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Nullification is an attack on the very foundation of the Constitution, and as James Madison says a "fatal inlet to anarchy":

But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.  —James Madison in response to the South Carolina nullification crisis of the early 1830s
Nevertheless, states keep being tempted by Article 2 of the Articles of Confederation, a thoroughly failed experiment in governing, defunct now for over two centuries: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." Among states considering giving in to temptation are Wyoming, South Carolina, Kansas, Oklahoma, Alabama, and Mississippi, states which have recently introduced bills to “nullify” the Affordable Care Act and federal gun laws based on the 2nd Amendment as interpreted by the U.S. Supreme Court (SCOTUS).  Most of these bills nullify future federal gun laws and threaten federal officials tasked with enforcing them with arrest and indictment on state felony charges.  It’s a bit hard imagining how all that would work out. One can only imagine Wyoming officials—armed or otherwise—trying to arrest members of the 101st Airborne, much less charging them. The potential for violence is not negligible in this scenario, and an armed campaign between Wyoming and the Armed Forces of the United States would be brief, brutal, and decisive.

The historical pattern of nullification is a recurring nightmare: states unhappy with federal law and/or the Constitution of the United States have again and again invoked nullification, the specter of a states’ rights theory that died with the Articles of Confederation.  So far no president, including Washington, has failed to honor his oath of office.  Washington, Jackson, Lincoln, Eisenhower, Kennedy—none of them blinked when the time came to defend the Constitution.  Neither will the current president.  Our presidents have honored their oath, and millions of Americans have sacrificed their time, treasure, blood, and lives for this nation.  And like those Americans before us, we too see one nation, not 50, whenever the Stars and Stripes is raised.

In an earlier diary, I examine the history of nullification in the 18th and 19th centuries: http://www.dailykos.com/...  

In this diary I examine the history of nullification in the 20th century.

More below the golden contrail.

Arkansas 1957

SCOTUS issued Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483, on May 17, 1954. This decision declared all laws establishing segregated public schools to be unconstitutional, and it called for the desegregation of all schools throughout the nation. After the decision, the National Association for the Advancement of Colored People (NAACP) attempted to register black students in previously all-white schools in cities throughout the South.

In September 1957, the NAACP chose to integrate Central High School in the capital city of Arkansas.  The Little Rock School Board agreed to comply with the ruling, but several segregationist councils vowed to physically block the nine black students from entering the school. Governor Orval Faubus made matters worse by deploying the Arkansas National Guard to ensure the black students were not enrolled. Eight days later, President Eisenhower reminded Faubus that he was defying a unanimous decision of the United States Supreme Court. When the black students tried to enroll again, Faubus had removed the National Guard, leaving the nine students to the whims of a violent mob of segregationists.  At this point the Mayor of Little Rock, asked President Eisenhower to send federal troops to enforce integration and protect the nine students.

On September 24, President Eisenhower first removed the entire 10,000-member Arkansas National Guard from Faubus' control by federalizing it and second ordered the 101st Airborne Division of the United States Army to Little Rock.  The nine black students were enrolled by the end of September.

United States 4 (Whiskey Revolution, South Carolina Tariff Nullification, Civil War, Little Rock) Nullifiers 0

Mississippi 1962

In 1961, the NAACP Legal Defense and Educational Fund filed suit in the U.S. District Court, alleging that the University of Mississippi (Oxford, Mississippi) had rejected James Meredith, a former serviceman in the U.S. Air Force, solely because of the color of his skin. The case wound through hearings and court proceedings until finally the U.S. Supreme Court  ruled that Meredith  had the right to be admitted to the University of Mississippi and ordered the University of Mississippi to admit him.  However, when Meredith tried to register on September 20, 1962, he found the entrance to the registration office blocked by Mississippi Governor Ross Barnett.  President John F. Kennedy instructed U.S. Attorney General Robert Kennedy to enforce the court order and to inform Governor Barnett of the consequences of interfering with a SCOTUS order.  In a statewide television broadcast, Barnett stated,

[Mississippi] will not surrender to the evil and illegal forces of tyranny ... [and] no school will be integrated in Mississippi while I am your governor.
On September 28, Barnett was found guilty of civil contempt and was ordered to cease his interference with desegregation at the university or face arrest and a fine of $10,000 a day.

