On Constitutional Grounds : February 2018

Tenth Amendment Center: Michigan Senate Passes Bill to Ban “Material Support or Resources” for Warrantless Federal Surveillance

LANSING, Mich. (Feb. 28, 2018) – Today, the Michigan Senate unanimously passed a bill that would ban “material support or resources” for warrantless federal surveillance programs. This represents an essential step states need to take at a time when the federal government seems unlikely to ever end unconstitutional spying on its own.

Rep. Martin Howrylak (R-Troy) introduced House Bill 4430 (HB4430) last spring. 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 five 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.
(d) The action will not infringe on any reasonable expectation of privacy the person may have.
(e) This state or a political subdivision of this state collected the electronic data or metadata legally.

The Senate Judiciary Committee added exceptions (d) and (e) to address concerns that state executive agencies would not be able to share data legally collected in the course of everyday operations with federal agencies. For instance, the state department of education often shares data with the federal DoE.With the amended language, the executive branch department offered their support for the bill and it unanimously passed committee.

The Senate passed HB4430 by a 37-0 vote. The bill previously passed the House 107-1.

“If the federal government continues its mass warrantless surveillance programs, it should get no help carrying them out from the State of Michigan,” Howrylak said. “My bill will certify that the State of Michigan will not assist the federal government in any data collection unless it is 100 percent consistent with the U.S. Constitution.”

FISA REAUTHORIZATION

Despite concerns about warrantless surveillance in the wake of Edward Snowden’s revelations, Congress has done nothing to rein in NSA spying. In January, Congress reauthorized the FISA Sec. 702.

As Andrew Napolitano explained, “the FISA-created process permits a secret court in Washington to issue general warrants based on the government’s need to gather intelligence about national security from foreigners among us. It pretends that the standard is probable cause of foreign agency, but this has now morphed into the issuance of general warrants whenever the government wants them.” A typical FISA warrant authorizes government surveillance on all landlines, mobile devices and desktop computers in a given area. While the process was created to monitor foreign agents, it sweeps up reams of data belonging to Americans.

Before approving a six-year extension of Section 702, the House voted to kill an amendment that would have overhauled the surveillance program and addressed some privacy concerns. Provisions in the amendment would have required agents to get warrants in most cases before hunting for and reading Americans’ emails and other messages that get swept up under the program.

Just one day after Trump signed the extension into law, news came out about the infamous FISA memo. This memo was available to members of the House Intelligence Committee prior to the vote to reauthorize FISA. None of this information was made available to Congress at large. Most telling, every single Republican member of the House Intelligence Committee voted to reauthorize Sec. 702, and in a heartwarming show of bipartisanship, six of the nine Democratic representatives on the committee joined their colleagues.

This is yet another indication we can’t count on Congress to limit its spy-programs.

PRACTICAL EFFECT

The feds share and tap into vast amounts of information gathered at the state and local level through a program known as the “information sharing environment” or ISE. In other words, these partnerships facilitate federal efforts to track the movements of, and obtain and store information on, millions of Americans. This includes monitoring phone calls, emails, web browsing history and text messages, all with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

Because the federal government relies heavily on partnerships and information sharing with state and local law enforcement agencies, passage of HB4430 could potentially hinder warrantless surveillance in the state. For instance, if the feds wanted to engage in mass surveillance on specific groups or political organizations in Michigan, it would have to proceed without state or local assistance. That would likely prove problematic.

State and local law enforcement agencies regularly provide surveillance data to the federal government through ISE and Fusion Centers. They collect and store information from cell-site simulators (AKA “stingrays”), automated license plate readers (ALPRs), drones, facial recognition systems, and even “smart” or “advanced” power meters in homes.

Passage of HB4430 could set the stage to end this sharing of warrantless information with the federal government. It would also prohibit state and local agencies from actively assisting in warrantless surveillance operations.

By including a prohibition on participation in the illegal collection and use of electronic data and metadata by the state, HB4430 would also prohibit what NSA former Chief Technical Director William Binney called the country’s “greatest threat since the Civil War.”

The bill would ban the state from obtaining or making use of electronic data or metadata obtained by the NSA without a warrant.

Reuters revealed the extent of such NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through a formerly secret DEA unit known Special Operations Divisions and the cases “rarely involve national security issues.” Almost all of the information involves regular criminal investigations, not terror-related investigations.

In other words, not only does the NSA collect and store this data. using it to build profiles, the agency encourages state and local law enforcement to violate the Fourth Amendment by making use of this information in their day-to-day investigations.

This is “the most threatening situation to our constitutional republic since the Civil War,” Binney said.

NSA FACILITIES

The original definition of “material support or resources” included providing tangible support such as money, goods, and materials and also less concrete support, such as “personnel” and “training.” Section 805 of the PATRIOT Act expanded the definition to include “expert advice or assistance.”

Practically-speaking, the legislation would almost certainly stop the NSA from ever setting up a new facility in Michigan.

In 2006, the agency maxed out the Baltimore-area power grid, creating the potential, as the Baltimore Sun reported, for a “virtual shutdown of the agency.” Since then, the NSA aggressively expanded in states like Utah, Texas, Georgia and elsewhere, generally focusing on locations that can provide cheap and plentiful resources like water and power.

For instance, analysts estimate the NSA data storage facility in Bluffdale, Utah, will use 46 million gallons of water every day to cool its massive computers. The city supplies this water based on a contract it entered into with the spy agency. The state could turn off the water by voiding the contract or refusing to renew it. No water would effectively mean no NSA facility.

What will stop the NSA from expanding in other states? Bills like HB4430. By passing this legislation, Michigan would become much less attractive for the NSA because it would not be able to access state or local water or power supplies. If enough states step up and pass the Fourth Amendment Protection Act, we can literally box them in and shut them down.

LEGAL BASIS

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 or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

WHAT’S NEXT

HB4430 now must go back to the House for concurrence with the Senate amendment.

