive relief to challenge certain policies and actions taken by the executive branch.”

    Note that the bill already introduced by Rep. Tom Rice had quite a few co-sponsors. It was the same Tea Party members that repeatedly voted to repeal Obamacare suddenly deciding to sue Obama for not implement Obamacare fast enought:

    Think Progress
    Why 30 Members Of Congress Want The House Of Representatives To Sue Obama

    By Josh Israel on December 17, 2013 at 1:36 pm

    Rep. Tom Rice (R-SC), a staunch opponent of the Affordable Care Act, introduced a House resolution last week proposing that the House of Representatives sue President Obama to force faster implementation of the Obamacare employer mandate provisions. So far, 29 other House Republicans have signed on as co-sponsors of the proposal, which also seeks to overturn the president’s deferred action order for young undocumented immigrants, and welfare reform waivers to states.

    Though every House Republican opposed Obamacare and these 30 have repeatedly voted to repeal it, the resolution calls for a civil action against the Obama administration seeking more speedy and vigorous enforcement of the act. They claim the administration has shown a “continuing failure to faithfully execute” several laws and seek to eliminate executive discretion over whether insurers can continue to offer non-compliant policies in 2014, reporting requirements can be delayed, deportation can be deferred for undocumented immigrants who were brought to the United States as children, and waivers can alter work requirements under state welfare reform.

    A similar lawsuit was filed earlier this year by a Florida dentist and JudicialWatch, who claimed that the president has no authority “to pick and choose which parts of the law he’s going to enforce for the sake of political convenience.” Even American Enterprise Institute Resident Fellow Thomas M. Miller, who literally co-authored a book called Why ObamaCare Is Wrong For America, noted at the time that that lawsuit was unlikely to succeed. “The federal courts usually provide a good bit of deference to executive branch regulators when it’s a matter of relatively short delays for technical or practical factors,” though he was unsure “whether a one-year delay of the for enforcement of the employer mandate is arbitrary, capricious, or unlawful.”

    Peter M. Shane, a professor of law at the Ohio State University, told ThinkProgress that even if the resolution passed the House, the case would likely go nowhere. Noting that there have been very few cases of Congress suing the executive over administrative discretion, Shane observed that the courts would likely find some doctrinal excuse “to get out of the way of an inter-branch food fight” between the legislative and executive branches. “The biggest problem would be standing,” he observed, noting that if the courts allowed Congress to sue “whenever any statute is implemented with what it considered to be insufficient speed or comprehensiveness,” opening of floodgates wouldn’t “even begin, as a metaphor, to cover the disaster that would represent.”

    The co-sponsors include Reps. Michele Bachmann (R-MN), Jason Chaffetz (R-UT), Tom Price (R-GA), Mark Sanford (R-SC), Steve Stockman (R-TX), Joe Wilson (R-SC), and Ted Yoho (R-FL).

    Posted by Pterrafractyl | January 29, 2014, 1:36 pm
  2. The 19th century social contract with rise again, one way or another:

    TPM Livewire
    North Carolina GOPers Catch ‘Convention Of The States’ Fever

    Eric Lach – May 27, 2014, 5:03 PM EDT

    Before North Carolina can call for limits on the power of the federal government, it has some homework to do.

    A group of Republican state legislators in North Carolina on Tuesday introduced a bill that would, if passed, establish a committee to study whether the state should apply to Congress for a “convention of the states” under Article V of the Constitution.

    The convention the lawmakers have in mind would propose amendments imposing “fiscal restraints” on the federal government, limiting its “power and jurisdiction” as well as the “terms of office for its officials and members of Congress.”

    The bill’s four primary sponsors are state Reps. Bert Jones, Chris Millis, Dennis Riddell, and Jim Fulghum — all Republicans. The bill itself, the text of which is only a page long, argues that the federal government has “created a crushing national debt through improper and imprudent spending,” “invaded the legitimate roles of the states through the manipulative process of federal mandates,” and “ceased to exist under a proper interpretation of the Constitution of the United States.”

    North Carolina isn’t the first state to take a step in this direction.

    The COS Project was founded by the Austin, Texas-based group Citizens for Self-Governance. Among the COS Project’s leadership are Michael Farris, the chancellor of Patrick Henry College, and Mark Meckler, the co-founder of the Tea Party Patriots.

    Alaska, Florida, and Georgia have already passed “convention of the states” legislation, according to the COS Project, while Missouri, New Mexico, and South Carolina have measures pending.

    Yes, permanent austerity is coming in all sorts of ways. Simultaneously. But at least it sounds like there should be some good privacy protections in the new constitution with the proposal to limit the government’s “power and jurisdiction”. Sure real people probably shouldn’t expect many new privacy protections but the corporate kind should do just fine.

    Posted by Pterrafractyl | May 28, 2014, 2:25 pm
  3. Yikes. An entire county in Utah appears to be embracing the ‘sovereign citizen’ theme and is trying to secede from the Bureau of Land Management:

    TPM Livewire
    Utah County Declares BLM’s Authority ‘Is Not Recognized’ There

    Dylan Scott – June 18, 2014, 6:10 PM EDT

    A Utah county passed a resolution this month asserting that the authority of federal agents, specifically those of the Bureau of Land Management, to enforce state or local laws — even on federal land — would not be recognized within its borders.

    The Carbon County Commission approved the resolution unanimously on June 4.

    “Any such attempted exercise of law enforcement powers by an official of a land management agency IS NOT RECOGNIZED by Carbon County,” the resolution stated (caps in original), “and shall be deemed AN IMMINENT THREAT TO THE HEALTH, SAFETY AND WELFARE OF THE CITIZENS OF CARBON COUNTY.”

    In prefacing its case, the commission concluded “that Carbon County does not recognize any attempt by a federal official to try to enforce state or local criminal or civil laws on any lands in Carbon County, including any BLM or Forest Service lands.”

    The resolution also demanded that any federal agent intending to take a law enforcement action “shall first declare his presence and intended action to the Sheriff of Carbon County.”

    The move follows the standoff in Nevada earlier this year between the BLM and a militia supporting rancher Cliven Bundy. The resolution, however, did not mention Bundy or the standoff.

    Oh wow, imagine that: the very aptly named “Carbon County” specifically wants to kick out the federal agency that would regulate mining and drilling. It shouldn’t take too long before we find out if this an isolated incident or the start of a trend. A possibly moot trend.

    Posted by Pterrafractyl | June 18, 2014, 5:40 pm
  4. Is pushing nullification a new permanent GOP strategy or is this just an extended phase?

    TPM Livewire
    GOPer Ernst: Congress Shouldn’t Be Passing Laws States Would Nullify (VIDEO)

    By Daniel Strauss
    PublishedJuly 28, 2014, 5:13 PM EDT

    Iowa state Sen. Joni Ernst (R) argued that Congress should not be passing laws “that the states would consider nullifying.”

    Ernst, the Republican nominee for Senate in Iowa, made the comments at a forum at the 2013 Iowa Faith & Freedom Coalition and were flagged by The Daily Beast on Monday.

    “You know we have talked about this at the state legislature before, nullification. But, bottom line is, as U.S. Senator, why should we pass laws that the states are considering nullifying? Bottom line: our legislators at the federal level should not be passing those laws,” Ernst said. “We’re right…we’ve gone 200-plus years of federal legislators going against the Tenth Amendment’s states’ rights. We are way overstepping bounds as federal legislators. So, bottom line, no we should not be passing laws as federal legislators —as senators or congressmen— that the states would even consider nullifying. Bottom line.”

    Of course, as the Daily Beast pointed out, states can’t nullify federal laws.

    Ernst’s comments allude to a discredited argument that states can void federal laws that they disagree with. That argument was strongly supported by slavery advocate John C. Calhoun before the Civil War. It was also resurrected by segregationists in the 1950s and 1960s.

    Recent polling has shown an increasingly tight race between Ernst and Democratic nominee Rep. Bruce Braley (IA).

