JUDICIAL ACTIVISM: Obstruction of Construction

JEFFERSON - versus Hamilton

by  Diane Rufino, September 21, 2017

In Honor of the 230th Anniversary of the US Constitution, and also to help promote Brion McClanahan’s latest book, HOW ALEXANDER HAMILTON SCREWED UP AMERICA, I wanted to post this important History Lesson —

The history surrounding the first Bank Bill (to charter a national bank), proposed to President Washington by his Secretary of the Treasury, Alexander Hamilton shows us exactly why the Federal Judiciary has become the greatest usurper of powers belonging to the States and to the People. It is an important lesson on constitutional interpretation.

Why is it important that we pay close attention to constitutional interpretation?  Because when the courts don’t bother to consult the proper original documents and commentary as authority on the meaning and intent of the provisions of the Constitution, and/or when they make the decision to disregard that history and that critical information (any student of contract laws knows the strict laws of construction that guide a contract’s interpretation), then any opinion in contradiction to that history and such commentary necessarily means that the judiciary has assumed power for the federal government that it was not intended to have. And where do those additional powers come from?  From the original depositories of government power, the People and then the States.

HISTORY –

In 1788, the US Constitution was adopted by the requisite number of states and hence, the government it created would go into effect. Later that year, elections were held, George Washington was elected our first president (and men like James Madison elected to the first US Congress), and the following year, 1789, the Union’s new government was assembled and inaugurated. One of the first decisions of the first Congress was to fund the debts that the individual states incurred in fighting the Revolutionary War. The question, of course, was how would it do that. Washington’s Treasury Secretary, Alexander Hamilton, long holding true to a belief that a large, powerful national government of centralized functions is the proper form of government for the new Union (although he conceded to the federal form that the majority of delegates at the Philadelphia Convention voted for), urged that Congress should charter a National Bank, after the British model. He took his suggestion to Washington and agreeing with Hamilton, a Bank Bill was introduced in Congress. But powerful state and government leaders, including Thomas Jefferson, Washington’s Secretary of State, James Madison, Congressman from Virginia, and several state leaders, particularly from Virginia, objected, characterizing such a bank as being “repugnant to the Constitution,” and assuming powers not expressly delegated to Congress in Article I. Washington then asked both Hamilton and Jefferson to provide him with memoranda outlining their arguments regarding the creation of such a National Bank.

(The Following section, as noted, is taken, in its entirety, from Kevin Gutzman’s book THOMAS JEFFERSON – REVOLUTIONARY (St. Martin’s Press, NY, 2017):

Jefferson began by describing the Bank Bill’s provisions, saying that he understood the underlying principle of the Constitution to be that “all 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.” (here is quoted the Tenth Amendment, which at the time lay before the state legislatures for their ratification).  Power to pass the bill had not been delegated to the United States, he insisted. It did not fall under the power to tax for the purpose of paying debts because the bill neither paid debts nor taxed. It did not fall under the power to borrow money because the bill neither borrowed nor ensured that there would be borrowing. It did not fall under the Commerce Clause for it did not regulate commerce. Jefferson understood ‘regulating commerce’ to mean “prescribing regulations for buying and selling,” which the Bank Bill did not do. If it did that, he continued, the bill “would be void” due to its equal effects on internal and external commerce of the states. “For the power given to Congress by the Constitution,” Jefferson continues, “does not extend to the internal regulation of the commerce of a State (that is to say of the commerce between citizen and citizen), which remain exclusively with its own legislature, but to its external commerce only; that is to say, its commerce with another State or with foreign nations or with the Indian tribes.”  No other enumerated power (Article I, Section 8) gave Congress ground for passing this bill either, he concluded.

Besides the enumerated powers, the General Welfare Clause and the Necessary and Proper Clause had also been invoked by the bill’s proponents. Jefferson disposed of those clauses deftly as well. First, the General Welfare Clause said that Congress had power “to lay taxes for the purpose of providing for the General Welfare (emphasis Jefferson’s). The reference to the general welfare, he insisted, was bound to the power to tax. It did not create a separate power “to do any act they please which might be for the good of the Union, which Jefferson thought the preceding and following enumerations of powers rendered entirely obvious. To read the General Welfare Clause any other way would make the enumerations “completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress to do whatever would be good for the United States, and as they would be the sole judges of the good or evil, it would also be a power to do whatever evil they please.”

Jefferson, the skilled lawyer that he was, noted that one of the most basic rules of construction (contract law) cut strongly in favor of his argument. That rule states that “where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless.” Besides that, the Philadelphia Convention had considered and expressly rejected a proposal to empower Congress to create corporations. The rejection, he noted, was based partly on the fact that with such a power, Congress would be able to create a bank.

As for the Necessary and Proper Clause, Jefferson noted that it said that the Congress could “make all laws necessary and proper for carrying into execution the enumerated powers. But they can all be carried into execution without a bank. A bank therefore is not necessary and consequently, not authorized by this phrase (emphasis Jefferson’s).”  The Bank Bill’s proponents had argued for the great convenience of having a bank, which might aid in exercising powers enumerated in the Constitution, but Jefferson would have none of the idea that “necessary” could be twisted to mean “convenient.”

Jefferson concluded his memorandum with a brief statement on the president’s veto power, which he called “the shield provided by the Constitution to protect against the invasions of the legislature: (1) The right of the Executive. (2) Of the Judiciary. (3) Of the States and State legislatures.”  To his mind, the Bank Bill presented “the case of a right remaining exclusively with the States” – that of chartering a corporation. Congress’ attempt to take this right to itself violated the Constitution and Washington should veto the bill.

Washington did not agree. Instead, perhaps on the basis of Hamilton’s argument that Congress could adopt whatever kind of legislation it judged helpful in supervising the national economy, he signed the Bank Bill.   [Gutzman, Thomas Jefferson – Revolutionary, pp. 40-42]

THE IMPACT –

When a subsequent Bank Bill was challenged by the state of Maryland, in McCulloch v. Maryland (1819), Chief Justice John Marshall would revisit the arguments submitted to President Washington and as expected, he would side with Hamilton. Hamilton’s position, after all, would give the federal government a broad pen with which to write legislation, in contrast to the limits imposed on it by the very wording of the Constitution and the listing of the only powers that the States had delegated to the federal government. McCulloch was another in a series of cases written by Marshall usurping powers from other depositories and concentrating them in the federal government. The Supreme Court, a branch of the very federal government that it presides over, has consistently used its powers not to interpret the Constitution and offer opinions to other branches, but rather to secure a monopoly over the scope and intent of the government’s powers.

Marshall’s opinion in McCulloch gave Congress power that the States intentionally tried to prevent; he read a meaning and intent in the Constitution, in Article I, that was expressly rejected by the States when they debated and then signed the document on September 17, 1787. Marshall’s reading of Article I, in particular the “Necessary and Proper” Clause, gave Congress power “to which no practical limit can be assigned,” as James Madison put it.

With McCulloch, the Supreme Court committed a grave injustice to the system established by our founding fathers and our founding states. Marshall’s opinion directly contradicted an essential element of the states’ understating of the Constitution when they ratified it, and that understanding was that the Constitution created a federal government of express and limited powers so that the residuary of government power would remain reserved to the states and hence the sovereignty they long cherished would not be overly diminished by organizing into a Union.

And the history of judicial activism continued and still does ….

 

Reference:  Kevin Gutzman, Thomas Jefferson – Revolutionary, St. Martin’s Press, NY (2017).

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TITAN v. TITAN: President Trump and the Federal Courts Face Off Over Temporary Travel Ban

trump-v-supreme-court-2

by Diane Rufino, February 6, 2017

On January 27, President Donald Trump issued an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” which provides a 90-day suspension of entry into the United States for individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen on account of their status as posing a heightened risk of terrorism. It was the US Congress, under President Barack Obama, which had assigned this status to those seven countries.

The Executive Order was issued after the President determined that “deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States,” and that our Nation accordingly must take additional steps “to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.” [see the text of the Executive Order]. Invoking his constitutional authority to control the entry of aliens into this country and congressionally-delegated authority to “suspend the entry of any class of aliens” whose entry “would be detrimental to the interests of the United States,” the President, by issuing the Executive Order, has directed a temporary 90-day suspension of entry for individuals from seven countries previously identified as posing a heightened risk of terrorism by Congress or the Executive Branch; a temporary 120-day suspension of the U.S. Refugee Admissions Program; and a suspension of entry of Syrian nationals as refugees until the President determines that measures are in place “to ensure that admission of Syrian refugees is consistent with the national interest.” Exec. Order §§ 3(c), (5)(a), (c).

Democrats and opposition groups have nicknamed the Executive Order “the Muslim travel ban.”

