The New York Times has published a widely re-printed report about the extent to which federally guaranteed and subsidized college loan programs have driven up the cost of tuition and leaving an entire generation “hobbled” by debt.

Federal promotion of student loans began as a benefit for veterans—part of the compensation authorized by the Constitution’s grant to Congress of power to “raise and support Armies” (Article I, Section 8, Clauses 12) and “provide and maintain a Navy” (I-8-13).  In the 1960s, however, Congress expanded eligibility to nearly all students. There was no real constitutional justification for such a move, although the pretextual basis is a spending power said to be found somewhere in I-8-1—a provision that, construed correctly, grants only enough spending authority to run the tax system. A fuller explanation appears in my book The Original Constitution: What It Actually Said and Meant.

The results of unrestrained federal subsidies were predictable. As federal health care involvement has done, federal college subsidies have bloated the nation’s academic establishment and, by increasing cost, have harmed those people the subsidies allegedly were designed to help. These programs also probably have hurt the economy.

To give you an idea what has happened to cost, consider Cornell Law School, where I received my law degree. When I began law study there in 1970, tuition was $3000 per year—or just under $18,000 in today’s inflated currency. (Maintaining a stable currency is another thing the federal government can’t seem to do.) Today, tuition at Cornell is over $55,000 per year. Fees and other expenses jack up the tab to nearly $75,000.

The ways some academics justify federal subsidies are intellectually shameless. For example, they point to studies showing that college-educated Americans earn more over their lives than other Americans. But they neglect to mention that college-educated Americans are initially smarter than those unable to succeed in college. Take away college and they would still outperform.

Also, it doesn’t always follow that more is better. Spending 1% of GDP on road building is better for the economy than spending nothing at all, but that doesn’t mean that it would help the economy to confiscate half of what the American people earn and blow it all on blacktop.

Government higher-ed spending is one area in which we are likely on the downside of the benefit curve. Partly this is because the federal government is encouraging some to attend college who would be better off not doing so. Partly it is because of the accompanying deterioration of academic integrity (political correctness). Partly it is because of the debt problem the feds have created.

Empirical support for the view that we are on the downside of the benefit curve comes from economist Richard Vedder in his book, Going Broke By Degree. Vedder’s statistical comparisons show that states spending less on their public universities actually enjoy better economic growth than states spending more. Now, that doesn’t mean state governments should spend nothing at all on higher ed. But it does suggest that current levels of subsidy (federal + state) are too high.

So if federal higher-education subsidies are hurting the economy and the students who were supposed to benefit, then whom are they really benefiting?

One clear answer is: “Left wing politicians and the academics who support them.”

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Non-veteran higher-education subsidies are largely pay-offs to the  academic establishment. By greatly expanding the number of workers in the famously left-of-center academic industry, left-of-center politicians expand their vote and contribution base. Academics also support leftwing politicians in indirect ways—by promoting the leftist agenda on campus, by creating “academic” programs by which students provide politicians with support, and by providing public recognition to selected politicos through honorary degrees, graduation speaking opportunities, and the like.

The American Founders would have called this “corruption,” and they were keenly aware of the potential. They had experienced it under the British constitution. They understood that corruption occurs in all governments, but they installed in the U.S. Constitution several devices to curb it. Two of these were the “general Welfare” limitation on spending and the restriction of federal power to enumerated subjects.

The current student loan mess—like the health care mess—became possible because the Supreme Court stopped enforcing those restraints.

It’s for this very reason that the present system is unfit. It looks great at first, on paper. One branch writes the laws, an entirely different branch is supposed to carry them out, and still a third group is to act as judges. But closer examination reveals something that should raise one’s suspicions about the effectiveness of separation.

First, the idea that an executive officer chooses who is to be on the court is strange, if that court is really to be unbiased and “blind.” Ah, but the president only gets to have his choice if the senate agrees, comes the reply, and since the people elect the senate, then it’s like the people are electing the judges. Except they aren’t. The conventioneers in Philadelphia were pretty clear how they felt about pure democracies, and many wrote of the troubles accompanying such a system. Otherwise, it would make sense for the people to elect the judges to the Supreme Court directly.

Second, while the constitution makes clear how the powers are to be divided, which function will be given to what body, it doesn’t really place any limits on who will actually fill the roles. Because of this, individuals move from one branch of government to another, as the historical record shows. The result, as might be expected, is that the lines between the branches are blurred and arbitrary rule becomes the norm.

Let’s begin with a few notable observations. More than half of all U.S. presidents have been legislators at the federal level; half of these executives spent at least one term in both houses of congress. As for the Vice Presidents, more than seventy percent were members of congress before taking office. Some of these were single terms, not long enough to really become entrenched and part of the system. But a number of them held senior leadership in their respective houses. Three (Polk, Colfax, and Garner) were speakers of the house; another three spent time as President Pro Tempore of the Senate, and a few were Majority/Minority Leaders of the House or Senate, or Chaired committees. In several cases the president never spent time in the federal congress, but was a member of a state legislature, as in the cases of Theodore Roosevelt and Jimmy Carter.

There are many other instances of this round-robin among branches. Take for example Justice Elena Kagan, who was President Obama’s Solicitor General before her appointment to the high court. She also was an attorney for President Clinton for most of his second term.

Four other members of the current court have held positions as attorneys for the government. Under President Reagan, Chief Justice John Roberts was a Special Assistant to the Attorney General and later an Associate Counsel to Reagan. Clarence Thomas was an Assistant Attorney General in Missouri and later spent time on the staff of a U.S. Senator from Missouri. Samuel Alito has been the Deputy Assistant Attorney General, Assistant to the Solicitor General, and an Assistant U.S. Attorney. Sonia Sotomayor got her law career started as an Assistant District Attorney.

Rest assured these are not the only instances of inter-governmental musical chairs from within the court. Former Chief Justice John Paul Stevens worked as an Associate Counsel to the Judiciary Committee of the U.S. House. Recently retired Justice David Souter was the Attorney General from the state of New Hampshire. William Rehnquist was an Assistant Attorney General in the Nixon Administration. Chief Justice Earl Warren was both the Attorney General and Governor of California. Charles Evans Hughes was Governor of New York. Harlan F. Stone was an Attorney General under FDR. The list goes on.