Two days later, Meredith was escorted onto the University of Mississippi campus by U.S. Marshals, setting off riots by white students and segregationists that resulted in the death of a student and the assassination of famous French journalist Paul Guihard. Guihard's last dispatch, filed the day he died, said

The Civil War has never ended.
Finally the President called in 500 U.S. Marshals, supported by the 70th Army Engineer Combat Battalion from Ft. Campbell, Kentucky, U.S. Army military police from the 503rd Military Police Battalion, and troops from the Mississippi Army National Guard and the U.S. Border Patrol. Federal forces patrolled the university, the town, and the local area for over a year.  

United States 5  Nullifiers 0

Alabama 1963

After George Wallace was elected Governor of Aabama, he took the oath of office (January 1963), standing on the gold star marking the spot where, over a hundred years before, Jefferson Davis was sworn in as provisional president of the Confederate States of America. In his inaugural speech, Wallace used the line for which he is best known:

In the name of the greatest people that have ever trod this earth, I draw
the line in the dust and toss the gauntlet before the feet of tyranny,
and I say segregation now, segregation tomorrow, segregation forever.
Wallace promised the citizens of Alabama that he would prevent the desegregation of Alabama public schools.  But in 1963, three African-Americans with perfect qualifications—Vivian Malone Jones, Dave McGlathery and James Hood—applied and in early June a federal judge ordered they be admitted, and ordered Wallace not to interfer.

On June 11, 1963, in violation the federal court order, Wallace tried to prevent two of the students, Vivian Malone and James Hood, from registering by standing in the doorway of the university’s registration building. At that point, flanked by federal marshals, U.S. Deputy Attorney General Nicholas Katzenbach told Wallace to step aside.  Wallace cut Katzenbach off and refused, instead giving a speech on States' rights.  Katzenbach called President Kennedy, who federalized the Alabama National Guard and ordered General Henry Graham to command Wallace to step aside “under the orders of the President of the United States." Wallace spoke further but eventually moved before the federal marshals needed to arrest and remove him to the nearest federal holding facility.  Once Wallace’s staged drama had ended, Malone and Hood were allowed to enter and register as students at the University of Alabama.  

United States 6  Nullifiers 0

Perhaps we should just grit our teeth and bear it whenever right-wing politicians turn to nullification.  Or perhaps we should institute a Lincoln plan, a modest proposal for state remodeling, not reconstruction.  I admit it’s a stretch.  Still, public discussion of such correctives might persuade leaders of a state "to [in e.e. cummings’ words] think twice before you think" (well, probably not South Carolinians).  Please feel free to create your own plans.

 

A Lincoln Plan

(1) The governor and top officials of the state legislature of a state which attempts by extraconstitutional means to “nullify” federal law and/or the Constitution of the United States shall be removed from office.  The governor and top legislative officials shall receive no compensation for their offices and shall forfeit any pensions.  Within six months and under federal supervision, elections will be held for the vacated state offices. The newly elected officials shall be sworn in after taking an oath of allegiance to the United States and affirming that any extraconstitutional attempt by a state to “nullify” federal law and/or the Constitution of the United States is unconstitutional.

(2) The national guard shall be federalized and all state law enforcement officers shall be  put under federal jurisdiction until the swearing in of the newly elected state officials.  

(3) The governor and top officials of the state legislature shall be disqualified from holding any federal, state, or local office until two years after they have taken an oath of allegiance to the United States and affirm that any extraconstitutional attempt by a state to “nullify” federal law and/or the Constitution of the United States is unconstitutional.

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Comment Preferences

  •  Great summary. (11+ / 0-)

    I knew about the "Nullification Crisis", but not about these examples.

    There is a significant difference though, with the examples cited. All of them amounted to cases of the obstruction of federal law. I say obstruction rather than ignoring, because they did actively attempt to obstruct.

