Tenth Amendment Center: New Hampshire Bill Would Ban DUI Checkpoints; Free State from Some Federal Funding Strings

From Tenth Amendment Center

...from Tenth Amendment Center

CONCORD, N.H. (Nov. 30, 2017) – A bill prefiled in the New Hampshire House would ban sobriety checkpoints in the state. The law would not only end constitutionally dubious “searches” in New Hampshire, it would also thwart federal programs that heavily influence state traffic laws.

A coalition of five representatives prefiled House Bill 1283 (HB1283) for the 2018 legislative session. The legislation would ban law enforcement agencies in New Hampshire from conducting sobriety checkpoints.

Under current law, police can set up sobriety checkpoints as long as they get court orders authorizing them. HB1283 would place a blanket prohibition on sobriety checkpoints.

Although courts have deemed sobriety checkpoints constitutional, they violate the plain reading of Article 19 of the New Hampshire Constitution which guarantees the right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions, and stipulates warrant requirements for searches. Rep. Brian Stone is one of the bill’s cosponsors. He explained his opposition to DUI checkpoints in a Facebook post.

“I’m of the opinion that they infringe on our rights, are costly, worsen police public relations, are too broad with minimal effect, and that there are better options to address DUI that law enforcement may use that are proven to be more effective and less costly.”

FEDERAL FUNDING

The federal government provides a large amount of funding for DUI checkpoints across the U.S. through Impaired Driving Countermeasures Incentive Grants and other Department of Transportations programs. The impaired driving grant program awards money to states that “adopt and implement effective programs to reduce traffic safety problems resulting from individuals driving motor vehicles while under the influence of alcohol, drugs, or the combination of alcohol and drugs or that enact alcohol ignition interlock laws.”

In a 2010 investigative piece, Mother Jones reported that the federal government provides the California Office of Traffic Safety about $100 million each year to promote responsible driving that reduces roadway deaths. Of that, $30 million goes into programs that fund drunken driving crackdowns, particularly checkpoints.

In order to qualify for these grants, states must comply with a wide range of highway safety mandates – many that don’t even relate to impaired driving. In effect, this funding empowers the federal government to dictate state and local traffic laws.

This is part of a broader trend. The federal government has fundamentally transformed state and local law enforcement agencies into a national police force, using funding to incentivize local cops to focus on federal law enforcement priorities.

Eliminating sobriety checkpoints in New Hampshire would cut at least a few of these federal funding strings. Ultimately, the only way to untangle the federal government from local police departments is to cut the funding. While HB1283 only addresses one small area, it takes a step in the right direction.

WHAT’S NEXT

HB1283 will be referred to the House Criminal Justice and Public Safety Committee when the New Hampshire General Court regular session begins on Jan. 3. 

 

Mike Maharrey
November 30, 2017 at 10:41AM

Tenth Amendment Center: The CFPB and Absence versus Resignation

From Tenth Amendment Center

...from Tenth Amendment Center

In the on-going debate over who now heads the Consumer Financial Protection Bureau (CFPB), the focus has been on whether the statute establishing the CFPB (the Dodd-Frank Act) overrides the Vacancy Reform Act (VRA). 

(Marty Lederman has a good discussion here).  The debate highlights a broader point about textualism (and, by extension, originalism).

Dodd-Frank says that the Deputy Director of the CFPB “shall . . . serve as acting Director in the absence or unavailability of the Director.”   The VRA says that  in the case of a vacancy in an office for which Senate advice and consent is required (which includes the Director of the CFPB) “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity” but also that “notwithstanding [the prior provision], the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity …”  President Trump appointed an Acting Director of the CFPB pursuant to the VRA; but the Deputy Director of the CFPB claims to be Acting Director pursuant to Dodd-Frank.

My view (following Andy McCarthy at NRO) is that President Trump’s appointment should prevail, as it is obviously authorized by the VRA and that the Dodd-Frank provision isn’t relevant.

The key language from Dodd-Frank again is that the Deputy Director serves as Director “in the absence or unavailability of the Director.”  That is not the situation here.  The former director (Richard Cordray) has resigned.  Thus there is no Director.  As McCarthy puts it: “What Cordray has created is a vacancy. He is not merely absent or unavailable in the commonsense, temporary understanding of these words; he is gone.”

In ordinary speech, the phrases “absence” and “unavailability” of a person indicate that the person exists but is presently incapable of acting — for example, because the person is sick, on vacation, or otherwise incapacitated.   Suppose I call an agency and ask to speak to the Director, and I’m told by the receptionist that the Director is “absent or unavailable.”  I will assume that there is a Director, but he can’t talk to me now, and I might ask the receptionist to have him call me once he is available.  I would be quite surprised if I later learned that actually there was no Director of that agency because the office was vacant, the previous Director having resigned or died.  If that were the case, the receptionist would have said “sorry, there currently is no Director as the office is vacant,” not that the Director is “absent or unavailable” (implying that there is a Director who can’t come to the phone at the moment).

This reading perfectly reconciles the two statutes.  Dodd-Frank provides for the case in which there is a Director of the CFPB but he cannot perform his duties.  The VRA provides for the case in which there is no Director (a vacancy).

