by Derek Sheriff

Not surprisingly (I know, as an Arizonan, my pride is showing), Arizona is now one of four states this year to propose an Intrastate Commerce Act. Please note: that’s intrastate, not interstate!

The bill, which is based on model legislation written by the Tenth Amendment Center, has a name that sounds fairly innocuous, but do not be fooled! In fact, I predict that SB 1178 will startle our overlords in Washington, DC and deeply offend them in much the same way that Arizona’s immigration act, SB 1070 did.

The bill’s primary sponsors are Sen. Sylvia Allen, Sen. Linda Gray, Sen. Gail Griffin, Sen. Brenda Barton, and Sen. Judy Burges. Co-Sponsors include Sen. Frank Antenori, Sen. Andy Biggs, Sen. Al Melvin, Sen. Don Shooter and Sen. Chester Crandell.

If passed by the Arizona State Legislature and signed by the governor, SB 1178 will amend the Arizona Revised Statutes in order to provide that all goods grown, manufactured or made in Arizona and all services performed in Arizona, when such goods or services are sold, maintained, or retained in Arizona, shall not be subject to the authority of the Congress of the United States under its constitutional power to regulate commerce.

Wow! Now if that were not offensive enough to Washington politicians and bureaucrats, the bill goes even further and would impose the following penalties:

A. Any official, agent, or employee of the United States government or any employee of an entity providing services to the United States government that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this chapter is guilty of a class 6 felony, except that any fine imposed shall not exceed two thousand dollars.

B. Any public officer or employee of this state who enforces or attempts to enforce an act, order, law, statute, rule or regulation of the United States government in violation of this chapter is guilty of a Class 1 misdemeanor, except that any fine imposed shall not exceed five hundred dollars.

Can anyone deny that this is truly nullification legislation with teeth?

But setting aside the penalties for a moment, please allow me to unpack the concepts contained in the first part of the bill. I also hope you won’t mind if I quickly cover some history while I’m at it.

If you have been paying attention to the federal court battles concerning what has come to be known as “Obamacare”, you’ll know that Roger Vinson, Senior U.S. District Judge for the Northern District of Florida, recently declared the Obama administration’s health care overhaul to be unconstitutional. If you’ve really done your homework, you might even understand why he declared “Obamacare” to be unconstitutional. But if not, here’s how Michael Boldin, founder of the Tenth Amendment Center explains it:

“According to Vinson – and just about everyone else in the federal judiciary – the federal government actually does have the authority to control, reform, and regulate the health care industry. They’re just going about it wrong,” Michael Boldin, said.

Judge Vinson’s conclusion was, as he said,  based, “..on an application of the Commerce Clause law as it exists pursuant to the Supreme Court’s current interpretation and definition.” In other words, even though Judge Vinson may have given the people of the several states a favorable ruling this time, he’s still an unapologetic judicial supremacist who makes it clear that we are a de facto nation ruled by case law rather than a federal republic governed by the Constitution, according to its original, fixed and knowable meaning.

Congressional Commerce Clause Abuse (CCCA)

In his article Commerce Clause Abuse, Dr. Walter E. Williams, who serves on the faculty of George Mason University, wrote:“The Constitution’s Article I, Section 8, paragraph 3 gives Congress authority ‘To regulate Commerce with Foreign Nations, and among the several States, and with the Indian Tribes’..the original purpose of the Commerce Clause was primarily a means to eliminate trade barriers among the states. They didn’t intend for the Commerce Clause to govern so much of our lives.”

What Dr. Williams points out here is simply what James Madison explained a long time ago: That the commerce clause was intended to make trade “regular” between the states, primarily to prevent interstate tariff wars. In fact, the man who is often called The Father of the Constitution wrote:

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

No honest student of American history can conclude that a significant number of either the framers or ratifiers of the Constitution ever envisioned Congress would have plenary authority to regulate entire industries, such as the health care industry, or any form of commerce conducted entirely within an individual state’s boundaries.

Rather, as Michael Boldin asserts, “The feds are authorized to make commerce in health care across state lines, ‘regular’ – that’s for sure. But this power is far less than anything that’s been proposed by either political party in….well, probably about forever.”

What do do?

If you think that the feds are going to read Tom Wood’s new book and suddenly decide to limit their own power, or that all we need to do is elect the right people to federal office, or to obtain a favorable ruling from the Supreme Court, or that checks and balances between the three branches of the federal government will eventually deter acts of federal usurpation, I have some beach front property in Yuma, AZ that you might be interested in. You’ll have to wait a little while for California to fall into the sea, of course.

But on the other hand, if you are willing to be just a little bit more realistic, you can instead choose to recognize that although we’ve heard the promises of federal politicians before, and we know that even those who sincerely may have started out intending to roll back unconstitutional federal power (Ronald Reagan comes to my mind), the fact is that the strategy of regime change for Washington, DC has failed and will continue to fail for the foreseeable future. Pursuing the strategy of regime change for DC is like putting a band aid on a spurting arterial wound. We’re quickly running out of time and what the states need to adopt with regard to Washington, DC is a policy of containment that is more like a tourniquet!

We all know that year after year, regardless of which party dominates the so called “federal” government, its size, expense and intrusiveness continues to grow, unchecked. So finally, legislators in states like Arizona, Virginia and New Hampshire have decided to take matters into their own hands and pursue their own policy of containment. Sanity at last!

The number of states that have decided to stand up and resist the tyranny of our so called “federal” government, in order to arrest the steady consolidation of power in fewer and fewer hands is somewhat surprising, yet very inspiring. They have decided, with the support of average citizens like you, to reclaim the American Revolution by using the rightful remedy that the author of the Declaration of Independence recommended back in 1798. It’s called nullification.

Derek Sheriff [send him email] is a research analyst for the Tenth Amendment Center. His articles have appeared in various publications, and he writes regularly for the Center on issues related to state sovereignty and nullification. His blog and podcast “Principles of ’98” can be found at www.PrinciplesOfNinetyEight.Com. View his Tenth Amendment Center blog archives here, and his article archives here.

Concordia res parvae crescunt
Small things grow great by concord...

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