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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.
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. . . .
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.
In tangentially-related news, the Tea Queen is holding court:
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:
The 19th century social contract with rise again, one way or another:
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.
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:
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.
Is pushing nullification a new permanent GOP strategy or is this just an extended phase?
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:
This ongoing GOP nullification strategy would be pretty risky if the GOP wasn’t so confident in its ability to nullify our memories.
So long United States of America. Hello Barely Affiliated States of America:
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.
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:
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:
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:
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.
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:
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:
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!
Alabama’s Energizer Bunny of judicial stagnation just keep going and going and going...:
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:
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.
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:
It should be especially interesting to hear what Rand Paul has to say on this topic given his Libertarian leaning. Or not.
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:
“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:
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”:
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:
“One Person, One Nullification”, coming to a “person” near you.