January 28, 2014 by Michael Boldin


With a number of States now considering bills to thwart the implementation of Obamacare or legislation to turn off resources like water and power to National Security Agency facilities around the country, a number of political commentators are weighing in.

For example, Gail Kerr over at The Tennessean wrote about State Senator Mae Beavers’ bill to block Obamacare: “The U.S. Supreme Court ruled in 2012 that President Barack Obama’s Affordable Care Act is constitutional. State laws cannot trump federal laws.”

Jacob Gershman at the Wall Street Journal’s Law Blog suggested the same before having to retract shortly after.

The knee-jerk reaction of many “experts” is to claim that “Federal laws trump State laws when they conflict” whenever they write about a bill designed to take action against a Federal act.

Many of them don’t have a clue what they’re talking about.

The Legislation
The bills in question are not coming into “conflict” with Federal laws at all; they seek to direct State agents and employees to stop participating in the enforcement of various Federal acts.

In Washington State, for example, House Bill 2272 would ban all public employees from participating in any actions that aid the NSA in its mass surveillance programs. While this would immediately ban the use of warrantless data in court proceedings in the States, it has even more significant impact in a State like Washington, because there is a physical NSA facility there that relies on third parties, such as State agencies, to provide electricity or water to stay operational.

A similar bill has been introduced in Tennessee, where the NSA’s encryption-breaking facility at Oak Ridge resides. And another is expected to be introduced soon in Utah, where the new NSA data center requires as much as 1.7 million gallons of water every day to cool the supercomputers. That water is being supplied by the state of Utah.

In a rallying cry that sounds surprisingly simple, supporters know that no water equals no NSA data center.

Back in Tennessee, Senate Bill 1888 states, in part, “No state entity shall establish or administer, or assist in establishing or administering, any specific regulatory scheme to operate the federal Patient Protection and Affordable Care Act of 2010, or any subsequent federal amendment to such act, in this state.”

Similar bills have been introduced in Georgia, Indiana, Oklahoma and elsewhere.

Analyzing such state bills, FOX News Senior Judicial Analyst Judge Andrew Napolitano considered them an effective strategy against the Affordable Care Act. “If enough states do this, it will gut Obamacare because the federal government doesn’t have the resources… to go into each of the states if they start refusing,” he said.

In Florida yesterday, a bill was introduced in the State House to ban the entire State from enforcing or assisting in the enforcement of Federal gun control measures — all of them — past, present or future.

Napolitano last year urged States to do just this, suggesting that the Federal government simply does not have the manpower to carry out these measures. Such a bill in a single State, he said, would make “federal gun laws nearly impossible to enforce.”

The Legal Doctrine
Is this legal?

In short, absolutely. The State laws do not come into conflict with Federal laws in any legal sense.

All of these proposals are based on the widely accepted legal principle known as the “anti-commandeering doctrine.”

This means the Federal government cannot require a State to carry out Federal acts. The Federal government can pass a law and try to enforce it, but your State isn’t required to help them.

The Supreme Court has repeatedly affirmed anti-commandeering, relevant court cases being:

■1842 Prigg: The court held that States weren’t required to enforce Federal slavery laws.
■1992 New York: The court held that Congress couldn’t require States to enact specified waste disposal regulations.
■1997 Printz: The court held that “the Federal Government may not compel the States to enact or administer a federal regulatory program.”
■2012 Sebelius: The court held that the Federal government could not require the States to expand Medicaid, even under the threat of losing Federal funding.
Constitutional scholar Randy Barnett told National Journal recently: “State governments are free to refrain from cooperating with federal authorities if they so choose. In general, states cannot attack federal operations, but that’s not the same as refusing to help.”

These noncompliance bills do not run afoul of the Supremacy Clause, even if one were to claim that all Federal laws are supreme, instead of just those made “in pursuance” of the delegated powers in the Constitution.

Claiming they do is like claiming people who are boycotting a business are actually setting fire to it instead of just choosing not to shop there.

It’s just as absurd. Saying no to participation is far different than a physical standoff, both legally and practically.

Can It Work?
Simply put, the Federal government cannot force State or local governments to do the bidding of the Federal government. Such a tactic is an extremely effective way to stop a Federal government busting at the seams.

Even the National Governors Association admitted the same recently when it sent out a press release noting that “States are partners with the federal government in implementing most federal programs.”

