Nullification-Missouri Style


Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

The Show Me state, has been making news lately.  Unfortunately, the news it has been making has nothing to do with the St. Louis Arch or the baseball Cardinals, but its legislature’s penchant for attempting to nullify Federal laws that it does not agree with.  The State of Missouri is working hard to nullify Federal gun laws and Obamacare.

“If you ever wondered what a 21st century nullification crisis would look like, look no further than Missouri. One hundred and forty eight years after the end of the Civil War, the New York Times reports, “the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them.” Meanwhile, the Show Me State is doing everything it can to effectively block implementation of the Affordable Care Act.” Daily Kos

I guess Missouri wants to Show the rest of the nation that the Constitution and its Supremacy Clause is not worth the parchment it is written on.  In case you are not sure what is meant when a State tries to nullify a Federal law, here is a little primer on the subject.

‘ “Nullification was a 19th century theory, identified most closely with South Carolina Senator John C. Calhoun, based on the notion that the states created the Constitution and retained the power to determine whether the federal government complied with limitations on its power. This theory has been universally rejected throughout the course of American history by the courts as inconsistent with the Constitution. As the Constitution’s preamble makes clear, ‘We the People,’ not the states, ‘ordain[ed] and establish[ed] th[e] Constitution.’

“The Constitution’s Supremacy Clause provides that federal law is the ‘supreme Law of the Land,’ and Article III of the Constitution gives to the federal judiciary the power to decide “all cases arising under the Constitution.’ States, thus, cannot simply declare that the acts of the federal government are null and void. But, despite the rock-solid arguments against nullification, state governments continue to press the idea that they have the power to treat certain federal laws as null and void. These arguments, while not new, have no basis in the Constitution.” ‘  Maddowblog

What would make the Missouri state legislature think that they had the power to declare acts of the Federal government null and void, when as suggested by the David Gans quote in Maddowblog, the legal arguments against nullification are “rock solid”?  Could politics be at work here?  Is it a coincidence that the nullification “movement” has come to popularity since President Obama took office?

I wish I could say that the nullification attempts are restricted to Missouri.  However, the states of Texas, Kansas, Mississippi and Arizona have all been involved in attempting to nullify Federal laws.  In Missouri, the legislature is attempting to make it a crime for any Federal law enforcement officer to enforce Federal gun laws.

‘ “Like Texas, Mississippi, Arizona and a host of other states, Missouri is seemingly turning to the Confederate Constitution as the law of the land. Hoping to override Democratic Gov. Jay Nixon’s veto, Missouri Republicans are aiming at the U.S. Constitution’s Supremacy Clause:

Richard G. Callahan, the United States attorney for the Eastern District of Missouri, is concerned. He cited a recent joint operation of federal, state and local law enforcement officials that led to 159 arrests and the seizing of 267 weapons, and noted that the measure “would have outlawed such operations, and would have made criminals out of the law enforcement officers.”

And not just criminals. As the Times explained, “A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.” ‘  Daily Kos 

The State of Missouri is attempting to turn the Constitution on its head and at the same time, criminalize the actions of sworn Federal law enforcement officers who are just doing their duty.  I wonder if the citizens of Missouri understand how much money it will spend defending its actions when the Federal government sues the State of Missouri if their nullification plans come to fruition?

The State of Missouri is also trying its darndest to prevent the Affordable Care Act from being implemented in its state.  It is even ordering state officials to not do anything to aid in its implementation.  According to the Daily Kos article linked above, the Missouri State legislature is attempting a “de facto” nullification of Obamacare.

‘ “Along with Arizona, Alabama, Oklahoma, Texas and Wyoming, Missouri is refusing to enforce the ACA’s new insurance reforms and prohibitions, such as refusing to cover those with pre-existing conditions, using “rescission” to drop coverage for those who become sick, discriminating against women and setting annual or lifetime benefits caps. And while Colorado, California, Oregon and other blue states are spending hundreds of millions of dollars to fund thousands of customer service “navigators,” in Missouri “local officials have been barred from doing anything to help put the law into place.” ‘  Daily Kos

Whether the dispute is about gun laws or health care, it seems that Missouri is showing the country that it won’t sit by and watch its citizens get protected by Federal gun laws or Health care systems.  At what point do the hundreds of thousands of Missouri citizens who need health care actually factor into the state legislatures nullification attempts?

When any state has a legitimate beef against a Federal law or policy, it can use the courts to sort out those issues.  However, when the state legislature is relying on a 19th century theory that has been universally rejected by the courts, is that legislature actually working on behalf of its citizens?  Or is it working on behalf of political or corporate interests?  What do you think?

94 thoughts on “Nullification-Missouri Style”

  1. david,
    Is this your attempt at comic relief?
    Sounds like you studied law at the same school I did (I didn’t).
    The Constitution specifies that the Supreme Court is the final judge of Constitutionality.