The current situation is obviously in the latter category.  Cordray is not the Director, having resigned.  The textual counterargument must somehow be that Cordray is actually still “the Director” but he is “absen[t] or unavailab[le]” due to his resignation.  But that is incoherent.  Once he resigns he is no longer the Director, and although he may be “unavailable,” he is not the Director and his unavailability does not mean “the Director” is unavailable.  Rather, after his resignation there is no Director.  If the question is, is “the Director absent or unavailable,” the answer is no, because there is no Director to be absent or unavailable.

To be sure, it’s possible to argue that the phrase “absence or unavailability of the Director” could include a situation in which there is no Director.  (As Professor Lederman notes, the Office of Legal Counsel has taken that position).  But here is my broader point about textualism: Textualism does not contend that statutes (or constitutional provisions) will typically have only one conceivable meaning.  Lawyers will almost always be able to find another conceivable meaning, if it serves their interests (that’s how lawyers are trained).  The question for a textualist is whether one meaning is substantially more likely than the other — if so, it should be preferred, even where there is a conceivable alternative.

In the CFPB debate, I think the ordinary meaning of “absence or unavailability” of the Director is clear and does not include vacancies — even if the phrase could arguably be stretched to include them.  It’s not enough that the stretch is arguable; the question is whether the stretch is the more plausible reading of the language.  I think quite clearly is not.  That should be enough for a textualist conclusion: the VRA, not the Dodd-Frank provision, applies to the current situation.

Michael D. Ramsey
November 30, 2017 at 05:49AM

Tenth Amendment Center: GOP Tax Plan Would Not Shrink the Size of the Federal Government

From Tenth Amendment Center

...from Tenth Amendment Center

The middle class is not getting tax relief under the GOP tax plan currently under consideration. It’s getting big government on a credit card.

This is yet another indication that the size and scope of the federal government never shrinks, no matter which party controls Washington D.C.

Here’s a fun fact. Did you know virtually all of the individual tax cuts in the Senate version of tax reform are temporary?

Indeed, what the Senate giveth, it also taketh away. Most of the tax cuts for individuals would expire in 2026 under the Senate plan.

So what’s the reasoning behind sunsetting the tax cuts?

Under Senate rules, any bill adding more than $1.5 trillion to the deficit over 10 years must pass the Senate by 60 votes. Republicans have to keep their plan under that figure to have any chance at passing it. They don’t have 60 votes. By allowing the individual tax cuts to expire within that 10-year window, the total deficit increase comes in right under that max amount.

One might pause here to consider that a $1.5 trillion increase in the deficit is somehow considered trivial. As we have reported, many economists say the substantial increase in debt that will occur if Congress passes tax cuts without any accompanying decrease in the size of government will fail to spark the economic growth being promised.

In his latest podcast, Peter Schiff reiterated that it won’t.

Even if they are able to deliver, I think it’s going to be a buy the rumor, sell the fact, especially since the fact is not going to deliver what the rumor promises, which is a lot more economic growth. These tax cuts are not going to grow the economy because they do not shrink the size of government. Government continues to grow despite the tax cuts, meaning the government will have to find an alternative source of revenue, and that alternative source will be deficit spending and money printing, which will be negative for the economy.”

Nevertheless, the GOP is pushing ahead with its plan and trying to gingerly step around a slew of political landmines. By keeping that deficit figure below $1.5 trillion, they skirted one mine. But their solution buries another. The Republicans have painted themselves into a tight corner. Now they have to explain to the middle class why their tax cuts are going away in less than 10 years while corporations get “permanent” cuts. After all, the rhetoric all along has centered on relief for the middle class.

Peter said this shows just how disingenuous the whole process is.

The Senators are saying, ‘Oh, don’t worry about the fact that these tax cuts are temporary because no future Congress is going to allow them to expire.’ So that in six years, when the temporary tax cuts are coming to an end, a future Senate and Congress and president will pass legislation to prevent that from happening. So, in other words, they’re admitting the whole thing is a sham, because they’re using the expiration period to make the impact on the deficit smaller, but they’re saying, ‘Oh, it’s really not going to make the deficit smaller because we’re not going to allow the tax cuts to expire the way we’ve written into the bill in order to be able to pass it we are going to cancel it,’ which means the whole thing is a farce. It means that the Senate version of the bill adds much more to the deficit than what the senators are claiming in order to get the thing passed. So, the whole is smoke and mirrors.”

Either direction you step, you hit a land mine. On the one hand, the tax plan will add even more to the national debt than advertised – a number already north of $20 trillion. That would have real negative ramification on the US economy.

On the other hand, do you really trust that a future Congress and president won’t let the tax cuts expire? Peter doesn’t.

I’ve made this point before. No tax cuts are permanent. It doesn’t matter what these guys say.”

Peter pointed to the state of Illinois to illustrate this point. In 2011, the state cut its individual tax rate from 5% to 3.75%. It was touted as a permanent tax cut. This year, the state raised the rate back up to 4.95%. So, the permanent tax cut lasted all of six years.

Why did the Illinois have to raise rates again? Because the tax cuts came with no corresponding reduction in the size of government.

While Illinois cut taxes, it didn’t cut government spending. Government spending kept growing. So, in other words, those tax cuts were not really tax cuts. It was like putting your tax cut on your credit card because now Illinois taxpayers have to pay for all those tax cuts … They didn’t cut taxes. They just said, ‘Hey, you can have all this government and you don’t have to make any payments until 2017.’ It was all this free government, but the bill wasn’t going to come for six years.”