That means States can create impediments to enforcing and implementing “most federal programs.”

James Madison, the “Father of the Constitution,” advised this very tactic. Madison supplied the blueprint for resisting Federal power in Federalist No. 46. He outlined several steps that States can take to effectively stop “an unwarrantable measure” or “even a warrantable measure” of the Federal government. Anticipating the anti-commandeering doctrine, Madison called for “refusal to cooperate with officers of the Union” as a method of resistance.

This same process was used effectively by Northern Abolitionists in resistance to the Fugitive Slave Act of 1850. And in Colorado, the whole world is able to see firsthand just how effective the States can be when they refuse to go along with Federal “laws.”

We should follow their courageous path against every other unConstitutional Federal act as well.

Moving forward, burning up the phone lines to your State House and asking legislators to introduce bills to refuse to participate in Federal acts like Obamacare, the NSA or gun control, can turn the tide toward liberty.

Many, if not most, Federal programs rely heavily on this kind of cooperation. Therefore, enacting anti-commandeering laws on various issues around the country can have the effect of a practical nullification — rendering Federal acts “nearly impossible to enforce.”

–Michael Boldin

Raylan,

Except for the Huffington Post below, most polls show Americans do not like Republicans. In one poll Republicans don’t like Republicans. However, one thing that history shows is Americans can change their minds quickly. So For now, Democrats are liked more than as Republicans.

Many OPP posters have expressed disbelief that President Obama has not been impeached because of his sinking poll numbers and his alleged scandals. I think these polls show that the answer maybe Americans trust Republicans a lot less. Polls indicate even less trust for the Tea Party Movement than the Republican Party.
http://www.washingtonpost.com/blogs/plum-line/wp/2014/01/27/far-more-americans-see-gop-as-extreme-and-uncompromising/
http://abcnews.go.com/blogs/politics/2014/01/politics-2014-low-confidence-in-leaders-and-a-dead-heat-in-midterm-preferences/
http://www.gallup.com/poll/165317/republican-party-favorability-sinks-record-low.aspx
http://blogs.wsj.com/washwire/2013/11/01/poll-growing-number-of-republicans-dislike-gop/
http://www.huffingtonpost.com/2013/12/26/republicans-2014-poll_n_4503995.html
http://www.politico.com/story/2013/12/tea-party-favorability-poll-101068.html

Damn Brian, you have finally brought a subject up with a basis in reality. Putting politics aside (as much as possible) here is an answer to a problem that has been creeping up on the ENTIRE USA for quite some time.
We have droughts in our agricultural areas, while we have flooding in industrial and commercial areas.
If you will look north on your map of the USA, you have Oregon north of you. The Columbia River pours into the Pacific Ocean, fresh water wasted. Why not create a recovery of some of that water, by use of pipelines, pump stations and other techniques to redirect that water into existing waterways? Existing active waterways already have dams and therefore have storage capacity, and hydroelectric generators. You increase the water availability (maybe even cause water tables to rise again) have more water for irrigation, as well as increase the availability of clean electric production. Look at the water along our northern border that originates from Canada and the Arctic. Channel it to existing waterways and old waterways that can be modified (dams with hydroelectric generators) to hold that water in more lakes. Same with the Mississippi which usually floods areas up and down its length. Channel that water to the drought stricken middle west (corn and wheat areas). We have the technology to do this and it is vital to the continued existence of our nation - it would increase the agricultural output, available electricity, rebuild water tables, and assist in developing an expansion of currently arid but fertile land. Cattle would no longer have to sold during droughts because feed would no longer be expensive or unavailable. Think of the jobs that would be created, during construction as well as the resultant increase of employment for the increase of productivity and development. Who knows, food prices could even drop. Not to mention the increase in wildlife and sporting activities. Fishing, watersports, wildlife habitat, - possibilities endless as well as a more secure homeland.

California is experiencing the worst drought in its 163 year statehood. I live in Northern Calif. We have had exactly one day of rain the entire autumn and winter. There is very little Sierra Snowpack and Ski resorts are closing (this is January, not June).

For those who have been paying attention, man-caused carbon emissions have long been predicted to cause massive weather extremes around the world. It was not predicted that there would be universal warming. What was predicted was that there would be regional climate disasters. Climate prediction is an incredibly complex science, that involves numerous feedback loops related to
ocean current temperatures, ice pack, and too many other variables to list in this post.