Two days ago, on February 4, a federal district judge in Seattle issued a ruling – a nationwide temporary restraining order (TRO), aka, an injunction – that temporarily blocks the Executive Order. The court order prevents the president’s Executive Order from going into effect and allows the immigration to move forward.

The State Department has agreed to abide by the ruling until it files an appeal. In the meantime, the judge’s decision allows tens of thousands of aliens from terrorist nations visas to travel to our country. The ruling came after Washington State Attorney General Bob Ferguson, filed a complaint challenging the constitutionality of the Executive Order’s key provisions. The TRO was issued by Seattle US District Judge James Robart pending a full review of Washington states’ complaint. In response to the decision, WA Attorney General Ferguson commented: “The Constitution prevailed today. No one is above the law—not even the president.”

Minnesota joined the suit with Washington and since the TRO was issued, seven other states have decided to join and challenge the “travel ban.” They want it overturned. These seven states include Washington, Virginia, Massachusetts, Hawaii, New York, Michigan, and California.

One day, earlier, however, another district court (Massachusetts) concluded in a thorough, well-reasoned opinion, the Executive Order is a lawful exercise of the political branches’ plenary control over the admission of aliens into the United States. Louhghalam v. Trump, Civ. No. 17-10154-NMG, Order 11 (D. Mass. Feb. 3, 2017)

This article will explain why the Executive Order and the temporary travel ban is legal and appropriate and why I think it will ultimately be upheld.

First, immigration is the sole responsibility of Congress (not of the States). The States expressly delegated such power to the federal Congress in Article I, Section 8: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States……  To establish a uniform rule of naturalization….”  (The Supremacy Clause ensures that the States respect the federal government as the sovereign on this issue). Under this authority, Congress passed the Immigration and Naturality Act of 1952 (codified at 8 USC Chapter 12) which lays out federal immigration law.  § 1182 of this Act concerns inadmissible aliens; it delegation to the President of the United States the power to suspend entry “for all aliens or any class of aliens as immigrants” or to “impose on the entry of aliens any restrictions he may deem to be appropriate.”

Second, the travel ban is a proper exercise of the President’s power to issue Executive Orders to force the government to enforce laws already on the books (such as the one discussed above), his war power as Commander-in-Chief (we are currently engaged in a War on Terror, as admitted so by our very own Congress and presidents), his Foreign Policy powers, and his National Security Powers.

I. The Executive Order and What It Says (and Doesn’t Say) –

The Executive Order, available on the White House website, reads:

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:

Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.

Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.

(a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.

(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.

(e ) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.

(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment. [The full text is provided in the Appendix below]

Section 217(a)(12) of INA, 8 USC 1187(a)(12), which is the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (and extended in 2016) and which is highlighted and italicized above in the text of the Executive Order, identifies seven countries which are excluded from the waiver program. These seven countries are Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. These countries were identified under the Act, by the Obama administration, because they present a heightened risk of terrorism and they cannot and do not provide proper information on its nationals so that the United States can vet those coming into our country. A different section of the Order refers to Syria specifically, because it calls for the indefinite suspension of Syrian refugee admissions, until such time as the President believes security concerns have been adequately addressed. The President’s Executive Order does not seek to make new law. Rather, it clarifies existing law and aligns it with national security concerns. The Executive Order addresses the basic requirement for an alien to enter and reside in the United States – a verifiable visa.

Under the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. §1101 et seq., an alien may not enter and permanently reside in the United States without a visa. See §1181(a). President Trump is using the visa requirement to introduce proper vetting measures as it relates to those coming in from countries previously identified as engaging in terrorism and being unable to provide adequate visas. Without proper visas, the government (and the innocent citizens of the United States) do not know what type of citizens they are getting and furthermore, will be unable to keep tabs on them. According the INA, visas must ensure that the individual seeking to move to the US is not inadmissible for a number of reasons, including that they innocent of terrorist activities. The seven countries covered by the Executive Order cannot ensure that its citizens meet our threshold. Hence, the president has issued a temporary ban for 90 days in order that proper assurances can be provided.

So, to be clear about the President’s Executive Order: It bars Syrian refugees indefinitely and blocks citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entry into the US for 90 days. The provisions of the Executive Order will force the State Department and Homeland Security to establish proper vetting procedures by the 90-day period (the temporary ban) for those countries so that authorities can keep the United States safe. The exact process by which the president seeks to establish proper vetting procedures is explained clearly in the Order.

Here is some background information on the Immigration and Nationality Act, to which the Visa Waiver Program Improvement and Terrorist Travel Prevent Act has been recently added:

The Immigration and Nationality Act (INA), as amended, prohibits admission into the United States of a foreign national not in possession of a valid visa, with a few limited exceptions. One such exception is the Visa Waiver Program (VWP or Program) which, for a number of years, was a pilot program (VWPP). That pilot program, which was first enacted in 1986, was designed to allow nationals from certain countries to enter the United States under limited conditions, for a short period of time, without first obtaining a visa from a U.S. consulate abroad. On October 30, 2000, President Clinton signed the Visa Waiver Permanent Program Act, making the program permanent. See Section 217. The VWP, administered by the Department of Homeland Security (DHS), in consultation with the State Department, utilizes a risk-based, multi-layered approach to detect and prevent terrorists, serious criminals, and other mala fide actors from traveling to the United States. This approach incorporates regular, national-level risk assessments concerning the impact of each program country’s participation in the VWP on U.S. national security and law enforcement interests. It also includes comprehensive vetting of individual VWP travelers prior to their departure for the United States, upon arrival at U.S. ports of entry, and during any subsequent air travel within the United States, among other things.

The VWP authorizes the Attorney General, in consultation with the Secretary of State, to waive the requirement of a valid nonimmigrant visa for visitors for business (B-1) or pleasure (B-2) who are seeking to enter the United States from certain countries for not more than 90 days. In 2003, 13.5 million visitors entered the United States under this Program, constituting almost one-half of all visitors that year. The main advocates of the VWPP were the Department of State (DOS), the American tourist industry, and the business community. DOS advanced a two-fold incentive for the program: (1) eliminating the requirement for nationals of high volume application, low denial rate countries to apply for nonimmigrant visitor and business visas at the consulates, thus also eliminating processing paperwork and freeing consular resources for other activities; and (2) fostering better relations with reciprocity countries that allow U.S. citizens to also enter without a visa. The U.S. tourist industry was enthusiastic in its support of the program, as it correctly envisioned that millions of tourists would take advantage of the opportunity to travel to the United States on the spur of the moment without the time-consuming inconvenience of having to obtain nonimmigrant visas in advance of travel. The business community also welcomed the idea that people could enter the United States on short notice to conduct business without first applying for a nonimmigrant visa.6 For the most part, while the VWPP had been enthusiastically received, the Program was also the subject of a critical report issued by the Justice Department’s Office of Inspector General. Testifying before a House subcommittee on May 5, 1999, the Inspector General noted that the Pilot Program could facilitate illegal entry because visitors from VWPP designated countries avoid the pre-screening that consular officers normally perform on visa applicants. It was also pointed out that some terrorists and criminals intercepted at the time of inspection were attempting to enter under the VWPP. Another problem, according to the Inspector General, was government employee corruption involving bribery and trafficking in fraudulent or blank passports and other documents.

At press time, 27 countries are designated participants They include Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, New Zealand, the Netherlands, Norway, Portugal, 18 San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. A small number of countries that were once designated VWP countries have been disqualified from the VWP. Belgium is currently in provisional status because of concerns about the integrity of its nonmachine-readable passports and issues associated with the reporting of lost or stolen passports. Qualifying countries are designated by the Attorney General, in consultation with the Secretary of State, based upon that country’s satisfaction of a number of requirements, including not issuing passports to persons who pose a threat to the welfare, health, safety, or security of the United States, having a low non-immigrant visa refusal rate for the two years prior to designation, and the status of the country as one that issues its citizens machine-readable passports (“MRP”) that satisfy the internationally accepted standard for machine readability.

Section 217(a)(12) provides that a visa will not be waived “from Iraq, Syria, or other country or area of concern.” Specifically, the section states that a visa will not be waived for any “alien who has been present, at any time on or after March 1, 2011, in Iraq or Syria, or any country designated by the Secretary of State or Secretary of Homeland Security [under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law], as a country whose government has repeatedly provided support of acts of international terrorism or has provided support of acts of international terrorism.” [https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-4391.html ]

II.  Constitutional Authority –

As mentioned earlier, immigration is a responsibility delegated to the federal government by the States. It was an express delegation for an express purpose – to “provide for the common defense.”  Together with the authority “to raise and support armies; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; and to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States (Article I, Section 8), Congress was vested with the authority “to establish a uniform rule of naturalization.” (also Article I, Section 8).  All of these objects, as explained in the first line of Section, comprise the federal government’s primary purpose – “to provide for the Common Defense.”