It’s the same with this GOP tax plan. The middle class isn’t getting tax relief. Its getting government on a credit card.

If your kid was running up huge credit card debt, what would you do? I bet you would cut up the card.

That’s the only hope of reigning in the size and scope of the federal government. Unfortunately, D.C. will never limit itself. The only hope is to minimize the government ability to print money out of thin air. That means undermining the Federal Reserve’s monopoly on money. Click HERE to read the Tenth Amendment Center’s 4-step plan for doing just that.

This article was originally published at SchiffGold.com.

Mike Maharrey
November 29, 2017 at 11:35AM

Tenth Amendment Center: Michigan Committee Holds Hearing on Bill to Ban “Material Support or Resources” for Warrantless Federal Surveillance

From Tenth Amendment Center

...from Tenth Amendment Center

LANSING, Mich. (Nov. 29, 2017) – Yesterday, I testified before the Michigan House Committee on Judiciary in support of a bill that would ban “material support or resources” for warrantless federal surveillance programs, an essential step for states to take in a time when the federal government seems unlikely to ever end their own spying.

Rep. Martin Howrylak (R-Troy) introduced House Bill 4430 (HB4430) on March 28. The legislation would prohibit the state and its political subdivisions from assisting, participating with, or providing “material support or resources, to a federal agency to enable it to collect, or to facilitate in the collection or use of a person’s electronic data” unless one of three conditions apply:

(a) The person has given informed consent.
(b) The action is pursuant to a warrant that is based upon probable cause and particularly describes the person, place, or thing to be searched or seized.
(c) The action is in accordance with a legally recognized exception to warrant requirements.

Following is my testimony.

In 1975, Sen. Frank Church warned us about the U.S. surveillance state, saying that it had the potential for “total tyranny.”

Let that sink in for just a moment. That was 40 years ago. Before everybody used email. Before cell phones. Before widespread use of the internet. If the potential for total tyranny existed in 1975, where are we today?

And yet, Congress has still not taken any action – in 40 more than years.

That’s why it’s imperative that you take this concrete step to support the Fourth Amendment.

The effect of HB4430 is very straightforward. It simply withdraws state support when a federal agency engages in illegal, warrantless electronic surveillance.

Now, there are a couple of questions you may be asking yourself.

First – does the state really have the authority to withhold material support from the federal government?

The answer to this question is an emphatic yes.

HB4430 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement federal programs or enforce federal acts. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating all the way back to 1842.

Simply put, the state of Michigan has every right and authority to determine how it will utilize its personnel and resources. It can withhold material support from the federal government – even if the federal government is pursuing a perfectly constitutional policy.

The Second question is more philosophical than legal. Why should we even take a stand on this? Why is it our business to question the federal government?

Simply put – this is a fundamental role of the state. In 1807, Connecticut Gov. John Trumbull said

“Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task – it is their right – it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.”

The US constitution is the fundamental law of the land. You each swore an oath to support the Constitution of the United States and the constitution of Michigan.

We know from documents released by Edward Snowden, and from the testimony of other whistleblowers like Bill Binney, that federal agencies DO engage in warrantless surveillance. This is not some kind of theoretical abstraction. It happens. And when it does, the state of Michigan should not be complicit.

A yes vote for 4430 is a vote for the Fourth Amendment. It’s a vote for the Constitution. It’s a vote for the rule of law. I urge you to cast that vote.

Mike Maharrey
November 29, 2017 at 10:42AM

Tenth Amendment Center: 14 Questions for Trump HHS Nominee Alex Azar

From Tenth Amendment Center

...from Tenth Amendment Center

by Michael F. Cannon, CATO Institute

President Trump has nominated Alex Azar to be the next Secretary of Health and Human Services. Azar will appear for questioning before (and sermonizing by) members of the Senate’s Health, Education, Labor, and Pensions Committee.

Here are 14 questions I would ask Azar at his confirmation hearings.

1. Is Congress a small business as that term is defined in the Affordable Care Act?
2. Colette Briggs is a four-year-old girl with aggressive leukemia who is about to lose coverage for the one hospital within a hundred miles that can deliver her chemotherapy. She’s losing that coverage because insurance companies are fleeing the Exchanges. What do you plan to do, what can HHS do, about this problem?
3. What will you do to prevent drug manufacturers from using the regulatory process to corner the market on certain drugs so they can gouge consumers and taxpayers?
4. HHS already publishes data on Exchange premiums and insurer choice. Will you commit to publishing a review of the growing body of research showing Exchange coverage is getting worse for many expensive illnesses?
5. Does HHS have an obligation to encourage young, healthy Americans to pay the hidden taxes contained in the ACA’s rising health insurance premiums?
6. How will HHS increase its efforts to educate Americans about all their options for avoiding the mandate penalty?
7. Short-term health insurance plans are an affordable alternative to increasingly costly Exchange coverage. Will you reinstate the 12-month policy term that existed before this year, and allow short-term plans to be guaranteed-renewable?
8. The previous administration issued rules making it generally unlawful to purchase or switch Exchange plans for nine months out of the year. The Trump administration has restricted this freedom even more, making it generally unlawful for ten and a half months out of the year. Should consumers be free to purchase and switch health plans when they choose, just like any other product?
9. Will you require insurance companies to repay the “reinsurance” subsidies the Government Accountability Office found the Obama administration illegally diverted to them?
10. Will you press the Food and Drug Administration to allow the sale of birth-control pills over the counter, without a prescription?
11. Medicare, Medicaid, and ObamaCare attempt to pay insurance companies according to the cost of each individual enrollee. If those complicated formulas really work, should government just give the money to the enrollees and let them control their health insurance and health care decisions?
12. Is Obamacare’s Independent Payment Advisory Board constitutional?
13. Should seniors be able to opt out of Medicare without losing Social Security benefits?
14. Will you end government encouragement of “abuse-deterrent” opioids, which have not reduced overdose deaths and are borderline unethical because some are literally formulated to hurt people?

