The Wrongologist

What’s
Wrong Today:

Roll Call reports that Sen. Rand Paul (R-KY) announced plans to try to
undo parts of President Barack Obama’s executive proposals to curb gun
violence, saying the president may be developing a “king-like complex”:
(emphasis by the Wrongologist)

(Mr. Paul
forgets that FDR died in office. The 22nd Amendment was ratified in
1951.)

Mr.
Obama’s executive actions this week ranged from steps to encourage states to
improve information sharing on background checks to directing the Centers for
Disease Control and Prevention to conduct new studies related to gun violence.

Mr. Paul
would seek to nullify any executive
actions that could be construed as contravening the 2nd Amendment:

So, What’s Wrong?

It is the same old story: Nullification has been with us since 1809 when The
Supreme Court, rejected the idea of nullification in the case of United
States v. Peters.  

The theory of nullification has been
rejected repeatedly by the courts. The courts have found that under the Supremacy Clause of the Constitution, federal law is
superior to state law, and that under Article III of the Constitution, the federal judiciary has the
final power to interpret the Constitution. Therefore, the power to make final
decisions about the constitutionality of federal laws lies with the federal
courts, not the states and the states do not have the power to nullify federal
laws.

Politicians
like to say that the Tenth
Amendment says they don’t have to follow laws they don’t like. 

South Carolina tried it 1832. They
were smacked down by Andrew Jackson (Congress passed legislation authorizing
the use of force against SC over this and they folded in 1833). 
The nullification effort by South Carolina was basically the real first shot
fired in the Civil War, although actual bullets didn’t fly until nearly three
decades later. 

In the 1950s, a few southern states
attempted to use nullification to prevent desegregation of
their schools. These attempts failed when the Supreme Court again rejected
nullification in Cooper
v. Aaron,
explicitly holding that the states may not nullify federal law.

Except
for segregated southern states using nullification to maintain Jim Crow laws,
the concept has been the purview of “constitutional
radicalism” until January 2009 when President Obama took office.

Since then, several
states have attempted to pass nullification laws and they are all states with
Republican governors.

• Leading
  the charge to nullify federal regulations is Mississippi, where Republican Gov.
  Phil Bryant took to the airwaves after Obama announced his steps on gun control, to
  ensure that those executive orders don’t take effect in his state. From
  the Jackson
  Clarion-Ledger:

Gov. Bryant
and House Speaker Philip Gunn said they would block any federal measures
limiting the right to bear and possess arms from being enforced in Mississippi. This
is a sitting state Governor saying he
reserves the right to ignore the federal government.

• Virginia
  governor Bob McDonnell signed an obviously unconstitutional law
  that purports to nullify portions of the Affordable Care Act, and several states have followed suit with many
  considering so-called “sovereignty resolutions” which claim states have the power
  to ignore federal laws that conservatives oppose.

• In March 2011, Arizona considered Senate
  Bill 1433 which envisioned
  a 12-member committee within the state legislature that would review and
  recommend to the full legislature, laws they believe are unconstitutional. The full legislature would then have had the
  power to nullify the federal statute by a simple majority vote.

• Georgia
  Republicans have gone one big step further and want to basically opt out of the union altogether:

• In
  Texas, legislators passed a law nullifying federal law regulating light bulbs. Texas Governor Rick Perry told an audience in March of 2009:

America
is being torn asunder by people who believe they can pick and choose
which rules are valid and constitutional and only abide by the ones they so
choose. 

Many of these
people are fringe members of the Republican/Tea Party.

But
House Majority Leader Eric Cantor (R-VA) is a mainstream Republican. In
November 2010, Mr. Cantor said he was
willing to change the Constitution to provide for Nullification.

Talking Points Memo reported that Cantor supported a bill in the Virginia
House to amend the Constitution so that a 2/3 vote of the states could overturn
any federal law passed by the Congress and signed by the President.

This is
not the way the Constitution is amended. Amendments emerge from the Congress,
which must pass them by a 2/3 vote in both the House and Senate before sending
them to the states to be ratified by a 3/4 vote.

VA House
Speaker Bill Howell first floated the idea in a September 2010 Wall Street Journal op-ed he co-wrote with
Georgetown University law professor Randy Barnett.

They said
the plan was in response to the
federal overreach created by ‘progressive’ constitutional amendments adopted in
1913, the 16th Amendment creating a federal income tax and the 17th
Amendment allowing for the direct election of US Senators, which were
previously appointed by state legislatures.

Mr.
Cantor released a statement which said in part:

History
will not be kind to Republicans because the record will show that in this
century, they were willing to tear the
country apart. In a sense, Republicans are walking the same path that let to Americans fighting the Civil War.

The
similarities between 1860 and now are that the Constitution will survive while Americans
will suffer, unless voters nullify wing nut Republicans at
the ballot box for attempting to tear apart the United States of America.

This will be district by district fighting for the soul
of America.