Then there is the case of William Howard Taft, a creature all his own. His first position as a senior government official came when he was appointed as the Solicitor General for Benjamin Harrison’s administration. Next he filled the bench of the newly established Sixth Circuit Court of Appeals. He later became President of the United States, and was eventually appointed to the Supreme Court where he spent nine years as the chief justice.

What all of this means is that powers cannot be adequately separated when the same people are filling the roles of the various branches of government. Should anyone be surprised that the Supreme Court has more or less been subservient to the Executive when so many members are and have been members of the executive branch? Should we really expect for the legislature to be independent and jealous of the powers of the president, if so many of the senior executive branch officials were members themselves, or even senior leaders of the congress?

I think the questions answer themselves. It’s not as if the executive branch is filled with new blood every few years, where presidents and their cabinet officials have to learn the system and persuade the legislature to go their way on some things. Just like the courts in this country aren’t presided over by defense attorneys and public defenders. In both cases the politically well-connected are the ones who overwhelmingly find themselves in places of power.

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This is one reason, among many, that relying on members of the federal government to limit their own power is a losing proposition. Voting them out and refusing to continue the cycle is also a rather ineffective tool, given how high the turnover rate is already. There’ve been almost two thousand senators and close to 11,000 representatives in the last two hundred and twenty some-odd years. Not much has changed – for the better – but a lot has gotten worse.

This is why nullification at the state level is so important. It’s certainly not a silver bullet, but the states can act as an important check on federal tyranny. The danger is, of course, that state governments will not be so cooperative or careful to defend the rights of residents. This is why nullification at the county and municipal levels is just as important and should not be scoffed at or ignored. Finally, peaceful resistance and non-violent civil disobedience, essentially nullification at the individual level, is one of the most powerful of all tools for liberty. We should use all of them.

“Step right up, step right up! Power to the states, right here! Come play the Tenth Amendment game!”

As I approached, I realized none other than Mitt Romney was running the booth. Behind him, I saw six bright yellow milk jugs stacked in a pyramid. Curiosity got the best of me.

“What’s this about?” I inquired.

“Knock down the federal health care pyramid and win a prize!” Romney boomed, somehow managing to speak without disturbing his bright toothy smile.

“What’s the prize,” I asked, still somewhat skeptical.

“Why, your liberty!” he beamed.

I picked up the hard wooden ball. Printed on the side were the words, Tenth Amendment.

“What’s this?” I asked, weighing the ball in my hand. It felt good. Right. Powerful.

“Well, it’s all about the Constitution. The federal government doesn’t have the right to make you buy health insurance,” he said knowingly.

“You mean like you made the folks in Massachusetts do?” I asked hesitantly.

A frown flickered across his face; then the smile returned.

“There are some similarities between what we did in Massachusetts and what President Obama did, but there are some big differences. And one is, I believe in the Tenth Amendment of the Constitution. And that says that powers not specifically granted to the federal government are reserved by the states and the people,” he said. “We put together a plan that was right for Massachusetts. The president took the power of the people and the states away from them and put in place a one-size-fits-all plan. It’s bad law.” 1

I rubbed the ball absentmindedly, pondering my options.

“Go on, try it,” he urged.

“How much?”

The smile broadened. “Not much. Just one token.”

I pulled a token out of my pocket and flipped it in the air a few times.

“Come on, give it a toss,” Romney said expectantly.

What the hell, I thought. Seems easy enough. And lord knows, I could use some more liberty. So I tossed Mitt the token, took aim and heaved the ball at the milk jugs.

Thwack!

A perfect throw.

Yellow jugs shot into the air, pirouetting like ballerinas before tumbling to the ground. I did a little victory fist-pump and stepped forward to collect my prize.

But Mitt looked angry.

“You lose!” he howled.

“What?” I responded incredulously. “I knocked over all of them. I win.”

Romney pointed at some green jugs scattered about among the yellow. “You knocked over the green ones. That’s against the rules. You lose.”

I hadn’t even noticed the green ones, but as Romney’s assistant reset the jugs, I realized that green ones were positioned in the shadows directly behind the yellow jugs, placed in such a way as to become virtually invisible. The setup made it next to impossible to knock over the yellow jugs without also toppling the greenies.

“So, what are the green ones,” I inquired, trying to contain my anger at being jipped.

“Medical marijuana,” Romney sneered with obvious disdain.

“And I can’t knock those over with the Tenth Amendment ball?”

“I think medical marijuana should not be legal in this country. I believe it’s a gateway drug to other drug violations. The use of illegal drugs in this country is leading to terrible consequences in places like Mexico, and actually in our own country. I oppose legalization of marijuana. I oppose legalizations of other kinds of drugs.” 2.

“But isn’t that also a decision reserved to the states and the people?”

“Go away, loser,” he growled, turning his back on me.

I stomped away, angry. But what could I do? I should have known the game was rigged. They all are, right?

So I ambled along the midway, bought a big stick of cotton candy, washed it down with a cold Coke and then gnawed my way through a funnel cake. I felt better. Giddy almost.

That’s when another booth caught my eye.

This one had louder music and brighter lights. AC/DC blasted from loudspeakers, and a strobe light played over the ground in front of the game. Even from a distance, I could see President Obama manned this booth. The familiar “O” logo painted on the roof was a dead giveaway.

Obama beckoned me over. “Step right up! Step right up! Play the greatest game at the carnival,” he intoned enthusiastically, flashing his pearly whites as he spoke.

“So, what’s this game?” I asked, my recent frustration now a faint memory.

“It’s the Tenth Amendment game,” Obama quipped. “Power to the states.”

“Wait a minute,” I said. “I played that game already over…”

Obama cut me off. “This one is better. Easier. And more fair. Just shoot a duck and you win.”

I leaned in and peered closely at the row of ducks on a conveyer belt slowly making their way from left to right across the booth. The ducks alternated – two males with a tux, followed by two females in wedding gowns.”

