NINTH AND TENTH AMENDMENT SOVEREIGNTY
Libertarians believe passionately in our United States Constitution and its promise of federalism and the retention of rights by the states and their citizens under the Ninth and Tenth Amendments and Article 1, Section 8.
There has been widespread shock and alarm at the recent federal legislation -- widely known as “Obamacare” -- taking over our health care. The devastating speed and breadth of this unprecedented power grab have left many of us feeling helpless, frantically questioning what rights we will next lose to government and how we can prevent it.
Texas must vigorously assert its sovereignty and the rights of its citizens by all legal means, including nullification and interposition. As governor, I will demand that the legislature nullify these unconstitutional acts, and I will call a special session, or as many special sessions as needed, until this gets done. This, of course, could take a while. But that is all the more reason why Governor Perry is derelict in refusing to call a special session, right now.
Our attorney general, with other state attorneys general, joined in a suit seeking to declare portions of Obamacare unconstitutional. While we are gratified to see some action taken in opposition, this effort failed, and was insufficient response for many reasons.
First, these suits do not address the fundamental defect in the health care legislation: the federal government has no constitutional authority to pass laws affecting our health care. That is a right reserved to the citizens or the states.
Second, as Sheriff Richard Mack proved in his suit Prinze v. United States, state officials are not required to enforce federal laws (in that case, the Brady bill). And as Sheriff Mack has stated, the best way to defend against an unconstitutional act -- especially one the implementation of which requires the co-operation of the states -- is to simply refuse to co-operate and let the legislation fail for lack of an effective enforcement mechanism.
Third and most fundamentally, Greg Abbott's approach of suing in federal court, asks a branch of the federal government to decide the limits of federal power. The very act of requesting the federal government to be the final arbiter of constitutional meaning and to define the limits of its own power surrenders Texas sovereignty.
A better response is nullification and interposition, neither of which requires lawsuits or judicial involvement.
“Nullification” would involve the Texas legislature passing laws which declare specific federal laws unconstitutional and therefore null and void, and prohibiting the State of Texas and any of its officers or subdivisions from taking any steps or using state funds to enforce the law. For example, Obamacare will require Texas to increase its Medicare expenditures by 60%, which we simply cannot afford.
What other laws could be nullified? unlawful EPA environmental regulations based on bogus global warming claims, restrictions on the right to keep and bear arms, educational mandates -- the list is long. We must not allow our state resources or personnel to be used to implement unconstitutional and misguided federal programs. In this way, we will solve Texas problems by letting Texans run Texas.
The doctrine of nullification is rooted in the words and structure of our Constitution, our history, and logic and common sense. Many people, including myself, have taken an oath to support and defend the Constitution against all enemies, foreign and domestic. That oath has no expiration date, and many are taking the opportunity to proclaim an intent to keep that oath.
Each individual who has ever sworn such an oath has an obligation to interpret the Constitution to the best of his or her ability. Constitutional interpretation, therefore, is not just a matter for courts and judges. Tellingly, the Constitution itself is silent on WHO DECIDES if a law is constitutional or not, as is proper inasmuch that it is everyman’s duty to make this determination.
“Interposition” is perhaps an even more valuable tool to preserve our sovereignty from federal encroachment. Simply put, interposition means that any person in government, including but not limited to a governor, takes steps within his or her power to interrupt the enforcement of an unconstitutional law. An example would be a sheriff’s refusal to evict a homeowner who the IRS claims owes unpaid taxes or perhaps a fine for not having government-approved health insurance.
Some people seem to think that nullification and interposition just sound “too radical.” Thomas Jefferson and James Madison did not think so: they thought that these devices were an integral part of our Constitutional separation of powers.
History shows that these powers have hardly been overused. As just one example, in the 1850s, the enforcement of the Fugitive Slave Act was resisted in Wisconsin and many other states by the exemplary refusal of officials to send captured runaway slaves back to their slavemasters.
But, if nullification and interposition are “radical,” radically new problems require radically new solutions.