    It’s unConstitutional for a state to decree that a federal law is unConstitutional. A state may contest any law in court.

    No, you cannot just decide that federal law doesn’t apply to you, and decree that anyone enforcing federal law will be arrested.
    Why in the world would anyone need to explain that to you?

    You guys tried that one, before. How’d that work for you?
    Need to be schooled, again?

    1. Bob Kauten wrote: “It’s unConstitutional for a state to decree that a federal law is unConstitutional. A state may contest any law in court.”

      It seems you do not understand the structure of our Constitution. It is the States that grant the federal government powers. The States are the ones who ratify the Constitution and who amend the Constitution as they deem appropriate. The federal government derives its powers from the States and only those powers specifically enumerated to it by the States. The States are sovereign entities.

      The Tenth Amendment makes it clear that powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.

      The Ninth Amendment is very clear that if the Constitution does not specifically enumerate a right taken away from the people, then the people retain that right. In other words, if the federal government creates a law that attempts to take away a right I have, and that law is not specifically enumerated in the Constitution itself, then I have a legal right to disobey that law. I don’t have to wait for the SCOTUS to declare it unconstitutional. If I want to prevent tyranny in the federal government, then I not only have a right to disobey the federal government, but I have a duty to do so.

  2. rafflaw,

    Maybe that’s what they teach down at Commie/Nazi Law School, but you’re wrong!

    States & citizens are obligated by the intent of the founding docs to disobey unconstitutional laws no matter if it’s even the Supreme Count claiming the unconstitutional law is constitutional.

    You & others may not like the states method by using nullification but they are well within their rights to do so.

    What’s Professor Turley’s opinion on what states & citizens should do for recourse when the Gov’t/courts are clearly shown to be corrupt & outlaws?

    ie;Bush v Gore, John Yoo’s Tortured Memo…..

  3. david,
    If the Feds pass a law and the courts uphold that law, the States must obey it. What you are suggesting is for the States to break the law. The states can litigate any issue that they want to challenge, but they do not have the legal right to break the law once the courts have spoken.

  4. Just because the federal government passes a law or regulation does not mean that the States must obey it. The laws must be Constitutional. Ultimately, when the federal government orders a State official to do something contrary to the Constitution, the State has a duty to the people of their State to disobey the federal government.

  5. I have another take or slant on Mizzoura. Having lived there in a prior life prior to being a dog, I practiced law. Mizzoura is Unreconstructed. Oh? What does that mean Mister Labrador, you might ask. Well, after the civil war some former slave states refused to adopt, recognize or abide by the 14th Amendment. They try their best to not abide by the 15th Amendment. And if they could go back to slavery days then the 13th Amendment gets not quarter.
    The implications of being Unreconstructed go to issues like a fair trial in a criminal case. There is federal jurisprudence which states that there must be a minimum amount of evidence to support any conviction. Proof beyond a reasonable doubt on each element of the offense. This is supposed to be recognized by an appellate court when reviewing a conviction and the appellate court is not supposed to rely on the genius of a jury when they decided facts. But, Mizzoura held in a case called State v. Samuel Freeman that all that rubbish is by the wayside, The Missouri Supreme Court in a decision by Judge Mary Rhodes Russell holds that We Know It When We see It is a good standard of review. Samuel Freeman is not a free man. Mizzoura is Unreconstructed. It is damn near a Pirate Territory. Fly over and flush.

  6. Hi Darren, “There is a second amendment right to carry those and the sheriff is not allowed to discriminate on account of disability for constitutionally protected activities.”

    except that rights for the disabled are not all encompassing, at some point even business is let off the hook regarding accommodation if it becomes unreasonable and burdensome. As I recall the standard is pretty high but it’s there.

    In your state are there any prohibitions due to mental defect or illness? People suffering from those limitations are similarly protected as a sub-class within a class.

    At some point it seems to me that common sense restrictions on gun ownership need to be put in play. Many states will not issue a gun license to ex-felons. That seems to me to be unconstitutional. If you’re an ex-felon and you paid your debt to society why would you not be issued a gun permit like any other citizen? Same for voting. The selective limitation of certain rights is not alien to our country.

    Not arguing with you, just wondering.

  7. Sally,
    I read your assertion 5 times, to let it sink in. I then searched rafflaw’s article for that passage, or anything implying it.
    No, rafflaw’s article never said, or implied, that.
    It’d be quite a stretch to infer that, from the article.

    Did you read the same article?

    The supreme coup does not make every single solitary decision. Cases are submitted to it. In only some of those cases, the supreme coup makes a ruling. A disastrous one, frequently.

  8. So what you are saying is that the founders wanted a country “Of the People, By the People” to have every single solitary decision made by 5 well connected black robed lawyers who are appointed to lifetime seats by the closest office we have to a dictatorship

    ^^Read that twice and let it sink in a little.

