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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.



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 ® 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’
    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
    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 ®, 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 ®, 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 ®, 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

    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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