This work by Cato Institute is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License.

TAC Daily Updates
November 29, 2017 at 10:17AM

Tenth Amendment Center: States Can Stop Proposed Federal Gun Control Measures in Their Tracks

From Tenth Amendment Center

...from Tenth Amendment Center

According to a recent Fox News report, it appears increasingly likely Congress will have enough bipartisan support to push through “common sense” federal gun control legislation in 2018. If this happens, state action can effectively nullify these federal gun laws and render them ineffectual.

Sen. John Cornyn (R-Texas) and Chris Murphy (D-Conn.) have crafted legislation to make federal background checks more robust. The measure would strengthen the National Instant Criminal Background Check System (NICS) to ensure all mandated background check information is uploaded.

“For years agencies and states haven’t complied with the law, failing to upload these critical records without consequence,” Cornyn said in a statement. “Just one record that’s not properly reported can lead to tragedy, as the country saw last week in Sutherland Springs, Texas. This bill aims to help fix what’s become a nationwide, systemic problem so we can better prevent criminals and domestic abusers from obtaining firearms.”

Proposals to ban so-called “bump stocks” that allow semi-automatic rifles to fire at a rapid rate have also received broad-based bipartisan support on Capitol Hill.

While strengthening NICS and banning bump stocks might be considered “common sense,” these actions are not constitutional. The Constitution does not delegate the federal government any power to maintain and run a background check system for firearms purchases, or to ban firearms accessories.

If constitutional fidelity and limits on federal power matter, these proposals should be stopped. But when it comes to political currency, pragmatic arguments, especially if they involve “saving lives,” will trump constitutional arguments every time. So how do we stop these unconstitutional actions?

States can do it.

In fact, the Fox News reporting on the Cornyn/Murphy bill reveals just how easily states can make the proposed law totally ineffectual. They can simply refuse to implement it.

“In order to ensure that states adhere to the uploading requirements, which the federal government technically cannot force states to do, the bill would create incentives for states to do so, such as by providing grants.”

So, if a state simply refuses the incentives, it can completely ignore the proposed law.

Notice that even Congress doesn’t have the authority to run a gun registry. It can only bribe states into doing it for them. States don’t have to take the bribes. If people in gun-friendly states push the issue, they won’t. And if enough states simply refuse to comply, the whole system will collapse.

In a broader sense, this reveals the federal government’s Achilles Heel when it comes to gun laws. It not only lacks the legitimate authority, it also lacks the personnel and resources to enforce them. Banning state and local assistance with the enforcement of federal gun laws will make federal gun control “nearly impossible to enforce,” as Judge Andrew Napolitano has said.

This offers us another strategy to pursue to stop federal violations of our right to keep and bear arms. Instead of lobbying Congress or hoping the federal courts will issue a favorable opinion, we should focus efforts at the state level where we have a better chance of influencing the process. There is virtually no chance of stopping the Cornyn/Murphy bill with its broad bipartisan support. But it is possible to pressure states into rejecting enforcement of is measures – or any other federal gun control law that comes down the pike.

Mike Maharrey
November 28, 2017 at 08:09AM

The General Welfare Clause: Its Not About Money

Article 1 section 8 clause 1 of the Constitution reads: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…” From this clause, many have construed the “general Welfare” statement to grant practically unlimited […]

The post The General Welfare Clause: Its Not About Money appeared first on KrisAnne Hall.

Read the full article at krisannehall.com November 28, 2017 at 07:58AM

Tenth Amendment Center: No, the Supreme Court is not always Right

From Tenth Amendment Center

...from Tenth Amendment Center

It is often suggested that as soon as the Supreme Court weighs in on a particular issue, it can no longer be revisited and whatever opinion is rendered must be treated as an eternally binding edict.

If one adopts to this position, they must then accept the following: that free blacks are not citizens and thus have no legal protections (see Scott v. Sandford), that individuals are subject to the regularly power of the federal government if they personally grow a surplus of wheat (see Wickard v. Filburn), that the president can unilaterally gather individuals based on their ancestry and send them to government internment camps without respect to due process (see Korematsu v. United States), among other absurdities.

On the contrary, the Supreme Court often gets things wrong, both morally and constitutionally. In such cases, the judiciary’s pernicious decrees should be treated as nothing more than idle blather – and actively resisted by the states and people.

Dave Benner
November 28, 2017 at 01:06AM

Tenth Amendment Center: “Small Things Grow Great by Concord”

From Tenth Amendment Center

...from Tenth Amendment Center

This article is featured in is today’s Tenther newsletter, which everyone in the nullification movement gets daily or weekly. Be one of them – and Become a member here to support the TAC.

250 years ago, John Dickinson, “The Penman of the Revolution,” wrote twelve “Letters from a Farmer in Pennsylvania” in response to the hated Townshend Acts.