    Boy, Iowa’s voters must be kicking themselves for not using this fancy nullification trick all these years. Heck, just about every voter in the country is going to pretty shocked to learn that states can apparently just ignore federal laws. Ok, not every voter. Kansas’s voters, for instance, won’t have such regrets:

    Courthouse News
    Brady Campaign Sues Kansas Over ‘2nd Amendment Protection Act’
    By JOE HARRIS
    Friday, July 11, 2014
    Last Update: 11:00 AM PT

    KANSAS CITY, Kan. (CN) – The Brady Campaign to Prevent Gun Violence sued Kansas Governor Sam Brownback in Federal Court, challenging a state law that makes it a felony to attempt to enforce federal gun laws in Kansas.

    The Brady Campaign sued Brownback and Kansas Attorney General Derek Schmidt on Wednesday. At issue is Kansas’ “Second Amendment Protection Act,” which went into law on April 25, 2013.

    The Brady Campaign claims the bill is unconstitutional because it is designed to nullify federal law.

    The Brady Campaign, named for former presidential press secretary James Brady, who was wounded in the assassination attempt on President Reagan, is a nonprofit that seeks to reduce gun deaths.

    “The United States Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), and subsequent federal courts, have made clear that the Second Amendment allows for reasonable firearms regulations, confirming the constitutionality of virtually all, if not all, existing and proposed federal firearms laws,” the complaint states. “Yet the [Second Amendment Protection] Act purports to ‘declare’ the invalidity and inapplicability of federal law to ‘Kansas’ firearms and firearm accessories. In sweeping language, the Act states that such firearms and accessories are ‘not subject to any federal law, treaty, federal regulation, or federal executive action, including any federal firearm or ammunition registration program ….’ The Act extends not just to a purported subclass of ‘Kansas’ firearms and accessories-it also explicitly attempts to nullify any and all federal laws that the State of Kansas might deem inconsistent with its interpretation of the Second Amendment to the United States Constitution. In the unmistakable language of nullification, the Act provides: ‘Any act, law, treaty, order, rule or regulation of the government of the United States which violates the second amendment to the constitution of the United States is null, void and unenforceable in the state of Kansas.'”

    The Brady Campaign says the bill makes it a felony for any government representative to attempt to enforce federal gun laws in Kansas.

    “Because this provision extends to ‘agents’ of federal officials and employees, it could impose criminal liability on state and local officials or employees, including state law enforcement personnel, who work in conjunction with federal officials on law enforcement efforts,” the complaint states. “Indeed, the Act specifically prohibits any ‘official, agent or employee of the state of Kansas, or any political subdivision thereof,’ from enforcing or attempting to enforce any of the purportedly nullified federal laws. These vague and undefined prohibitions violate due process rights guaranteed by the United States and Kansas Constitutions.”

    The Brady Campaign says U.S. Attorney General Eric Holder wrote a letter to Brownback stating that the law was unconstitutional.

    “The blatantly unconstitutional nullification effort embodied in the Act evokes similar efforts by states in the 1950s during the Civil Rights Movement to nullify federal law mandating the integration of black students into all-white public schools,” the complaint states.

    This ongoing GOP nullification strategy would be pretty risky if the GOP wasn’t so confident in its ability to nullify our memories.

    Posted by Pterrafractyl | July 28, 2014, 6:07 pm
  5. So long United States of America. Hello Barely Affiliated States of America:

    Think Progress
    A Texas Lawmaker’s Bizarre Plan To Secede From The Union One Law At A Time
    BY IAN MILLHISER
    POSTED ON NOVEMBER 26, 2014 AT 9:38 AM UPDATED: NOVEMBER 26, 2014 AT 11:57 AM

    Under an unconstitutional proposal by Texas state Rep. Dan Flynn (R), just two people in the state of Texas — the state house speaker and the lieutenant governor — would effectivelyhave the power to suspend any federal law within Texas’s borders, at least temporarily. The legislation creates a 14 member “joint legislative committee on nullification” that is co-chaired by the speaker and lieutenant governor. Half of the dozen remaining members are appointed by one of the committee’s chairs, while the other half are appointed by the other chair (although only eight of the committee’s fourteen total members may belong to the same political party). A bare majority of the committee, eight votes, may temporarily declare that a federal law “has no legal effect in this state.” If that declaration is ratified by the state legislature in the next legislative session, it becomes permanent.

    Thus, by stacking the committee with loyalists, Texas’s speaker and lieutenant governor could effectively pick and choose which federal laws they wish to nullify, so long as they can agree with each other about what laws to target. Or, at least, they could do so if this proposal were constitutional.

    Rep. Flynn’s proposal is rooted in an unconstitutional theory known as “nullification,” which claims that a state can unilaterally declare a federal law unconstitutional and thus void within the state’s borders. The Constitution, however, explicitly provides that duly enacted federal laws “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 is “supreme” over state law, and state laws that conflict with federal law — or which seek to openly defy federal law — are preempted by the federal government’s legislation.

    Proponents of nullification seek to get around this fact by arguing that state lawmakers aren’t simply invalidating the law they do not wish to follow, they are also declaring it unconstitutional. But the Constitution does not give state lawmakers the power to issue binding pronouncements on whether federal laws are constitutional. To the contrary, the Constitution provides that “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” If a federal law actually is unconstitutional, then the proper legal course is to file a lawsuit seeking to strike the law down. As James Madison warned early in American history, nullification would “speedily put an end to the Union itself” because it would render each obligation a state’s citizens owe to the union as a whole optional. In effect, nullification is a way to secede from the union one law at a time.

    So if this bill becomes law, Texas might set up a 14 person panel that can unconstitutionally nullify laws based on a 8-person partisan vote. Well, it could be worse! This is where we are.

    Posted by Pterrafractyl | December 3, 2014, 7:12 pm
  6. Well that’s fascinating: states can just go ahead and ignore Supreme Court rulings. At least when a man of god like Mike Huckabee says it’s ok:

    Talking Points Memo Livewire
    Huckabee: States Shouldn’t Follow Supreme Court Gay Marriage Ruling

    By Caitlin MacNeal
    Published January 21, 2015, 11:23 AM EST

    Former Arkansas governor and potential Republican presidential candidate Mike Huckabee on Tuesday said that if the Supreme Court rules in favor of same sex marriage, states don’t necessarily need to begin issuing marriage licenses to gay couples.

    Huckabee told conservative radio host Hugh Hewitt that he was “angry” with the “notion of judicial supremacy.”

    “If the state bans on same sex marriage violatecourts make a decision, I hear governors and even some aspirants to the presidency say well, that’s settled, and it’s the law of the land,” he said. “No, it isn’t the law of the land. Constitutionally, the courts cannot make a law. They can interpret one. And then the legislature has to create enabling legislation, and the executive has to sign it, and has to enforce it.”

    According to Huckabee, the legislative branch would need to draw up legislation to legalize same sex marriage.

    “This idea that a judge makes a ruling on Friday afternoon, and Saturday morning same sex marriage licenses are being given out, that’s utter nonsense, because there’s not been any agreement with the other two branches of government,” he said.

    The Supreme Court on Friday agreed to decide whether state bans on same sex marriage violate equal protection guaranteed by the Fourteenth Amendment. If the court rules that the state bans are unconstitutional, states would no longer be able to keep clerks from issuing marriage licenses to gay couples.

    And no matter what the Supreme Court decides, Huckabee said he’ll always stand for “biblical” marriage.

    “I may be lonely, I may be the only one, but I’m going to stand absolutely faithful to the issue of marriage not because it’s a politically expedient thing to do, because it isn’t. I’m going to do it because I believe it is the right position, it’s the biblical position, it’s the historical position,” he said.

    So that was likely 2016 presidential candidate Mike Huckabee’s stance on the courts: if the Supreme Court rules in favor of same-sex marriage, states should ignore it and wait for Congress to pass a law on the matter!

    And, perhaps not surprisingly, Ben Carson, another probably candidate, sort of agrees. Not exactly, but sort of:

    Talking Points Memo Livewire
    Ben Carson: Congress Should Remove Judges Who Rule For Gay Marriage

    By Brendan James
    Published January 21, 2015, 12:30 PM EST

    Former pediatric neurosurgeon and possible 2016 presidential candidate Ben Carson explained to an Iowa broadcaster on Tuesday that Congress can and should eject judges who rule in favor of gay marriage.

