October 29, 2013

Those who are unwilling to obey laws they dislike — unwilling to accept majority rule — and who despise or fear government, are attempting in various ways to prevent the enforcement of such laws. The right wing of the Republican Party in Congress, not content with opposing any measures designed to improve the economy or diminish inequality, shut down the federal government in a tantrum over health care, and may well do so again. Five counties in Maryland, eleven in Colorado and two in California, unhappy that the country no longer is rural, want to secede from their states and form new ones they can control. (That is not likely to go anywhere, as it cannot be done "without the Consent of the Legislatures of the States concerned as well as of the Congress."[102]) Nullification, the theory that states can avoid federal laws, has become an even more fashionable notion although it is less logical, having no constitutional basis.  

Nullification is advocated on the web, notably by The Tenth Amendment Center,[103] and by "Nullification Now" meetings.[104]  It has found its way into bills introduced in a number of states. Like so many fringe ideas, its potential for mischief outruns its coherence, so it cannot be ignored. What follows is an update of my note of February 18 on the phenomenon, and a preface to a more extended comment. 

Alaska has enacted a statute which, in its preamble, bravely declared that

a statute, regulation, rule, or order that has the purpose, intent, or effect of confiscating any firearm, banning any firearm, limiting the size of a magazine for any firearm, imposing any limit on the ammunition that may be purchased for any firearm, or requiring the registration of any firearm or its ammunition . . . is not authorized by the Constitution of the United States, . . . and, consequently, is invalid in this state and shall be considered null and void and of no effect in this state . . . ."[105]

The operative section is at once bolder and more cautious than the preamble.

A federal statute, regulation, rule, or order . . . is unenforceable in this state by an official, agent, or employee of this state, a municipality, or the federal government if the federal statute, regulation, rule, or order violates the Second Amendment to the Constitution of the United States or art. I, sec. 19, Constitution of the State of Alaska, by (1) banning or restricting ownership of a semiautomatic firearm or a magazine of a firearm; or (2) requiring a firearm, magazine, or other firearm accessory to be registered. [106]

That in effect is a nullification, but without the preamble’s more provocative "null and void." It backs away from the recital in limiting the act’s effect to semiautomatic weapons, and the use of "if" introduces an ambiguity. However, it adds "restricting ownership," and the claim that a federal agent may not enforce a federal law which, unless it is mere rhetoric, sets up a confrontation. Perhaps as a means of avoiding that, the next section of the statute provides that

The attorney general shall, under the Second Amendment to the Constitution of the United States or art. I, sec. 19, Constitution of the State of Alaska, file legal action necessary to prevent the implementation of a federal statute, regulation, rule, or order that violates the rights of a resident of the state."[107]

Somewhat redundantly, but again ambiguously, the statute prohibits the use of state assets to implement "an order of the President of the United States, a federal regulation, or a law enacted by the United States Congress that is applied to . . . infringe on a person's right, under the Second Amendment to the Constitution of the United States, to keep and bear arms; . . ."[108]

The statute also declares that a

personal firearm, a firearm accessory, or ammunition that is possessed in this state or manufactured commercially or privately in this state and that remains in the state is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce . . . .[109]

That language is taken from a model act known as the Firearms Freedom Act (FFA), which is based on a Montana law. It is making the rounds and has been enacted in several states.[110] In its model form [111] it does not purport to nullify federal laws, and in fact does nothing but express an opinion, although the Tenth Amendment Center treats it as a form of nullification.[112]  

In April, Kansas enacted a form of the Firearms Freedom Act which goes further. In its version, "It is unlawful for any official, agent or employee of the government of the United States . . . to enforce or attempt to enforce any act, law, treaty, order, rule or regulation of the government of the United States regarding a firearm, a firearm accessory, or ammunition that is manufactured commercially or privately and owned in the state of Kansas and that remains within the borders of Kansas."