    The difference with the current proposals is that they actually seek to make the enforcement of federal law a State felony.

    In other words, they are attempting directly to nullify, rather than seeking to obstruct.

    They are clearly a publicity stunt, yet they go too far and I would support your suggestion of removing these people from public offices they are clearly unfit to hold.

    I hope that the quality of debate will improve,
    but I fear we will remain Democrats.

    Who is twigg?

    by twigg on Tue Jan 29, 2013 at 05:24:47 PM PST

    •  They clearly are unfit to serve in Public office. (7+ / 0-)

      And they are even more clearly unpatriotic and un-American.

      "We the People of the United States...." -U.S. Constitution

      by elwior on Tue Jan 29, 2013 at 05:29:21 PM PST

      [ Parent ]

    •  A few States have "nullified" cannabis prohibition (1+ / 0-)
      Recommended by:
      radical simplicity

      I'm hoping to see Oregon, Maine, and maybe California do the same within a couple of years.

      Why is it that most of the people who are against abortion are people you wouldn't want to #&@$ in the first place? - George Carlin

      by Anthony Page aka SecondComing on Tue Jan 29, 2013 at 05:48:02 PM PST

      [ Parent ]

      •  No States have nullified (2+ / 0-)

        cannabis prohibition, and it's a common misconception that they have.

        All States are entitled to duly enact any laws they see fit. Any laws. They do not breach the Constitution until the SCOTUS says that they do.

        What they are not able to do is make laws and state that they are supreme over Federal Law, and no State has done that over cannabis.

        The Federal authorities are as entitled as any State to choose what their enforcement policy is going to be with respect to any federal law. States do that all the time, so do the feds.

        With cannabis, both WS and CO have negotiated a position with the DoJ. In exchange for setting up a state regulated market, the feds will not seek to enforce federal law on citizens in compliance with the state law.

        California did not do that, which is why we still see federal enforcement actions in that state.

        So nullification does not apply here. It would apply had the states say that "now we have legalised cannabis under state law, it will be a state felony if any federal employees take federal enforcement action in this state".

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        Who is twigg?

        by twigg on Tue Jan 29, 2013 at 06:22:49 PM PST

        [ Parent ]

    •  Would be a PR stunt (0+ / 0-)

      Any arrest of a Federal Officer would prompt a very quick intercession of the Federal Judiciary.  

      There is ample jurisprudence addressing the Supremacy Clause of Article VI going all the way back to 1796 and further to the Federalist Papers themselves.   Any state law that conflicts with Federal law is immediately "preempted" which is legalese for invalidation.

      As recently as 2008 the court stated:

      Consistent with that command, we have long recognized that state laws that conflict with federal law are “without effect.”
      In Altria Group v Good, the court even went on to make clear Congress can place language in bills they pass to make clear their intent to deliberately pre-empt any existing State law that conflicts with the bill in question.

      Красота спасет мир --F. Dostoevsky

      by Wisper on Tue Jan 29, 2013 at 08:17:53 PM PST

      [ Parent ]

      •  Just curious (1+ / 0-)
        Recommended by:
        blueoasis

        Given the Supremacy Clause of Article VI, why would Congress include language to make clear its intent to deliberately pre-empt any existing state law that conflicts with the bill in question?

        •  To avert any constitutional crisis (1+ / 0-)
          Recommended by:
          blueoasis

          and give clear guidance to the Executive Branch about how this should be enforced.  

          Also the court is saying that to indicate that when Congress does this, they will in turn use that language, should any challenge come before it,  to read the explicit Legislative Intent of the statute and factor that into their decision.

          It pretty much shuts down any attempt to argue some unintended consequence or that an agency or lower court some how misinterpreted the law.

          Красота спасет мир --F. Dostoevsky

          by Wisper on Tue Jan 29, 2013 at 08:30:55 PM PST

          [ Parent ]

    •  Cooper v. Aaron (0+ / 0-)

      Thanks, twigg.  In spite of this response, I bet we're pretty much in agreement about this states' rights nonsense.