Mike Maharrey
February 28, 2018 at 10:24AM

Tenth Amendment Center: Wyoming Senate Passes Bill to Exempt Cryptocurrency from Property Taxes; Encourage Use and Help Undermine Federal Reserve Monopoly on Money

From Tenth Amendment Center

...from Tenth Amendment Center

CHEYENNE, Wyo. (Feb. 28, 2018) – Yesterday, the Wyoming Senate passed a bill to exempt cryptocurrency from property taxes. The proposed law would expand the of use digital currency and help undermine the Federal Reserve’s monopoly on money.

A bipartisan coalition of six senators and representatives introduced Senate Bill 111 (SF111) on Feb. 14. The legislation would exempt “virtual currencies” from state property taxes. The bill defines “virtual currencies” as “any type of digital representation of value that is used as a medium of exchange, unit of account or store of value and is not recognized as legal tender by the United States government.”

Passage of SF111 would move toward making virtual currencies, such as Bitcoin (BTC), Bitcoin Cash (BCH), Ethereum (ETH), Litecoin (LTC) and Zcash (ZEC), on par with paper currency, gold, silver, other coins, bank drafts, certified checks and cashiers checks. In other words, the proposed law would treat cryptocurrency like money for tax purposes.

On Feb. 16, the Senate Revenue Committee passed SF111 by a 3-1 vote. On Feb. 21, the Senate Rules Committee approved the measure 5-0. Yesterday, the full Senate passed the bill unanimously, 30-0.

Removing tax penalties for holding or using cryptocurrency would open the door for its broader use. When you tax something, you get less of it. When you remove taxes, you will get more of the activity.

Cryptocurrencies are really nothing more than digital money. We don’t tax money, so there is no reason a state should tax Bitcoin and other virtual currencies.

“We ought not to tax money – and that’s a good idea. It makes no sense to tax money,” former U.S. Rep. Ron Paul said during testimony in support an Arizona bill that repealed capital gains taxes on gold and silver in that state.

Passage of SF111 into law would take an important first step toward generating currency competition. If other forms of money, whether it be cryptocurrencies or gold and silver, gain a foothold in the marketplace against Federal Reserve notes, people will be able to choose them over the central bank’s rapidly-depreciating paper currency. The freedom of choice expanded by SF111would help allow Wyoming residents to secure the purchasing power of their money.

In a paper published at the Mises Institute, Constitutional tender expert Professor William Greene said when people in multiple states start using gold and silver instead of Federal Reserve Notes, it would effectively nullify the Federal Reserve and end the federal government’s monopoly on money.

“Over time, as residents of the state use both Federal Reserve notes and silver and gold coins, the fact that the coins hold their value more than Federal Reserve notes do will lead to a “reverse Gresham’s Law” effect, where good money (gold and silver coins) will drive out bad money (Federal Reserve notes). As this happens, a cascade of events can begin to occur, including the flow of real wealth toward the state’s treasury, an influx of banking business from outside of the state – as people in other states carry out their desire to bank with sound money – and an eventual outcry against the use of Federal Reserve notes for any transactions.”

Once things get to that point, Federal Reserve notes would become largely unwanted and irrelevant for ordinary people.

Cryptocurrencies open up another pathway to this same goal.

WHAT’S NEXT

SF111 now moves to the House, where it will first need to pass out of the committee process before moving forward.

Mike Maharrey
February 28, 2018 at 10:12AM

Tenth Amendment Center: Minnesota Bill Takes on Federal Militarization of Police

From Tenth Amendment Center

...from Tenth Amendment Center

ST. PAUL, Minn. (Feb. 28, 2018) – A bill introduced in the Minnesota Senate would bar state and local law enforcement agencies from acquiring “military grade weapons” through federal military surplus programs.

Sen. Jerry Newton (D-Coon Rapids) introduced Senate Bill 2615 (SF2615) on Feb. 22. The legislation would prohibit a Minnesota state or local unit of government or a law enforcement agency from acquiring military-grade weapons pursuant to a military equipment surplus program operated by the federal government. SF2615 defines military grade weapons as “militarily equipped vehicles and aircraft, weapons, and other objects designed to primarily have a military purpose or offensive capability, and ammunition.”

The provisions of SF2615 would apply to military equipment available both through the well-known 1033 program, along with any other military surplus program operated by the federal government.

The proposed law would likely require additional steps to create a process to determine specifically what equipment falls under the definition of “military grade.”

FEDERAL SURPLUS AND GRANT MONEY

Through the federal 1033 Program, local police departments procure military grade weapons, including automatic assault rifles, body armor and mine-resistant armored vehicles – essentially unarmed tanks. Police departments can even get their hands on military helicopters and other aircraft.

Police can also get military equipment through the Department of Homeland Security via the (DHS) “Homeland Security Grant Program.” In 2013, DHS gave more than $900 million in counterterrorism funds to state and local police. According to a 2012 Senate report, this money has been used to purchase tactical vehicles, drones, and even tanks with little obvious benefit to public safety. And, according to ProPublica, “In 1994, the Justice Department and the Pentagon-funded a five-year program to adapt military security and surveillance technology for local police departments that they would otherwise not be able to afford.”

In August 2017, President Trump issued an executive order that gave a push to local police militarization. Trump’s action rescinded an Obama-era policy meant to provide greater transparency and oversight around the Department of Defense 1033 program and other federal resources that provide military weapons to local police.

Passage of SF2615 would take the first step toward limiting police militarization by prohibiting Minnesota police departments from getting military equipment from both programs.

COMMAND AND CONTROL

Arming ‘peace officers’ like they’re ready to occupy an enemy city is totally contrary to the society envisioned by the founders. They’ve turned ‘protect and serve’ into ‘command and control.’