Violation a felony. The threat to arrest a federal official risks a dramatic confrontation; it’s difficult to think that the Kansas legislature considered the implications of anything so irresponsible.

In addition, any federal law "which violates the second amendment to the constitution of the United States is null, void and unenforceable in the state of Kansas."[113] Like the corresponding Alaska statute, this is vague, but presumably Kansas will determine which laws fail the test.

Missouri passed a similar bill. Under it, any federal law in violation the Second Amendment "shall not be recognized by this state, shall be specifically rejected by this state, and shall be considered null and void and of no effect in this state."[114]  A federal agent who attempted to enforce such a law would be guilty of a misdemeanor. The bill was vetoed by the governor; an attempt to override failed by the narrowest of margins.

In August the Ninth Circuit rejected the premise of the Montana FFA and held that a firearm manufactured in Montana, intended to be sold only in Montana, and stamped "Made in Montana" is subject to federal licensing laws. The other attempts to nullify or avoid federal law should suffer the same fate, but one never knows.

In the next segment, I’ll address arguments in support of nullification.

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102. Constitution Article IV, Section 3
103. http://tenthamendmentcenter.com/
104. http://www.examiner.com/article/tom-woods-will-headline-nullify-now-nc-conference
105. http://www.legis.state.ak.us/basis/get_bill_text.asp?hsid=HB0069Z&session=28 106. Codified as AS 44.99.500(f)
107. AS 44.99.500(g)
108. AS 44.99.040. It also prohibits the use of state assets to implement the federal REAL ID Act of 2005, an odd addition to a gun-possession law.
109. AS 44.99.500(a)
110. See http://firearmsfreedomact.com/state-by-state/
111. http://firearmsfreedomact.com/model-version-of-ffa-legislation/
112.http://tenthamendmentcenter.com/2009/10/21/nullification-firearms-freedom-act-introduced-in-ohio/#.UkB4E4_n9T0   

October 11, 2013

Republicans have begun to realize that shutting down the government wasn’t a good idea politically and have discovered that there are parts of it that they like, or can pretend to. Hence the rush to exempt selected functions and the dishonest attempt to blame the Democrats for not restoring those functions, i.e., for rejecting the GOP’s demand to defund the Affordable Care Act, or parts of it, or delay it, or parts of it, or whatever the fallback demand du jour might be. As Froma Harrop put it in a recent column, "The more modest the Republican demands, the nuttier they sound. Pious posturing does not alter the fact that we’re viewing an extortion racket."

Attempts to explain or justify their tactics have tied Republicans in knots. Ted Cruz has managed to cancel his own arguments; his obsession with the Affordable Care Act has led to shutting down the government, but he said on Monday that the furlough of civilian intelligence workers — caused by the shutdown — "creates ‘a dream scenario for terrorists and enemies.’ " [98]  Here’s another example from Sam-I-Am, aptly described as cognitive dissonance:

Consider these two Ted Cruz statements, alongside one another:
1. "Will the U.S. default on its debt? . . . The answer is of course not."
2. "The debt ceiling historically has been among the best leverage that Congress has to rein in the executive."
. . . [O]ne might be given to wonder, what good is using the debt ceiling as a leverage point if the U.S. isn't going to default on its debt? The threat of default is the leverage.[99]

In addition to the contradiction, the second statement isn’t true.

Some Republicans simply are too ignorant to hold any public office. A state representative from Arizona referred to "National Park Service thugs" carrying out "the order of De Fuhrer." [100]  Okay, Arizona legislators aren’t required to know German definite articles, but her comment, comparing Obama to Hitler is absurd, foolish and vicious. Here’s Congressman Ted Yoho on not raising the debt ceiling, which will lead to default: "I think, personally, it would bring stability to the world markets."[101]

One of the problems with Republicans — the "base" and, to a considerable extent, elected officials — is that they have no national or party memory, apart from fuzzy and partly false impressions of the Reagan era. When they presented their demand that Obamacare be defunded as the price of keeping the government open, they seemed unaware that holding the government hostage is irresponsible, that it isn’t standard practice and that the shutdowns triggered by Gingrich hardly were a rousing success.