      So in your book, a state actively attempting to obstruct federal law is not attempting to nullify said law? That's a very fine line. The three southern states in question had laws which required segregation in public schools. Then in 1954 SCOTUS ruled those laws unconstitutional. The southern states then claimed that state "sovereignty" nullified the SCOTUS ruling: the states could do as they pleased with black students.  From the states' point of view, there was no law to obstruct. They were in charge. Having read scores of newspapers and magazines from the time, I distinctly remember these three states claiming they had the right to nullify any federal law with which they disagreed. They had no intention of obstructing national law; they were planning instead to wipe it from the face of the earth.

      Quick question. If say Wyoming dropped state felony charges from its "nullification" proposals, then where are we?  In a state where only federal officials can do the enforcing?  And if a federal agent discovers the state has not conducted background checks of gun buyers (as a part of hypothetical federal gun violence control laws), what then?
           

      The theory of nullification has been rejected repeatedly by federal courts. The courts have declared 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, according to the courts, 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.

      Between 1798 and the beginning of the Civil War in 1861, several states threatened or attempted nullification of various federal laws. None of these efforts were upheld by the federal government. The Kentucky and Virginia Resolutions were rejected by the other states. The Supreme Court rejected nullification attempts in a series of decisions in the 19th century. The Civil War ended most nullification efforts.

      In the 1950s, southern states attempted to use nullification and interposition 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.

      •  See Martin v Hunter's Lessee (0+ / 0-)

        Similar to what you describe:

        From the states' point of view, there was no law to obstruct. They were in charge. Having read scores of newspapers and magazines from the time, I distinctly remember these three states claiming they had the right to nullify any federal law with which they disagreed. They had no intention of obstructing national law; they were planning instead to wipe it from the face of the earth.
        Virginia tried the exact same thing with regard to its authority to confiscate property.  Federal court ruled against and remanded teh case back to VA Supreme Court.  The Virginia chief Justice decided the Federal Court did not have authority over this since it originated as a State Law issue.

        SCOTUS ruled unanimously:  Federal Law Pre-Empts State Law.  Everywhere.  Every time. The End.

        Justice Story's brutal deconstruction of the States numerous arguments about State Sovereignty, Federal Bias, Uniformity, etc. is a good read.

        Красота спасет мир --F. Dostoevsky

        by Wisper on Tue Jan 29, 2013 at 08:27:19 PM PST

        [ Parent ]

      •  wrt this: (0+ / 0-)
        Quick question. If say Wyoming dropped state felony charges from its "nullification" proposals, then where are we?
        We are in the same place that Homebrewers are in still, in many States.

        Some States still bar citizens from brewing beer, yet Federal Law allows each adult to brew up to 100 gallons per year for home consumption (Which is pretty much anything short of selling it).

        Wine and mead might be treated differently.

        So, in theory, I could be arrested by ABEL, in Oklahoma, for brewing, charged and convicted. But an appeal to the District Court would have the conviction quashed.

        Result ... Oklahoma does not enforce that State law.

        In every case where the State has attempted to gain supremacy, either by legislation or active obstruction, the Federal government has responded by making it perfectly plain that they will impose Federal law, by military force if necessary.

        They have little real choice in that, because if they did not they may as well rip up the Constitution, and the country with it. The President and Congress would be in breach of their Oaths to "protect and defend the Constitution", and the USA would cease to exist as a political structure.

        The Constitution does not contain any clause that allows for its own destruction, although it can be amended, but only with the agreement of most of the other States.

        So if Texas wants to go it alone, they have to ask nicely, and we will say No!

        I hope that the quality of debate will improve,
        but I fear we will remain Democrats.