    On the conservative Steve Deace Show podcast (“Fear God. Tell The Truth. Make Money.”) Carson said most Americans are unaware of this authority “because they don’t know the Constitution.”

    “When judges do not carry out their duties in an appropriate way, our Congress actually has the right to reprimand or remove them,” Carson said. Any law on marriage should be decided by a popular referendum, and any decisions made by courts are “unconstitutional,” justifying dismissal of judges, he added.

    Later on in the interview, Carson agreed with Deace that ongoing spread of legalized gay marriage would make it “open season on Christians.”

    His language echoed a recent statement in which he compared favorably Islamic State militants to American patriots who are ready to die for their beliefs.

    Well, given Carson’s recent statements on the secret to ISIS’s success, Carson’s proposal to merely have Congress remove judges that don’t “carry out their duties in an appropriate way” (i.e. by voting to screw over the gays for the umpteenth time) is downright civilized. Relatively speaking. Plus, he’s worried that if gays can marry Christmas dies. It would be quite adorable if he was five.

    Still, he’s clearly giving the topic of unorthodox approaches to implementing his policy agenda quite a bit of thought, as one might expect from a like 2016 candidate. Interestingly, Rand Paul has been doing the same kind of “separation of powers”-soul searching and has arrived a very different set of conclusions: the Supreme Court needs more “judicial activism”…as long as its used to undo all the past “judicial activism” that doesn’t follow “natural law”. In other words, “judicial activism” is constitutional in Rand’s world, but only if its used to enforce the “natural laws” that transcend the constitution:

    Think Progress
    If You Want To Understand What’s Happened To The Supreme Court, You Need To Listen To Rand Paul

    by Ian Millhiser Posted on January 16, 2015 at 10:26 am

    Senator Rand Paul (R-KY) is an odd place to seek counsel on the Constitution. As a Senate candidate in 2010, Paul told a Louisville editorial board that he opposed the federal ban on whites-only lunch counters, claiming that the right of “private ownership” should trump the right to be free from racist discrimination. Opposing a core protection for racial minorities, according to Paul, is “the hard part about believing in freedom.” He later suggested that civil rights laws targeting private businesses may exceed Congress’s power under the Constitution’s Commerce Clause — a view the Supreme Court unanimously rejected in 1964.

    Yet the Heritage Foundation, one of the backbones of the conservative movement in Washington, DC, invited Paul to speak at length on the Constitution and the role of the judiciary earlier this week. If the audience was upset that voters sometimes elect leaders who disagree with the Heritage Foundation, they were no doubt enraptured by Paul’s vision for the courts. Senator Paul’s speech was a repudiation of democracy, and he called for the Supreme Court to assume a dominant role in setting American policy that it abandoned three generations ago. Under Paul’s vision, the minimum wage is forbidden and union busting is constitutionally protected. The New Deal is an illegitimate expansion of federal power, and more recent efforts to ensure that no one dies because they cannot afford health care are an abomination.

    “I’m a judicial activist,” Paul proudly proclaimed.

    At first glance, Paul’s speech seems extraordinarily ambitious. The Supreme Court undoubtedly took a sharp right turn as soon as Justice Samuel Alito became the fifth member of its conservative bloc, but it has a long way to go before it repeals the twentieth century. Though Justice Clarence Thomas authored multiple opinions revealing his belief that the New Deal and the Civil Rights Act are unconstitutional, no other justice has ever joined one of these opinions.

    Nevertheless, Paul’s speech to the Heritage Foundation is worth watching in its entirety It lays out a vision that is closer than the Court’s current precedents suggest, and that could easily become a reality if the Court’s older members are replaced by younger conservatives. Moreover, as I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, a Supreme Court committed to Paul’s economic agenda would hardly be unprecedented in American history. If anything, Paul is asking the Court to return to its self-appointed role as the vanguard against democracy.

    Thrown To The Wolves

    Paul’s remarks to Heritage are refreshingly candid. He does not simply embrace the banner of judicial activism, he explicitly presents such activism as the antidote to democracy. “Does anyone know why Justice Roberts did not strike down Obamacare?” he asks the audience, before answering his own question with “judicial restraint.” To the members of the audience who are inclined to oppose judicial activism — and he begins his talk with an informal poll of the audience which suggests that that could include all of them — he quips that their support for a restrained judiciary must indicate that “everybody here is for Obamacare.”

    This quip is, of course, rooted in a fallacy. Some examples of policies that do not violate the Constitution include the Iraq War, the Bush tax cuts, and the federal ban on marijuana. But the fact that someone recognizes Congress’s legitimate power to set tax rates or to ban sales of a particular product hardly means that they endorse the specific policies that elected officials write into the law. A democratic republic, by its very nature, gives elected officials discretion to govern — and that means that they will sometimes govern very badly without exceeding their lawful authority. As Chief Justice John Marshall explained in 1824, “[t]he wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections . . . are the restraints on which the people must often rely solely, in all representative governments.”

    Paul, however, sees things differently. The problem with judicial restraint, he claims, is that it permits the legislature to do “bad things.” (In fairness to Paul, one “bad thing” that he singles out is public school segregation. The courts do have a legitimate role to play in striking down unconstitutional laws, even if Paul wants them to exceed that role.)

    Lest there be any doubt that Senator Paul, himself an elected official, believes that the problem with American government is that it gives the people too much say over how they are governed, Paul endorses the Supreme Court’s long-ago overruled decision in Lochner v. New York. Lochner, which Paul has also praised on the Senate floor, invented a so-called “right to contract” that employers could use to resist laws protecting their workers. The idea was that the Constitution places strict limits on any laws that interfere with people’s ability to enter into contracts. So if an employer wants their employees to work 18 hours days, or if it wants them to sign away their right to unionize, or if it wants to pay them just a few pennies an hour, then the workers who agree to do so cannot seek refuge in the law even though they were forced into these jobs by desperate circumstances.

    For decades, the Supreme Court wielded Lochner to strike down minimum wage laws, laws protecting the right to organize, and similar protections for workers. Lochner is now taught in many law schools as an example of how judges should never, ever behave.

    Paul credits an attorney named Timothy Sandefur during his speech laying out his own vision of the Constitution. Sandefur, a lawyer with the conservative Pacific Legal Foundation, may seem like an unusually obscure source for a United States Senator to seek out for guidance, but Sandefur is also one of the nation’s most vocal and straightforward proponents of the idea that America has too much democracy. Writing for the Volokh Conspiracy, a popular libertarian legal blog, Sandefur compared the notion that elected officials may enact laws that bind others to predators stalking and eating their prey. “[T]he central value of the U.S. Constitution,” he writes, “is to protect individual liberty—the ‘sheep’s view’ of freedom—and not, as the consensus of today’s lawyers, judges, and law professors seems to hold, the ‘wolfish’ notion that people have a basic right to control the lives of others.”

    In a subsequent post, Sandefur argues for constraints on democracy that are so rigid that they would even prevent the American people from amending the Constitution to permit many policies that Sandefur opposes. The Constitution, he argues, cannot be amended to abridge “natural rights.” Indeed, Sandefur claims, any government that abridges these rights is “illegitimate.” That may seem like an uncontroversial point — if the Constitution were amended to reestablish slavery, for example, most people would agree that such an amendment violates basic human rights — but Sandefur isn’t just concerned about slavery when he speaks of natural rights. To the contrary, in a 2010 book, Sandefur describes one of the Court’s most aggressive cases applying the Lochner decision as “firmly grounded” in “natural rights tradition.”

    The man Senator Paul cites in his speech, in other words, believes that no government is legitimate if it has a meaningful ability to protect workers from rapacious employers. The right to exploit your employees flows from an even higher source of law than the Constitution itself.