In his first, he spent time discussing the last of the acts, the New York Restraining Act, which was punishment for the Assembly of New York, suspending its legislative powers for failing to fully comply with orders from the crown.

If the parliament may lawfully deprive New York of any of her rights, it may deprive any, or all the other colonies of their rights; and nothing can possibly so much encourage such attempts, as a mutual inattention to the interests of each other. To divide, and thus to destroy, is the first political maxim in attacking those, who are powerful by their union.

He continued, saying the rightful response at that moment would have been for other colonial assemblies to pass non-binding resolutions informing Parliament that the act was a violation of rights, and that it should be repealed.

Why? His answer came through clearly in his signature, which included the Latin phrase, Concordia res parvae crescunt.

It means “Small things grow great by concord.”

Clearly, Dickinson was right – small things did grow great in the coming years.

And you’ll see we’ve proudly taken that phrase as our motto on all TAC membership cards today.

In many ways, today’s federal government is like Parliament. It has suspended the legislative power of state assemblies in practice by exercising powers not delegated to it by the Constitution. In response, small things have grown great once again – the simple introduction of non-binding resolutions affirming the 10th Amendment nearly ten years ago has grown into a movement to nullify unconstitutional federal acts.

This growth wouldn’t be possible without the continued support of our members. It takes time, manpower, and resources.

We have published thousands of articles, videos, podcasts and blogs. Plus, we put a lot of effort into getting nullification bills introduced and passed.

I’ve watched firsthand as this organization has grown from the ground up. It has been nothing short of inspiring.

The people I work with and the volunteers I meet around the country are knowledgeable, passionate, and 100% ready to push back with everything they have.

They believe, as I do, that freedom is our ultimate goal.  As Dickinson put it in the last of his “Farmer” letters, “We cannot be HAPPY, without being FREE.”

I hope you understand just how much every little bit helps and is appreciated here.

Concordia res parvae crescunt

Michael Boldin
November 28, 2017 at 12:51AM

The Supremacy Clause: The Constitution Is Supreme

The Supremacy Clause: The Constitution Is Supreme by KrisAnne Hall, JD   Article 6 clause 2 of the Constitution is known as the Supremacy Clause.  This clause in our Constitution is often misquoted, misapplied, and misinterpreted.  Those who support an overgrown and supreme federal power like to use this clause to beat the States into […]

The post The Supremacy Clause: The Constitution Is Supreme appeared first on KrisAnne Hall.

Read the full article at krisannehall.com November 26, 2017 at 05:59PM

Tenth Amendment Center: 7 Lies The Statists Want you to Believe

From Tenth Amendment Center

...from Tenth Amendment Center

This blog is featured in today’s Tenther newsletter, which everyone in the nullification movement gets daily or weekly. Be one of them – and Become a member here to support the TAC.

7 lies? It took me just moments to come up with these.  That means there are way more than seven.

Even though there are few tough ones, I’m pretty sure you can smash these lies as easily as I can.

(1) The Constitution’s “general Welfare” clause means Congress can pass whatever it wants to supposedly “help” people around the country.

(2) A President is authorized to get involved in a foreign war without authorization from Congress, as long as it’s for no more than 60 days.

(3) Nullification is code word for “supporting slavery.”

(4) The government can conduct surveillance on anyone as long as they are doing so to protect “national security.”

(5) States are required to help the federal government enforce or enact federal “laws” or regulatory programs.

(6) James Madison opposed nullification, in every situation.

(7) Alexander Hamilton is the founder we should pay attention to more than anyone else.

Ask yourself, can you really give a strong answer to all of these?

If you can, I’m sure you know someone else who can’t.

Either way, we’ve published over TEN THOUSAND articles, blogs, news reports, podcasts and videos to smash these kinds of lies to bits.

That’s a ton of information that we’ve shared over the last 11 years.

We work to educate people on the proper role of government under the Constitution, and activate them to reject, resist and nullify all unconstitutional acts.

Nothing helps us get this work done more than the support of our members. And now through Monday night, we’re taking up to 50 percent off the price of our annual, 5-year and lifetime memberships.

We’ve got a LOT of work yet to do, but with your help, we can build a strong foundation for the Constitution and Liberty.

Join us:

http://shop.tenthamendmentcenter.com
-Michael Boldin, TAC
213.935.0553

Michael Boldin
November 25, 2017 at 08:02PM

Laws, Agencies, & Federal Confusion

Samuel Adams was correct when he said that loss of knowledge means loss of liberty.  KrisAnne and JC get into some deeply seated points of Constitutional Confusion that plague Americans and government today. Alternatively you can listen to “Laws, Agencies & Federal Confusion” by KrisAnne Hall on  YouTube

The post Laws, Agencies, & Federal Confusion appeared first on KrisAnne Hall.

Read the full article at krisannehall.com November 25, 2017 at 08:20AM

Tenth Amendment Center: Giving Thanks: Happy Thanksgiving 2017!

From Tenth Amendment Center

...from Tenth Amendment Center

TAC memberships help us produce more educational tools like this. JOIN TAC, help us stand for the Constitution and liberty!

It’s Thanksgiving and I wanted to take a few minutes to give thanks.

First, the countless people who follow our website and support our work. They’ve subscribed, read, watched, engaged in comments, and sent us emails.

Many have helped us grow by sharing our articles, podcasts and videos. Others have donated their hard-earned money and many others make monthly donations to help us keep moving forward.