        Who is twigg?

        by twigg on Tue Jan 29, 2013 at 09:45:16 PM PST

        [ Parent ]

        •  Yep. (1+ / 0-)
          Recommended by:
          twigg
          The Constitution does not contain any clause that allows for its own destruction, although it can be amended, but only with the agreement of most of the other States.
          Except for the NRA's interpretation of the 2nd Amendment.
          •  If the NRA's ever advocated dissolution (1+ / 0-)
            Recommended by:
            Sparhawk

            that's news to me.  I know it to be curmudgeon, but I've never read anything indicating that the organization views  the Second Amendment as an implicit endorsement of insurrection, let alone destroying the country.  A leg in the universe of checks and balances in the Constitution, yes, but nothing more.

          •  Constitution clause for nation's own destruction (1+ / 0-)
            Recommended by:
            LilithGardener

            Wayne LaPierre told the Senate yesterday

            I think without any doubt, if you look at why our Founding Fathers put it [the Second Amendment] there, they had lived under the tyranny of King George and they wanted to make sure that these free people in this new country would never be subjugated again and have to live under tyranny.

            I also think, though, that what people all over the country fear today is being abandoned by their government. If a tornado hits, if a hurricane hits, if a riot occurs, that they're gonna be out there alone. And the only way they're going to protect themselves in the cold and the dark, when they're vulnerable, is with a firearm.

            And I think that indicates how relevant and essential the Second Amendment is in today's society to fundamental human survival.

            To which Lindsey Graham responded
            As for the 2nd Amendment, I don't want a gun to attack my government. That's not what a legitimate purpose is.
            And Baltimore Maryland Police Chief James Johnson said in disbelief:
            I find it to be creepy, scary, and simply just not based on logic. Certainly law enforcement across this nation is well prepared to deal with any natural or man made disaster that'll occur. And frankly, I can't relate to that kind of thinking.
            http://beforeitsnews.com/...
        •  In every case? (1+ / 0-)
          Recommended by:
          Sparhawk

          How is the federal government doing enforcing Schedule 1 controls in California?

          We should draw a distinction in which the state attempts to ensnare citizens in enforcement later quashed by the federal government and states shielding citizens from enforcement of federal law.  There's no solid set of data indicating how extrajudicial federal-state confrontations ultimately play out, so you certainly can't say that in "every case" (or even most cases) the Feds put the states in their place.  Who knows, maybe most of the time DC lets it slide.  Maybe no one really cares, or has the time.  Maybe there's an entrenched legislative opposition hamstringing the President's capacity to respond.  Maybe no one wants to pay the price to actually enforce the law.

          If the states really put up a fight over gun laws, what could the Executive Branch realistically do?

        •  Nope (1+ / 0-)
          Recommended by:
          cynndara
          Some States still bar citizens from brewing beer, yet Federal Law allows each adult to brew up to 100 gallons per year for home consumption (Which is pretty much anything short of selling it).
          Wine and mead might be treated differently.
          So, in theory, I could be arrested by ABEL, in Oklahoma, for brewing, charged and convicted. But an appeal to the District Court would have the conviction quashed.
          Conviction would be upheld. The Federal law says "we will not prosecute you for home brewing". The state says "we will", and would, under state law.

          Under your theory, state minimum wage laws would be unconstitutional (Feds say $7.25, state says $8, why is state prosecuting me for paying $7.50?).

          State laws are potentially unconstitutional for only one of two reasons: they either directly conflict with Federal laws such that it is impossible to follow both (not true in pot cases, minimum wage, or your beer brewing scenario), or they run afoul of 14th Amendment considerations.

          (-5.50,-6.67): Left Libertarian
          Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

          by Sparhawk on Wed Jan 30, 2013 at 04:46:15 AM PST

          [ Parent ]

          •  Conviction would be dismissed (0+ / 0-)

            Don't think for a second that Oklahoma wants people making alcohol.

            It goes against their religious convictions, and reduces the tax take.

            They announced that they will no longer enforce that law because of the federal law.

            If a federal appeal were brought, the State would offer no evidence.

            I hope that the quality of debate will improve,
            but I fear we will remain Democrats.

            Who is twigg?

            by twigg on Wed Jan 30, 2013 at 04:49:41 AM PST

            [ Parent ]

            •  Got a link? (1+ / 0-)
              Recommended by:
              cynndara

              Unless there's something about this law that I don't understand, it should work like state minimum wage laws as I already described.