Some Republicans and some editorial writers have been bold enough to point out the fallacy and danger in the House tactic; even The Issaquah-Sammamish Reporter, not a leftist publication, joined in: "Blame some House Republicans for using the shutdown tactic in order to delay — or, what they really want, to kill — the Affordable Health Care Act. Their actions are a disservice to the American public." The principal, or original, blame does fall on the reactionary few, but it falls also on the abettors, including Speaker John Boehner.

Boehner, who certainly must know better, has gone along because he has no control over his caucus. Faced with the need to justify the shutdown, and desperate to blame the President, he claimed that Mr. Obama demands "unconditional surrender." That’s hardly the case but, if in the end Boehner folds, he’ll regret so labeling his retreat.

Of course, none of this may matter; the Republicans may escape without the political punishment they deserve. In addition to the fair and balanced treatment of the news on Fox, the MSM will do their part to spread them blame. On Tuesday, Andrea Mitchell presented a segment on the NBC Nightly News about the suspension of death benefits to service families due to the shutdown. It consisted entirely of references to affected families without political comment. Apparently someone noted the omission, so on Wednesday night she presented the same clips, prefaced by a comment, in which she could not contain her outrage, blaming it on the White House. Let’s see; the House Republicans, blatantly playing the hostage game, have refused to fund the government, leading to nonpayment of benefits, so it’s the administration’s fault.

Also, as Salon’s Alex Pareene said recently, "Never underestimate the ability of Democrats to lose a standoff with a bunch of deluded nuts. Democrats don’t have a Cruz, they have an Obama, who is always more than willing to attempt to give the deluded nuts at least some of what they claim to demand." Rumor has it that the concession may be a hit to Medicare and Social Security.

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98. http://www.huffingtonpost.com/2013/10/08/cruz-national-security_n_4064121.html >
99. Jason Linkins, http://www.huffingtonpost.com/2013/10/08/debt-ceiling-deniers _n_4065363. html?utm_hp_ref=politics
100. http://www.huffingtonpost.com/2013/10/07/brenda-barton-arizona-fuhrer_n_4059965.html
101 http://thinkprogress.org/economy/2013/10/07/2740271/yoho-debt-ceiling-markets  

October 3, 2013

The shutdown continues, and so does the media aid to the Republicans. Last night the ever-reliable Chuck Todd dramatically announced that Speaker Boehner emerged "frustrated" from a conference with the President. There followed a clip of Boehner complaining about the refusal of Democrats to "negotiate," i.e., to give in to the GOP demands to defund the health care act as the price of keeping the government open. After featuring that bit of propaganda, Todd said, "we also heard from Nancy Pelosi and Harry Ried," but we didn’t: a brief clip followed showing them at a microphone, but there was no sound. Instead, Todd, who had acknowledged that the only issue was health care, stated that Reid and Pelosi refused to negotiate "on any of those points." As if to confirm that Todd’s distortion is network policy, the caption of that report on the NBC Nightly News archives page is "Boehner frustrated Democrats won’t negotiate." And we wonder why people are confused.

The shutdown, absurd to begin with, has become so bizarre that even the Republicans don’t know what’s going on, but they need to press on, because backing down would be so humiliating: " ‘We're not going to be disrespected,’ Rep. Marlin Stutzman (R-Ind.) told The Washington Examiner. ‘We have to get something out of this. And I don't know what that even is.’ "[97]

Boehner is in the position of a nanny confronted with a bunch of brats. One can sympathize with his plight, but at some point, the adult has to take charge. He’s overdue.

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97. http://www.huffingtonpost.com/2013/10/03/marlin-stutzman-government- shutdown_n_4034123.html?view