Our members, supporters, followers, subscribers – I can’t say thank you enough to each and every one of you. It just isn’t possible to do this without you.

Thank you.

Our social media channels have grown enormously – over 300,000 followers on facebook, with thousands more on twitter, youtube and instagram too.

On all these sites, people have liked, commented and shared our posts, and have taken no small part in our slogan – Concordia res parvae crescunt, which means small things grow great by concord.

To all our social media followers and patrons, thank you.

We’ve published more than 10,000 articles and blogs, along with hundreds of videos and podcasts.  There’s no way I could ever have done all this by myself.  So thank you to Mike Maharrey – and to all the great team members and volunteers that have given their time and expertise over the years to help us produce all this great content for others to read, like and share.

There are far too many of you to list, you know who you are – so thank you.

There are many other individuals and organizations that have just been amazing to us here at TAC.  We don’t even need to agree on everything for me to appreciate what I’ve learned from them, advice I’ve been given, or where we’ve worked together, collaborated, or just shared ideas.

Last, but definitely not least.  My partner of more than 14 years, Sarah Beth Rosa.  Without your love, support, patience and friendship… I’d be nothing.  Thank you, love – I can never express my gratitude enough.

Happy Thanksgiving.  Here’s to more liberty for you and your loved ones in 2018 and beyond.

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Michael Boldin
November 23, 2017 at 06:24AM

Tenth Amendment Center: Giving Thanks: Happy Thanksgiving 2017!

From Tenth Amendment Center

...from Tenth Amendment Center
Here’s to more liberty for you and your loved ones in 2018 and beyond.
Michael Boldin
November 22, 2017 at 06:04PM

Tenth Amendment Center: Bill to Require Fully Informed Juries Introduced in New Hampshire

From Tenth Amendment Center

...from Tenth Amendment Center

PROVIDENCE, N.H. (Nov. 21, 2017) – A bill pre-filed in the New Hampshire House would require courts to fully inform juries of their right to vote “not guilty” when “a guilty verdict will yield an unjust result.”

A coalition of eight representatives pre-filed House Bill 1443 (HB1443) for the 2018 legislative session. The legislation would amend the current jury instruction law and require the court to explain to the jury it has the right to acquit if they believe a guilty verdict would be unjust.

State law, RSA 519:23-a, currently reads, “In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”

If passed into law, HB1443 would amend this section to read:

“At the request of the defendant or the defendant’s attorney, the court shall instruct the jury as follows:  If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty, unless your right of conscience dictates that the facts of the case reveal that a guilty verdict will yield an unjust sentence; accordingly you shall find the defendant not guilty.”

If passed, HB1443 would help ensure New Hampshire juries understand the discretion they have the right to exercise in a trial.

“It’s an important distinction to require the court to inform the jury instead of having the defense do so,” said Michael Boldin of the Tenth Amendment Center. “When it comes from an ‘official’ source like this, it becomes more likely that a juror will consider this option.”

Last year, the state House passed a similar bill, HB1270, by a vote of 184-145. But, it was ultimately killed by the Senate.

JURY NULLIFICATION OVERVIEW

Juries have the power to nullify a law in an individual case by finding the defendant not guilty, even when he clearly violated the law in question. The jury can use its discretion to determine that the law itself is unjust, immoral, or unconstitutional, and refuse to convict.

The New Hampshire case of Doug Darrell demonstrates how jury nullification works in practice. Police arrested Darrell and charged him with felony cultivating marijuana. He claimed he used marijuana for religious and medical purposes. Although he was clearly guilty by the letter of the law, the jury refused to convict.

Thomas Jefferson defended jury nullification, writing that “if the question relates to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right, which is casual only, is less dangerous to the State, and less afflicting to the loser, than one which makes part of a regular and uniform system.”

Jury nullification provides a mechanism for the people to invalidate unjust laws. But most jurors don’t realize they have this power and courts rarely inform them of this option. If HB1270 passes, defendants will have the opportunity to ensure they face a fully-informed jury.

WHAT’S NEXT

HB1443 was referred to the House Judiciary Committee. The 2018 New Hampshire legislative session will begin Jan. 3.

TJ Martinell
November 21, 2017 at 11:06AM

Tenth Amendment Center: Abraham Lincoln’s Gettysburg Address Erroneously Reinvented the Union

From Tenth Amendment Center

...from Tenth Amendment Center

Yesterday in 1863, Abraham Lincoln gave his famous Gettysburg Address, a speech commonly considered one of the most recognized and commonly recited pieces of English text.

Truthfully, Lincoln’s oratory served as an erroneous reinvention of the union that conflicted greatly with the widespread understanding reached during the time of the founding generation. While Lincoln declared that in 1776 our fathers “brought forth a new nation,” they did not. In reality, no union of states existed until the Articles of Confederation were ratified in 1781. That union was rearranged in 1788, through the Constitution’s ratification by nine requisite member states.

In 1776, independence was declared as a common cause of the states, and the Declaration of Independence noted that “Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” The states were compared to the “State of Great Britain,” making it obvious they existed and functioned and independent entities. Prior to this declaration, two states, Virginia and Rhode Island, and various other regions declared independence prior to the adoption of the famous document and the corresponding Lee resolution that severed all ties with Britain.