              The Feds 'allow' you to jaywalk, too, but that won't stop the state from enforcing.

              (-5.50,-6.67): Left Libertarian
              Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

              by Sparhawk on Wed Jan 30, 2013 at 04:54:19 AM PST

              [ Parent ]

              •  Why would the Feds prosecute States (0+ / 0-)

                for complying with Federal law and paying the minimum wage?

                It's a minimum, not a maximum.

                What is remarkable about the OK Homebrew law is that they changed it in 2010, to bring it more or less into line with the federal provisions.

                In a State that has some of the dumbest alcohol laws imaginable, and one where the alcohol lobby, and the church has the most influence, that was a surprise. Every previous attempt had died in committee when the lobbiests had had their say.

                I don't have a readily accessible link because I'd have to dig one up, and this is an old story now.

                Nonetheless, your point about "directly conflict" is not so far from the original point I made, which is that "nullification" doesn't apply in these cases. Some State laws have to "catch up", but they do not seek to make federal law unlawful.

                The proposed gun laws in some States do exactly that, they seek to assert State law above federal law, on pain of arrest and punishment.

                I hope that the quality of debate will improve,
                but I fear we will remain Democrats.

                Who is twigg?

                by twigg on Wed Jan 30, 2013 at 05:47:19 AM PST

                [ Parent ]

                •  Re (0+ / 0-)
                  * [new] Why would the Feds prosecute States (0+ / 0-)
                  for complying with Federal law and paying the minimum wage?
                  That's not the question. The question is: how could a state prosecute a business owner under your interpretation since they 'complied with federal law'?

                  Whichever of state and federal law is more restrictive is what governs in virtually every case, except Bill of Right type cases.

                  (-5.50,-6.67): Left Libertarian
                  Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

                  by Sparhawk on Wed Jan 30, 2013 at 06:02:14 AM PST

                  [ Parent ]

    •  Nullification and Interposition (Obstruction) (0+ / 0-)

      Nullification and interposition (the latter a synonym for obstruction) go hand in hand, and are often used interchangeably. (My brother says his Con Law text cites numerous southern state resolutions from the 1950s as examples of 20th-century interpositions.)

      I think what we're missing here is that nullification and interposition together form a single doctrine. Nullification seems to refer to the state's legislative or executive act of declaring a federal law null and void. Interposition seems to refer to the state acting to prevent the federal law from being enforced.

      The difference with the current proposals is that they actually seek to make the enforcement of federal law a State felony.  In other words, they are attempting directly to nullify, rather than seeking to obstruct.
      Actually many states at the moment are considering interposing (obstructing) enforcement of federal law. Making federal enforcement actions a felony is the means by which a state plans to interpose itself between the federal government and the federal law.  In the sense of "single doctrine," nullification would be a legal act or statement of policy declaring a federal law null and void in a state. Of course that doesn't mean much unless the state also threatens to or actually does interpose between the the state and the federal law in question.  

      It was the act of interposition that led to Jackson's threat to the South Carolinians. Interposition is the point where people get hurt, or as Jackson promised, hanged.

  •  I dunno (0+ / 0-)

    anti-Reconstruction effectively nullified the 14th amendment for ninety years or so, some of it never did go into effect.

    the purpose of the second amendment is to promote a well-regulated militia, in the same sense that the purpose of the first amendment is to promote a well-informed electorate.

    by happymisanthropy on Tue Jan 29, 2013 at 06:52:52 PM PST

  •  This round of nullification is different (2+ / 0-)
    Recommended by:
    blueoasis, cynndara

    Federal firearms regulations are done under the Interstate Commerce Clause, and the end-round being attempted is that any firearm or accessory manufactured within a state for use only within that state, and sold only to residents of that state is not covered under that clause.  You missed Montana, which passed such a law a couple of years ago, and it was signed into law by DEMOCRATIC governor Brian Schweitzer.  At least in MT, the law is already in effect, minus the parts about arresting Federal agents--the part that can't be enforced.