The president apparently read the confusion on my face. “Gay marriage!” He handed me a gun with Tenth Amendment printed on the side. “I respect the beliefs of others, and the right of religious institutions to act in accordance with their own doctrines. But I believe that in the eyes of the law, all Americans should be treated equally. And where states enact same-sex marriage, no federal act should invalidate them.” 3.

“What do I get if I hit one,” I asked, weighing the gun in my hands. It felt good. Right. Powerful.

A presidential pause.

“Liberty.”

I was sold. The sign indicated it just cost one token, so I flipped one over to Obama and he plucked it out of the air. I aimed…steady…slowly pulled the trigger…

Plink.

Over went the duck.

But I knew in that moment I wouldn’t win a prize. A cannabis plant hidden behind the duck fell over too.

“I’m sorry. You lose,” Obama said in a patronizing tone

“Let me guess,” I say, resignation dripping from my words. “Medical marijuana.”

“Let me be clear, I am the president.” Obama lectured. “State medical marijuana programs violate federal law. I must send in the DEA to arrest those criminals so my Justice Department can prosecute them all.”

“But isn’t medical marijuana also an issue that should be left to the states and the people?”

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“Shut up, loser.”

I glared at the president. “So you can’t win. This game is rigged. You just want power to do things your own way!” I bellow. “You are nothing but a carnival huckster. Just like that other guy, Romney!”

Obama merely smiled.

“What did you expect?” he asked with a shrug. “We work for the same people.”

The trial of the alleged masterminds of 9/11, which began last week at the U.S. Naval Base in Guantanamo Bay, Cuba, will address some of the most profound issues of our era. Are natural rights truly inalienable, as Thomas Jefferson wrote in the Declaration of Independence, or can the government take them away from those it hates or fears? Does the Constitution protect the rights of all persons who come in contact with the government, or does it protect only certain Americans, as the government argues? Can the government deny a person due process by changing the rules retroactively, or is the Constitution’s guarantee of due process to all persons truly a guarantee?

These are all questions that the government does not want to answer. But it should know better, because by structuring the trial after the crime was committed and by establishing retroactive rules – which are prohibited by the Constitution – that have never before been used in any American civilian or military court, Congress has created and the Obama administration will conduct a trial that will resemble none in our history.

The trial is being held in Cuba because President Obama caved to political pressure from New York City politicians who did not want the trial at the location where the murders took place. In one of the few rules of criminal procedure laid down in the Constitution itself, the Framers required all trials to be held in the same judicial district where the alleged crime took place. They were familiar with the British practice of trying colonists in London for alleged crimes committed in New York. But today New York politicians and their allies in Congress and the president think they can pick and choose which parts of the Constitution to uphold and which parts they can ignore.

The Constitution guarantees the right to confront evidence and witnesses. The colonists were all too familiar with Star Chamber, a British trial system in which evidence against an accused was summarized by a clerk of the court, rather than presented by witnesses with personal knowledge or revealed in documents for all to see. In trials at Gitmo, the government may summarize evidence for the court, and it may keep documents it plans to use away from the defendants.

The rules for this trial also permit hearsay: basically, anonymous accusations that were also the hallmark of Star Chamber. They permit the Secretary of Defense, who is the boss of both the prosecutors and the judge, to replace the judge if the secretary is displeased by his rulings. This is a procedure that is taken right out of the Communist Party playbook in Stalinist Russia.

Perhaps the most radical departure from American due process and pronounced return to Star Chamber is the congressional authorization for the admission of evidence obtained under torture. There is no question that these defendants were tortured. The CIA has admitted publicly that it waterboarded one of them 183 times and then destroyed the videotapes of the torture so jurors could not see how horrific this procedure is.

Torture is so abhorrent to American values that its use by rogue cops has resulted in what is known as the “shocks the conscience of the court” rule. This principle, which has been in place since colonial times, permits the court to dismiss the charges – no matter how grave – when the government’s behavior shocks the conscience of the court. And all intentional torture is in that category.

I understand the emotions that are fueling these prosecutions, and I understand the pain and loss suffered by those whose loved ones were murdered on 9/11, and I understand the horrific nature of the crimes for which these defendants have been charged. But in America, we still have the rule of law. And that means that no one is above the law and no one is beneath it. Everyone is subject to the law, and the government may not exclude anyone from its protections. That is the essence of our system of justice. It is mandated by the Declaration of Independence and the Constitution, and its preservation is the reason we have fought our just wars.

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This trial may have dire unforeseen consequences. From the president who opposed all this when he was a senator but now effectuates it, to members of Congress who enacted the Military Commissions Act that authorizes incarceration after acquittal (a procedure even the Soviets did not utilize), to the victims’ families who surely would not want this rough justice visited upon their children; all these people now crying for blood could one day see the ruination of due process in America, with this case as precedent.

What constitutes a fair trial is the due process of American justice, which is guaranteed and required by the Constitution itself. If we deviate from the moral values of that system for the people we hate, woe to us for making law retroactively and based on hatred.

Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom. To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit creators.com.
Copyright © 2012 Andrew P. Napolitano

The law compelled people of all states to “assist” federal marshals and their deputies with the apprehension of suspected runaway slaves. It brought all trials involving alleged fugitive slaves under federal jurisdiction. It included large fines for anyone who aided a slave in their escape, even by simply giving them food or shelter.

On top of it, bounties were paid to commissioners in fugitive slave cases. $10 was paid if a person was sent back to slavery, and $5 if the person was allowed freedom. The federal government was paying people to capture other people and send them to slavery.

The act also suspended habeas corpus and the right to a trial by jury for alleged “slaves,” and made their testimony inadmissible in court. The written testimony of the supposed slave master, on the other hand, which could be presented to the court by slave hunters, was given preferential treatment.

STATE RESISTANCE

In response, Northern States intensified efforts to pass what were known as “personal liberty laws.” These had already been growing over time in response to the original Fugitive Slave Act years earlier.

Vermont passed a “Habeas Corpus Law,” requiring state judicial and law enforcement officials to actually help captured fugitive slaves there. Massachusetts took a really strong stand – and passed a law that provided for kidnapping charges to anyone trying to use these “indefinite detention” provisions of the fugitive slave act.