In the 1980s, the federal government began arming, funding and training local police forces, turning peace officers into soldiers to fight in its unconstitutional “War on Drugs.” The militarization went into hyper-drive after 9/11 when a second front opened up – the “War on Terror.”

Making it more difficult for local police to acquire this military-grade gear will make them less likely to cooperate with the feds by removing some of the incentives for partnerships. Passage of SF2615 would take a first step toward limiting police militarization in Minnesota.

WHAT’S NEXT

SF2615 was referred to the Senate Judiciary and Public Safety Finance and Policy Committee. It will need to by a majority vote before moving forward in the legislative process.

Mike Maharrey
February 28, 2018 at 08:31AM

Tenth Amendment Center: New Hampshire House Passes Bill that Would Allow People Expunge Some Marijuana Charges

From Tenth Amendment Center

...from Tenth Amendment Center

CONCORD, N.H. – Last week, the New Hampshire House overwhelmingly passed a bill that would allow individuals arrested for possession of small amounts of marijuana, or convicted of such charges, to have their record expunged. Passage into law would take another step toward nullifying federal marijuana prohibition in effect in New Hampshire.

A bipartisan coalition of 13 cosponsors introduced House Bill 1477 (HB1477) in January. Under the proposed law, any person who was arrested or convicted before Sept. 16, 2017, for knowingly or purposely obtaining, purchasing, transporting, or possessing 3/4 ounce of marijuana or less could petition the court to have the arrest and/or court records annulled.

On Sept. 16, 2017, a law decriminalizing simple marijuana possession went into effect. Passage of HB640 changed possession “of 3/4 ounce or less of marijuana or 5 grams or less of hashish” from a criminal misdemeanor to a civil infraction.

HB1477 would take another step forward, allowing people arrested for or convicted of something no longer illegal to clear their records.

On Feb. 22, the House passed HB1477 314-24.

In the past, there has been some opposition to marijuana legalization bills because they generally leave those previously charged and convicted unprotected. The introduction of HB1477 demonstrates an important strategic point. Passing bills that take a step forward sets the stage, even if they aren’t perfect. Once the door is open, the way is cleared for additional steps. You can’t take the second step before you take the first.

Passage of HB1477 would not only help those with prior marijuana arrests and convictions on their record get a new start, it would also further undermine federal marijuana prohibition. As marijuana becomes more accepted and more states simply ignore the feds, the federal government is less able to enforce its unconstitutional laws.

EFFECT ON FEDERAL PROHIBITION

Decriminalization, along with New Hampshire’s medical marijuana program, removed a layer of laws prohibiting the possession and use of marijuana, but federal prohibition remains in place.

Of course, the federal government lacks any constitutional authority to ban or regulate marijuana within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

While state law does not alter federal law, it takes a step toward nullifying in effect the federal ban. FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By easing state prohibition, New Hampshire essentially sweeps away part of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

A GROWING MOVEMENT

Colorado, Washington state, Oregon and Alaska, California, Nevada, Maine, and Massachusetts have all legalized marijuana for recreational or medical use. With more than two-dozen states allowing cannabis for medical use as well, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

Decriminalization of marijuana and expansion of medical marijuana laws in New Hampshire demonstrates another important reality. Once a state puts laws in place legalizing marijuana, it tends to eventually expand. HB1477 is a perfect example of this tendency. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. These bills represent a further erosion of unconstitutional federal marijuana prohibition.

“The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats,” Tenth Amendment Center founder and executive director Michael Boldin said.

WHAT’S NEXT

HB1477 now moves to the Senate for further consideraiton. At the time of this report, it had not been referred to a Senate Committee.

Mike Maharrey
February 28, 2018 at 05:31AM

Tenth Amendment Center: Understanding the Meaning of the Second Amendment and the Right to Keep and Bear Arms

From Tenth Amendment Center

...from Tenth Amendment Center

In the age of the Internet when “pseudo-quotes” attributed to founders often obscure the truth of what they said and facts surrounding their actual beliefs, it’s important for gun rights activists to know the real historical record.

Saul Cornell serves as the Paul and Diane Guenther Chair in American History at Fordham University. He recently wrote an article titled “5 types of gun laws the Founding Fathers loved” examining firearm regulations before and after the American War of Independence. The article is fascinating and includes information that I, as an amateur history buff, was unaware of. Some of these facts are relevant to the modern gun debate.

However, it is worth taking a second look at the thesis of the piece itself, and highlighting some other related points that are often not discussed.

Cornell summarizes his argument (bold emphasis added):

Ironically, those on both ends of our contemporary political spectrum cast the Second Amendment as a barrier to robust gun regulation. Gun rights supporters — mostly, but not exclusively, on the right — seem to believe that the Second Amendment prohibits many forms of gun regulation. On the left, frustration with the lack of progress on modern gun control leads to periodic calls for the amendment’s repeal.

Both of these beliefs ignore an irrefutable historical truth. The framers and adopters of the Second Amendment were generally ardent supporters of the idea of well-regulated liberty. Without strong governments and effective laws, they believed, liberty inevitably degenerated into licentiousness and eventually anarchy. Diligent students of history, particularly Roman history, the Federalists who wrote the Constitution realized that tyranny more often resulted from anarchy, not strong government.

No doubt, the Federalists were fearful of anarchy (and democracy, too), but the anti-federalists who criticized the Constitution raised objections about many of its provisions that today border on prophetic. If there are concerns about anarchy in our modern political climate, much of that is due to what Samuel T. Francis referred to as “anarcho-tyranny,” in which an overbearing government enforces rules it shouldn’t, and won’t enforce rules that it should. We see every day as the federal government violates the restrictions placed on it by the Constitution, and the states too often let them get away with it.

In his article, Cornell highlights that gun registration and regulations existed in the American colonies. In fact, all but Pennsylvania had local citizens, white men between the ages of 16-60 in state-regulated militias. They also had to register their firearms with that militia.