    The Assassination of The Constitution by the Coward John Roberts

    In Paul’s narrative, Chief Justice Roberts plays the role of the villain. Entrusted with defending the Constitution, Roberts was called upon to judge a law Paul views as unconstitutional. And, in an act of great betrayal, Roberts placed the democratic value of judicial restraint before his obligation to enforce the Constitution — or, at least, to enforce the Constitution as Paul understands it. In Paul’s unnuanced view of Roberts’ decision upholding most of the Affordable Care Act, “Justice Roberts laid down the gauntlet and said judicial restraint is why the majority can do whatever it wants, basically.”

    Ok, so likely presidential 2016 presidential candidate Rand Paul is in favor of “judicial activism”, but only if that activism is used to enforce an anti-democratic/corporatist vision of “natural law” that appears to involve things like the right to sign an abusive and predatory contract with your employer (he also opposes any sort of federally-imposed gay marriage laws).

    Mike Huckabee, on the other hand, wants states to just ignore Supreme Court rulings that don’t follow his particular interpretation of the Bible, which, presumably, also includes some sort of “natural law” argument since Huckabee apparently has a talent for knowing of what constitutes “natural law”.

    And Ben Carson wants congress to just remove judges entirely that don’t agree with his Biblical vision of the world. A vision that includes a perpetual War on Christmas.

    And that’s just three of the likely passengers in the GOP’s 2016 clown car.

    As we can see, there’s clearly more than one path to the GOP’s shining city on a hill. Choose wisely America. Head somewhere else.

    Posted by Pterrafractyl | January 21, 2015, 8:14 pm
  7. Children in Texas are getting a fun real life lesson about the importance of establishing priorities in life, although they might be a little perturbed about where their own lives fall in the state’s proposed priority hierarchy:

    TPM Livewire
    Bill Would Allow Texas Teachers To Kill Students Threatening School Property

    By Catherine Thompson
    Published January 30, 2015, 6:47 AM EST

    Legislation filed last week in Texas would allow teachers to use deadly force in order to protect school property, the Houston Chronicle reported.

    State Rep. Dan Flynn (R), who’s previously fought to roll back concealed handgun license requirements, filed the Teacher’s Protection Act authorizing educators to use deadly force to protect themselves or another person on school grounds.

    The bill would also authorize the use of deadly force to protect school property and shield any teacher who uses deadly force from prosecution should they cause injury or death.

    Texas law already offers immunity from discipline to teachers who use “reasonable” force against a student, according to the Chronicle. State law also allows any adult to carry a firearm in a school with the principal’s permission.

    If this seems like the kind of lesson plan you’d like to have your child opt out of, keep in mind that it isn’t just a lesson in importance of establishing clear priorities. It’s also a lesson about the extreme importance of civic engagement and a knowledgeable electorate that can prevent unhinged individuals from achieving elected office and trashing society. The sponsor of the above bill, State Rep. Dan Flynn, is treasure trove for those kinds of life lessons and it would really be neglecting your child’s education if they weren’t exposed to the wisdoms of Flynn. Think of it as the civic aversion therapy America children need:

    Think Progress
    A Texas Lawmaker’s Bizarre Plan To Secede From The Union One Law At A Time

    by Ian Millhiser Posted on November 26, 2014 at 9:38 am Updated: November 26, 2014 at 11:57 am

    Under an unconstitutional proposal by Texas state Rep. Dan Flynn (R), just two people in the state of Texas — the state house speaker and the lieutenant governor — would effectively have the power to suspend any federal law within Texas’s borders, at least temporarily. The legislation creates a 14 member “joint legislative committee on nullification” that is co-chaired by the speaker and lieutenant governor. Half of the dozen remaining members are appointed by one of the committee’s chairs, while the other half are appointed by the other chair (although only eight of the committee’s fourteen total members may belong to the same political party). A bare majority of the committee, eight votes, may temporarily declare that a federal law “has no legal effect in this state.” If that declaration is ratified by the state legislature in the next legislative session, it becomes permanent.

    Thus, by stacking the committee with loyalists, Texas’s speaker and lieutenant governor could effectively pick and choose which federal laws they wish to nullify, so long as they can agree with each other about what laws to target. Or, at least, they could do so if this proposal were constitutional.

    Rep. Flynn’s proposal is rooted in an unconstitutional theory known as “nullification,” which claims that a state can unilaterally declare a federal law unconstitutional and thus void within the state’s borders. The Constitution, however, explicitly provides that duly enacted federal laws “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 is “supreme” over state law, and state laws that conflict with federal law — or which seek to openly defy federal law — are preempted by the federal government’s legislation.

    Proponents of nullification seek to get around this fact by arguing that state lawmakers aren’t simply invalidating the law they do not wish to follow, they are also declaring it unconstitutional. But the Constitution does not give state lawmakers the power to issue binding pronouncements on whether federal laws are constitutional. To the contrary, the Constitution provides that “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” If a federal law actually is unconstitutional, then the proper legal course is to file a lawsuit seeking to strike the law down. As James Madison warned early in American history, nullification would speedily put an end to the Union itself because it would render each obligation a state’s citizens owe to the union as a whole optional. In effect, nullification is a way to secede from the union one law at a time.

    Note that Flynn has previously pushed for Texas’s schools to have a class focused exclusively on the US Constitution. It was obviously all just an elaborate cry for help! Know we know why people like Mr. Flynn should be far away from any elected to office. And knowing is half the battle.

    Stay in school kids!

    Posted by Pterrafractyl | January 30, 2015, 8:54 am
  8. Alabama’s Energizer Bunny of judicial stagnation just keep going and going and going…:

    Think Progress
    Constitutional Crisis In Alabama As State Judges Buck Federal Order On Marriage Equality

    by Zack Ford Posted on February 9, 2015 at 9:06 am Updated: February 9, 2015 at 10:07 am

    As of Monday morning, District Judge Callie V. S. Granade’s stay on marriage equality in Alabama has expired and, with the Supreme Court declining to issue its own stay, her ruling declaring the state’s ban on same-sex marriage unconstitutional is in effect. Same-sex couples are already lined up to marry at courthouses, but some may still be turned away by probate judges who refuse to abide the ruling.

    Probate judges in various counties have indicated that they will in some way circumvent same-sex marriage licenses. For example, Marengo County Probate Judge Laurie Hall has said that her office will still make marriage licenses available, but she will no longer sign them for any couple. Pike County Probate Judge Wes Allen has similarly taken his office “out of the marriage licensing business altogether,” citing state law that indicates that judges “may” issue marriage licenses — but don’t have to. Clarke County Probate Judge Valerie Davis has taken the same step, while judges in Covington County and Washington County will continue to discriminate against same-sex couples per the unconstitutional state law.

    If any judges were on the fence about whether to issue licenses, they may find a reason not to in the “administrative order” issued by Alabama Chief Justice Roy Moore last night. Moore, who has a history of bucking federal court orders, simply declared that probate judges do not have to abide the federal order.

    This may not, however, be the best legal advice. Though the Alabama Probate Judges Association originally found reason to avoid issuing marriage licenses to same-sex couples, two follow-up orders from Granade changed the scope of her original ruling. In a separate case about a couple seeking to marry in-state as opposed to just having their out-of-state marriage recognized, she issued an injunction that bound any state officer tasked with enforcing the state’s ban. She also issued a clarification of her original ruling and, borrowing a strategy from District Judge Robert Hinkle in Florida, pointed out that even if her injunction does not require probate judges to issue licenses, the Constitution does. Thus, any probate judge who continues to violate a same-sex couple’s constitutional rights could be held legally liable with a new complaint. This would not be the first time that Alabama probate judges have ignored a federal ruling about who they should issue licenses to. The ACLU has set up a hotline that same-sex couples can call if they are refused a license, while the anti-LGBT Liberty Counsel has already announced it will defend probate judges in such cases.