So, Article I of the US Constitution gives Congress the power to make all “necessary and proper” rules to legislate and define our nation’s immigration policy.  Because this authority was delegated from the States to the federal government, the federal government is sovereign on this topic; that is, its authority is supreme. The States of Washington and Minnesota may think it has the power to interfere with the government’s rightful role – to somehow claim that its interests supersede the federal government’s decision with respect to the nation as a whole, but it is the government which is given deference.

Article II of the US Constitution provides the president with his powers. Article II, Section 1 gives the President the authority to enforce the laws passed by Congress. The president, therefore, is tasked to make sure our immigration laws are enforced.  Article II, Section 2 gives the president additional powers over immigration – under his war powers.

Article II, Section 2 of the US Constitution reads: “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices….”  When the Congress voted almost unanimously to authorize military force to fight the war on terror (AMU of September 14, 2001), it was taken as a declaration of war. As soon as our country engaged in military action, and especially with a declaration of war, the president holds the title of Commander-in-chief and has, on top of his executive powers, vast war powers.

The President also has Foreign Policy powers and National Security powers. (The State Department and Homeland Security Departments are executive cabinet offices under his control).

III.  Statutory Authority –

The Immigration and Naturality Act of 1952, codified under Title 8 of the United States Code (8 U.S.C. Chapter 12), also known as the McCarran–Walter Act, restricts immigration into the United States. It expressly authorizes the president to suspend entry of all aliens or any class of aliens, or place any restrictions on their entry as he deems necessary or appropriate, whenever he finds that such aliens would be detrimental to the interests of the country. There isn’t even a requirement that the country be at war or involved in any particular conflict.  Congress knowingly, expressly, granted the President of the United States with plenary power to suspend or restrict aliens, or any class of aliens, into the country.

The Immigration and Naturality Act of 1952 was passed by a Democrat-controlled Congress, both House and Senate, and was signed by a Democrat president, Harry S. Truman.

8 U.S. Code § 1182 reads:

8 U.S. Code § 1182 – Inadmissible Aliens

(10) Miscellaneous

(f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

The provision gives presidents broad authority to ban individual immigrants or groups of immigrants. Presidents haven’t hesitated to use it.  In modern times, Barack Obama invoked it 19 times, Bill Clinton 12 times, George W. Bush six times and Ronald Reagan five times. George H.W. Bush invoked it once.

Indeed, throughout our history, there have been a number of instances in which the United States has curtailed or suspended the immigration of people from certain regions or nations, both during times of war and times of peace. In several circumstances, these laws have been upheld by the Supreme Court, confirming the power of the Federal Government to regulate immigration based on the national interest. The text of the Immigration and Nationality Act is clear – the President has broad discretion to keep certain people out of the United States.

Not long after the American colonies fought the British for their independence and then established the new union (“a more perfect union”; created by the adoption of the US Constitution), the French had their own revolution. (1789-1799). The Federalists, led by Washington and then John Adams, detested the French Revolution of 1789 (1789-1799) because it led to mob rule and confiscation of property. The Republicans, which represented a new party started by Thomas Jefferson to oppose the Federalists, supported the French Revolution for its democratic ideals.

The French and English were longtime enemies. So, when President Washington developed favorable relations with Great Britain (by negotiating a treaty to settle outstanding differences between it and the States), the French revolutionary leaders became angered. In the election of 1796, Federalist John Adams won the most electoral votes to become president. Republican Thomas Jefferson came in second, which made him vice-president. (The 12th Amendment later changed this election method, requiring separate electoral ballots for president and vice-president).  Shortly after becoming president, Adams sent diplomats to France to smooth over the bad feelings. But three French representatives – dubbed X, Y, and Z – met secretly with U.S. diplomats and demanded $10 million in bribes to the French government to begin negotiations. When the Americans refused, Mr. X threatened the United States with the “power and violence of France.”  News of the “XYZ Affair” enraged most Americans. Many Federalists immediately called for war against France while Republicans spoke out against the “war fever.”

Neither the United States nor France ever declared war. But the Federalists increasingly accused Jefferson and the Republicans of being a traitorous “French Party.” Rumors of a French invasion and enemy spies frightened many Americans. President Adams warned that foreign influence within the United States was dangerous and must be “exterminated.”

Amidst this climate, in 1798, President Adams signed the notorious Alien and Sedition Acts into law to help him deal with repercussions of the French Revolution and also the Quasi-War with France. The Acts, readily adopted by a Federalist-dominated Congress, were intended to make the United States more secure from alien (foreign) spies and domestic traitors. The acts allowed the president to imprison or deport aliens considered “dangerous to the peace and safety of the United States” at any time and any male citizen of a hostile nation during times of war. The two most notable of these acts were the Alien Enemies Act and the Alien Friends Act.

The Alien Enemies Act provided that once war had been declared, all male citizens of an enemy nation could be arrested, detained, and deported. If war had broken out, this act could have expelled many of the estimated 25,000 French citizens then living in the United States. But the country did not go to war, and the law was never used. It was later used, however, to justify FDR’s rounding up of Japanese-American citizens during World War II.

The Alien Friends Act authorized the president to deport any non-citizen suspected of plotting against the government during either wartime or peacetime. This law could have resulted in the mass expulsion of new immigrants. The act was limited to two years, but no alien was ever deported under it.

In 1882, President Chester A. Arthur signed the Chinese Exclusion Law, which prohibited the immigration of Chinese laborers. The Chinese Exclusion Act was a vital test for the power of the federal government to restrict immigration. It was upheld by the Supreme Court in the 1889 case of Chae Chan Ping v. United States. In the opinion of the court, Justice Stephen Johnson Field wrote, “The power of the government to exclude foreigners from the country whenever, in its judgment, the public interests require such exclusion, has been asserted in repeated instances, and never denied by the executive or legislative departments.”  (The act was repealed by Congress in 1943).

In his 1905 State of the Union address, President Theodore Roosevelt had spoken of the need “to keep out all immigrants who will not make good American citizens.” In 1906, in his State of the Union address to Congress, he said he needed to have the power to “deal radically and efficiently with polygamy.” The following year, Congress passed and Roosevelt signed into law the Immigration Act of 1907, which read (Section 2):

“The following classes of aliens shall be excluded from admission into the United States: “All idiots, imbeciles, feebleminded persons, epileptics, insane persons, and persons who have been insane within five years previous; persons who have had two or more attacks of insanity at any time previously; paupers; persons likely to become a public charge; professional beggars; persons afflicted with tuberculosis or with a loathsome or dangerous contagious disease; ….  “polygamists, or persons who admit their belief in the practice of polygamy……”

The Immigration Act of 1907 had been meant to select only those immigrants who would make good Americans.  It is interesting to note the phrase “polygamists or persons who admit their belief in the practice of polygamy.” (The Immigration Act of 1891 had merely banned polygamists). Muslims at that time were furious over the Immigration Act of 1907 specifically because of this phrase because, as they pointed out, that phrase would prohibit the entry of the “entire Mohammedan world” into the United States. Muslims believe in polygamy. They may not actively practice it, but every faithful Muslim believes in the practice; the religion allows it.

Unlike modern presidents, Roosevelt did not view Islam as a force for good. Rather, he had described Muslims as “enemies of civilization.”  He once wrote that, “The civilizations of Europe, America and Australia exist today at all only because of the victories of civilized man over the enemies of civilization,” praising Charles Martel and John Sobieski for throwing back the “Moslem conquerors.”

In 1917, Congress passed the Immigration Act of 1917 (aka, the Literacy Act or the Asiatic Barred Zone Act). In addition to barring “homosexuals”, “idiots”, “feeble-minded persons”, “criminals”, “epileptics”, “insane persons”, alcoholics, “professional beggars”, all persons “mentally or physically defective,” polygamists, anarchists, and people over the age of 16 who were illiterate, this act barred immigration from Southeast Asia, India, and the Middle East.

Presidential Proclamations 2525, 2526, and 2527 were signed by President Franklin D. Roosevelt shortly after the attack on Pearl Harbor. Citing the Alien and Sedition Acts as precedence, these proclamations restricted the entry and naturalization of Japanese, Germans, and Italians respectively. Later, FDR would bar entry into the US of the Jews who were seeking asylum from the genocidal Nazi regime.

During the Iranian hostage crisis in 1979, President Jimmy Carter issued a number of orders to put pressure on Iran. In particular, he issued a pair of orders:  One was an order for Iranian students to report to immigration offices in order to determine if they had violated the terms of their visa; if they had, they would be deported. The second was an order to end all future visas for Iranians and to stop issuing most new visas.  Carter ordered administration officials to “invalidate all visas issued to Iranian citizens for future entry into the United States, effective today. We will not reissue visas, nor will we issue new visas, except for compelling and proven humanitarian reasons or where the national interest of our own country requires. This directive will be interpreted very strictly.”