    Texas is also at it with nullifying portions of the Affordable Care Act, specifically the part that requires employer-provided insurance to cover contraceptive care.  A Texas legislator has introduced a bill that will allow any company fined by the Feds for not complying to take a tax credit on their state taxes for the fines paid, up to the amount of the fine or the amount of Texas taxes owed.  Essentially, Texas taxpayers will pay the fine for not providing the required insurance, rendering the Federal law meaningless because there will be no penalty for non-compliance.  Other states will introduce similar legislation--you can bet on it.

  •  Nullification does happen (1+ / 0-)
    Recommended by:
    cynndara

    as you astutely describe, but that plan is scarier than the problem of recurring challenges to Federalism.

    Did you intend for point number two of your Lincoln plan

    (2) The national guard shall be federalized and all state law enforcement officers shall be deputized as federal marshals and put under federal control.  
    to only be invoked as response to nullification or just in general?

    Im assuming you meant only in response...but still, that is a hell of a thing.

    A) Both the Congress and the President currently have this authority.  Congress originally from Art I Sec 8 of the Constitution and the President, not only from Article II but also the National Defense Act of 1916 explicitly naming the POTUS the commander of all National Guards in the time or war or national emergency... and then REALLY REALLY explicitly in 2007 with the John Warner Defense Authorization act which clearly states that when an emergency situation arises in a state the President can assume control of that State's National Guard without the Governor's consent.

    B) I dont think we need to federalize police departments.  In light of military, reserves, military police, federal marshals and the federalized National Guard, I really do not think we need to deputize county cops and highway patrol officers.  If the idea is to prevent them from siding with the governor.. well, if a local sheriff already has it in his mind that he's siding with ONE GUY against the combined might of the US Armed Forces I don't think statutorily reminding him that he technically now answers to the President is going to sway him.

    Lastly, easy with the TREASON-TOSSING.  That is not what this is and clearly YOU should know that.  By the end of your diary you were up to US 6, Nullifiers 0 and you've clearly written about this before. ...any charges of treason?  No.  It is not applicable.  Defying a Federal Order.  Contempt of Court.  Obstruction of Justice.  Failure to Obey a Lawful Order.  ...plenty of things... things addressed by existing law can be applied here.  It doesn't merit treason and doesn't need that word thrown around to make your very valid point.

    Also the idea of Federal authority to unilaterally remove state level officials from office is as scary a notion as it is unprecedented.  That way madness lies.

    Красота спасет мир --F. Dostoevsky

    by Wisper on Tue Jan 29, 2013 at 07:59:36 PM PST

    •  Yep, I fretted over that title, now changed. (0+ / 0-)

      Point taken, Wisper, and thanks.  But let me emphasize that Washington, Jackson, and Lincoln considered nullification treasonous enough to threaten and in two cases use troops to actually kill and imprison the citizens in rebellion.  Jackson made no bones about calling it treason, which finally caught the attention of South Carolina officials.  And of course any number of state officials were removed from office after the Civil War.  

      For me, having grown up in the South in the 1950s, madness didn't lie in any direction; it lay all around me.  A state subjugating its citizens via unconstitutional laws, unlawful acts, and threats and intimidation was the political entity to be feared.  Federal intervention was a breath of fresh, salvation air.  Besides, under the "Plan," the state officials have the choice to stay in office by not enacting nullification laws. :-)  

      All this said, "A Lincoln Plan" was done satirically.  The lead-in phrasing "a modest proposal for state remodeling, not reconstruction" was intended to signal that. Plus I admitted the plan's a stretch.  My intent was to concentrate all our attentions on the incredible dangers of nullification talk.  The violence of the past could easily become the violence of the future.  Still, if push comes to shove, the plan announces in advance the federalization of the National Guard.  And putting of state law enforcement officers under federal control is a fancy was of saying they'll no longer be wandering the streets.    