    Posted by Pterrafractyl | February 10, 2015, 3:40 pm
  9. Charles Murray wrote a new book about how to permanently shrink the scope of the US federal government: Find a bunch of billionaires to finance a new fund dedicated to permanently slamming the judicial system with frivolous lawsuits over all the regulations and social programs they hate. Which is pretty much all regulations and social programs:

    Think Progress
    Jeb Bush’s Favorite Author Rejects Democracy, Says The Hyper-Rich Should Seize Power

    by Ian Millhiser
    Posted on May 26, 2015 at 8:00 am

    At the height of 2011’s debt ceiling crisis, then-Senate Minority Leader Mitch McConnell (R-KY) offered a candid explanation of why his party was willing to threaten permanent harm to the U.S. economy unless Congress agreed to change our founding document. “The Constitution must be amended to keep the government in check,” McConnell alleged. “We’ve tried persuasion. We’ve tried negotiations. We’ve tried elections. Nothing has worked.”

    The amendment McConnell and his fellow Republicans sought was misleadingly named the “Balanced Budget Amendment” — a name that was misleading not because it was inaccurate, but because it was incomplete. The amendment wouldn’t have simply forced a balanced budget at the federal level, it would have forced spending cuts that were so severe that they would have cost 15 million people their jobs and caused “the economy to shrink by about 17 percent instead of growing by an expected 2 percent,” according to the Center for Budget and Policy Priorities. It was, in essence, an effort to permanently impose Tea Party economics on the nation, and to use a manufactured crisis to do so.

    Few politicians are willing to admit what McConnell admitted when he confessed that elections have not “worked” to bring about the policy Republicans tried to impose on the nation in 2011. Elected officials, after all, only hold their jobs at the sufferance of the voters, and a politician who openly admits that they only believe in democracy insofar as it achieves their desired ends gives the middle finger to those voters and to the very process that allows those voters to have a say in how they are governed.

    Charles Murray, an author who GOP presidential candidate Jeb Bush recently named first when he was asked which books have had a big impact upon him, is not an elected official, so he is free to rail against democracy to his heart’s content. And that is exactly what he does in his new book, By The People: Rebuilding Liberty Without Permission.

    Pay no attention to the title. Government “by the people” is the last thing Murray cares to see. Murray admits that the kind of government he seeks, a libertarian fantasy where much of our nation’s regulatory and welfare state has been dismantled, is “beyond the reach of the electoral process and the legislative process.” He also thinks it beyond the branch of government that is appointed by elected officials. The Supreme Court, Murray claims, “destroyed” constitutional “limits on the federal government’s spending authority” when it upheld Social Security in 1937. Since then, the federal government has violated a “tacit compact” establishing that it would not “unilaterally impose a position on the moral disputes that divided America” (Murray traces the voiding of this compact to 1964, the year that Congress banned whites-only lunch counters).

    King George’s Revenge

    Murray is probably best known for co-authoring 1994’s The Bell Curve, a quasi-eugenic tract which argued that black people are genetically disposed to be less intelligent that white people. Yet, while The Bell Curvepractically spawned an entire field of scholarship devoted to debunking it,” Murray remains one of the most influential conservative thinkers in America today.

    Dr. Murray’s pre-Bell Curve work shaped the welfare reforms enacted in the 1990s. Former Republican vice presidential candidate Paul Ryan cited Murray in 2014 to claim claim that there is a culture of laziness “in our inner cities in particular.” Last April, when Jeb Bush was asked what he liked to read, he replied “I like Charles Murray books to be honest with you, which means I’m a total nerd I guess.”

    So when Murray speaks, powerful and influential men (and his acolytes are, almost invariably, men) listen, including men who shape our nation’s fiscal policy and men who could be president someday.

    By The People, however, rejects outright the idea that Murray’s vision for a less generous and well-regulated society can be achieved through appeals to elected officials — or even through appeals to unelected judges. The government Murray seeks is “not going to happen by winning presidential elections and getting the right people appointed to the Supreme Court.” Rather, By The People, is a call for people sympathetic to Murray’s goals — and most importantly, for fantastically rich people sympathetic to those goals — to subvert the legitimate constitutional process entirely.

    “The emergence of many billion-dollar-plus private fortunes over the last three decades,” Murray writes, “has enabled the private sector to take on ambitious national or even international tasks that formerly could be done only by nation-states.” Murray’s most ambitious proposal is a legal defense fund, which “could get started if just one wealthy American cared enough to contribute, say, a few hundred million dollars,” that would essentially give that wealthy American veto power over much of U.S. law.

    Murray, in other words, would rather transfer much of our sovereign nation’s power to govern itself to a single privileged individual than continue to live under the government America’s voters have chosen. It’s possible that no American has done more to advance the cause of monarchy since Benedict Arnold.

    Madison’s Ghost

    One of the heroes of By The People is James Madison, or, at least, a somewhat ahistoric depiction of Madison favored by Murray. Madison, as Murray correctly notes, favored an interpretation of the Constitution that would have made much of the modern regulatory and welfare state impossible (other members of the founding generation, including George Washington, interpreted the Constitution much more expansively than Madison). Thus, Murray states in his introduction, “[i]f we could restore limited government as Madison understood it, all of our agendas would be largely fulfilled.” Murray even names his proposal for a billionaire-funded organization intended to thwart governance the “Madison Fund.”

    In Murray’s narrative, Madison becomes a Lovecraftian deity — dead, but not entirely dead, and still capable of working ill in American society. In his house at Montpelier, dead James Madison waits dreaming.

    The real James Madison would be shocked by this suggestion that his dead-but-dreaming tentacle could reach into the future and re-instigate long-settled battles over the Constitution. Needless to say, the view Murray attributes to Madison — the view that, among other things, would lead to Social Security being declared unconstitutional — did not prevail in American history. And Madison, unlike Murray, was reluctant to displace well-settled constitutional law. As a congressman, Madison opposed the creation of the First Bank of the United States on constitutional grounds. Yet, as president, Madison signed the law creating a Second Bank. He explained that the nation had accepted the First Bank, and he viewed this acceptance as “a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning.”

    Madison, it should also be noted, admitted late in life that his reading of the Constitution was not consistent with the document’s text. Nevertheless, he argued that “[t]o take [the Constitution’s words] in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

    To his credit, Murray acknowledges that undoing the entire post-New Deal state is not a realistic goal. The Supreme Court, he laments, “never overturns a decision like Helvering,” the 1937 case upholding Social Security, “because such a ruling would not be obeyed and the Court’s legitimacy would be shattered.” Yet the limits Murray would impose on the federal government are simply breathtaking. All employment law, according to Murray, must be subject to the strictest level of constitutional scrutiny. So must all land use regulation, and all laws that fall into vague categories Murray describes as regulations that “prescribe best practice in a craft or profession” or that “prevent people from taking voluntary risks.”

    If these limits were actually imposed on the federal government, the minimum wage, overtime laws, most environmental protections and financial reforms, many worker safety laws and even, potentially, anti-discrimination laws would all fall by the wayside.

    The Koch Veto

    To impose these limits on society, Murray claims that his Madison Fund can essentially harass the government into compliance. The federal government, Murray claims, cannot enforce the entirety of federal law “without voluntary public compliance.” Federal resources are limited, and only a small fraction of these limited resources have been directed towards enforcement. Thus, Murray argues, by simply refusing to comply with the law and contesting every enforcement action in court, regulated entities can effectively drain the government’s resources and prevent it from engaging in meaningful enforcement.

    The Madison Fund would spearhead this campaign of harassment, defending “people who are technically guilty of violating regulations that should not exist, drawing out that litigation as long as possible, making enforcement of the regulations more expensive to the regulatory agency than they’re worth, and reimbursing fines that are levied.”

    There are, of course, a number of practical obstacles to this plan. One, as Murray acknowledges, is the need to find enough people with “billion-dollar-plus private fortune[s]” who are willing to contribute to such a campaign. Another is the need to find lawyers willing to risk their law licenses in order to become pawns in Murray’s game. Rule 11 of the Federal Rules of Civil Procedure requires attorneys to certify that they are not filing court documents “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” The American Bar Association’s (ABA) Model Rules of Processional Conduct provide that a “lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” Admittedly, lawyers have more leeway in criminal cases, but the legal profession generally frowns upon attorneys who engage in the kind of legally meritless harassment Murray proposes.

