Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger
With apologies to the famous song of the same title, the State of Georgia has produced some interesting legislation and proposed legislation these days. The latest in that long list of specious legislation is the proposal pushed by five Georgia State Senators that would set up a commission to review Federal laws. Any laws not approved by that commission would be nullified and would not be upheld in their state. If I understand the proposed legislation correctly, the State of Georgia, if this law is passed, would claim supremacy over Federal law. I realize that in some Tea Party view of the Constitution this makes sense, but not in the real world where the Constitution and court precedent makes it very clear that Federal law supersedes any and all conflicting State laws.
“The Constitution provides that acts of Congress “shall be the supreme law of the land” which is why states do not have the power to ignore federal law. Nevertheless, five Georgia state senators — including Majority Leader Chip Rogers (R) and senate President Pro Tempore Tommie Williams (R) — apparently do not believe that the Constitution applies to them. All five lawmakers introduced a wildly unconstitutional plan to have Georgia and its citizens simply ignore laws that its conservative leadership doesn’t want to follow:
(1) There is created the Joint Commission on Recommendation, which shall be charged with recommending and proposing for a vote by a constitutional majority the nullification in its entirety of a specific federal law or regulation which is deemed to be outside the scope of the powers delegated by the people to the federal government in the United States Constitution or at odds with the Georgia Constitution . . .
(4) Upon recommendation for nullification, the General Assembly may vote to nullify following such recommendation. The appropriate documentation reflecting the vote shall be documented in legislative journals of the House and Senate. In the event the General Assembly votes by a constitutional majority to nullify any federal statute, mandate, or executive order on the grounds of constitutionality, neither the state nor its citizens shall recognize or be obligated to live under such statute, mandate, or executive order.” Truthout
Our friends in Georgia are taking the same path as Gov. Rick Perry chose in Texas when he pushed through a bill that would nullify a Federal law concerning light bulbs. Light Bulb It is amazing to me that in the year 2012, we are even having this discussion. The Supremacy Clause of the Constitution, Article 6, Clause 2, makes it very clear that Federal law is the “law of the land”.
“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” U.S. Constitution The Supreme Court has upheld and confirmed the supremacy of Federal law over conflicting State legislation. But this idea of States nullifying Federal legislation continues to fester.
I question whether these State attempts to nullify Federal law is actually an attempt to discredit the current administration in the eyes of the supporters of these State officials rather than an effort to stop what they consider to be unjust laws. Are politics involved in these decisions to attempt to nullify Federal law?
Are these Georgia legislators trying to re-fight the Civil War with these claims of States superiority over Federal law? Are these nullification efforts related to the Tenther movement? Even our old friend, Ron Paul has come out as a supporter of this alleged power of States nullification of Federal law. Ron Paul Does it surprise you that a sitting U.S. Congressman would have these views?
Finally, while the attempts by States to nullify Federal laws isn’t new, the calls for nullification seem to have increased since President Obama came into office. Will the nullification movement die out if Obama is not re-elected? Let’s hear what you think!
Additional Sources:
James Madison letter to Edward Everett
“How many times has that happened in the last 60 years?”
Many times I would imagine, but I couldn’t put an exact number to it. The number would probably seem skewed low though due to the nature of the process. Law made by precedent is actually fairly rare despite those who rave about it and when it does happen, it is usually upon a sound Constitutional basis that goes directly to frustrating the purpose of a law more often than the method of execution (i.e. the purpose of the law was prime facie unconstitutional and not capable of overruling by subsequent law except by amendment – which is a difficult process on purpose – contrasted to situations where the purpose of the law is valid but the execution is somehow unconstitutional). Other times when precedent impacts law it is often because of vagueness in a statute or the arising of a unique or novel situation not originally contemplated by legislation. Those situations are more easily corrected by subsequent legislation if needed. The “if needed” is important to note there because more often than not the application of the precedent moving forward via stare decisis makes amending or new legislation unnecessary. Judicial efficiency is one of the primary reasons for practicing stare decisis although it provides a flow through efficiency to legislators as well.
You are right AY.
“Any law created by precedent can be overruled by subsequent legislation and amendment.”
How many times has that happened in the last 60 years?
Raff,
When you’re no longer paid by the word….it’s best to be short….
Great responses Bob and Gene.
AY,
You are so wordy! 🙂
I707,
What has me and I am sure others chagrined….