But the regulations Cornell focuses on were all colonial or state laws – not regulations imposed by the general government.

This brings up an important, but common mistake people make when they discuss the Second Amendment, as opposed to the validity or effectiveness of gun control policies – the presumption is the amendment prohibits all gun control laws at all levels of government.

This is not true.

The Second Amendment (along with the entire Bill of Rights) was only intended to apply to the federal government – not the states. Barring a state constitutional provision protecting the right to keep and bear arms, states retain the authority to set whatever restrictions on guns they desire. In other words, the power of state government to regulate firearms flows from the state constitutions. The federal government has no say one way or another.

However, many states do have their own version of the Second Amendment. Even if they do not, we then get into the discussion of whether the right to bear arms is an extension of the natural right of self-defense and thus an extension of self-ownership.

In other words, there are many different facets of the debate, and it is good to know what argument is being made. Whether gun control works and whether gun control is constitutional are related but distinct issues.

The historical example Cornell uses of local militia showcase one of the problems with comparing colonial America to today when discussing the gun debate. As Cornell points out, in the 1700s, the average man was involved in the enforcement of law and order. There was not the kind of legal segregation between an “officer of the law” and a civilian we have now. This is why George Mason referred to the militia “the whole people, except for a few public officials” at the Virginia Ratifying Convention.

It was the militia that participated heavily in the early battles against the British in the War of Independence. In fact, the war was instigated by efforts to seize the arms and munitions of militia stored in Lexington and Concord.

When the Constitution was being discussed and ratified, there were no militarized police forces with legal privileges such as sovereign immunity or qualified immunity. Law enforcement didn’t have special powers denied to the common citizen. Today, average people have been wholly removed from the enforcement of laws. Also, the federal government now has its tentacles into local law enforcement agencies through grant programs, something that was inconceivable in 1787.

In addition to the common man’s involvement in enforcing government’s rule, the founders also had profound suspicions toward a standing army. During the Philadelphia Convention, James Madison remarked that “A standing military force, with an overgrown Executive, will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.”

It is no surprise that had they won the war against America, the British intended to confiscate all firearms and station a standing army in the colonies.

The defense of the nation and the individual states was to be entrusted primarily to the armed populace, not a large, permanent military or massive police forces. Hence, the term “well-regulated militia.” The states were to safeguard their liberties against both foreign and federal tyranny through the use of well-armed, well-trained citizen-militia, not a professional force.

Cornell’s article mentions that “men could be fined if they reported to a muster without a well-maintained weapon in working condition” – perhaps this is what the Founders meant by “well-regulated,” not federal criminal background checks or restricting the magazine sizes for semi-automatic rifles.

It goes without saying that the original vision for our nation’s defense bears little semblance to what the United States looks like today, once again proving the anti-federalists had legitimate concerns about the Constitution’s broad authority, despite Federalist promises of “few and defined” powers.

Cornell also brings up historical open-carry laws, but again the colonies individually enacted these policies. As stated before, the Second Amendment is concerned with federal authority.

He also brings up local laws requiring safe storage of arms, but adds that this “made sense since the black powder used in firearms in this period was corrosive.” The reasons for enacting safe storage laws today have to do with regulating access to firearms (or more ulterior motives) than worries about accidental explosions.

Cornell then pointed to the fact that the founders took arms from civilians following the Revolution unless they took an oath of loyalty to the government, a soft form of disarmament. Again, this act has to be understood within the historical context, in which many American loyalists had fought on the side of the British and probably didn’t wear that on their sleeve after the fighting had been done. Those unwilling to swear loyalty to the government had more than their arms taken away; many were expelled outright from the states. The point of this was to prevent efforts to undermine American independence and eradicate possible fifth columns. America’s position after the war was far from stable, which is why the War of 1812 is often called America’s Second War of Independence.

The confiscation advocated today is purely on the basis that no private citizen should have “military-style” firearms, a notion that would have been utterly foreign to the founders. This is why there is no proposal today to confiscate firearms of private civilians based on their lack of loyalty to the U.S. Constitution.

Cornell then writes:

One of the most common claims one hears in the modern Second Amendment debate is the assertion that the Founders included this provision in the Constitution to make possible a right of revolution. But this claim, too, rests on a serious misunderstanding of the role the right to bear arms played in American constitutional theory.

A bit of nuance is perhaps required to differentiate between the “right of revolution” and the “right to resist government tyranny.” The conversations at the Virginia Ratifying Convention reiterated fears of a standing army created by a central government with direct powers of taxation. It is why the Second Amendment was proposed, to prevent a powerful centralized government from stripping the arms of its citizens, as had been done in Europe.

Obviously, those weapons were to be used by the people against their government if it went beyond its authority.

We see this reflected in the Virginia Ratifying Convention’s proposed version of the Second Amendment:

That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

This view was echoed around the same time by Noah Webster, who wrote the following in 1787 before the Constitution was ratified:

“Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.[Emphasis added]

Alexander Hamilton also acknowledged the right of resistance in Federalist #28. “If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense,” a right which he declared to be “paramount.”

Which brings us back to the Battle of Lexington and Concord. It was not a foreign government attempting to invade the American colonies and overthrow their government. Their own government was trying to seize military arms to prevent violent resistance to policies and acts against their own people considered to be intolerable and in violation of their rights.

However, we must also acknowledge that at that point in 1775, the question was about upholding the rights of Englishmen in the American colonies. The militia at Lexington and Concord were not fighting to overthrow the British government. Breaking free from England became a war objective later on.

During the Virginia ratifying convention, George Mason referred to British efforts to disarm the colonists as he argued for the need to protect the right to keep and bear arms.

Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, (Sir William Keith) who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia. [Here Mr. Mason quoted sundry passages to this effect.] Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The general government ought, at the same time, to have some such power. But we need not give them power to abolish our militia.