    Nevertheless, Murray’s proposal cannot be dismissed out of hand simply because it is built upon a foundation of frivolous litigation. The first Supreme Court case attacking Obamacare was widely derided as meritless — an ABA poll of legal experts found that 85 percent believed that the law would be upheld. And yet the justices came within a hair of repealing the entire law. The lawyers behind a more recent attack on the Affordable Care Act, King v. Burwell, make demonstrably false claims about the history of the law, and they rely upon a completely unworkable method of interpreting statutes. But that hasn’t stopped at least some members of the Supreme Court from taking this lawsuit seriously. Conservatives simply have more leeway to assert meritless legal arguments than they once did.

    Bad Advice

    By The People is, at its heart, a work of constitutional law. It assesses what Murray believes to be fundamental flaws in our constitutional democracy and proposes a course of action that bypasses the Constitution. Yet Murray is, by his own admission, not the least bit qualified to write such a book. “Not being a constitutional scholar myself,” he explains in a sidebar, “I have drawn my description of the key Supreme Court decisions and their historical context” from a rogue’s gallery of constitutional scholars who are very much on the outskirts of the field. They include Obamacare antagonist Randy Barnett; Richard Epstein, a law professor who wrote an entire book arguing against employment discrimination laws; and Michael Greve, a man who compared the Affordable Care Act to the Holocaust.

    Constitutional law is a rich and diverse field, and it is obviously difficult for a lay person to sort out reliable constitutional scholars from cranks. Nevertheless, here’s a pro tip for Dr. Murray: if your constitutional advisers lead you to the conclusion that Social Security is unconstitutional, that’s a pretty good sign that you need better advisers.

    So Murray has written a terrible book. It is at once credulous of fringe thinkers and contemptuous of American democracy. Yet he has also written a deeply revealing book about the nature of conservatism in the age of Obama. When President Ronald Reagan was in office, he spoke with the confidence of a man who believed that the American people were on his side. Reagan pledged to appoint judges who support “judicial restraint,” a testament to Reagan’s belief that he did not need the unelected judiciary to enact conservative policies, and his administration’s understanding of the Constitution was decidedly moderate when compared to the ideas of men such as Barnett, Epstein and Greve.

    Since then, however, the Republican Party has lost Reagan’s self-confidence. Instead, they reflexively turn to the judiciary when they are unable to win battles on health care, immigration, the environment, or a myriad of other issues. Democracy, as McConnell said in 2011, no longer works to give conservatives what they want.

    Yet this strategy has yielded only mixed success. The Supreme Court rendered a key prong of Obamacare optional, but they kept the bulk of the law in place. Religious objectors enjoy a right to opt-out of federal birth control rules, but the rules still bind most employers. A high-profile Supreme Court attack on the Environmental Protection Agency barely ended with a whimper. Republicans dominate the Supreme Court, but these justices do sometimes temper their Republicanism with obedience to the law and the Constitution.

    You have to wonder how much effort there’s going to be to keep any future “Madison Funds” at arms length from the actual GOP, at least in terms of public perception. Unlike Cliven Bundy’s extremely Koch-friendly showdown with the federal government last year, which was certainly given a lot of positive coverage on Fox and elsewhere in the right-wing media but still not officially a GOP “establishment” endeavor, it’s going to be pretty hard for the “Madison Fund” to avoid getting labeled as a “GOP super rich guy fund”. And the fund is going to be dedicated to rolling back social gains that the GOP has been trying to roll back for years but haven’t been able to yet since, as Mitch McConnell put it, “We’ve tried persuasion. We’ve tried negotiations. We’ve tried elections. Nothing has worked.”

    In other words, Murray’s plans to subvert democracy had better be pretty successful. Not just at overturning the laws billionaires don’t like, but successful at making elections irrelevant in general because the “Madison Fund” party might not have very many members for very long.

    Posted by Pterrafractyl | May 28, 2015, 7:51 pm
  10. Following today’s historic Supreme Court ruling legalizing gay marriage across the country, a rather obvious and unfortunate question is raise: Since virtually every GOP 2016 presidential candidate has come out in opposition to gay marriage, what type of nullification tactics will the GOP’s 2016 candidates settle on in order to most effectively emote their dislike of gay people. Will they advocated that states simply ignore the ruling? Civil-disobedience? A ‘tenther’ solution?

    How about ‘all of the above and then some’. That one seems possible:

    TPM DC
    The New Nullification Crisis: GOPers Vow To Defy SCOTUS Over Gay Marriage

    By Tierney Sneed
    Published June 16, 2015, 6:00 AM EDT

    Ahead of a potentially historic Supreme Court ruling, leading Republicans are vowing to defy any decision that sanctions same-sex marriage and are challenging the very legitimacy of the high court.

    With a decision in Obergefell v. Hodges expected before the end of June, conservatives are confronted with what was only a few years ago a nearly unthinkable possibility: a Supreme Court decision that decisively makes same-sex marriage a constitutional right.

    Fearing a huge setback to their cause, opponents of same-sex marriage, including some of the major contenders for the 2016 GOP presidential nomination, are darkly warning that they will not “honor” an adverse Supreme Court decision. Some are calling for civil disobedience. Others are moving to strip the Supreme Court of its authority to decide whether gay couples should be allowed to marry, while others have questioned whether the court has that jurisdiction in the first place. Sen. Ted Cruz (R-TX) has said that such a decision would be “fundamentally illegitimate.”

    Those who are merely calling for a new constitutional amendment to enshrine marriage as between one man and one woman now seem almost quaint in their desire to use the ordinary constitutional process to counter the Supreme Court.

    Here are some of the leading proponents of the new nullification:

    Rick Santorum
    Former Sen. Rick Santorum, on NBC’s Meet the Press last month, vowed to fight a Supreme Court decision in favor of same-sex marriage: “We’re not bound by what nine people say in perpetuity.”

    “I think it’s important to understand that the Supreme Court doesn’t have the final word,” Santorum told viewers. “It has its word. Its word has validity. But it’s important for Congress and the president, frankly, to push back when the Supreme Court gets it wrong.”

    Santorum is among the signers of the anti-gay marriage pledge being circulated by a group associated with the website DefendMarriage.Org. The group recently placed a full-page ad in The Washington Post with an open letter to the Supreme Court promising civil disobedience if the court struck down bans on gay marriage.

    “We will not honor any decision by the Supreme Court which will force us to violate a clear biblical understanding of marriage as solely the union of one man and one woman,” the letter said. Its originator, Baptist pastor Rick Scarborough, has promised his fellow signers — some 50,000 people by the website’s count — will “resist all government efforts to require them to accept gay marriage, and they will accept any fine and jail time to protect their religious freedom and the freedom of others.”

    Mike Huckabee

    The former Arkansas governor also signed the DefendMarriage.Org civil disobedience pledge, and suggested that if elected president, he would ignore a Supreme Court ruling in favor of same-sex marriage.

    “Presidents have understood that the Supreme Court cannot make a law, they cannot make it, the legislature has to make it, the executive branch has to sign it and enforce it,” Huckabee told Fox News’ Chris Wallace. “And the notion that the Supreme Court comes up with the ruling and that automatically subjects the two other branches to following it defies everything there is about the three equal branches of government.”

    Ted Cruz

    In addition to proposing the more temperate course of a new constitutional amendment to limit marriage to straight couples, Cruz introduced a bill in the Senate that would bar federal courts from weighing in on marriage until that amendment was passed, Bloomberg reported in April.

    “If the court tries to do this it will be rampant judicial activism. It will be lawlessness, it will be fundamentally illegitimate,” he said during an Iowa campaign stop earlier this spring.

    Ben Carson

    Ben Carson has expressed doubt that a Supreme Court decision favoring same-sex marriage would need to be enforced.

    “First of all, we have to understand how the Constitution works. The president is required to carry out the laws of the land, the laws of the land come from the legislative branch,” Carson said in May. “So if the legislative branch creates a law or changes a law, the executive branch has a responsibly to carry it out. It doesn’t say they have the responsibility to carry out a judicial law. And that’s something we need to talk about.”

