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 Faced with likely nullification, Act would likely have been withdrawn.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.
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