No federal agent was charged with kidnapping in Massachusetts, though. But, this was only because no escapee was ever captured for return after the law was passed. The state response was working.

In fact, Northern states were so successful overall that when South Carolina seceded ten years later the people there named this as one of their primary reasons for leaving the Union. From their publicly-released “Declaration of Causes,” was this:

“The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the [Fugitive Slave Acts] or render useless any attempt to execute them…”

NDAA: THE ROAD BACKWARDS

In 1942, FDR signed an executive order which authorized the creation of military zones “from which any or all persons may be excluded.”

This led to the roundup of around 110,000 Japanese-Americans and Japanese citizens living here in California and along the West Coast. Without due process to assist them, these people were relocated and sent to internment camps. Many more were classified as “enemy aliens” and subjected to increased restrictions.

Like the Fugitive Slave Acts and Japanese mass internment, the federal government has again taken new powers never intended under the Constitution. Under sections 1021 and 1022 of the NDAA, the feds again claim the power to classify people in such a way that they no longer have rights.

President Obama and Congress have dropped the terms “fugitive slave” and “enemy alien.” Instead, they use “suspected terrorist” as a way to eliminate due process these days.

RESISTANCE TODAY

Today, in the spirit of the 19th century Personal Liberty Laws, states and local communities around the country are taking action against NDAA detention powers. Virginia recently became the first state in the country to pass a law refusing compliance with or assistance to federal agents carrying out detentions without due process against citizens of that state. Arizona’s legislature just passed a similar bill. And a number of other states are working on the same.

But, it’s not just states. More than ten local communities are on board too. For example, up north in Fairfax, CA, they passed legislation which says that they will:

“Instruct all our Town of Fairfax agencies to decline requests by federal agencies acting under detention powers granted by the NDAA that could infringe upon residents’ freedom of speech, religion, assembly, privacy, or rights to counsel.”

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JUST THE BEGINNING

When Northern States protected habeas corpus against federal encroachments in the 19th century, they were doing their duty to protect liberty and the Constitution. Today, states and local communities are doing the same.

They can and should serve as a powerful check on federal power. In fact, the framers counted on it. It’s all about local actions. As Democrats and Republicans continue to work together in DC to take away our rights, it’s our local communities who must and will rise up to save them.

I couldn’t agree more.

I worked in the airline industry beginning in 2001 and experienced first-hand the creation and growth of the TSA. When it started, the aim was simply to standardize security and provide a more “professional” airport security screening force. The dirty secret was that most of the new pros were simply the old “amateurs,” the same screeners wearing fancy new federal uniforms and earning more money.

But over the 10-plus years of its existence, the TSA grew like some mutated leviathan on steroids. Today the TSA employs nearly 60,000 people. In its first year, the TSA budget stood at a modest $1.3 billion. The 2012 budget called on the agency to spend some $8.1 billion.

It not only grew in physical size. Initially, screeners contented themselves with confiscating pilot’s nail clippers and lighters to “keep us safe.” True story. Saw it happen more than once. In fact, I witnessed a TSA supervisor refuse to allow a pilot through the checkpoint when he reminded a surly screener taking his nail clippers that he didn’t need them to crash the plane. You’ve gotta admit – he had a point. So they couldn’t let him fly the plane. Pointy objects  forbidden, you know.

Then we had the shoe bomber. Within weeks, the newly minted TSA slammed the barn door shut with the horses  standing comfortably outside, decreeing every passenger must remove her or his shoes before boarding a flight. Almost 11 years later, we still enjoy the privilege of spending a few intimate pre-flight moments queued up  in our stocking feet with complete strangers.

Fast forward to today, when every airline passenger risks sexual assault every time she runs the TSA security gamut. Nowadays they let us keep our nail clippers, but don’t think you will get on a plane without some badged goon grabbing your crotch, and for you ladies – offering a nice squeeze of you boobie.

Lest you accuse me of exaggerating, here is just one report filed with the ACLU by a female passenger.

“In the four times she explored the area where my inner thigh met my crotch, she touched my labia each time, and one pass made contact with my clitoris, through two layers of clothing. I told her I felt humiliated, assaulted and abused … In my work as a nurse, if I did what the TSA did against a patient’s will it would be considered assault and battery, and I did not see how the TSA should have different rules.”

Of course, you might not get groped if you choose to let them irradiate you and have a little peek instead. Supposedly, they changed the scanner settings from a full naked image of the passenger to a generic outline. But that didn’t stop some TSA pervs in Dallas from allegedly asking female passengers to walk through multiple times so they could admire their “cute figures.”

“I feel like I was totally exposed,” Ellen Terrell told a Dallas CBS News affiliate. “They wanted a nice good look.”

In the old days, when I used to complain about Fourth Amendment and basic civil liberty violations committed by the TSA on a daily basis, I would get the old, “If you don’t like it, don’t fly,” retort. In fact, Homeland Security Secretary Janet Napolitano basically told Americans that very thing back in 2010 when people started raising a fuss over the increasingly intrusive screening procedures, saying if they want to travel by other means, they have that right.

Unless, of course, “other means” includes riding the bus, taking the train of driving along the interstate highway system. Over the last two years, the TSA has made its presence known in those places as well.  On Friday, April 13^th, unlucky passengers at a Houston, Texas bus depot got an unpleasant surprise. A TSA VIPR team descended on the area. Federal agents, along with state and local police, conducted random bag inspections, and guided bomb and drug sniffing dogs among all of those passengers choosing to take the bus instead of fly. Just one month earlier, a VIPR team showed up at the Alton, Ill. Amtrak station.

“We refer to these as VIPR operations; that stands for visual intermodal protection and response,” TSA spokesman Jim Fotenos said. “It was not in response to a specific threat.”

Fotenos went on to say the agency conducts “thousands” of similar operations every year. Just last year, the TSA conducted searches along interstates in Tennessee.

I guess by “other means” sister Janet means walking along the sidewalk. Maybe.

On a side note, one has to wonders what searching for drugs has to do with keeping us safe from terrorists, but I’m probably not supposed to ask that question.

Guardian columnist Jennifer Abel came up with a pretty good description of the Homeland Security mantra.