Contrary to Lincoln’s perception, the American states functioned as drastically different entities, through the War for Independence and long into the 1780s. Instead of the nationalist dictum, the Declaration of Independence was in fact a declaration of secession that enumerated the reasons for which the Lee Resolution of July 2 passed the Continental Congress. That generation staked their lives, fortunes, and sacred honors on these tenets, not the creation of a national union as Lincoln espoused.

Lincoln honored “brave men” in the collective; he spoke of a “nation” several times but avoided reference to the federal framework the Constitution acknowledged. He associated the war with an obligatory religious battle, using verbatim biblical language and allusions, and ascribed a sacred association to the union which had not existed before.

Many opposed Lincoln’s desire to suppress northern dissent, rejected wide-ranging conscription efforts, disavowed the forced closure of northern press, protested the suspension of habeas corpus, and deemed the war as wholly unnecessary. Without question, his deeds failed to persuade many that a cause that left about 800,000 dead was a glorious one. Still, Lincoln suggested that the union men that died upon the battlefield “nobly advanced” his vision for the union – the ultimate centralization and nationalization of political power. To Lincoln, the men “gave their lives that the nation might live.”

If Lincoln looked elsewhere in the document he referenced to bolster his claims, he would have recognized Jefferson’s adamant defense of secession and self-government. Lacking a government that protects the lives, liberty, and property of its citizens, “it is the right of the people to alter or to abolish it, and to institute new government.”

While Lincoln’s speech is possibly the most memorable American exposition in the contemporary, it failed to appreciate the original maxims widely considered to be inherent to the American republic. Lincoln conceived of the union as a sacred, superlative, national state, whereas Jefferson considered it as a utilitarian, federally-oriented league of states.

Dave Benner
November 20, 2017 at 06:17PM

Tenth Amendment Center: These Parties Are Just No Fun

From Tenth Amendment Center

...from Tenth Amendment Center
Everybody loves a good party, right? But I have to say, political parties are no fun! The other day, a friend was bemoaning the fact that the Republicans might lose the Senate next year thanks to the sex scandal involving Alabama senatorial candidate Roy Moore. I said, “Oh no! That means the Senate might not…
Mike Maharrey
November 20, 2017 at 03:49PM

Tenth Amendment Center: Top-5 Myths about the Constitution

From Tenth Amendment Center

...from Tenth Amendment Center

What are the most common myths about the Constitution?

From the necessary and proper, general Welfare and commerce clauses, to the preamble, federal “supremacy” and more – there are a lot to choose from. The hardest part about putting this list together was keeping it to just the top-five.

For your reference, you’ll also find 11 responses to these myths – articles, videos and an in-depth podcast interview, too.

5. Commerce
“The Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce.”
-Nancy Pelosi (2009)

Remember when the Commerce Clause challenge to the individual insurance mandate was dismissed by all serious and knowledgeable constitutional law professors and Pelosi as “frivolous”?

“Are you serious?” Nancy didn’t even want to answer a question about the Constitution.

Here’s how James Madison described the Commerce Clause: it “was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government.”

Simply put, under the Constitution, the Commerce Clause is not something that authorizes the federal government to regulate, control, or prohibit anything and everything they want.

I covered the clause in a short, 2-minute video that you can watch here. For a little more detail, see this article, “Claiming almost everything is commerce.”

4. The Preamble
“The Preamble should guide our understanding of the Constitution.”

Because the Preamble to the Constitution has beautiful, sweeping prose – and is quite broad in what it says – supporters of the monster state love to rely on it to justify their favorite federal programs or proposals.

Leading “living, breathing constitution” advocate Erwin Chemerinsky (who is often called upon by mainstream media reporters to be the “expert” who refutes our work here at TAC) says the Preamble “should guide the interpretation of the Constitution.”

Unsurprisingly, this is totally untrue.

In an important article, Mike Maharrey cited James Madison in opposition to Erwin’s view:

“They will waste but little time on the attempt to cover the act by the preamble to the constitution; it being contrary to every acknowledged rule of construction, to set up this part of an instrument, in opposition to the plain meaning, expressed in the body of the instrument. A preamble usually contains the general motives or reasons, for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissable effect, of rendering nugatory or improper, every part of the constitution which succeeds the preamble.”

Read the rest here

For us, if it’s a choice between Erwin’s view or Madison’s, we’ll go with the “Father of the Constitution” every single time.

3. Necessary and Proper
The “necessary and proper” clause provides constitutional authorization for much of what the feds do today.

“Necessary and proper” ranks among the most abused clauses in the Constitution. It has been dubbed the “elastic clause” because of the perception that it allows the scope of federal power to expand. The federal government began abusing this clause within years of ratification. In 1800, James Madison countered these early abuses, forcefully arguing that it’s not elastic at all, and doesn’t give the government any additional powers.

Under the Constitution, there are three criteria that need to be met for something to be both “necessary” and “proper.”

1. Necessary to carry out the original purpose – like purchasing corn from a farmer to sell in the grocery store.
2. A customary way of carrying out the original purpose. The guy running my grocery couldn’t get rid of all the food and sell porno because that would clearly not constitute a customary way of running a grocery store
3. An incidental power can never rise to a level greater than the original power delegated. My grocery store manager would have the authority to pay a mechanic for fixing the broken freezer. But he wouldn’t have the power to sell the building and invest the money in the stock market for me.

Maharrey does another great job with this article on Necessary and Proper. This video summarizes things in about 2.5 minutes.