On December 12, 1979, a federal judge, Joyce Hens Green, initially ruled the order unconstitutional, but her ruling was reversed on appeal.  On Sept. 22, 1980, the Times, citing an Immigration and Naturalization Service spokesman, reported that by that date, nearly 60,000 students had registered as required, about 430 had been deported and 5,000 had left voluntarily.

In October 1985, President Ronald Reagan temporarily barred entry to officers or employees of the Cuban government or the Communist Party of Cuba who held diplomatic or official passports. Focused on stamping out communism, he also targeted officers of the Cuban-backed Nicaraguan government and the ruling Sandinista National Liberation Front.

As mentioned above, President George H. Bush used the provision (8 USC §1182) only once. His sole use of the provision followed a 1991 a coup in Haiti that spurred thousands of people to flee on rickety boats and head for the U.S. Hundreds died at sea, but many were rescued, overwhelming processing centers set up at the U.S. Naval Base at Guantanamo Bay, Cuba, and aboard Coast Guard cutters. Rather than allow Haitians to enter the United States and be screened, Bush issued an order “to enforce the suspension of the entry of undocumented aliens by sea and the interdiction of any covered vessel carrying such aliens,” allowing the U.S. to intercept the boats and send the migrants back.

President Obama turned to the provision more than any other recent president, using it to bar people who conducted certain transactions with North Korea, engaged in cyberattacks aimed at undermining democracy, or contributed to the destabilization of Libya, Burundi, Central African Republic or Ukraine. His broadest application of the law came in 2011, when he suspended entry of foreigners “who participate in serious human rights and humanitarian law violations and other abuses,” including “widespread or systemic violence against any civilian population” based on, among other factors, race, color, disability, language, religion, ethnicity, political opinion, national origin, sexual orientation or gender identity.  Obama has also used the law to block anybody involved in “grave human rights abuses by the governments of Iran and Syria…..”

President Bill Clinton used the law to block perpetrators in the ethnic conflicts that erupted in the former Yugoslavia in the 1990s, targeting people responsible for the repression of civilians in Kosovo, along with those obstructing democracy in Yugoslavia or lending support to the Yugoslav government and the Republic of Serbia. In 1994, he also suspended individuals and their immediate family members who were said to formulate, implement, or benefit from policies that impeded war-torn Liberia’s transition to democracy. Similar suspensions were imposed on conflict-ravaged Sierra Leone in 2000.

President George W. Bush temporarily barred foreign government officials who were responsible for failing to combat human trafficking. He also blocked those whose actions threatened Zimbabwe’s democratic institutions and transition to a multiparty democracy. Amid concerns that Syria was fomenting instability in Lebanon, Syrian and Lebanese officials deemed responsible for policies or actions that threatened Lebanon’s sovereignty were also barred from entering the U.S.

To re-cap, several US presidents have banned aliens and have, in fact, targeted certain aliens in particular. Chinese were banned by Chester A. Arthur (ethnic class). Teddy Roosevelt banned anarchists (political). FDR banned Jews and Jimmy Carter banned Iranians (because of the Embassy takeover). Ronald Reagan banned Cubans (ethnic class). Clinton banned junta members of Sierra Leone and Haiti (politics). George Bush banned government officials from Zimbabwe and Belarus (politics). Even Obama banned people from Iraq.

IV. Sovereignty –

“A country that can no longer say who can, and who cannot, come in is no longer sovereign. A government that can no longer control immigration is no longer a legitimate government.”

Sovereignty is an important concept and probably the one most ignored in this current debate on the Executive Order’s temporary travel ban (from aliens from terrorist nations).

Sovereignty refers to the authority of a state to govern itself and to make all necessary laws and policies for the benefit of its physical jurisdiction and for its citizens. It’s most critical function is to keep the state safe and secure and to ensure its continued existence as an independent state. In other words, its most important function is national security. Immigration is intimately tied to the function of national security.

National security is a concept that a government, along with its parliaments, should protect the state and its citizens against all kind of “national” crises through a variety of power projections, such as political power, diplomacy, economic power, military might, and so on.

The Heritage Foundation published an excellent overview of the responsibility of the federal government in providing national security. The article explains:

Those who have not done so recently would benefit from studying what the United States Constitution says about the federal government’s responsibility to provide for the common defense. Most Americans had to memorize the preamble to the Constitution when they were children, so they are aware that one of the purposes of the document was to “provide for the common defense.” But they are not aware of the extent to which the document shows the Founders’ concern for national security.

In brief, the Constitution says three things about the responsibility of the federal government for the national defense.

National defense is the priority job of the national government. Article I, Section 8 of the Constitution lists 17 separate powers that are granted to the Congress. Six of those powers deal exclusively with the national defense—far more than any other specific area of governance—and grant the full range of authorities necessary for establishing the defense of the nation as it was then understood. Congress is given specific authority to declare war, raise and support armies, provide for a navy, establish the rules for the operation of American military forces, organize and arm the militias of the states, and specify the conditions for converting the militias into national service.

Article II establishes the President as the government’s chief executive officer. Much of that Article relates to the method for choosing the President and sets forth the general executive powers of his office, such as the appointment and veto powers. The only substantive function of government specifically assigned to the President relates to national security and foreign policy, and the first such responsibility granted him is authority to command the military; he is the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

National defense is the only mandatory function of the national government. Most of the powers granted to Congress are permissive in nature. Congress is given certain authorities but not required by the Constitution to exercise them. For example, Article I, Section 8 gives Congress power to pass a bankruptcy code, but Congress actually did not enact bankruptcy laws until well into the 19th century. But the Constitution does require the federal government to protect the nation. Article 4, Section 4 states that the “United States shall guarantee to every State a republican form of government and shall protect each of them against invasion.” In other words, even if the federal government chose to exercise no other power, it must, under the Constitution, provide for the common defense.

National defense is exclusively the function of the national government. Under our Constitution, the states are generally sovereign, which means that the legitimate functions of government not specifically granted to the federal government are reserved to the states. But Article I, Section 10 does specifically prohibit the states, except with the consent of Congress, from keeping troops or warships in time of peace or engaging in war, the only exception being that states may act on their own if actually invaded. (This was necessary because, when the Constitution was written, primitive forms of communication and transportation meant that it could take weeks before Washington was even notified of an invasion.)

In discussing the topic of national security, it is important to understand some of the concepts that the term incorporates.

The first is the concept of power. It can best be defined as a nation’s possession of control of its sovereignty and destiny. It implies some degree of control of the extent to which outside forces can harm the country. Hard, or largely military, power is about control, while soft power is mainly about influence—trying to persuade others, using methods short of war, to do something.

Instruments of power exist along a spectrum, from using force on one end to diplomatic means of persuasion on the other. Such instruments include the armed forces; law enforcement and intelligence agencies; and various governmental agencies dedicated to bilateral and public diplomacy, foreign aid, and international financial controls. Variables of power include military strength, economic capacity, the will of the government and people to use power, and the degree to which legitimacy—either in the eyes of the people or in the eyes of other nations or international organizations—affects how power is wielded. The measure of power depends not only on hard facts, but also on perceptions of will and reputation.

Another term to understand properly is military strength. This term refers to military capacity and the capabilities of the armed forces, and it is a capacity that may not actually be used. It often is understood as a static measure of the power of a country, but in reality, military strength is a variable that is subject to all sorts of factors, including the relative strength of opponents, the degree to which it is used effectively, or whether it is even used at all.

Force is the use of a military or law enforcement capacity to achieve some objective. It is the actual use of strength and should not be equated with either strength or power per se. Using force unwisely or unsuccessfully can diminish one’s power and strength. By the same token, using it effectively can enhance power. Force is an instrument of power just as a tool or some other device would be, but unlike institutional instruments like the armed forces, its use in action is what distinguishes it from static instruments of strength like military capacity. Thus, force should be understood narrowly as an applied instrument of coercion.

Finally, there is national defense. Strictly speaking, this refers to the ability of the armed forces to defend the sovereignty of the nation and the lives of its people; however, since the attacks of September 11, 2001, the mission of homeland security—using domestic as well as military instruments to defend the nation from terrorist and other attacks either inside or outside the country—has come to be understood as an element of national defense.

V. The War on Terror and the President as Commander-in-Chief –

On September 11, 2001, 19 militants associated with the Islamic extremist group al-Qaeda hijacked four airliners and carried out suicide attacks against targets in the United States. Two of the planes were flown into the towers of the World Trade Center in New York City, a third plane hit the Pentagon just outside Washington, D.C., and the fourth plane crashed in a field in Pennsylvania. Over 3,000 people were killed horrifically, including more than 400 police officers and firefighters. The Twin Towers collapsed, several surrounding buildings collapsed as well, and one section of the Pentagon was destroyed. Just like the attack on Pearl Harbor, it was a day that will live in infamy. It will continue to define certain human beings, certain groups, a fanatic religious ideology as pure evil.