“Show us your papers, show us everything you’ve got, justify yourself or you’re not allowed to go about your everyday business.”

Apparently, it’s not just for illegal immigrants any more.

And are we really any safer for all of this intrusiveness? I question it. Having worked in the airline industry, I can tell you first-hand about the incompetency of the TSA. If they ever really did catch a terrorist or unravel a nefarious plot, it was purely accidental. And there’s no evidence that they ever have.

So yes, Sen. Paul,  we need to get rid of the TSA. He has a plan to do it, and I commend him for his efforts.

But let’s be realistic.

It’s not going to happen.

When was the last time you ever saw a huge government bureaucracy just go away? When was the last time the federal government every voluntarily gave up power? Ummm, last I can recall – never.

As the Christian Science Monitor said, the chance of Paul actually ending the TSA is “about the same as his unsuccessful amendment to the postal reform bill that would have ended government tyranny over individual mailboxes.”

If we truly want to end TSA tyranny, it will have to come down to the states. State legislatures possess the power to rein in the most intrusive TSA procedures. When an agent gropes a woman’s crotch, arrest the agent and charge her with sexual assault. Make it illegal to require unconstitutional searches in order to access public facilities or transportation within a state. Refuse state and local cooperation with the VIPR teams.

If the TSA won’t stop…make them stop.

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The Tenth Amendment Center wrote model legislation called the Travel Freedom Act that protects the rights and dignity of the people. Contact your lawmakers and urge them to file this legislation. Then work to get it passed in your state. If one state takes the lead, others will follow. And if enough states simply say, “No! We will not permit this.” The policies will change.

But if we do nothing, it won’t be long before VIPR teams make a visit to your neighborhood sidewalk. After all, the terrorist could be walking along there.

And they must keep us safe.

“Find out just what people will submit to, and you have found out the exact amount of injustice and wrong which will be imposed upon them; and these will continue until they are resisted with either words or blows, or both. The limits of tyrants are prescribed by the endurance of those whom they oppress.” – Frederick Douglass

The fundamental issues raised by the NDAA deserve better from the Wall Street Journal’s editorial board than that which appeared on April 30, 2012, entitled; “The Tea Party’s Inner ACLU.”  The editorial conducts a cursory and incomplete statutory and Constitutional analysis, and improperly blurs the lines between the rights of persons captured outside the U.S. and citizens within the U.S., to incorrectly conclude that: 1) the NDAA only applies to “terrorists,” 2) the president has the Constitutional authority to designate U.S. citizens within the U.S. as enemy combatants subject to the Law of War, 3) detainees have sufficient Habeas Corpus rights, 4) that the new Virginia law directs all state officials to not cooperate with Federal detainments of citizen terrorism suspects, and 5) that the Virginia law is unconstitutional.

Unfortunately, the Journal’s hasty analysis endorsing the Constitutionality of the NDAA’s enemy combatant status for U.S. citizens captured within the U.S., and objecting to state refusal to cooperate with Federal detainments pursuant to the NDAA, leaves readers with a misunderstanding the U.S. Constitution, the NDAA, and the current nation-wide NDAA nullification movement spearheaded by our organizations; the Tenth Amendment Center and the Rhode Island Liberty Coalition.

The Journal first lauds the bipartisan NDAA as an “achievement” by this Congress that affirmed the:

“long-standing distinction between civilian justice and the rules of war by letting the President detain terrorists (including U.S. citizens) captured anywhere and question them as long as necessary.”

While the Journal is correct that the NDAA purportedly applies to U.S. citizens within the U.S., the contention that it only subjects “terrorists” to the Law of War is glaringly inaccurate. Section 1021 of the NDAA authorizes enemy combatant status not just for “terrorists,” but also for the broad and undefined; those who “substantially support Al-Qaeda, the Taliban or Associated Forces that are engaged in hostilities against the United States or its coalition partners.” Those covered by section 1021 are unclear and subject to abuse because it is not limited to individuals directly responsible for terrorism or belligerent acts; it applies to vague ‘substantial support’ for undefined ‘associated forces.’ The NDAA leaves these key terms undefined; and up to the President’s discretion.

Perhaps most troubling is that the section 1021 does not have a “knowing and willful” requirement for this “substantial support” standard. Conceivably, the Florida flight school trainer of the 9/11 hijackers, a fertilizer dealer whose fertilizer is used in a terrorist’s bomb, and someone who donates money to a charity which funnels that money to a terrorist organization, could now all be designated enemy combatants subject to the Law of War under the NDAA. Clearly, these individuals are not “Terrorists,” yet they are still subject to the NDAA.

The Journal’s conclusory and limited analysis simply does not reveal the NDAA’s true broad and chilling scope. If the Journal is unable to even ascertain those actually covered by the NDAA, all further analysis is greatly suspect.

The Journal’s incomplete and misleading analysis continues with its contention that settled law renders it Constitutional for U.S. citizens within the U.S. to be designated as enemy combatants subject to the Law of War pursuant to the 2001 AUMF. This fundamental question is, in fact, unresolved, and Supreme Court case law actually indicates that the President does not possess such powers. In addition to the above quote, the Journal states:

“In 1942, a military court ordered the execution of six Nazis, including an American citizen, who were captured after having come ashore from submarines off the U.S. East Coast. Yet some tea partiers want to let today’s version of infiltrating Nazis get the same rights as burglars.”

The Journal refers to the Ex Parte Quirin case where the Supreme Court allowed the Roosevelt administration to try German saboteurs by military tribunal. The saboteurs in Quirin were invaders who had been dropped off by German submarines. They were hardly the typical U.S. citizen residing in the U.S. that the NDAA now seeks to be covered by the President’s War Powers. Another key distinction today is that we have not had a Congressional declaration of War that was in effect during WWII. Today, Congress has only provided the President authority pursuant to the 2001 AUMF War Powers Resolution to respond to the 9/11 attacks in order to prevent any future acts of international terrorism.