Lastly, whatever the intent of the Second Amendment, the founders acknowledged the right of revolution in the Declaration of Independence, not to mention when they killed British soldiers trying to maintain British supremacy in America. Again, the initial thought was not to overthrow the British rule, only to assert their rights as Englishmen. Once the British government acknowledged those rights, their rule would be accepted once more.

But when a long train of abuses and usurpations…

TJ Martinell
February 27, 2018 at 03:57PM

Tenth Amendment Center: Missouri Measure Would Put Marijuana Legalization on the Ballot; Foundation to Nullify Federal Prohibition

From Tenth Amendment Center

...from Tenth Amendment Center

JEFFERSON CITY, Mo. (Feb. 27, 2018) – Legislation filed in the Missouri House would create a ballot initiative to legalize marijuana, setting the foundation to nullify federal cannabis prohibition in effect in the Show-Me State.

Rep. Courtney Curtis (D-Berkeley) introduced House Joint Resolution 86 (HJR86) on Feb. 15. The legislation would initiate a referendum and give Missouri voters the opportunity to add the following language into the state constitution during the 2018 elections in November:

That the possession or consumption of marijuana by a person twenty-one years of age or older shall not be a criminal offense in this state. However, the state and political subdivisions thereof may enact criminal laws addressing actions taken while intoxicated by marijuana and the consumption of marijuana in public places.

Both chambers of the legislature will have to approve HJR86 by a two-thirds majority for the initiative to be placed on the ballot in November.

“If another state outpaces us, that can be a missed opportunity for Missouri,” Curtis said in a News Tribune report. “Legalization is something that can bring revenue to the state. Growing as fast as we have, we have to look at mechanisms for creating revenue.”

Despite the federal prohibition on marijuana, measures such as HJR86 remain perfectly constitutional, and the feds can do little if anything to stop them in practice.

LEGALITY

Under the Controlled Substances Act (CSA) passed in 1970, the feds maintain complete prohibition of cannabis. Of course, the federal government lacks any constitutional authority to ban or regulate marijuana within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

Legalization of marijuana in Missouri would remove a layer of laws prohibiting the possession and use of marijuana, but federal prohibition will remain on the books.

FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By mostly ending state prohibition, Missouri could essentially sweep away most of the basis for 99 percent of marijuana arrests.

A GROWING MOVEMENT

Cannabis oil is currently legalized for medical use in Missouri. Passage of HJR86 would further ignore federal prohibition and nullify it in practice in the state. Colorado, Washington state, Oregon and Alaska were the first states to legalized recreational cannabis, with California, Nevada, Maine and Massachusetts joining them after ballot initiatives in favor of legalization were passed in those states in November 2016.

With 29 states allowing cannabis for medical use as well, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

NEXT UP

HJR86 will need to be referred to a committee and pass that committee by a majority vote before it can receive consideration in the full House.

Shane Trejo
February 27, 2018 at 01:50PM

Tenth Amendment Center: Florida Committee Approves Bill to Ban Warrantless Stingray Spying, Help Hinder Federal Surveillance

From Tenth Amendment Center

...from Tenth Amendment Center

TALLAHASSEE, Fla. (Feb. 27, 2018) – Last Thursday, a third Florida Senate committee approved a measure that would ban warrantless location tracking and the use of stingray devices to sweep up electronic communications in most situations. The new law will not only protect privacy in Florida, but will also hinder one aspect of the federal surveillance state.

Sen. Jeff Brandes (R-St. Petersburg) introduced Senate Bill 1256 (SB1256) on Dec. 14. The legislation would help block the use of cell site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.

SB1256 would require police to get a search warrant based on probable cause before acquiring real-time or historical GPS location data, and before using any type of mobile tracking device in most situations. Police already must get a warrant before intercepting cell phone communication content. Adding location tracking to the warrant requirement would effectively end warrantless stingray use in Florida. The legislation would also require police to get a warrant before accessing stored location data from a service provider. Under current law, police can access stored data with a court order.

Last week,, the Senate Rules Committee passed SB1256 by a 13-0 vote with some amendments.

One amendment requires police to get a warrant before accessing information from a service provider that is more than 180 days old. Under current law, police have to have a warrant for data stored less than 180 days old, but do not need a warrant to access older data, A second amendment adds provisions allowing police to access stored electronic data with a judicially issued subpoena for sex crime investigations.

The Criminal Justice Committee previously passed the measure by a 4-1 vote and the Senate Judiciary Committee passed SB1256 by a 10-0 vote.

The bill does include some exceptions to the warrant requirement. Police could use stingray devices an emergency situation that involves the immediate danger of death or serious injury, the danger of escape of a prisoner, or when specifically defined exigent circumstances exist. In these situations, police would still be required to obtain a warrant within 48 hours.

The contents of any intercepted wire, oral, or electronic communication, or evidence obtained in violation of the law could not be received in evidence or otherwise disclosed in any trial, hearing, or other proceedings.

IMPACT ON FEDERAL SURVEILLANCE PROGRAMS

The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements. This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.

Defense attorney Joshua Insley asked Cabreja about the agreement.

“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.

“Yes,” Cabreja said.

As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”

The experience of a Pinellas County, Florida, man further highlights the shroud of secrecy around the use of stingray devices, along with the potential for abuse of power inherent in America’s law enforcement community.

The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.

Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal databases.

The feds can share and tap into vast amounts of information gathered at the state and local level through a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.

According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.

The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of SB1256 would represent a major blow to the surveillance state and a win for privacy.

WHAT’S NEXT

SB1256 has cleared all three of its Senate committees. At this point, Senate leadership could send the bill to the Senate floor, or it could go back to a committee for further consideration.