2. general Welfare
“The general welfare clause gives the federal government the power to run social welfare programs”

At the Virginia ratifying convention, Edmund Randolph said that reading the general welfare clause as a broad grant of power would “violate every rule of construction and common sense.” (101 second video here)

As Thomas Jefferson put it in an 1817 letter to his friend Albert Gallatin:

“Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money.”

In this full one-hour podcast interview that I recorded back in 2009, you’ll get a great lesson on the clause. You’ll learn about the Hamiltonian vs the Madisonian view, anti-federalist concerns, modern interpretations, and court cases which have turned its meaning upside down.

For a shorter introduction, read this article from Mike Maharrey, “The General Welfare Clause is not about writing checks.”

1. Supremacy
“Federal law always trumps state law.”

As Brion McClanahan noted in a 2010 article, “this opinion is held by a majority of constitutional law “scholars,” but they are far from correct.”

He continues:

The so-called “supremacy clause” of the Constitution, found in Article 6, states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding [emphasis added].”

The key, of course, is the italicized phrase. All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.

Brion summed it up with this gem:

When asked to read between the lines to “find” implied powers, Jefferson responded that he had done that, and he “found only blank space.”

Read the full article here

Bonus: Enforcement

All of these myths have been used by supporters of endless federal power to enact all kinds of federal programs. While we know that our responses to these myths will never result in federal politicians or judges giving up or overturning federal programs, we believe you’ll find them interesting and educational.

More importantly, we should recognize, as the Founders did, that Constitutions don’t enforce themselves. We cannot rely on the federal government to limit its own power. That’s why states and individuals need to step up and get the job done.

Michael Boldin
November 20, 2017 at 04:21AM

Tenth Amendment Center: The Pernicious Doctrine of “Accusation Equals Guilt”

From Tenth Amendment Center

...from Tenth Amendment Center

by Ted Galen Carpenter, CATO Institute

Equating mere allegations of misconduct with definitive evidence is a growing habit in the United States.  That tendency is most prevalent regarding national security matters, and the trend has been building since the onset of the so-called war on terror following the 9-11 attacks.  

Conservatives are especially prone to assert that “terrorists” are not entitled to constitutional rights, even if they are American citizens.  The obvious problem with that argument is that until a fair and impartial trial is held, the individuals in question are merely accused terrorists.  The whole point of due process is to determine whether a defendant is guilty or not.

Alarmingly, George W. Bush’s administration asserted the authority to jail suspected terrorists without trial or even a hearing before an independent tribunal.  In the case of Jose Padilla, an American citizen apprehended at Chicago’s O’Hare International Airport, the government designated him an “enemy combatant” and held him (as well as inflicted torture) for nearly four years at a military prison in South Carolina before bringing charges to a grand jury.  Even then, the administration’s belated application of due process occurred only in response to the U.S. Supreme Court’s prodding.

It would be a mistake, though, to assume that only right-wing leaders embrace the notion that accusation equals guilt.  The Obama administration escalated its predecessor’s contempt for due process.  President Bush merely asserted his alleged authority to imprison American citizens without trial.  President Barack Obama asserted an authority to execute such people without trial.  That point was underscored when he authorized a September 2011 drone strike that killed radical Islamic cleric Anwar al-Awlaki, an American citizen, in Yemen.  A separate strike the following month killed Alwaki’s 16-year-old son.

There is little doubt that the elder Awlaki was a committed terrorist. (The indications regarding his son are less clear.)  But that’s really not the point.  Giving the president of the United States the power to execute an American citizen based on nothing more than his determination (or more accurately, a determination by bureaucratic appointees) that the individual is guilty of terrorism sets a horrifying precedent.  It is the ultimate in the accusation- equals-guilt thesis, with devastating consequences.  An American’s right to life would then be wholly dependent not only on the reasonableness, but the infallibility, of U.S. leaders.  The republic’s founders knew better than to rely on such factors for guaranteeing liberty.

The erosion of due process in the name of national security continues to spread.  People are placed on the arbitrary terrorist watch list, and its subset, the “no-fly” list, based on the most opaque criteria.  Most cannot even discover through legal proceedings how or why they were marked for scrutiny and restrictions.  And it is a list riddled with errors.  Individuals prevented from flying have included several pre-teen children and California Republican State Senator (now U.S. Representative) Tom McClintock.  Even the late U.S. Senator Ted Kennedy was repeatedly flagged for additional screening because of faulty information.

Proponents of the accusation-equals-guilt thesis apparently are not content with violating an implied constitutional right to travel unhindered in the United States.  Gun control advocates now favor using the terrorist watch list to bar gun purchases.  Last year, congressional Democrats, including Senators Diane Feinstein and Charles Schumer, pushed legislation to impose such a restriction, a move that would deprive citizens of an explicit constitutional right under the Second Amendment.  Fortunately, the Senate rejected their measure, but the sentiment in favor of using the no-fly list for that purpose continues unabated in progressive circles.

The growing, casual indifference to basic due process standards threatens liberties that have been hard-won over centuries since the Magna Carta.  It is imperative to establish an unyielding standard that distinguishes mere allegations from proof of guilt.  Everyone, even the most suspicious or unpleasant people, are entitled to the presumption of innocence until guilt clearly has been established.  We erode that standard at our great peril.

This work by Cato Institute is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License.

Tenth Amendment Center
November 18, 2017 at 07:11AM