[Osama bin Laden would issue a “Letter to America” in November 2002, explicitly stating that al-Qaeda’s motives for their attacks included: US support of Israel, support for the “attacks against Muslims” in Somalia, support of Philippines against Muslims in the Moro conflict, support for Israeli “aggression” against Muslims in Lebanon, support of Russian “atrocities against Muslims” in Chechnya, pro-American governments in the Middle East (who “act as your agents”) being against Muslim interests, support of Indian “oppression against Muslims” in Kashmir, the presence of U.S. troops in Saudi Arabia, and sanctions against Iraq].

As the dust barely settled in lower Manhattan on 9/11. President Bush addressed the American people and the world. He said: “Today, our fellow citizens, our way of life, our very freedom came under attack in a series of deliberate and deadly terrorist acts. The victims were in airplanes or in their offices — secretaries, businessmen and women, military and federal workers. Moms and dads. Friends and neighbors. Thousands of lives were suddenly ended by evil, despicable acts of terror. The pictures of airplanes flying into buildings, fires burning, huge structures collapsing, have filled us with disbelief, terrible sadness and a quiet, unyielding anger. These acts of mass murder were intended to frighten our nation into chaos and retreat. But they have failed. Our country is strong. A great people has been moved to defend a great nation. Today, our nation saw evil, the very worst of human nature, and we responded with the best of America, with the daring of our rescue workers, with the caring for strangers and neighbors who came to give blood and help in any way they could. The search is underway for those who are behind these evil acts. I’ve directed the full resources for our intelligence and law enforcement communities to find those responsible and bring them to justice. We will make no distinction between the terrorists who committed these acts and those who harbor them.”

In the months that followed, the US learned just how barbaric the attackers are. On January 23, 2002, Daniel Pearl, a reporter with the Wall Street Journal, left his apartment in Karachi, Pakistan for an interview. He had temporarily set up a residence in Karachi to report on America’s War on Terror. He was following a lead. He would never return that day. He was kidnapped and beheaded, with the captors turning over a 3-minute videotape of his grisly demise. President Bush watched the video. After the severed Pearl’s head, they cut up his body into ten pieces and put it into the shopping bags. They walked around with the bags to find a place to bury them, until they finally dug a hole just outside the building where he was killed. The floor of the room was then washed and they held sunset prayer there.

Months later, the US would articulate a new national security policy which would become known as the Bush Doctrine. The Bush doctrine signaled a radical break from previous national security strategies and fundamentally changed the way the US would act toward the rest of the world; the era of deterrence and containment was over. Deterrence and containment defined US policy at the end of 1945 and into the Cold War. The Bush Doctrine, defined in the positional paper “The National Security Strategy of the United States,” which was written by President Bush and the State Department (September 2002), was the answer to terrorism. As outlined in this paper, post-9/11 US foreign policy rests on three main pillars: a doctrine of unrivaled military supremacy, the concept of preemptive or preventive war, and a willingness to act unilaterally if multilateral cooperation cannot be achieved. President Bush argued that the new policy was necessary to prevent the proliferation of weapons of mass destruction among rogue states and terrorist groups. The policy of deterrence, he maintained, was no longer sufficient to prevent a rogue nation or terrorist organization from using nuclear, chemical, or biological weapons. He explained: “Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first. Traditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocents; whose so-called soldiers seek martyrdom in death and whose most potent protection is statelessness.”

On Sept. 14, 2001, the U.S. Congress in effect declared war when it passed the Authorization for Use of Military Force (AUMF) as a joint resolution. The vote was overwhelmingly one-sided. In the House, the vote was 420 Ayes, 1 Nay, and 10 Not Voting. In the Senate, the vote was 98 Ayes, 0 Nays, and 2 Present/Not Voting. Rep. Barbara Lee was the nay vote in the House.

The War Powers Resolution of 1973 requires the president of the United States to notify Congress within 48 hours of ordering US armed forces for a military operation overseas. Those forces cannot operate in a deployed status for more than 60 days. Combat military operations lasting longer than that time frame require a congressional Declaration of War OR an Authorization for the Use of Military Force. Bush almost unanimously got that AUMF from Congress in 2001 when he declared the war on terrorism.

The 2001 AUMF passed by Congress in the wake of the September 11 attacks authorized the President to use force, if necessary, to seek retribution (seek justice) for the attacks on 9/11. Specifically, the AUMF states: “The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” In other words, with the AUMF, the President has been given a free hand in conducting the War on Terrorism and also in identifying the “enemy” or “enemies.” All he has to do his tie a person to an “organization” such as al-Qaeda and make a case that the person in some way “aided” the terrorists or will pose a threat by possibly or potentially engaging in future terrorist acts. [Note: There is no exception made for American citizens. There is no distinction between persons on American soil or in other countries].

The AUMF is the legal justification for the War on Terrorism. It authorizes military operations on a broad scope and in ways to be determined by the President. It elevates the president to Commander-in-chief. It has been used as the legal justification for American military action against al-Qaeda terrorists anywhere in the world, and as the legal justification for the continuing War on Terrorism. It is inconceivable that a court, let alone the highest court in the land – the Supreme Court, would overturn the power to declare war that is vested in the Congress. Congress alone has the power to declare war. It is a power explicitly and expressly delegated to the Congress in Article I of the US Constitution. Article I, Section 8, Clause 11, sometimes referred to as the War Powers Clause, vests in the Congress the power to declare war, in the following wording: “The Congress shall have Power…. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Congress need not know the details of the war or how the President intends to “command” the war effort; the details do not necessarily limit the declaration of war. It is the declaration or the Authorization for Use of Military Force that establishes that the country is at war. A government during peacetime is much different from a government in time of war. [See Federalist No. 45, written by James Madison]

Congress controls the decision to wage war in another way. It provides the funding. Congress funds the war. And without fail, Congress has provided funding for the War on Terror since 2001. Again, once the country is at war, the president assumes almost plenary war powers (consistent with the Constitution, of course) and the nation goes into self-preservation and survival mode. In 2002, President Bush asked Congress for a separate Authorization for the Use of Military Force (AUMF) for the Iraqi War, which he received.

In 2012, Congress passed the National Defense Authorization Act, which, like other versions of the bill before it, specified the budget and expenditures of the US Dept. of Defense. A version of the bill had passed for 55 years. However, this bill was a bit different. It contained provisions that many found extremely troubling.

The most controversial provisions were contained in subsections 1021–1022 of Title X, Subtitle D, entitled “Counter-Terrorism,” which declared that the “battlefield” in the War on Terror also included the United States itself. It authorized the indefinite military detention of persons the government suspects of involvement in terrorism, including US citizens (termed “belligerents”) arrested on American soil.

Section 1021 of the NDAA reads:

SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

With the NDAA, which has been re-upped for fiscal year 2017, we see the president enlarging his war powers. We see that he acknowledges that the war on terror has already come to our homeland.

In 2014, ISIS (The Islamic State) was gaining power and President Obama lacked a strategy to deal with it. At the end of the year, House Speaker John Boehner advised: “I would urge the president to submit a new Authorization for Use of Military Force (AUMF) regarding our efforts to defeat and to destroy ISIL.” In that demand, Boehner was echoing constitutional scholar and then-presidential hopeful, Senator Ted Cruz and strict constitutionalist Rand Paul. Senator Cruz asserted that “initiating new military hostilities in a sustained basis in Iraq obligates the president to go back to Congress and to make the case to seek congressional authorization” and Senator Rand Paul said, “I believe the President must come to Congress to begin a war and that Congress has a duty to act. Right now, this war is illegal until Congress acts pursuant to the Constitution and authorizes it.” And so, in February 2015, President Obama asked Congress for that authorization. The US had already been bombing ISIS for six months. Ignoring the advice of Boehner, Cruz, and Paul, the White House claimed it already enjoyed the legal right to wage war under the 2001 AUMF and thus didn’t need the new authorization. But still, the White House went ahead and asked. It’s proposed AUMF would authorize force against ISIS, but only for three years. Congress never granted that AUMF, but it did go ahead and fund military actions.

Again, we note that the War on Terror is enlarging and in fact, as we learn from the events unfolding in the Middle East, the terrorist network is organizing, gaining power, and poised take over several regions. We see and that the United States is still very much determined to contain the growing evil that threatens the freedom and security of her citizens and of the world.

VI. The Korematsu v. United States decision (1944) –

The Korematsu case famously addresses the constitutionality of Japanese internment in the wake of the attack on Pearl Harbor by the empire of Japan. It addressed the war powers of Congress and the war powers of the President, as Commander-in-chief. The opinion, written by justice Hugo Black, held that the need to protect against espionage outweighed Fred Korematsu’s individual rights, and the rights of Americans of Japanese descent, and that the validity of action under the war power must be judged wholly in the context of war. He argued that compulsory exclusion, though constitutionally suspect, is justified during circumstances of “emergency and peril.”