    Steve King

    Like Cruz, Rep. Steve King (R-IA) has also introduced legislation prohibiting courts — including the Supreme Court — from considering the question of same-sex marriage, by taking on Article III of the Constitution.

    “We could pass this bill before the Supreme Court could even hear the oral arguments, let alone bring a decision down in June,” King said when introducing the bill in early April.. “That would stop it right then, there would be no decision coming out of the Supreme Court. This is a brake, and whether we can get the brake on or not between now and June, that we don’t know.”

    Tom DeLay

    In addition to signing the civil disobedience pledge, the former GOP House majority leader has advocated for states to ignore a Supreme Court ruling in favor of same-sex marriage.

    “A ruling by the Supreme Court is nothing but an opinion if the legislative branch and the executive branch do not enforce it,” DeLay said said on Newsmax TV’s The Steve Malzberg Show. “Not only that, if the states would just invoke the 10th Amendment and assert their sovereignty, they can defy a ruling by the Supreme Court. It’s in the Constitution. We can tell the court what cases they can hear.”

    Texas State Rep. Cecil Bell

    Texas Democrats thwarted a bill sponsored by Republican state Rep. Cecil Bell that would have prohibited state and local governments from recognizing, granting or enforcing same-sex marriage licenses. Nevertheless, when the statehouse was considering the bill, Bell was skeptical that a Supreme Court ruling would bring same-sex marriage to the state.

    “If the Supreme Court sets a precedent that says same-sex marriage is a legal precedent that states should adhere, that states will suddenly flock to that precedent and begin to conform…the reality is that when the Supreme Court sets precedents, states don’t always adhere to them,” he told TPM at the time. “I am not predicting what Texas will do — but to assume that Texas will suddenly change how it does business is presumptuous.”

    Alabama State Supreme Court Chief Justice Roy Moore .

    Alabama’s top judge can boast of the coveted accomplishment of having already defied the Supreme Court when it allowed same-sex marriage to become legal in his state. Right before a federal ruling striking down the state’s marriage ban was to take effect, state Chief Justice Roy Moore issued an order barring local probate judges from issuing same-sex marriage licenses.

    It should be especially interesting to hear what Rand Paul has to say on this topic given his Libertarian leaning. Or not.

    Posted by Pterrafractyl | June 26, 2015, 2:59 pm
  11. Meme-watchers should keep an eye on this one: If you haven’t witnessed your local GOP politicians using the term “religious liberty” ad nauseum lately, you will. After the Supreme Court’s legalization of gay marriage across the nation, “religious liberty” is about to become a mega meta-issue:

    Conservatives Are Gearing Up For Fight Of Their Lives After Gay Marriage Ruling

    By RACHEL ZOLL and STEVE PEOPLES
    Published June 29, 2015, 2:26 PM EDT

    NEW YORK (AP) — Now that same-sex marriage is legal nationwide, religious conservatives are focusing on preserving their right to object. Their concerns are for the thousands of faith-based charities, colleges and hospitals that want to hire, fire, serve and set policy according to their religious beliefs, notably that gay relationships are morally wrong.

    The Republican Party’s 2016 presidential candidates are already campaigning on the issue. And Wisconsin Gov. Scott Walker is urging President Barack Obama and the nation’s governors “to join me in reassuring millions of Americans that the government will not force them to participate in activities that violate their deeply held religious beliefs.”

    The religious liberty fight isn’t about what happens inside the sanctuary. First Amendment protections for worship and clergy are clear. Potential conflicts could arise, however, over religious organizations with some business in the public arena. That category ranges from small religious associations that rent reception halls to the public, to the nation’s massive network of faith-based social service agencies that receive millions of dollars in government grants. Some groups, such as the U.S. Conference of Catholic Bishops, also want protections for individual business owners who consider it immoral to provide benefits for the same-sex spouse of an employee or cater gay weddings.

    U.S. Supreme Court Justice Anthony Kennedy raised the issue in the majority opinion Friday granting gays the right to marry. He said First Amendment protections are in place for religious objectors, who “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”

    But in his dissent, Chief Justice John Roberts predicted a clash ahead between religious freedom and same-sex marriage. He specifically noted the dilemma for religious colleges that provide married student housing, and adoption agencies that won’t place children with gay couples.

    “There is little doubt that these and similar questions will soon be before this court,” Roberts wrote.

    Conservative religious groups have for years been on watch for potential clashes over religious liberty and gay rights, and have been lobbying for religious exemptions in statehouses and Congress. But conservative anxieties intensified over an exchange during April’s oral arguments in the gay marriage case between Justice Samuel Alito and Solicitor General Donald Verrilli.

    Alito noted the high court’s 1983 decision to revoke the tax-exemption of Bob Jones University in South Carolina because it barred interracial dating. Alito asked if the government would take such action against religiously affiliated schools that oppose same-sex marriage. Verrilli said, “It is certainly going to be an issue. I don’t deny that.”

    Earlier this month, more than 70 Catholic and evangelical educators sent a letter to House Speaker John Boehner and Senate Majority Leader Mitch McConnell urging them to take action to protect conservative religious schools in case of government action to revoke the schools’ nonprofit status.

    And last week in Congress, Sen. Mike Lee of Utah and Rep. Raul Labrador of Idaho, both Republicans, introduced the First Amendment Defense Act, which would prohibit the federal government from taking action against an institution that opposes same-sex marriage by revoking a tax-exemption or barring them from receiving grants or contracts.

    Marc Stern, a religious liberty expert and general counsel to the American Jewish Committee, noted that in the three decades since the Bob Jones decision, the IRS hasn’t sought to revoke the tax exemption of another school over discrimination based on race or gender.

    The Supreme Court decided the Bob Jones case based on a violation of fundamental public policy, not whether the school’s policy was unconstitutional, Stern said. There is no federal law barring discrimination based on sexual orientation.

    Still, Michael Moreland, a vice dean and professor at Villanova University School of Law, said the concern over losing tax-exempt status is “a real one.”

    “The fact the majority opinion for the court did mention the religious institutions’ right to engage in advocacy with regard to their views about marriage means I don’t think there’s a rush to confront those problems, but they’re there,” Moreland said.

    GOP presidential hopefuls are working to keep religious liberty in the forefront.

    At the Faith and Freedom Coalition conference in Washington last week, Texas Sen. Ted Cruz said, “The IRS will start going after Christian schools, Christian universities, Christian charities” and “any institutions that follow a biblical teaching of marriage.”

    Louisiana Gov. Bobby Jindal said, “Hillary Clinton and The Left will now mount an all-out assault on religious freedom.” Jindal last month issued an executive order aiming to protect religious objectors after a House bill on the issue failed.

    In an Associated Press-GfK poll in April, more than 8 in 10 Republicans said it was more important to protect religious liberties than gay rights.

    “Hillary Clinton and The Left will now mount an all-out assault on religious freedom.” Those were the words of Bobby Jindal, but as we saw, those are probably going to be the words of all the GOP 2016 candidates at pretty much all levels of government.

    And as Josh Marshsall points out below, it’s not simply that “religious liberty” as its traditionally understood – the state shall not interfering in the practice of one’s religion – is going to become a meta-issue for Americans. It’s a far more expansive view of “religious liberty”: one that lets you cite “religious liberty” as a “one person, one nullification” get-out-of-legal-liability-free card:

    TPM Editor’s Blog
    One Person, One Nullification

    By Josh Marshall
    Published June 29, 2015, 9:10 AM EDT

    Fascinating, duplicitous development in Texas.

    The state’s Attorney General is inviting, really encouraging, public officials to defy last week’s Supreme Court ruling legalizing marriage for same sex couples across the United States. Texas Attorney General Ken Paxton is telling country clerks they may refuse to issue marriage licenses if they believe same sex marriages violate their religious beliefs.

    We’ve seen hints of this perverse theory recently. But it’s worth stepping back and walking through just what a perversion of the concept of religious liberty this really is. Religious liberty is not only the simple freedom to believe and worship following the dictates of your conscience. Particularly in its American form it has been an application of special deference, a limit on the state’s and society’s ability to intrude into an individual’s private sphere – even in ways which might be permitted if religion and conscience weren’t involved.