Our founders certainly would never have permitted Presidential war powers over the U.S. homeland without a declaration of war, if at all. Indeed, the Civil War case of Ex Parte Mulligan affirmed that it is antithetical to our Constitutional Republic for the President to possess war powers over the U.S. homeland, and citizens therein, where there has not been a congressional declaration of war, the United States is not an active battlefield, there has not been a suspension of Habeas Corpus by Congress, and where the civilian courts are open for business. The Journal’s protestation otherwise evidences a misunderstanding of U.S. law on this critical subject.

More recent Supreme Court case law strongly indicates that the President does not have domestic war powers over citizens pursuant to the 2001 AUMF. Justice O’Conner’s plurality decision in the Hamdi case cited by the Journal is very clear that it is specifically limited to U.S citizens captured abroad on a foreign battlefield. Justice’s Scalia’s Hamdi dissent, joined by Justice Stevens, was poignant and will likely form the basis of a subsequent plurality decision concerning the President’s war powers over citizens in the U.S.: citizens within the jurisdiction of the U.S. must be prosecuted under normal criminal law – specifically for treason in Hamdi’s case — unless Congress suspends the right to habeas corpus. Indeed, the only crime specifically limited by the Constitution, both substantively and procedurally, is Treason. The founders were well aware of executive war power abuses and specifically enshrined protections for the accused; Constitutional protections the NDAA now subverts.

The Journal is correct that the Fourth Circuit Court of Appeals permitted Jose Padilla – a U.S. citizen detained within the U.S.– to be designated an enemy combatant subject to indefinite detention under the law of war. Analogizing to Hamdi and Ex Parte Quirin, the Padilla court made clear that its decision rested on the fact that Padilla was trained on a foreign battlefield and was captured upon entry into the U.S. Again, Padilla was hardly the U.S. citizens residing in the U.S. that the NDAA now seeks to encompass.

Moreover, the Padilla case certainly appears at odds with the Supreme Court justices’ reasoning in Hamdi. The Hamdi decision strongly indicates that the 2001 AUMF does not imbue  the President with domestic war powers over U.S. citizens captured within the U.S.. Of particular note is that the Bush Administration transferred Padilla from military to civilian jurisdiction on the eve of Supreme Court judicial review. It certainly appears the Bush Administration knew it did not have the votes at the Supreme Court and sought to avoid its review. Regrettably, the Supreme Court entertained the Bush Administration’s jurisdictional hop-scotch and ruled that Padillas’ appeal –concerning whether a U.S. citizen captured within the U.S. may be designated an enemy combatant subject to the Law of War under the 2001 AUMF – was then moot. Three Supreme Court justices issued a sharp dissent from the decision not to hear Padilla’s appeal on the grounds that military detention of Padilla was a harm capable of repetition and should be decided; a very rare type of dissent indeed.

The Journal’s declaration that settled law permits enemy combatant status for U.S. citizens captured within the U.S. is simply not true, and the Journal’s entire argument falls apart upon a proper legal analysis. Unfortunately, the remainder of the Journal editorial is also rife with inaccuracies and mistruths.

Moving on, the Journal grossly misinforms its readers that U.S. citizens captured within the U.S. would have adequate Habeas Corpus rights if designated as enemy combatants subject to the Law of War. On the Contrary, due process and judicial review is dreadfully inadequate compared to the Constitutional requirements in normal criminal proceedings; denying our fundamental 5^th and 6^th amendment rights. The Journal states:

“A President can decide to try them in either military or civilian courts, and the right of habeas corpus to challenge detention in court, established by the Supreme Court’s 2004 Hamdi decision, is unchanged.”

In Hamdi, Court did rule that Hamdi – a U.S. citizen captured on a foreign battlefield – possessed the right to a meaningful opportunity to challenge his enemy combatant status before a neutral military decision-maker. The Supreme Court affirmed the Hamdi principles in Boumediene and granted alleged enemy combatants the right of civilian Habeas review of the neutral decision-marker. However, the Hamdi and Boumediene procedure and standard of proof for Habeas petitions is shockingly lacking and inadequate compared normal criminal proceedings. You don’t have your 6th Amendment Jury right. Hearsay is freely admissible, i.e. you don’t have the 6th Amendment right to confront right to face your accusers. The burden of proof is not beyond a reasonable doubt, not clear and convincing evidence, but a mere preponderance of the evidence. That is more likely than not based on hearsay that you “substantially supported” a terrorist organization. Again, there is no “knowing and willful” requirement to one’s “substantial support” in order to be designated an enemy combatant under the NDAA. These limited Habeas rights for U.S. citizens captured within the U.S certainly deny fundamental 5th amendment due process requirements and render any Habeas petition pursuant to this standard a farce. How could the Journal be so naïve?

Moreover, what the Journal, and many commentators, fail to discuss is that the NDAA also authorizes the transfer to foreign jurisdictions or foreign entities of alleged enemy combatants — we call that extraordinary rendition — in order to avoid the inadequate Habeas rights recognized in Hamdi and Boumediene. An accused’s limited due process and Habeas rights are only applicable when the prisoner is within the Jurisdiction of the Courts. Thus, under the NDAA, the President can transfer a U.S. citizen outside of the United States to some foreign country, entity, or military base, where our courts have absolutely no jurisdiction. The detained would have no ability to compel a hearing to determine his enemy combatant status or seek Habeas relief from the Courts. Justice Scalia noted this quandary in his Hamdi dissent.

How can the Journal not see the terrible, frightening prospects, of a Federal Government whisking its citizens out of the Country in order to deny any administrative or judicial review of their designation as an enemy combatant? It is also particularly noteworthy that the Journal does not even reference any of the numerous Constitutional rights denied by this despotic treatment. Our essential rights under the Constitution are not even entitled to lip-service by the Journal’s editorial board?

Finally, the Journal grossly distorts the current nation-wide state and local NDAA nullification movement, particularly that of the first state to enact a measure to protect its citizens, the great state of Virginia:

“The paranoia is showing up in state legislatures, and this month Virginia became the first to forbid state employees from “assisting” the feds “in the conduct of the investigation, prosecution, or detention of any citizen” under the provisions of the NDAA. Rather than veto, however, Mr. McDonnell merely proposed a word change. State employees won’t be allowed to “knowingly” help the U.S. government detain terror suspects. . . . The Virginia law violates the U.S. Constitution’s Supremacy Clause by directly interfering with federal war powers.”