The case upheld a law excluding certain Americans (American citizens, to be clear) from areas in the United States on account of national security. It found that although there was discrimination on account of nationality, which would subject that law to the most stringent of judicial scrutiny, the policy survived that scrutiny because national security required it.

We cannot forget that our country suffered an attack perhaps more horrific than Pearl Harbor on 9/11, as ordinary citizens were targeted in skyscrapers rather than military personnel. And although President Bush and his Homeland Security Department managed to keep us safe in our homeland during his two terms, President Obama and his Homeland Security team could not. In fact, as the world seemed to explode in Islamic attacks, so did our country. It seems quite clear to most people that terrorism is on the rise and that we need to ramp up both our offense and defense in this War on Terrorism.

The opinion of the Court, as delivered by Justice Hugo Black (appointed by FDR):

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a “Military Area,” contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that, after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner’s loyalty to the United States. The Circuit Court of Appeals affirmed, and the importance of the constitutional question involved caused us to grant certiorari.

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

In the instant case, prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, which provides that:

…..whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.

Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed.Reg. 1407. That order, issued after we were at war with Japan, declared that “the successful prosecution of the war requires every possible protection against espionage and against sabotage to national defense material, national defense premises, and national defense utilities….”

One of the series of orders and proclamations, a curfew order, which, like the exclusion order here, was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a “protection against espionage and against sabotage.” In Hirabayashi v. United States, 320 U.S. 81 (1943), we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.

The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities, and of the President, as Commander in Chief of the Army, and, finally, that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

In the light of the principles, we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did.True, exclusion from the area in which one’s home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.

In this case, the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that, by May, 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions, we are compelled to reject them.

Here, as in the Hirabayashi case:

….. we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that, in a critical hour, such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety which demanded that prompt and adequate measures be taken to guard against it.

Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was, for the same reason, a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.

We uphold the exclusion order as of the time it was made and when the petitioner violated it. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities, as well as its privileges, and, in time of war, the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

It is argued that, on May 30, 1942, the date the petitioner was charged with remaining in the prohibited area, there were conflicting orders outstanding, forbidding him both to leave the area and to remain there. Of course, a person cannot be convicted for doing the very thing which it is a crime to fail to do. But the outstanding orders here contained no such contradictory commands.

There was an order issued March 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time “until and to the extent that a future proclamation or order should so permit or direct.” 7 Fed.Reg. 2601. That “future order,” the one for violation of which petitioner was convicted, was issued May 3, 1942, and it did “direct” exclusion from the area of all persons of Japanese ancestry before 12 o’clock noon, May 9; furthermore, it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21, 1942, Act of Congress. Consequently, the only order in effect touching the petitioner’s being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order which he stipulated in his trial that he had violated, knowing of its existence. There is therefore no basis for the argument that, on May 30, 1942, he was subject to punishment, under the March 27 and May 3 orders, whether he remained in or left the area.

It does appear, however, that, on May 9, the effective date of the exclusion order, the military authorities had already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry at central points, designated as “assembly centers,” in order to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1, to restrict and regulate such migration.

Public Proclamation No. 4, 7 Fed.Reg. 2601. And on May 19, 1942, eleven days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order No. 1, 8 Fed.Reg. 982, provided for detention of those of Japanese ancestry in assembly or relocation centers. It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. The contention is that we must treat these separate orders as one and inseparable; that, for this reason, if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty, the exclusion order and his conviction under it cannot stand.

We are thus being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner’s remaining in the prohibited area in violation of the exclusion order. Had petitioner here left the prohibited area and gone to an assembly center, we cannot say, either as a matter of fact or law, that his presence in that center would have resulted in his detention in a relocation center. Some who did report to the assembly center were not sent to relocation centers, but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different problems, and may be governed by different principles. The lawfulness of one does not necessarily determine the lawfulness of the others. This is made clear when we analyze the requirements of the separate provisions of the separate orders. These separate requirements were that those of Japanese ancestry (1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) go under military control to a relocation center, there to remain for an indeterminate period until released conditionally or unconditionally by the military authorities. Each of these requirements, it will be noted, imposed distinct duties in connection with the separate steps in a complete evacuation program. Had Congress directly incorporated into one Act the language of these separate orders, and provided sanctions for their violations, disobedience of any one would have constituted a separate offense. There is no reason why violations of these orders, insofar as they were promulgated pursuant to Congressional enactment, should not be treated as separate offenses.

Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion Order No. 34, Korematsu was under compulsion to leave the area not as he would choose, but via an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint, whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid.

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that, at that time, these actions were unjustified.

Justice Felix Frankfurter concurred in the opinion. He wrote: The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is “the power to wage war successfully.” Hirabayashi v. United States. Therefore, the validity of action under the war power must be judged wholly in the context of war.

The Korematsu decision has not been overturned. It is still good precedent.

While there are some who think Korematsu was a bad decision, Supreme Court great William Rehnquist thinks differently. In his 1998 book All the Laws But One – Civil Liberties in Wartime, he wrote: “An entirely separate and important philosophical question is whether occasional presidential excesses and judicial restraint in wartime are desirable or undesirable. In one sense, this question is very largely academic. There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors.”

VI. Kerry v. Din (2015) —

The Kerry v. Din case is a recent case which speaks to the rights that foreign nationals are entitled to with respect to coming to the United States, and particularly when they come from a country that has a history of terrorism. If a person believes he or she has a right to something, such as “Life, Liberty, or Property,” then a violation of such, including imprisonment, confiscation, condemnation, a denial of an essential liberty right, triggers Due Process rights (that is, a process to challenge that denial under our constitution). When Due Process is violated, then there is potential Due Process violation, challengeable under the 5th amendment or 14th amendment (depending whether the denial is by the federal government or the state, respectively). In Kerry, the Supreme Court held: “No Due Process is owed when these interests are not at stake.” A foreign national (non-US citizen, not living in the US) is not entitled to a Due Process challenge because he has no rights that are respected by the US Constitution. Furthermore, he has no standing to bring suit in the United States for such a violation.

The case concerns a US citizen who married a citizen and resident of Afghanistan (that is, citizen of the latter). Fauzia Din, who is a United States citizen, filed a visa petition for her husband Kanishka Berashk, a citizen and resident of Afghanistan. She wanted to bring him to the United States. Nine months later, the State Department denied the petition based on a broad provision of the Immigration and Nationality Act that excludes aliens on terrorism-related grounds. Berashk asked for clarification of the visa denial and was told that it is not possible for the Embassy to provide him with a detailed explanation of the reasons for denial.

After several other unsuccessful attempts to receive explanation of the visa denial, Din sued and argued that denying notice for aliens who were not granted a visa based on terrorism grounds is unconstitutional. The federal district court held that Din did not have standing to challenge the visa denial notice. The US Court of Appeals for the Ninth Circuit reversed and held that the government is required to give notice of reasons for visa denial based on terrorism grounds. The Ninth Circuit held two things: (1) that a U.S. citizen has a protected liberty interest in her marriage that entitled her to review of the denial of a visa to her non-U.S.-citizen spouse, and (2) that the US government deprived her of that liberty interest when it denied the spouse’s visa application without providing a more detailed explanation of its reasons.

The case was appealed to the Supreme Court in 2013 and was decided in 2015. The question presented was this: “Is the government required to give a detailed explanation for denying an alien’s visa based on terrorism-related ground under the Immigration and Nationality Act?”

In a 5-4 decision for Kerry, delivered by the late Justice Antonin Scalia, the Supreme Court held that Mrs. Din was not deprived of any constitutional rights in the due process of law by denying a full explanation of why an alien’s visa was denied. The Due Process Clause of the Fifth Amendment states that no citizen may be deprived of “life, liberty, or property” without due process, but judicial precedent has held that no due process is owed when these interests are not at stake. Because none of these interests are implicated in the denial of a nonresident alien’s visa application, there is no denial of due process when the visa application is rejected without explanation. Although “liberty” has been construed to refer to fundamental rights, there is no precedent that supports the contention that the right to live with one’s spouse is such a fundamental right.

The Court agreed with Secretary John Kerry (State Department) that the U.S. has never recognized a liberty interest in having a citizen’s alien spouse admitted to the U.S, and that Congress has plenary power to deny admission. As Scalia wrote: “Neither Din’s right to live with her spouse nor her right to live within this country is implicated here. There is a “simple distinction between government action that directly affects a citizen’s legal rights, or imposes a direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally.” The Government has not refused to recognize Din’s marriage to Berashk, and Din remains free to live with her husband anywhere in the world that both individuals are permitted to reside. And the Government has not expelled Din from the country. It has simply determined that Kanishka Berashk engaged in terrorist activities within the meaning of the Immigration and Nationality Act, and has therefore denied him admission into the country.”