    Here though we have the idea that an individual can change the application of public law based on whatever they call their religious belief. People might be offended by seeing two people of different races marry. And they wouldn’t be compelled to marry a person of a different race. But by this theory a county clerk could effectively ban interracial marriage in their county based on ‘religious liberty’. The simple fact is this: religious liberty is a shield against the exactions of public law. This new Frankenstein religious liberty is a free right to change public law for everyone else. It really is nullification, with all its rotten history of racism and bigotry remodeled to fit the fashion of the day.

    Aside from the silliness in theory one can only imagine the perversity in practice, with people running for office based on their ability to ignore or defy certain laws based on their religious beliefs.

    And that’s why, if you haven’t heard the term “religious liberty” lately, you will.

    Also note that when Josh suggests that “one can only imagine the perversity in practice, with people running for office based on their ability to ignore or defy certain laws based on their religious beliefs,” in the case of Texas’s Attorney General, Ken Paxton, it’s taken to the next level, and pledging to protect everyone else from prosecution. As Paxton says, “I will do everything I can from this office to be a public voice for those standing in defense of their rights”:

    TPM Livewire
    Texas AG: Clerks Can Refuse To Give Marriage Licenses To Gay Couples

    By Caitlin MacNeal
    Published June 29, 2015, 7:05 AM EDT

    Texas Attorney General Ken Paxton on Sunday told county clerks in the state that they can refuse to issue marriage licenses to gay couples if the clerk religiously objects to same-sex marriage.

    Paxton, who issued a blistering statement on Friday condemning the Supreme Court ruling in favor of same-sex marriage, initially said that the state would be following the ruling. But on Sunday, he issued an “opinion” to answer questions about implementing the law.

    “Now hundreds of Texas public officials are seeking guidance on how to implement what amounts to a lawless decision by an activist Court while adhering both to their respective faiths and their responsibility to uphold and defend the U.S. Constitution,” he said in the statement.

    He noted that there is not “a court order in place in Texas to issue any particular license whatsoever – only the flawed direction by the U.S. Supreme Court on Constitutionality and applicable state laws.”

    Paxton said that county clerks can “retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses.” He also said that judges and justices of the peace can make similar claims if they religiously object to gay marriage.

    He said that clerks who refuse to issue licenses may face lawsuits. But he said that “numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.”

    “Texas must speak with one voice against this lawlessness, and act on multiple levels to further protect religious liberties for all Texans, but most immediately do anything we can to help our County Clerks and public officials who now are forced with defending their religious beliefs against the Court’s ruling,” Paxton said in the statement.

    It’s a reminder that while “religious liberty” is bound to become a right-wing meme for politicians at all levels, for state Attorney Generals this new “one person, one nullification” legal theory/political strategy could become an central campaign issue.

    And, of course, given our “corporations are people too” world and the recent Hobby Lobby Supreme Court ruling that applies similar religious liberty exemptions to privately held corporations, any “one person, one nullification” campaigns aren’t going to be limited to actual people:

    Crooks and Liars
    Hobby Lobby, Conestoga Cases Coordinated By Free Marketeers Hoping For More Corporate Personhood Rights
    By Karoli

    3/24/14 12:19pm

    Tomorrow the US Supreme Court will hear arguments in the Hobby Lobby case, which seeks to have the court grant it personhood for the purpose of exercising religious freedom. Yes, that’s right. Under the guise of an objection to the Affordable Care Act’s requirement to cover contraceptives, Hobby Lobby has cried out to the courts for relief, because somehow covering such things violates a corporate right to religious freedom.

    If you believe that religion is at the heart of this case, think again. It is a component, to be sure. As Ian Millhiser at ThinkProgress notes, the signers of the odious Manhattan Declaration would view victory in this case as a mandate to undo everything from divorce laws to LGBT rights to women’s right to vote.

    But the real motive and movers behind this case are free marketeers, who lust for the opportunity to expand corporate personhood to something greater than individual personhood.

    RhRealityCheck investigated:

    The documents consist of emails between dozens of anti-choice and free-market groups, and high-level state employees in Ohio, Michigan, Alabama, and West Virginia. They reveal that the role of air traffic control in the Hobby Lobby and Conestoga litigation was played by the Alliance Defending Freedom, an Arizona-based nonprofit with just over $40 million in assets, according to its most recent auditor’s report.

    “My name is Anna Hayes, and I’m a legal assistant at Alliance Defending Freedom working with Matt Bowman and Greg Baylor on the HHS Mandate cases,” read one email dated August 16, 2013. The “mandate” refers to the health law’s requirement that insurance policies cover a range of primary preventive care, including contraception, without a copay. The inclusion of contraception in policies—irrespective of who pays the premiums—is at the center of the Hobby Lobby and Conestoga Supreme Court cases. “Greg asked me to contact you letting you know that he will be coordinating the amicus efforts for the Conestoga Wood case.”

    Hayes sent her email to senior government staff in three states—Ohio, Alabama, and Michigan—and kick-started a chain of correspondence that culminated in Ohio and Michigan taking the lead in submitting briefs, along with 18 other states, in opposition to the contraception mandate.

    The Alliance Defending Freedom is run by Alan Sears out of Arizona. In 2012, they reported expenditures of over $20 million on litigation, including grants to other allied organizations of nearly $3.5 million for litigation.

    Donors to Alliance Defending Freedom include the Templeton Foundation, Edgar and Elsa Prince Foundation, Huizenga Foundation, and the Anschutz Foundation. Additionally, funds have flowed to them via Vanguard Charitable Trust and Donors’ Trust, two vehicles commonly used by allied groups to the Kochs and Bradley Foundation.

    In return, grants were made to groups affiliated with the free marketeers for litigation expenses associated with the filings of 88 amicus curiae, or “friend of the court” briefs in support of Hobby Lobby’s cause.

    But it didn’t stop with coordination between outside groups. The Alliance Defense Fund was also the primary recruiter for state participants:

    The email from Anna Hayes—the Alliance’s legal assistant—was sent to Frederick Nelson, Andrew L. Brasher, and Eric Restuccia, senior officials in the offices of the attorneys general or solicitor general in Ohio, Alabama, and Michigan, respectively.

    Nelson—who is the senior advisor and director of major litigation for Ohio’s attorney general, Mike DeWine—replied:

    Thanks. We had talked with Matt [Bowman] about Ohio and Michigan taking the lead on the cert amicus regarding this issue that we’ve briefed in a variety of other cases; Eric and I will follow up with Andrew, too, and get a sense as to what his thoughts are as well. We look forward to moving ahead.

    By “cert,” Nelson was referring to a petition asking the U.S. Supreme Court to hear a case—that type of petition is known as “certoriari,” or “cert” for short.

    As indicated in that email, Ohio and Michigan did take the lead; the names of those states are at the top of the amicus brief submitted along with 18 other states.

    Ohio and Michigan’s position as point for the other groups and states serves the strategic and political goals of free marketeers and Republicans. Never mind that taxpayers are footing the bill for their efforts in this area, because they see far more to gain by pushing cases into the Supreme Court than they do actually working to enforce the laws of the land, especially when it fires up the base in those two states as a political benefit.

    Here are some of the other groups who filed amicus briefs. You’ll recognize their primary benefactors pretty easily, too:

    Cato Institute
    Ethics & Public Policy Center
    American Center for Law & Justice (ACLJ)
    Rutherford Institute
    American Civil Rights Union
    Thomas More Law Center
    Liberty Institute
    Judicial Watch, Inc.
    Beverly LaHaye Institute
    Liberty University
    Eberle Communications

    Eberle Communications, for example, is a right-wing public relations firm serving myriad conservative clients in the Beltway, including the top Koch-funded groups.

    Cato Institute is the flagship Koch nonprofit. Liberty University and the Beverly LaHaye Institute represent the Southern Baptist contingent, but the ACLJ and Judicial Watch are funded by the more libertarian free marketeer branch.

    “One Person, One Nullification”, coming to a “person” near you.

    Posted by Pterrafractyl | June 29, 2015, 2:22 pm

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