Regrettably, the Journal’s analysis of the Virginia law is both factually and legally inaccurate. First and foremost, the Virginia law does not prevent state officials from knowingly assisting all Federal detainments under the NDAA as asserted by the Journal. Rather, the Virginia law prevents state and local officials from aiding Federal Agents in the detention of a citizen if such aid would knowingly place such official in violation of the U.S. Constitution, or the Virginia Constitution, law or regulation. Contrary to the Journal’s assertion, Virginia officials are still able to assist the Feds detain citizens, just not where that official knows such detainment would violate a citizen’s rights. While all states surely want to fully cooperate with Federal detainments of terrorism suspects, they must not do so if their assistance will deny our most fundamental rights.

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The Journal’s last contention that the Virginia law is unconstitutional is simply false and demonstrates a rank misunderstanding of our Federal system of Government. The simple and short answer, one that has been reaffirmed by numerous Supreme Court decisions, is that the Federal government has no authority to force state and local officials to affirmatively act. In this case, the Federal government cannot require state and local assistance to detain U.S. citizens, or anyone for that matter, no matter how disruptive that is to alleged federal “war powers.”

Regrettably, the Journal evidences a profound misunderstanding of the NDAA and the Constitution, and endorses giving up our most fundamental liberties for perceived security. Does the Journal, and Federal Government for that matter, so easily forget our Founder’s admonition that if we give up liberty for security we deserve, and will have, neither? Unfortunately, many Federal leaders and mainstream journalists endorse such folly. The ultimate truth is that if we allow our liberties to be taken, the terrorists have won. Accordingly, States are duty-bound to stand up and NULLIFY unconstitutional acts of a Federal Government that has lost its way, and Virginia has righteously done so.

That’s what establishment hawks Charles Stimson and David Rivkin say the Tenth Amendment Center and other organizations are doing by pushing back against the new “indefinite detention” powers in Sections 1021 and 1022 of the National Defense Authorization Act (NDAA) of 2012.

But, even in the face of yet another unconstitutional federal act, the People of the United States just gained an important ally in defense of their Constitution: the Commonwealth of Virginia, and state employees in particular.

Virginia Governor Bob McDonnell just signed into law House Bill 1160 (HB1160), which would prohibit state agencies from participating in unconstitutional detentions under the NDAA.

Stimson and Rivkin are mighty upset about this too. Their recent Washington Post op-ed on the issue is so filled with errors, distortions and half-truths (I’m being generous with the latter), that their irritation about the bill either clouded their ability to read, or shows they’re little more than propagandists for yet more unlimited executive power.

BIG FLAWS

I’m going to focus on two big flaws in their analysis which seriously damage their credibility on the issue. First, there’s this:

“Virginia’s legislature recently passed a bill that forbids state employees, including police and members of the National Guard, from participating in the investigation, surveillance, detention or arrest of any suspected member of al-Qaeda or its affiliates, if that suspect is a U.S. citizen.”

Wrong.

HB1160 does not, as the authors claim, forbid state agency participation of “any suspected member….if that suspect is a U.S. citizen.” To make such a statement would require a reader of the bill to completely miss the extremely important qualifier, which reads as follows:

….if such aid would knowingly place [applicable state agents] in violation of the United States Constitution, the Constitution of Virginia, any provision of the Code of Virginia, any act of the General Assembly, or any regulation of the Virginia Administrative Code…

Think about that. Assistance in investigation, surveillance, detention or arrest is still permitted, as long as such assistance complies with the Constitution of the United States.

Knowingly violating the Constitution is what is prohibited.

Are Stimson and Rivkin in favor of requiring people to “knowingly” violate the Constitution? Are they just too busy to read the full text of a one-page bill? Or, are they intentionally leaving off this important qualifier from the bill itself in order to frighten you into thinking that states like Virginia (and soon others too) are dangerous?

If it’s the latter, that’s a textbook case of fear mongering in my opinion.

Next on the chopping block is this:

…Although the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda, since 9/11 it has funneled billions of dollars to all states that require fulsome cooperation from state law enforcement authorities. Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control. For these reasons, Virginia’s legislation violates the federal law….

Both are wrong, but the big fallacy here is the latter. It’s so distorted that it bears repeating:

Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control.

Are they claiming that HB1160 is trying to prevent Virginia’s National Guard forces from acting when under federal control? Seems so. But this is totally misleading. If I could get into the minds of the authors, I’d suspect I’d see a little fear mongering as their motivation, but who am I to say?

Anyway, here’s the real deal, from the text of the actual bill. The people that HB1160 applies to are a person of specific state agencies…

…or member of the Virginia National Guard or Virginia Defense Force, when such a member is serving in the Virginia National Guard or the Virginia Defense Force on official state duty

When national guard troops have been called up by the federal government, they are no longer on “official state duty,” they are on official federal duty. So, of course they’d no longer be under the purview of HB1160. This language was included for just that reason.

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Did our two authors just miss that part of the sentence, or did they intentionally ignore it? Either way, this is elementary stuff, and these two have some reading to do.

NOT RELIABLE

On the NDAA itself, I do recognize that Stimson and Rivkin made a number of statements about its supposed constitutionality. But, my opinion is this: If they can’t even get these things right about a one-page bill, how can anyone trust them to provide correct constitutional analysis of a bill far longer?

I sure don’t.

In some ways, it is ironic to use Dr. King as an example to promote nullification and interposition.  Dr. King, in his letter makes one reference to nullification and interposition, and it is not a flattering one.  Many state and local governments refused to comply with federal legislation and court decisions against segregation.  It is the one unfortunate blight one can find in the nullification movement throughout American history.

One single abuse of the process of nullification, however, should not serve to invalidate the entire nullification movement, which has resisted the Alien and Sedition Acts, Fugitive Slave Acts (and even the Dred Scott decision itself), the misguided War on Drugs, and a host of other federal abuses.  Especially when one considers that the legitimate applications of nullification are rooted in the same beliefs Dr. King expressed, and which have been expressed by people of many different religious beliefs, that an unjust law is no law at all.  