The Court further analyzed whether procedural due process requires consular officials to give notice of reasons for denying a visa application. In Justice Anthony Kennedy’s concurring opinion, he wrote: “Notice requirements do not apply when, as in this case, a visa application is denied due to terrorism or national security concerns.” Because the consular officials satisfied notice requirements, there was no need for the Court to address the constitutional question about the right to live with one’s spouse. Furthermore, Kennedy reasoned that because the decision was made based on a “facially legitimate and bona fide reason,” the courts need not look any further, especially when national security is involved. He wrote that notice requirements “do not apply when, as in this case, a visa application is denied due to terrorism or national security concerns.”

VIII. No Discrimination –

The Left and the media has been misrepresenting President Trump’s Executive Order on immigration and refugee admission as a “Muslim ban” – or, more cleverly, a ban on immigration from “Muslim-majority countries.” In truth, the ban applies to everyone from the countries of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – Muslim, Christian, whatever. In fact, one of the first families caught at the airport when the executive order went into effect was a Christian family from Syria.

These seven nations were not chosen at random. They were all singled out as exceptional security risks in the Terrorist Prevention Act of 2015 and its 2016 extension. In fact, President Trump’s order does not even name the seven countries. It merely refers to the sections of U.S. Code that were changed by the Terrorist Prevention Act, signed by President Obama in 2015 and then extended in 2016.

The list of seven nations which was compiled by Obama’s Department of Homeland Security, actually goes back to Obama’s first term, around 2011. Obama made this list, not Donald Trump, and there was very little resistance from congressional Democrats at any step in the process singling out these countries for the potential danger they pose (or for the inability to provide adequate information on their citizens). And that speaks volumes. There was no resistance because the list was perfectly sensible.

Again, on its face, the Executive Order is neutral. Only the Left reads discrimination into it. Only the Left puts the concerns and rights of non-citizens above those of citizens.

But even if the travel ban were discriminatory, the Supreme Court, in Korematsu, explained how we assess its constitutionality or lack thereof. Justice Black wrote: “It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” In other words, the burden on civil liberties is to be balanced with the public necessity. The burden may also be balanced with the severity of the threat to national security. In short, we have to ensure that government strikes the proper balance between liberty and security, with the greater weight placed properly. A nation devoted to the liberties of its citizens can only live up to those promises as long as it continues to exist. If the nation is cannibalized by the very freedoms that it seeks to protect so that its very existence is threatened, then no one’s rights are secure. Liberty no longer has a safe haven.

If we were to balance the burden on civil liberties by the burden placed on non-citizens (who arguably have no entitlement or right to come here to the United States), in the balancing test outlined by the Supreme Court (aka, “strict scrutiny”), we would need to balance that burden by the need to protect our country and its citizens from the violent attacks that are occurring, and occurring at a greatly increased frequency, by persons of one particular religious sect (or ideology). By all accounts, those seeking to do harm to us (“Death to America!”) will seek to slip into the country through the refugee and relocation programs. We then need to evaluate that burden and ask if it is reasonable and whether there are other less burdensome policies to achieve the same result. Is a 90-day temporary ban reasonable? Is it reasonable to require those seven countries listed in the Executive Order to comply with a request from our State Department and Homeland Security Department to provide reliable and verifiable information on its nationals so that the United States can properly assess and vet these individuals for entry into our cities and communities?

We are not talking about the issue of whether non-citizens living in the United States should be recognized with similar rights as citizens (minus the right to vote and hold office). We are talking about the right to come here in the first place. The “right” of a foreigner to come here necessarily burdens the right of the government to control immigration and set policy for national security.

IX. No Right to Come Here —

It is settled jurisprudence that an unadmitted, non-resident alien has no right of entry into the United States and cannot challenge his denial of his visa application. In other words, he has no protections under our Constitution and no right to use it for purposes to sue. Simply put, he has no standing. [Kleindienst v. Mandel, 408 U.S. 753, cited on pg. 762 (1972)]

The decision of the Supreme Court in Kleindienst was delivered by Justice Harry Blackmun. In that decision, the Court noted Congress’ longstanding power to exclude aliens from the United States, and to set the terms and conditions of their entry. Through the Immigration and Nationality Act, Congress legitimately delegated to the executive the authority to waive a finding of inadmissibility. He described the historical pattern of increasing federal control on the admissibility of aliens, particularly regarding individuals with Communist affiliation or views. Justice Blackmun held that the Court would not intervene so long as the executive used its waiver power on the basis of a facially legitimate and bona fide reason. “In the exercise of Congress’ plenary power to exclude aliens or prescribe the conditions for their entry into this country, Congress in § 212(a)(28) of the Act has delegated conditional exercise of this power to the Executive Branch. When, as in this case, the Attorney General decides for a legitimate and bona fide reason not to waive the statutory exclusion of an alien, courts will not look behind his decision or weigh it against the First Amendment interests of those who would personally communicate with the alien.” At pp. 761-770.].

X. Standing –

The states of Washington and Minnesota alleged that it had standing to challenge the validity of President Trump’s Executive Order, claiming it would suffer irreparable injury. It alleged that the order was directed at the Muslim religion, that there have been no terrorist attacks in the United States from any persons from the countries listed in the ban which would make the religious targeting unconstitutional, and that to block Muslims from entering Washington would cause it irreparable injury. To be clear, the focus of the states’ legal challenge was the way the president’s Executive Order targeted Islam.

Michelle Bennett, lawyer for the federal government, criticized the judge’s issuing the TRO, claiming the states of Washington and Minnesota lack standing. She argues that the states can’t sue on behalf of citizens and the states and also questions the rationale for their particular claim that the ban would cause irreparable injury

What is “standing”?

“Standing” is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. In law, “standing” is the legal right to bring a lawsuit to court. Usually, it requires that the plaintiff, or the person who brings the case, has either been affected by the events in the case or will be imminently affected or harmed if the court does not address the problem. Standing is also affected by state or federal laws that apply to the events in the case, since some laws do not allow injured plaintiffs to sue certain defendants even if the plaintiff can demonstrate that she was injured by the defendant’s actions.

A plaintiff usually demonstrates that she has standing by including the following elements in her Complaint, which is the document that opens a lawsuit in court and gives the defendant some idea of what he’s being sued for. In order to show standing, most courts require the plaintiff to mention the following three things in the Complaint:

(i) Injury: The plaintiff must show either that she has been injured in a particular way or will be injured in a particular way if the court does not act to prevent it (this is the basis of many requests for injunctions). The injury can be physical, mental/emotional, financial, or an injury to one of the plaintiff’s civil rights, as long as it is a specific injury.
(ii) Causation: The plaintiff must show there’s some connection between the injury and the defendant’s actions or planned actions. In a Complaint, causation is usually shown by a single sentence linking the defendant’s acts to the plaintiff’s injury. Complicated questions involving cause in fact or proximate cause are usually saved for trial.
(iii) Addressability: The situation has to be one the court can fix in some way, whether it’s by issuing an injunction, ordering the defendant to pay damages, or by some other particular method.

In order to keep lawsuits focused on a plaintiff who was actually injured and a defendant who may be responsible, U.S. courts have, over the years, limited the kinds of cases a plaintiff has standing to bring.

Currently, a plaintiff does not have standing if any of the following are true:

(i) The plaintiff is a third party who was not injured herself, but is suing on behalf of someone who was injured. Exceptions to this rule include parents who sue on behalf of their injured children and legally-appointed guardians who sue on behalf of their wards. Courts have also allowed organizations to sue on behalf of their members in a few cases where it was obvious that all the members faced the same injury.
(ii) The plaintiff tries to sue on behalf of some large, unidentified group who may or may not be injured. Often called “taxpayer standing,” this rule prevents cases in which one plaintiff attempts to sue the government on the grounds that the plaintiff, a taxpayer, doesn’t like what the government is doing with tax revenues. So far, the only exception to this rule has been certain cases brought under the First Amendment Establishment Clause to prevent the government from funneling taxpayer dollars to particular religious institutions.

(iii) The plaintiff is not in the “zone of interest” or “zone of injury.” In other words, the plaintiff is not the kind of person a particular law was designed to protect, and/or the plaintiff is not the kind of person that lawmakers expected to be injured if they did not enact the law. For instance, a plaintiff who has severe dog allergies does not have standing to sue a dog owner for failing to license her dog, since “severe allergy attacks” were not the kind of injury the dog license law was designed to prevent, and “people with severe dog allergies” were not the kind of people the law is designed to protect. (A severe allergy sufferer may, however, have standing to sue a neighbor dog owner for nuisance or even assault if, for instance, the neighbor encourages the dog to approach the allergic plaintiff even though the neighbor knows this will make the plaintiff very ill and might even cause death.)