Mike Maharrey
February 27, 2018 at 01:46PM

Tenth Amendment Center: Massachusetts Committee Passes Two Bills to Limit Drone Spying, Help Thwart Federal Surveillance Program

From Tenth Amendment Center

...from Tenth Amendment Center

BOSTON, Mass. (Feb. 27, 2018) – A Massachusetts joint committee has passed two bills that would limit the warrantless use of surveillance drones. The legislation would not only establish important privacy protections at the state level, it would also help thwart the federal surveillance state.

Sen. Michael Moore (D-Shrewsbury), along with a bipartisan pair of cosponsors, introduced Senate Bill 1348 (S1348) last year. Sen. Patrick O’Connor (R-Plymouth and Norfolk) and 11 cosponsors introduced Senate Bill 1349 (S.1349). The bills are virtually identical and both carried over to the 2018 legislative session.

The legislation would prohibit the use of drones in criminal investigations without a warrant in most situations.

The bill includes an exception to the warrant requirement in the event of an emergency “when there is reasonable cause to believe that a threat to the life or safety of a person is imminent.” If used in an emergency situation, law enforcement would be required to file an affidavit describing the grounds for the emergency access within 48 hours.

The biggest difference between the two bills is that S1348 would specifically allow government agencies to use drones for “purposes unrelated to a criminal investigation or law enforcement purposes.” Information gathered in these situations could not be introduced in a criminal trial, hearing or grand jury proceeding, and could not be maintained, shared, or used for any “intelligence purpose.”

Both bills include a blanket prohibition on weaponized drones.

The legislation also places restrictions on data retention and sharing. Police would be required to destroy any information incidentally collected on areas or individuals not named in a warrant within 24 hours.

Any information collected in violation of the law would be inadmissible in any judicial, regulatory, or over government proceeding.

Both bills were reported favorably by the Joint Committee on Public Safety and Homeland Security.

Impact on the Federal Surveillance State

Although the proposed law would only apply to state and local drone use, it throws a high hurdle in front of some federal programs.

According to a report by the Electronic Frontier Foundation, drones can be equipped with various types of surveillance equipment that can collect high definition video and still images day and night. Drones can be equipped with technology allowing them to intercept cell phone calls, determine GPS locations, and gather license plate information. Drones can be used to determine whether individuals are carrying guns. Synthetic-aperture radar can identify changes in the landscape, such as footprints and tire tracks. Some drones are even equipped with facial recognition.According to research from the Center for the Study of the Drone at Bard College, 347 U.S. police, sheriff, fire, and emergency response units acquired drones between 2009 and early 2017—primarily sheriff’s offices and local police departments.

Much of the funding for drones at the state and local level comes from the federal government, in and of itself a constitutional violation. In return, federal agencies tap into the information gathered by state and local law enforcement through fusion centers and a federal program known as the information sharing environment.

The federal government encourages and funds a network of drones at the state and local level across the U.S., thereby gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on drone use, state and local governments limit the data available that the feds can access.

Currently, 18 states—Alaska, Florida, Idaho, Illinois, Indiana, Iowa, Maine, Montana, Nevada, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Vermont, Virginia, and Wisconsin—require law enforcement agencies in certain circumstances to obtain a search warrant to use drones for surveillance or to conduct a search.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. This represents a major blow to the surveillance state and a win for privacy.

WHAT’S NEXT

Both S1348 and S1349 were referred to the Senate Ways and Means Committee for further consideration. At some point, the bills will likely be combined into a single piece of legislation.

Mike Maharrey
February 27, 2018 at 01:35PM

Tenth Amendment Center: Tenther Tuesday Episode 28: Sound Money, Health Freedom and Drone Surveillance

From Tenth Amendment Center

...from Tenth Amendment Center

Today is the 404th day that the GOP has failed to repeal Obamacare, but states are continuing to make moves against unconstitutional federal control. In this episode of Tenther Tuesday, Michael Boldin and Michael Maharrey talk about a bill that went to the Alabama governor’s desk this week. If she signs it into law, it will encourage the use of gold a silver, and take an important step toward breaking the Fed’s monopoly on money. They also talk about several other sound money bills moving forward in other states, along with legislation to promote food and health freedom and limit government surveillance.

WATCH

SHOW LINKS

JOIN TAC, Support the Constitution and liberty: http://tenthamendmentcenter.com/members

Alabama gold and silver

Wyoming Gold and Silver

Minnesota gold and silver

Utah Raw Milk

Iowa Direct Primary Care

Wisconsin Direct Primary Care

Kentucky Drones

State of the Nullification Movement Report

Mike Maharrey
February 27, 2018 at 01:04PM

Tenth Amendment Center: Utah Senate Passes Bill to Expand Raw Milk Sales; Important Step to Nullify Federal Prohibition Scheme

From Tenth Amendment Center

...from Tenth Amendment Center

SALT LAKE CITY, Utah (Feb. 26, 2018) – On Friday, the Utah Senate passed a bill would expand raw milk sales in the state. Final passage into law would take an important step toward rejecting a federal prohibition scheme in effect.

Sen. David Hinkins (R-27) and Rep. Marc Roberts (R-67) introduced Senate Bill 108 (SB108) January 23. The legislation would expand existing laws relating to raw milk sales from producer to consumer in the state. Under the proposed law, a milk producer would be able to sell up to 120 gallons of raw milk per month to consumers without meeting stricter requirements under the current law and permitting program, providing certain conditions are met. Under the proposed law, the raw milk could only be sold directly to the consumer on the premises where the milk is produced for household use, not resale. SB108 also includes handling, sanitation and record-keeping requirements for unlicensed producers of raw milk. The milk bottle would have to include the warning “This raw milk has not been licensed or inspected by the state of Utah. Raw milk, no matter how carefully produced, may be unsafe.”

The proposed law would also allow licensed producers to sell raw milk from a mobile refrigerated truck where the raw milk is maintained at 41 degrees Fahrenheit or a lower temperature.

The Senate passed SB108 by a 21-6 vote.

