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WHY NOT NULLIFICATION?
by Jim Delaney
(Aug. 9, 2010) — Though the U.S. Constitution is of scant consequence in DC these days, Americans should remember that nullification continues to be a well-established and constitutionally justifiable remedy to federal overreach. But, a practical word of caution: only a determined act of nullification has any hope of success. (You may refer to my previous posts on nullification and the supremacy clause, or you may do your own research to substantiate that assertion.)
Now menaced by a seditious progressive legislative blitzkrieg in Congress, an imperial putative Presidency bent upon the “fundamental transformation of the United States”, as well as a contagion of judicial activism stoked by subversive “living Constitution” ideologues, more than ever, Americans must now more fully understand that our founders expressly espoused the right of states to nullify federal overreach at every turn. The framers also upheld the absolute right—indeed, the duty—of “we the people,” to rebel against either federal or state usurpations of our individual rights to life, liberty, property and the pursuit of happiness. Thus, “we the people” are necessarily the ultimate arbiters on our republican system of government.
So, while I hail the 20-22 states which are currently striving to peacefully challenge Obamacare in the courts, we must be mindful that judges are political appointees who are often more apt to advance their insidious political agendas than to faithfully adhere to the rule of law. Like the “living Constitution” politicians who gave them life, too many of these jurists continue to blatantly ignore the U.S. Constitution as written and whimsically reinterpret the Constitution’s clear meaning to justify their own narrow political philosophies. And this is manifestly NOT what our founders had in mind.
To our founders, a tyrannical, unchecked judiciary is every bit as loathsome and dangerous to our republican form of government as are an unrestrained Congress or Executive. And right now, the Republic is getting slammed on all three political fronts. And this is precisely why nullification, or simply the threat of nullification, peaceful resistance, non-compliance or open rebellion should never, ever be taken off the table if our Republic is to survive.
That said, what’s the real deal with Arizona? Frankly, I’m somewhat puzzled by the goings-on there.
Confronted by gross federal abdication of its constitutional responsibility to defend Arizona’s border with Mexico, Governor Brewer, is, with the advice of the state’s adjutant general, entirely within her constitutional rights to call up the state militia to police the border and thereby protect the citizens of Arizona; however, for the moment, anyway, she has allowed Arizona to be sucked into the tainted and unreliable court system to achieve protection for Arizonans. Why? Never mind that the Ninth Circuit Court of Appeals is a hotbed of judicial left-wing activism, and never mind that Arizona’s laborious, time-consuming, and costly judicial appeals might well fail to achieve justice. This leads me to ask this question: if Arizona loses her appeals, does the Governor obsequiously capitulate to judicial fiat, or does she do the right thing and simply enforce the Constitution of Arizona?
To me, the best defense is a good, clean, determined constitutional offense. Such will throw one’s lawless adversaries, in this case the feds, completely off-balance. The truth is that neither a formal nullification process nor a long, dragged-out judicial fight is necessary—or proper—to enforce SB 1070, in and of itself one of the most innocuous and insubstantial immigration laws in the country.
But, for me, here’s the mystifying wrinkle in this strange saga. We all know Obama is playing politics with this “issue,” but, alas, is Brewer guilty of political gamesmanship as well? And here’s why I ask…
Since 2007, Missouri has passed a series of laws which serve to comprehensively deal with the illegal invasion of the state. Reportedly, it has worked wonders. Most recently, on July 6, Gov. Blunt signed into law legislation which:
- bars the state from issuing driver’s licenses to illegal aliens or to recognize licenses issued by other states to persons unlawfully in the United States;
- imposes criminal penalties for those assisting illegal aliens in obtaining driver’s licenses;
- prohibits the creation of sanctuary cities by stripping state funding and grants from any municipality that attempts to enact sanctuary policies;
- requires public employers, including state contractors, to verify the work authorization of all employees through E-Verify;
- requires government agencies to verify the legal status of applicants before providing public benefits;
- imposes criminal penalties on individuals convicted of transporting illegal immigrants for exploitative purposes;
- requires law enforcement to verify the legal immigration status of every individual presented for incarceration and to release to the Dept. of Homeland Security all persons determined to be in the U.S. unlawfully;
- provides penalties for employers who knowingly hire illegal aliens, including suspension of business licenses, permits and exemptions;
- illegal aliens are barred from enrolling in all public universities in the state. Also, in 2007 a constitutional amendment was adopted by referendum which made English the official language of all governmental proceedings in Missouri. Thus, in Missouri everything—and so, so much more—that Arizona is seeking in its own immigration laws is already being successfully enforced in Missouri with no federal lawsuits nipping at their heels either. So what gives?
The viability of Missouri’s immigration laws suggests to me that Arizona has, for some unknown reason, allowed itself to be needlessly used and victimized by the White House and its radical left-wing minions around the country. We know that the high-profile federal suit against Arizona is but a shameless self-serving ploy intended by the White House to curry favor with Latino voters. But with Missouri’s immigration laws as brilliantly clear examples of what can legally be done at the state level, doesn’t Gov. Brewer know she can avoid all the expense and tumult by simply enforcing SB 1070? So, I have to ask just who’s gaming whom? Is the Governor really that inept, clueless, weak-kneed and spineless? Like, just what is going on?
To me, it is clear that Arizona is wasting valuable resources defending itself in this matter. The state simply doesn’t need federal consent or cooperation to implement SB 1070. So, unless Gov. Brewer is playing politics with Arizona voters, she should get on with it and immediately enforce the law, anemic though it is. Case in point: also elected by the people, Sheriff Arpaio, a fellow Arizonan official, is dutifully enforcing immigration laws with absolute impunity. So why can’t the entire State of Arizona do so as well? Like, what will the Administration do? Invade? Not even they are that stupid or imperial—yet. And what can lefty Judge Bolton or the Ninth Circuit Court of Appeals do? Answer: NADA! Why? Because when a state asserts its constitutional rights, it invariably prevails. And on this notorious SB 1070 non-issue, who’s going to go to war over it? Certainly not the feds. They wouldn’t have a constitutional leg to stand on, and popular opinion would effectively checkmate the White House and its lawless judicial minions in any event. So, in the case of Arizona, a formal nullification process is simply not needed to get the job done and to stanch the needless bleeding.
Knowing that the White House will do nothing to jeopardize its standing with Latino voters, and absent Arizona taking the appropriate action, Arizonans can count on being continually victimized for a long time to come. But, if Arizonans are truly determined to protect themselves, they need to do just that and move on. Frankly, I’m wearying of the hand-wringing and needless melodrama. Arizona must simply do what it needs to do to protect its citizens. Wasting valuable time and resources on costly and unnecessary appeals is utterly nonsensical. Arizona should stop being the White House’s political football. If the Governor simply asserts Arizona’s rights, the whole charade, the Obama thuggery, will come to a screeching halt. And if Arizona needs donations to compensate for any loss in federal funding, or to pay for enforcement and/or the militia’s call-up, the Governor needs but to ask and millions from around the country will pour into Arizona’s coffers.
Finally, if you really want to resolve this issue, Governor, clarity of purpose, leadership, determination, principle, constitutional integrity, and political courage are all that is needed. Or is there something else going on you’re not telling us?