  •  If I were that Marshal, I would not have let (1+ / 0-)
    Recommended by:
    DavidMS

    Wallace pontificate.  I would have asked him to move twice.  Had he not moved a third time, he would have been slammed to the wall and cuffed like a common criminal.

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Tue Jan 29, 2013 at 08:33:23 PM PST

    •  As repellent as he was (0+ / 0-)

      He was the governor of a state. Use violence if you have to, but sometimes (in the long run) you're better off defusing tensions than forcing the situation to a boiling point.

      (-5.50,-6.67): Left Libertarian
      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

      by Sparhawk on Wed Jan 30, 2013 at 04:58:30 AM PST

      [ Parent ]

      •  Even presidents are subject to federal law, (0+ / 0-)

        as President Nixon discovered. President Ford issued Nixon an unconditional pardon for all Federal crimes that Nixon "committed or may have committed or taken part in" while in office. Nixon's acceptance of the pardon is implicitly a guilty plea to Federal crimes.  Hence Wallace was bound by federal court orders whether or not he was governor of a state.

        But I take your point about the wisdom of defusing tension. Katzenbach's call to President Kennedy helped lower the heat. And the federalizing of the Alabama National Guard signaled there were limits to resistance. In the end, Wallace had to endure the humiliation of following an order issued by an Alabama general he usually gave orders to.

        It's important not to forget that while some urged federal patience and restraint, white hooded criminals were roaming the state at will intimidating and killing black citizens as well as any American who came to Alabama in the name of civil rights.  As I've said elsewhere, the tyranny I observed growing up in the 1950s South was that of a southern state subjugating its minority citizens.  In that place and time, "We the people" had a mighty hollow ring.  "States' rights" is just a coded way of saying "The states reserve the right to deny the constitutional protections of certain groups of citizens."
         
  •  Little Rock was A Defining Event in U.S. History (0+ / 0-)

    1. Because the NAACP’s chief counsel in Brown v. Board was the African-American lawyer, Thurgood Marshall. Not only did he convince the all-white Supreme Court that segregation was unconstitutional, he later was appointed to the Supreme Court by LBJ. He’s one of the progressive giants of 20th-century American history.

    2. Because Norman Rockwell (white guy, a beloved middlebrow artist who painted scenes of Thanksgiving and little boys getting haircuts, and did a lot of covers for the Saturday Evening Post) painted the iconic scene of a little African-American girl going to school surrounded by National Guard troops. Note the N-word graffito on the wall behind her and the tomatoes splattered on the wall. But she is marching forward into history. I love this painting:

    3. Because it prompted Charles Mingus to write the classic jazz masterpiece “Fables of Faubus:”

    Orval Faubus was the (racist) governor of Arkansas who tried to stop integration in the 1950s. Later, Arkansas had a pretty decent governor, Bill Clinton, and a little later, they elected a wingnut (Mike Huckabee). What’s the problem with you, Arkansas?

    “If you misspell some words, it’s not plagiarism.” – Some Writer

    by Dbug on Tue Jan 29, 2013 at 08:39:24 PM PST

  •  The Civil War has never ended. (0+ / 0-)

    Simple fact.  The issue started with slavery and continued with segregation, but has evolved to where it's about neither any more.  It's about power of course, and it continues to be about State's Rights.  Hairline majorities, mostly rural, in many of the former Confederate states and their Western offspring have wanted out of the United States since 1840, and so they attempt to test the waters of secession every couple of decades.  It's beginning to look as though the last of the irredentists might die off in this generation -- or maybe not, but they might move to a minority instead of a bare majority.  Power blocs that recognize their upcoming irrelevance will often make one last desperate attempt to win before defeat overwhelms them.  So that could be what you're seeing.

    But if it's not, if there ARE enough offspring of the Confederacy in the South and West, then these attempts will continue sporadically until the United States government either lets them go or is too weak to stop them.  They've used the last 30 years of Republican (Southern Strategy (TM) power to work on both angles.  You have to remember the lessons of Europe.  1) A conquered people can hold a grudge for a millenia, and 2) Disgruntled ethnic groups, left themselves, do NOT wither and fade away.

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