Is if you are relatively new here… How do you know so much about everyone’s personal lives….. It strikes me as interesting if you don’t have a cross to burn…. I’d be interested in an answer…… But, I am sure you are fast asleep…. I bet England is eternally grateful for that Christmas tree Sweden sends every year….or was that Norway…. I get my Nordic country’s mixed up occasionally… And is this better than the one liners you complained about as well…..
“The article did say it stepped lightly on presidential powers. So a diabolical plot between the judiciary and the executive for domination of the supposed sovereigns [us]?”
Not in the slightest. Any law created by precedent can be overruled by subsequent legislation and amendment. If anything, the power of judicial review has (until recently) provided a check against Executive abuses and Constitutional abuses at the state level (see Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964)), If our government isn’t doing our collective will, then the fault lies squarely with Congress, no matter which branch instigates a particular problem.
rafflaw:
I read that it wasnt really used until the late 1800’s around 1887-1895. Then it was used around 250 times. The citation I read said the Rehnquist Court used it 11 times. More than the Warren Court.
The article did say it stepped lightly on presidential powers. So a diabolical plot between the judiciary and the executive for domination of the supposed sovereigns [us]? 🙂
You and Mike A are right about the use of nullification by some of the morons in state government, scary thought. Although some are good. But I doubt very many people understand liberty as formulated by the founders.
Bob,
Bob,
I think you are absolutely correct….. That’s why I called it a power grab….they were trying to legitimize themselves….
Did Article III give the Supreme Court any textual power of Judicial Review?
No.
Did Article III give the Supreme Court the power to revise or expand its own power to include Judicial Review without a Constitutional Amendment pursuant to Article V?
No.
Did the Judiciary Act of 1789 effectively amend the constitution?
Could it?
Thus we have…
A Critical Guide to Marbury v. Madison
by William W. Van Alstyne
http://www.jstor.org/pss/1371456
Raff….
They who do not know Marbury know not the power of the courts…. I think they tried to legitimize themselves after not a hugh political payback…
Since this has turned into a smorgasbord…. Vendetta….. I always thought a dry rub should be applied in cooking…. If Buddha was around he’d know the answer…. He did live near great bbq places at one time…..
Bron,
Marbury is the foundation for every case since. I don’t know where you get the 100 years to be used. You may want to read a bit on it.
I have no idea what anybody is talking about having just returned well lubricated with margaritas from a great family dinner.
Am getting ready to watch the Awards, though Tex is pushing for “Enemy at the Gate” so I guess i will put off looking up Marbury v. Madion till tomorrow when things will be clearer though tinged with a headache.
“a retired swedish nudist?
it’s too damn cold up there for that” (pete) … is the only thing that made sense to me but I don’t, for the life of me, know why.
Gene H.,
“…..Never attribute to malice that which can be adequately explained by stupidity, but don’t rule out malice.”
Worth memorizing. Whoever. LOL
now it’s bedtime, after 1am.
SwM,
Must be something in them. Your take? Yu’ve seen them all.
20 years ago, the state within a state, the ruling party’s own FBI, the preachers pray while the politicians play, the left hand not speaking to the right hand, and your ass is cooked if you so much as ask——were skillfully rolled into a swedish film. A (what’s it called) rip-off of real life.
A real minister’s name was found in the phone list of a bordell mama, the connection was confirmed, etc etc. all in investigating her death.
It was real, surreal, and frightening. Who is watching the watchers.
All the intelligence services were involved. Question? Who’s gonna suppress this thing?
It didn’t become an icon like the Stockholm syndrome became.
Then we got our cherry picked when the Prime Minister got murdered in ’86.
I was in Dallas then, just had checked in when the CNN flash came.
It got little play, like a film based on how it was inside the twin towers on 9/11 wouldn’t get much either. Only a year before a journalist exposed the party’s FBI organ. He got 2 years for it. Now he’s a millionaire writer.
Jan Guillou. His first Hamilton book: Coc Rouge.
Am sure you’ve got your own story. Perhaps everybody does.
Nighty night.
You can take the immortal words of the Buddha that was once here….. You know straight where you can take that…. Sweden huh? Or Ireland take your pick… You’re the one doing the talk…. And if I might add… The unprovoked attacking….as well….be who you want….It is the Internet after all….
Mike A/rafflaw:
Marbury appears to have had a good deal of political undertones, even a possible provocation of the anti-federalist Jefferson. Why should this precedent carry so much weight? Especially in light of the fact it took almost 100 years for it to be used.
I find it rather interesting that it took off at about the same time the progressives and their ideas of activist law began taking hold. Coincidence?
Do I detect malice…..lol
Gene,
Einstein was a pretty smart guy I’m told!