Wickard

							What can be nullified?

   The federal usurpations that are
 susceptible to state-led nullification

     Austin Constitution Meetup
          August 23, 2010
         Led by Jon Roland
             Analytic outline
   Usurpation
   Alleged authority for usurpation
   Impact on people
   Co-operation at state level required
   Intervention points available with and without
    Nullification Commission (NC)
   Likely scenarios
    Some historical examples
   Alien and Sedition Acts 1798
   South Carolina v. Tariff 1832
   Fugitive Slave Acts ~1850-61
   Resistance to Prohibition 1919-33
   RealID (current)
   Medical marijuana (MM) (current)
                  RealID Act
   Requires states to issue driver licenses and state
    ID that conform to federal requirements for
    centralized identification, without funding
   Alleged authority is to withhold entry into federal
    facilities and onto commercial aircraft to those
    not having the ID
   Alleged authority to control aircraft based on
    Commerce, Necessary & Proper, Wickard.
        Resistance to RealID
   Many states refusing to fund compliance, but
    some are complying
   Feds hinting at withholding funds to states for
    other purposes unless they comply, taking
    advantage of economic distress
   But lawsuits blocked by lack of standing
   Act still on books but too many states blocking
    compliance, so it is in legal limbo
            RealID if had NC
   Citizen could have complained to NC before
    RealID Act passed.
   NC would not find Act null if not passed yet, but
    could conduct hearings, call witnesses.
   Proponents would have to confront opponents in
    NC hearing in different way than in stacked
    committee hearings of Congress.
   Faced with likely nullification, Act would likely
    have been withdrawn.
     Medical Marijuana (MM)
   Illegal under federal acts, based on Commerce,
    Necessary & Proper, Wickard.
   Some states legalized under their own laws.
   When feds prosecuted for what state authorized,
    juries refused to convict.
   Feds decided to stop prosecuting in those states,
    but still can.
   NC would have gotten that result faster.
      Health Care Act (HCA)
   Mandates people get health insurance or pay fine.
   Some proposed state legislation blocking
    collection of the fines.
   But IRS may not file liens or take collection
    actions for fines, so fines to block.
   However, IRS can deduct fines first, then charge
    people for not paying taxes.
   So is state going to block income tax collection?
       Income Tax & the NC
   Citizen could complain Federal Income Tax on
    Labor (FITL) unconstitutional.
   NC could hear issues in ways Congress and the
    courts refuse to, and find it unconstitutional.
   IRS files liens with state court clerks, which NC
    could block.
   State agencies and contractors withhold taxes,
    which NC could block.
             FITL continued
   IRS attaches money from bank accounts, but NC
    could have state bank charters suspended.
   NC could encourage juries not to convict, but IRS
    still has civil actions.
   IRS gets your money, then makes you sue them to
    get it back, with a jury possible but blocked.
   Without NC, cannot afford the cost of suit, but
    NC could authorize paying attorneys for that.
            Choosing battles
   The FITL is not one of the first usurpations the
    NC should tackle.
   It could hold hearings, but defer the finding,
    putting pressure on Congress to replace the FITL.
   Hearings would provoke public discussion, and
    lead juries to refuse to convict even without the
    finding.
   Without criminal convictions, collections would
    fade.
     Federal education funds
   Mandates depend on accepting federal funds.
   State standards higher than federal in areas like
    civics.
   NC could find federal funding only valid for
    militia.
   Teacher unions could decide whether they want
    to train warriors and enforcers of the Constitution.
    Environmental protection
   Feds and state differ on standards.
   Fed EPA based on Commerce, Necessary &
    Proper, Wickard.
   NC would make businesses choose between State
    and EPA, line up their support for State.
   Most federal enforcement administrative, so
    juries don't get to decide, except for criminal
    cases.
              Gun control 1
   Alleged authority for NFA 1934 was Tax Clause,
    for GCA 1968 was Commerce, Necessary &
    Proper, Wickard.
   Some states have advanced legislation to exclude
    intrastate firearms from federal regulation, but
    feds can just ignore that and prosecute in their
    courts.
   States could refuse to disable RKBA for convicts,
    but feds don't recognize that as standard.
               Gun control 2
   States could license intrastate firearms dealers,
    not required to be federal dealers, setting up
    conflict like that for MM.
   NC could find lack of militia unconstitutional,
    and all noncriminal citizens law enforcement
    agents, which would make them all “peace
    officer” exceptions to federal statutes.
   NC could encourage juries not to convict.
                   Money 1
   Citizen complaint to NC could bring finding that
    only gold & silver are legal tender within State.
   State would then have to tax and spend only in
    gold and silver, not in Federal Reserve Notes
    (FRNs).
   Civilians would then start demanding debts be
    paid in gold or silver.
   Feds would become isolated into a FRN zone
    while the rest of the country abandons FRNs.
                    Money 2
   But taking on entire monetary system at once
    would backfire.
   Better to take up complaint from one citizen that
    Federal Reserve Bank won't redeem a $1 bill for
    silver, threaten to withhold cooperation on
    something, until fed relents.
   Then do it for a $10 bill, etc., with much fanfare,
    until politicians begin to see where it is going.
                 Summary
•   Not all federal usurpations are readily
    susceptible to state-led nullification.
•   The most susceptible are those that require the
    cooperation of state agents.
•   State-led jury nullification can work for some,
    but not all federal actions submitted to juries.
•   For some usurpations, the best that can be done
    is declaratory, throwing the issue to the people
    of other states and the political process.