What would be the big repercussions if the high pressure ridge, parked off the coast, doesn't budge?

1. It would be a disaster for all Californians. If California becomes a modern day dust bowl, the state's 38 million people would have to migrate to other states. Their departure would cause trillions of dollars in real estate value to evaporate. Many of the biggest U.S. banks would be ruined.

2. The cost of fruits and vegetables would rise dramatically for much of the U.S.

3. A California exile would dramatically raise demand for housing in other states and drive up their housing costs.

4. 38 million people departing from a very blue state will cause numerous red states to turn blue. Californians don't like living in extreme cold, so the southern "red" states would be the most appealing.

5. The population and financial dislocations would trigger a national depression, which would make the 1930s pale in comparison.

6. The high pressure ridge would cause Calif. bound rain to be routed up over the western mountains and cause flooding in much of the east. The climate disruption will actually cause more ice and snow (and paradoxically) cold events in the east. Like I said, feedback loops are complicated.

7. Conservatives in other states would do well to refrain from gloating. If the nation's boat develops a large hole, ALL of its passengers will get extremely soaked. "Do not ask for whom the bell tolls, it tolls for thee."

An endless sunny summer is fun...until its not...

Please continue with your coprophilic bathroom stall memoirs!! I hope I didn't insult you or make you feel you are just strange, because you are remarkably strange,,, and in a perverse sense, I suppose, you could take pride in your unique weirdness!
At least, in that perversion, you are outstanding in your field.
None of the rest of us develop an emotional attachment to fecal matter, nor the act, nor the even surroundings, that you actually find enlightened writing, prose, and amusement/entertainment! Tell me,,, when you flush,,, are you filled with a sense of emotional loss? Or do you feel that at least some small part of your liberal being has been "transported" like on Star Trek, to another dimension,, making the sewer some sort of collective mind trust, for other liberal sh-t for brains!?!

A mind,,, being a terrible, and in your case a stinky thing to waste,,, perhaps you should write a book on your sh-thouse musings,,,, how about a title "Dreams of my Fodder?" That way you could be like Barak,,, whose book also stunk....
Or how about "Colon Labe" and make it a greek tragedy!

Let's see, I've found more believable news on bathroom walls written by "THE PHANTOM". FOX is just a disseminator of fiction and bigotry in an effort to make Rupert Murdoch the most powerful man in the world. The host's like Hannity all play to dividing america instead of trying to pull us togather. Glenn Beck said it best when he said he helped pull america apart for ratings. Hannity loves war and would have no problem sending his offspring to die in a nonsensible war while knowing full well that he has no real military expertise and has never served in so much as the boyscouts. I will give him this though, he is very good at playing on peoples fears. The FOX lie continues.

Hey Safe;
The only true mass killer president was bush, and he wasn't man enough to do it himself, so he sent our troops to do it for him.
And it didn't bother him one iota, that he was responsible for so many people being killed, maimed, or screwed up mentally, while he sat his sadistic ass here at home, trying to convince his own people to believe his lies.
What is even more amazing, and very sad are the idiots that believed him.
And now those same idiots have taken up his lies, with the same mentality that he has, thinking that everybody is a damned fool, but themselves.
President Obama made one unintended mistake and those same idiots want to impeach him, or make him the tallest person in Washington D.C..
Personally, I feel that the only people that should have been hung by their necks, until their heads popped off, just like they did to Hussein, are bush, and cheney. Impeachment would have been too nice.
Because the crimes they committed to their own people, puts them in the same sick ass category as Hussein.
Let us not forget the money they took from congress, with more lies, because they kept the cash, and sent the bill to President Obama.
That would be those debts in our budget that republicans keep crying about, and accusing the president of wasting money.
Those two wars, and letting their rich cronies throw their tax bills in their round file, is not cheap. And guess what else, that $25 Billion dollars, and counting that republicans ripped out of our budget, only adds insult to injury.
And the other fact is, republicans having the audacity to accuse President Obama of wasting money.
Two things should be demanded of bush, and cheney, go to Iraq and find at least one WMD, and replace our money, or go to prison.
The third thing should be demanded of republicans, replace every penny of that $25 Billion dollars.
The main reason being that they are sick, and stupid enough to suggest doing it all over again.
And somebody on here was stupid enough to accuse Democrats of being of being childish!!!