  9. Lotta

    The blind being issued gun permits; an interesting issue from a constitutional point of view. There is a second amendment right to carry those and the sheriff is not allowed to discriminate on account of disability for constitutionally protected activities. It is different from driving, which is not constitutionally protected.

    Several states are “Shall Issue” states where the issuing authority cannot deny a permit if the applicant is legally able to have one. I never thought about it before but in our state the local LE agency cannot deny a permit to a blind person either. In fact, the agency is mandated by state law to assist the blind applicant complete the application form if they request.

    The requirements are that they are not prohibited from carrying a weapon by state or federal law, that they are 21 years of age and they reside in the jurisdiction. And that they have not had a CPL revoked recently. That is all. Nothing is said about blindness so they are good to go here.

  10. LK,

    I’m thinking that they’d probably be a better shot than most law enforcement…. But that’s funny if they really do it…. I can see he implications…..

  11. The USG is using the Constitution and the Bill of Rights for toilet paper. This bit of rightwing asshatery is a distraction. We’re all in danger under a criminal government.

  12. LC in Texas,

    I hardly know where to begin.

    I thought you said something about the United States of America. I do not think that phrase means what you think it means.
    I live in that country. I assure you, it’s nothing like what you describe.
    Did you get the name of the country wrong? Seems unlikely.

    You mentioned the “American way.” North or South America?
    Maybe you’re referring to Canada? That’s North American.
    Is “America” the same as the oft-referenced “Merka”?
    Merka shares a border with Oz, right?

    Work with me here. I’m trying to make sense of this.

    Finally, can I get some of whatever you’ve been smokin’?

  13. Reblogged this on veritasusa and commented:
    But what recourse is left, when the Federal government, which has grown into the monster the framers feared, complete with an all powerful executive, and corrupted by corporate influence, ignores the Constitution and rides roughshod over the Bill of Rights, while SCOTUS fails in its responsibility to be the guardian of the peoples rights? I believe the States rightfully attempt to protect their own citizenry and guard against over reaching Federalism. The only truly representative government is, after all, local government.

  14. “I guess Missouri wants to Show the rest of the nation that the Constitution and its Supremacy Clause is not worth the parchment it is written on.

    gw bush said that the Constitution is just a piece of paper.

  15. Here is the proof that our education system run by a federal system does not work for the people.

    “I pledge allegiance to the flag of the united STATES OF AMERICA and to the REPUBLIC for which IT STANDS”

    How many students realize that the USA flag stands for all 50 state flags?
    That the states have the POWER?

    That Federal Government only has the power that was delegated to it by Congress and the Constitution for the people to do commerce between the states on behalf of the people?

    The states can manage their own education system (needs are different in different parts of the country). Welfare & Medicaid is best handled by the states, to assure honesty and help. The people are generous and caring when there is real need. With all the community centers and churches, there should be soup kitchens for truly needy people.

    If the Federal Government was removed from interference with families through CPS, TV propaganda, CAPTA and all the agency’s that alienate the children from their parents without just cause, this country would start becoming superior again, not just great. People would strive to do better, to better their families the American way.

    The Federal System is criminalizing our people for REVENUE & profit – which is tearing our families apart. The people have the right to nullify bad law and any codes, rules, and regulations that go against the Constitution.

    Government Administrators, judges, public employees are just people who swore an Oath to the people they represent, to do their job and follow the constitution and laws of the people. We need to put limits on all terms, nothing is forever! We need the people alerted when a public employee has failed his Oath of office. It has to start locally with you!

  16. mahtso,

    That’s what they did with the Bush Mafia, impeachment, War Crimes, Crimes Against Humanity Are Off the Table…They said…

    That’s what they did with the Corrupt Criminal Mafia Wallst/City of London Banks/Insurance Co’s….. DOJ/Lanny Brewer(sic) Holder… Yes, they admit Large bank/Insur scum are laundering money for known terrorist & drug kingpins but they are strategically important infrastructure so DOJ is going to continue to allow them to commit ever type of criminality imaginable.

    They by executive fiat illegally canceled the USC’s “Bill of Rights”!!!

    Animal Farm Law by default!

    They’ve Jumped the Shark, there is no more Rule of Law, what we have is Rule by Dictatorship.

    And they’ve declared war on “We the People”‘s govt.

    They don’t consider us strategically important infrastructure, they use more like a parasite sees it’s pray, something to feed upon til the host dies.

    Many in LE/Military have & are figuring out those same parasites are feeding on them & their families also.

    Remember that Pension Plan the Govt promise, below coming to the USA sooner then you think & already here in a few places.

    **UPDATE 2-Poland reduces public debt through pension funds overhaul

    Wed Sep 4, 2013 12:56pm EDT **

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