An amendment approved in the Natural Resources, Agriculture, and Environment Committee stripped a provision from the bill that would have allowed licensed producers to sell raw milk at farmers’ markets.

Under the current law, raw milk sales are only allowed on the farm, or from a retail store owned by the producer under strict licensing guidelines. Passage of SB108 would relax requirements for small producers, and expand legal sales. This would allow the raw milk market in Utah to grow.

According to nofamass.org, “With a growing demand for raw milk and a decreasing number of raw milk dairies, many consumers are unable to purchase this product.”

Impact on Federal Prohibition

FDA officials insist that unpasteurized milk poses a health risk because of its susceptibility to contamination from cow manure, a source of E. coli.

“It is the FDA’s position that raw milk should never be consumed,” agency spokeswoman Tamara N. Ward said in November 2011.

The FDA’s position represents more than a matter of opinion. In 1987, the feds implemented 21 CFR 1240.61(a), providing that, “no person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized.”

Not only do the feds ban the transportation of raw milk across state lines, they also claim the authority to ban unpasteurized milk within the borders of a state.

“It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well,” FDA officials wrote in response to a Farm-to-Consumer Legal Defense Fund lawsuit against the agency over the interstate ban.

The FDA clearly wants complete prohibition of raw milk and some insiders say it’s only a matter of time before the feds try to institute an absolute ban. Armed raids by FDA agents on companies like Rawsome Foods back in 2011 and Amish farms over the last few years also indicate this scenario may not be too far off.

Legislation like SB108 takes a step toward nullifying this federal prohibition scheme.

As we’ve seen with marijuana and industrial hemp, an intrastate ban becomes ineffective when states ignore it and pass laws encouraging the prohibited activity anyway. The federal government lacks the enforcement power necessary to maintain its ban, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere. This increases when the state actively encourages the market and nullifies federal prohibition in effect.

We’ve seen this demonstrated dramatically in states that have legalized industrial hemp. When they authorized production, farmers began growing industrial hemp, even in the face of a federal ban. Despite facing the possibility of federal prosecution, some growers were still willing to step into the void and begin cultivating the plant once the state removed its barriers.

In the same way, removing state barriers to raw milk consumption, sale and production would undoubtedly spur the creation of new markets for unpasteurized dairy products, no matter what the feds claim the power to do.

It could ultimately nullify the interstate ban as well. If all 50 states allow raw milk, markets within the states could easily grow to the point that local sales would render the federal ban on interstate commerce pointless. And history indicates the feds do not have the resources to stop people from transporting raw milk across state lines – especially if multiple states start legalizing it. Growing markets will quickly overwhelm any federal enforcement attempts.

WHAT’S NEXT

SB108 now moves to the House for consideration. It was referred to the House Natural Resources, Agriculture, and Environment Committee where it must pass by a majority vote before moving forward in the legislative process.

Mike Maharrey
February 26, 2018 at 11:42AM

Tenth Amendment Center: Iowa House Passes Bill to Expand Healthcare Freedom

From Tenth Amendment Center

...from Tenth Amendment Center

DES MOINES, Iowa (Feb. 26, 2018) – Last Thursday, the Iowa House overwhelmingly passed a bill that would help facilitate healthcare freedom outside of government insurance regulatory schemes.

The House of Delegates Human Resources Committee introduced House Bill 2356 (HF2356) on Feb. 14. It replaced HF2275 sponsored by Rep. David Heaton (R-Mt. Pleasant). The legislation specifies that direct primary care agreements (sometimes called medical retainer agreements) do not constitute insurance, thereby freeing doctors and patients from the onerous requirements and regulations under the state insurance code.

HF2356 also includes provisions defining direct primary care agreements and establishing modest requirements.

The House passed HF2356 by a 94-1 vote.

According to Michigan Capitol Confidential, by removing a third party payer from the equation, medical retainer agreements help both physicians and patients minimize costs. Jack Spencer writes:

“Under medical retainer agreements, patients make monthly payments to a physician who in return agrees to provide a menu of routine services at no extra charge. Because no insurance company stands between patient and doctor, the hassles and expense of bureaucratic red tape are eliminated, which have resulted in dramatic cost reductions. Routine primary care services (and the bureaucracy required to reimburse them) are estimated to consume 40 cents out of every dollar spent on insurance policies, so lower premiums for a given amount of coverage are another potential benefit.”

This represents the kind of cost control Obamacare promised but failed to deliver. In 2015, Tom Woods interviewed a Kansas doctor who utilizes the direct primary care model. Dr. Josh Umbehr’s practice demonstrates the cost savings possible when doctors are unfettered from the bureaucratic health insurance system.

Under Obamacare, regulations define such programs as a primary care service and not a health insurance plan, and current IRS policy treats these monthly fee arrangements just like another health plan.

A FIRST STEP

At this point, it doesn’t look like Republicans will repeal or even reform Obamacare, and the changes to the ACA proposed by the GOP would have arguably made things worse. Even with the penalty for not buying health insurance repealed by the Republican tax plan, all other Obamacare rules and regulations remain in place. Regardless, state actions can help completely bring down the Affordable Care Act, or any national healthcare plan the Congress comes up with in the future.

Oftentimes, supporters of Obamacare criticize opponents for not having any alternative. Direct primary care offers one.

These direct patient/doctor agreements allow a system uncontrolled by government regulations to develop. It makes doctors responsive to patients, not insurance company bureaucrats or government rule-makers. Allowing patients to contract directly with doctors via medical retainer agreements opens the market. Under such agreements, market forces will set price for services based on demand instead of relying on central planners with a political agenda. The end result will be better care delivered at a lower cost.

By incentivizing creative healthcare solutions, the market will naturally provide better options, such as the Surgery Center of Oklahoma, This facility operates completely outside of the insurance system, providing a low-cost alternative for many surgical procedures.