Had Dr. King lived at the time of the Alien and Sedition Acts or the Fugitive Slave Laws, I believe he most certainly would have found little to criticize about the Virginia and Kentucky Resolutions or the Personal Liberty Acts – the latter of which were an effective tool in the fight against slavery in the 19th Century.

The same Supreme Court that, in 1890, had declared “separate but equal” to be the way in Plessy vs. Ferguson, reversed precedent in Brown vs. Board of Education in 1954.  Many southern states, as well as some northern states, refused to follow that decision, effectively nullifying the Supreme Court’s decision.  Birmingham was one of the most heavily segregated cities in that time.  

Martin Luther King, Jr., while not the first, was one of the better known civil rights leaders to engage in civil disobedience against segregation ordinances through boycotts of buses, sit-ins and peaceful demonstrations, some without a permit.  This approach, in theory and in practice, treated the unjust segregation ordinances as being null, void and of no force.  Sound familiar?  Yes, it is the stuff of which proper nullification is made, a fact which Dr. King himself might not have even actively considered, but a fact nonetheless.

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Dr. King was not a governor, state legislator, county sheriff, mayor or town legislator.  He was a minister, one who believed in self purification before direct action, one who quoted the likes of St. Augustine, St. Thomas Aquinas and Martin Luther, one who compared the civil rights struggle with the missions of both Old Testament prophets and New Testament Apostles.  He was one who, if he were alive today, might be told to leave religion out of his rhetoric, even by people who agreed with him about the existence of injustice and the goal of desegregation.

Dr. King, as a religious nullifier, risked more than any elected state or local official by refusing to accept injustice.  Elected officials who nullify are not the ones targeted for arrest, yet those who refuse to obey an unjust law individually or as part of a group face that risk daily.  Despite this risk, long before there was a Tenth Amendment Center, to paraphrase Michael Boldin, he and other religious nullifiers before him didn’t need no stinkin’ permission to exercise their rights.  

Through violent responses from his opponents, imprisonment, and even death, he earned the right to sing the spiritual of old, “Free at last!  Free at last!  Thank God Almighty, we’re free at last!”

Los Angeles Event shows how States and Local Communities Can Stop NDAA Indefinite Detention

As Congress focused last week on the so-called “indefinite detention” provisions of the 2012 National Defense Authorization Act (NDAA), organizers of the “Nullify the NDAA” event in Los Angeles say that it’s states and local communities, and not Congress, who will ultimately put a stop to such powers.

Grassroots and media attention has turned towards Virginia, which became the first state in the country to reject, by law, participation in these newly-claimed federal powers.  In Arizona, a similar bill is awaiting a signature from Governor Jan Brewer.

And, more than ten local governments around the country have already passed similar legislation, including the California cities of Fairfax and Santa Cruz.

“In the 1850s, when Congress passed a law to eliminate due process for runaway slaves, Northern States passed a series of “Personal Liberty Laws” to defy the federal act,” said Michael Boldin, executive director of the Tenth Amendment Center (TAC).  He continued, “Some were so effective, like in Massachusetts, that after passage not a single runaway slave was ever captured by federal agents and returned to bondage in the South.  It’s in that spirit today that states and local communities are standing up for due process and passing legislation known as the “Liberty Preservation Act.”

A recent Washington Post op-ed by former officials from the Reagan, Bush I, and Bush II administrations denounced such measures as “dangerously unconstitutional.”  The op-ed authors also noted that a broad coalition was working together in support of the state and local efforts to reject NDAA detention powers.

“A great example of this growing coalition is our upcoming event in Los Angeles,” said John Michaels, national events director for the TAC.  “We’ve partnered with the LA County Republican Liberty Caucus and Oath Keepers of California to host the event.  And speakers there will include a Green Party member, a legal expert from the ACLU, and a representative from Antiwar.com.  This is no partisan effort,” he continued.

What if Congress does not relent and keeps the NDAA in its current form?  What if Court challenges fail?  Do the states and people simply sit back and accept it? Or does a mechanism to protect their basic rights remain?

The Nullify the NDAA event in Los Angeles answers these questions.

The program, co-hosted by the Tenth Amendment Center and the Los Angeles County Republican Liberty Caucus, in association with Oath Keepers of California will be held at the Standard Hotel in Downtown Los Angeles on Thursday, May 3^rd.

Event speakers will discuss the Constitutional issues with Sections 1021 and 1022 of the NDAA, historic examples of state and local legislation to resist threats to due process, current efforts in California and around the country, and action plans for grassroots activists.

“The Liberty Preservation Act isn’t based off some mystical legal principle buried in cobweb covered books. In fact, it’s so simple, a toddler can do it. You can explain it in one word – No!” TAC communications director Mike Maharrey said. “It’s a principle rooted in the Constitution and woven into the philosophical foundation of the United States. The Nullify the NDAA event makes the case in a captivating way.”

The Nullify the NDAA Event begins at 6pm

For more information, log on to http://www.tenthamendmentcenter.com/nullifyndaala/

Media credentials providing full access to the event and speakers available upon request.

Contact: Mike Maharrey
Communications director
O: 213.935.0553
media@tenthamendmentcenter.com
www.tenthamendmentcenter.com

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The Tenth Amendment Center exists to promote and advance a return to a proper balance of power between federal and State governments envisioned by our founders, prescribed by the Constitution and explicitly declared in the Tenth Amendment. A national think tank based in Los Angeles, the Tenth Amendment Center works to preserve and protect the principle of strictly limited government through information, education, and activism.

The Los Angeles County Republican Liberty Caucus is a grassroots County chapter of a nationwide organization affiliated with the Republican Party (GOP). The mission of the RLC is to recruit and elect Republican candidates who are liberty minded. While they encourage the exchange of ideas, their primary goal is the election of Republicans that lean libertarian to all levels of legislative bodies; city, county, state and national.

Oath Keepers California is the state chapter of a non-partisan national association of currently serving military, reserves, National Guard, veterans, Peace Officers, and Fire Fighters promising to fulfill their Oath they swore to the Constitution of the United States.  With the support of like-minded citizens, their motto is “Not on our watch!”