A more open healthcare marketplace within a state will help spur de facto nullification the federal program by providing an affordable alternative. As patients flock to these arrangements and others spurred by ingenuity and market forces, the old system will begin to crumble. Creating a structure for Medicaid patients to access direct primary care would likely incentivize more doctors to adopt the direct primary care model, expanding the market further.

Passage of HF2356 would take the first step toward healthcare freedom in Iowa and would create a stepping stone to further action to nullify the onerous Affordable Care act. Once in place, the people of Iowa could take further steps to fully extricate themselves from Obamacare for good.

WHAT’S NEXT

HF2356 will now move to the Senate for further consideration. At the time of this report, it had not been referred to a Senate Committee.

Mike Maharrey
February 26, 2018 at 11:35AM

Tenth Amendment Center: Today in History: The Passing of “The Chancellor,” Robert Livingston

From Tenth Amendment Center

...from Tenth Amendment Center

Today in 1813, Robert Livingston died. Known as “The Chancellor” for his position at the top of New York’s equity court, he became one of his state’s most influential politicians in an era of political upheaval.

Born into the most prominent New York family, Livingston was destined to follow a legal background. He entered King’s College in 1765 and was admitted to the colonial bar in 1770. Selected by his colonial legislature to attend the Continental Congress, Livingston found himself on the five-man committee that drafted the Declaration of Independence. While his state wavered on the prospect of independence, Livingston maintained a strong position in support.

After New York had declared independent and drafted a republican constitution, Livingston helped established New York’s legal norms as the Chancellor of New York. Under the Articles of Confederation, he served as Secretary of Foreign Affairs.

At the New York ratification convention in Poughkeepsie, Livingston maintained pragmatic sensibilities comparison to Alexander Hamilton and John Jay, but assumed a moderate position in favor of ratification. Addressing the multitude of detractors, Robert Livingston assured the assembly that the Constitution model was a republic “formed by a league of states.” Livingston strongly refuted the statements of those who denied this, saying that “the gentlemen who have spoken in opposition to me, have either misunderstood or perverted my meaning.”

He also countered the attacks regarding the power of the executive by clarifying that almost all powers resided in Congress, including powers of war, peace, and taxation. Therefore, the government could not make unlimited demands upon the states. According to Livingston, the structure and purpose of the government limited its potential to challenge the states.

After the Constitution had been ratified and when the new government went into effect, Livingston administered the presidential oath of office to George Washington at Federal Hall in New York City. After a failed attempt to win the governorship of New York, he remained Chancellor of his state until 1801.

Breaking with the Federalists in the 1790s, he opposed the National Bank, Jay Treaty, Sedition Act, and the Quasi-War. Appointed by President Thomas Jefferson to serve as an ambassador to France, Livingston was instrumental in negotiating the Louisiana Purchase in 1803. Upon the occasion, he declared that “the United States take rank this day among the first powers of the world.”

Mike Maharrey
February 26, 2018 at 11:30AM

Tenth Amendment Center: Has the Tea Party Sold Out to Big-Government Republicans?

From Tenth Amendment Center

...from Tenth Amendment Center

by Ron Paul

The recently-passed big-spending budget deal’s failure to generate significant opposition from the “tea party” has led some to pen obituaries for this once-powerful movement. These commentators may have a point. However, few of them understand the true causes of the tea party’s demise.

The movement commonly referred to as the tea party arose in opposition to the 2008 bank bailouts. The tea party grew as its focus shifted to opposition to President Obama’s policies, particularly his stimulus spending bill, cap-and-trade legislation, and, of course, the health care plan tea party leaders successfully branded as Obamacare. In its early days, the tea party was equally opposed to big spenders in both parties. In fact, it was often harder on Republicans than on Democrats. Tea party groups even backed primary challengers to Republican incumbents.

Unfortunately, the tea party was quickly coopted by the GOP. As a result, while tea party groups still opposed Republican policies, they began muting their opposition to all but the worst Republican politicians. Now that Republicans control the White House and Congress, tea party groups have even muted their opposition to the policies. This reinforces the tendency of Republicans to support spending bills backed by Donald Trump or George W. Bush that they would have fought tooth and nail if they were proposed by Barack Obama or Bill Clinton.

The tea party’s effectiveness as a force for fiscal conservatism was also crippled by the support of too many of its leaders and favorite politicians for a hyper-interventionist foreign policy. Support for foreign interventionism logically requires support for huge military budgets, which conflicts with a commitment to fiscal conservatism.

Some tea party-backed politicians tried to reconcile support for militarism and fiscal conservatism by claiming to be “cheap hawks.” The problem with this formulation is that the so-called cheap hawks accept the neoconservative premise that American exceptionalism justifies US military intervention around the globe. This makes it impossible for them to resist the calls for increased military spending to ensure the United States has the ability to police the world in the name of “democracy.”

Devotion to protecting the military-industrial complex from the budget ax leads defense hawks to cut deals with progressives to increase spending on both warfare and welfare. We saw this with the recent budget deal, where so-called fiscal conservatives defended a $65 billion increase in domestic spending because it was necessary to get progressive support for an $80 billion increase in military spending. One cannot be both a budget hawk and a defense hawk.

Fortunately, while the tea party is dead or at least on life support, a related movement is alive and growing. This is the liberty movement that grew out of my 2008 presidential campaign. Ironically, one of the first events of that movement was called a “tea party.”

Unlike the tea party, the liberty movement does not just focus on domestic policy. It works to roll back government in all areas. Thus, the liberty movement is just as committed to ending unnecessary and unconstitutional wars and protecting civil liberties as it is to repealing Obamacare. Liberty movement leaders and activists also refuse to compromise their principles for the benefit of the Republican Party. The commitment to consistency and principle may be why the liberty movement is so attractive to young people. This growing movement is a source of hope that the cause of individual liberty, free markets, and limited government will prevail.

Tenth Amendment Center
February 26, 2018 at 11:11AM