The state of Washington (and then Minnesota would join in) asserted it had standing to bring the challenge by claiming that the Order would “adversely affect the States’ residents in areas of employment, education, business, family relations, and freedom to travel,” and that these harms “extend to the States by virtue of their roles as parens patriae of the residents living within their borders.” Furthermore, the states claimed that they would be harmed by virtue of the damage that implementation of the Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. They claimed the harm is significant and ongoing. Judge Robart agreed with the states’ position.

In issuing the Temporary Restraining Order, Judge Robart wrote: “It is an interesting question in regards to the standing of the states to bring this action. I’m sure the one item that all counsel would agree on is that the standing law is a little murky. I find, however, that the state does have standing in regards to this matter, and therefore they are properly here. And I probed with both counsel my reasons for finding that, which have to do with direct, immediate harm going to the states, as institutions, in addition to harm to their citizens, which they are not able to represent as directly.”

On the same day that Judge Robart issued the TRO (February 4), the government submitted an Emergency Motion to the Court of Appeals for the Ninth Circuit requesting that the injunction (or TRO) to be vacated.

The government’s position is that the states of Washington and Minnesota lack standing and that they failed to make a legitimate showing of standing in their motion for the TRO. In its Emergency Motion to the Court of Appeals for the Ninth Circuit, the government asserted:

“The district court reasoned that the Washington has Article III standing because the Order “adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel,” and that these harms “extend to the States by virtue of their roles as parens patriae of the residents living within their borders.” But a State cannot bring a parens patriae action against federal defendants. In dismissing Massachusetts’ challenge to a federal statute designed to “protect the health of mothers and infants” in Massachusetts v. Mellon, the Supreme Court explained that “it is no part of a State’s duty or power to enforce [its citizens’] rights in respect of their relations with the federal government.” 262 U.S. 447, 478, 485-86 (1923); South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). The district court also reasoned that “the States themselves are harmed by virtue of the damage that implementation of the Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds.” These attenuated and speculative alleged harms are neither concrete nor particularized. With respect to Washington’s public universities, most if not all of the students and faculty members the State identifies are not prohibited from entering the United States, and others’ alleged difficulties are hypothetical or speculative.

That is particularly true given the Order’s waiver authority. See Executive Order §§ 3(g), 5(e). Furthermore, any assertion of harm to the universities’ reputations and ability to attract students is insufficiently concrete for standing. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). And although Washington suggested that the Order might affect its recruitment efforts and child welfare system, it conceded that it could not identify any currently affected state employees, nor any actual impact on its child welfare system.

Washington’s contentions regarding its tax base and public funds are equally flawed. See Florida v. Mellon, 273 U.S. 12, 17-18 (1927) (finding no standing based on Florida’s allegation that challenged law would diminish tax base); see also, e.g., Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985). Nor does Washington have any “legally protected interest,” Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 134 (2011), in the grant or denial of entry to an alien outside the United States. The INA’s carefully reticulated scheme provides for judicial review only at the behest of an alien adversely affected, and even then only if the alien is subject to removal proceedings, see 8 U.S.C. § 1252.

Under longstanding principles exemplified by the doctrine of consular non-reviewability, an alien abroad cannot obtain judicial review of the denial of a visa (or his failure to be admitted as a refugee). Brownell v. Tom We Shung, 352 U.S. 180, 184 (1956). It follows that a third party, like Washington, has no “judicially cognizable interest,” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), in such a denial. Or to put it in Administrative Procedure Act (APA) terms, review is precluded by the INA, the relevant determinations are committed to the Executive’s discretion (indeed, to the President, who is not subject to the APA), and Washington lacks a cause of action. 5 U.S.C. §§ 701(a), (702).”

The Ninth Circuit denied the government’s motion.

Did the Ninth Circuit engage in partisan politics by denying the government’s motion ?

XI. Conclusion —

In conclusion, in light of the government’s obligation to keep the country safe and secure, in light of its war powers, its powers with respect to immigration, foreign policy, and national security, and noting that the temporary ban is neutral with respect to the religion of the people impacted, the Executive Order should be upheld. Furthermore, even if the Order targets a class of persons, a balancing test will show that the temporary nature of the ban is more than reasonable in light of the threats posed by terrorists who may try to use the relocation efforts to gain access to the United States and do irreparable harm. Finally, the Executive Order is merely a reasonable expansion of a program that has already been in place under the previous administration.

References:

Executive Order: “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017). Referenced at: https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation- foreign-terrorist-entry-united-states

Temporary Restraining Order (Washington v. Donald Trump, President of the United States), issued by Judge Robart. https://www.documentcloud.org/documents/3446391-Robart-Order.html

The FEDRAL GOVERNMENT’S APPEAL: of The State of Wasington’s Emergency Motion for Administrative Stay and Motion for Stay Pending Appeal (State of Washington v. Donald Trump, President of the United States, in the US Circuit Court of Appeals for the Ninth Circuit) – http://www.politico.com/f/?id=0000015a-0c44-d96b-a7fe-1efdf8da0001

8 U.S. Code §1187 – Visa Waiver Program for Certain Visitors. Referenced at: https://www.law.cornell.edu/uscode/text/8/1187

Immigration and Nationality Act (INA). 8 U.S.C. 1187, Section 217 – VISA WAIVER 2/ PROGRAM FOR CERTAIN VISITORS. Referenced at: https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-4391.html

8 U.S Code Chapter 12: IMMIGRATION and NATURALIZATION – aka, The Immigration and Naturality Act of 1952. Referenced at: https://www.law.cornell.edu/uscode/text/8/chapter-12

“A Constitutional Basis for Defense,” The Heritage Foundation. Referenced at: http://www.heritage.org/defense/report/constitutional-basis-defense

Matthew I. Hirsch, “The Visa Waiver Program,” (8 U.S.C. 1187, Section 217: Visa. Waiver Waiver”) Referenced: http://hirschlaw1.com/wp-content/uploads/2012/07/website.aila_.visawaiver.pdf

John Howard, “The Seven Nations Covered by Trump’s Executive Order,” Breitbart, Jan. 30, 2017. Referenced at: http://www.breitbart.com/national-security/2017/01/30/7-nations-named-trump-executive-order-security-nightmares/

Korematsu v. United States, 323 U.S. 214 (1944). https://www.law.cornell.edu/supremecourt/text/323/214

Kerry v. Din, 576 U.S. ___ (2015). https://www.supremecourt.gov/opinions/14pdf/13-1402_e29g.pdf

Kleindienst v. Mandel, 408 U.S. 753 (1972). https://supreme.justia.com/cases/federal/us/408/753/case.html

Asra Q. Nomani, “This is Daniel Pearl’s Final Story,” Washingtonian. Referenced at: https://www.washingtonian.com/projects/KSM/

Sean Hannity, “There are Four Times the US Stopped Immigrants from a Particular Group.

Referenced at:  http://www.hannity.com/articles/immigration-487258/here-are-four-previous-times-the-14188916/

Daniel Greenfield, “When Roosevelt Banned Muslims from America,” Frontpagemag, August 18, 2016.  Referenced at:  http://www.frontpagemag.com/fpm/263879/when-teddy-roosevelt-banned-muslims-america-daniel-greenfield

Ann M. Simmons and Alan Zarembo, “Other Presidents Have Blocked Groups of Foreigners from the US, But Never So Broadly,” LA Times, January 31, 2017.  Referenced at:  http://www.latimes.com/nation/la-na-immigrant-ban-history-20170130-story.html

The Alien & Sedition Acts, Constitutional Rights Foundation.  Referenced at:  http://www.crf-usa.org/america-responds-to-terrorism/the-alien-and-sedition-acts.html

 

What is Standing? (Rottenstein Law Group). http://www.rotlaw.com/legal-library/what-is-standing/

Washington shopping mall mass shooter – an illegal immigrant (from a Muslim country) who voted 3 times. Referenced at: https://www.youtube.com/watch?v=0cDwCK3Dpcg [Published on Sep 28, 2016. A man who went on a shooting rampage in a store in the Cascade Mall in Burlington, Washington is in custody, accused of killing five people. The suspect, Arcan Cetin, a 20-year-old, is being charged with five counts of first-degree premeditated murder. There’s also another element to the story that could result in other charges for Cetin. The Cascade mall shooter isn’t a U.S. citizen, but voted in 3 election cycles. From King 5: The Cascade Mall shooting suspect, Arcan Cetin, may face an additional investigation related to his voting record and citizenship status. Federal sources confirm to KING 5 that Cetin was not a U.S. citizen, meaning legally he cannot vote. However, state records show Cetin registered to vote in 2014 and participated in three election cycles, including the May presidential primary. While voters must attest to citizenship upon registering online or registering to vote at the Department of Licensing Office, Washington state doesn’t require proof of citizenship. Therefore, elections officials say the state’s elections system operates, more or less, under an honor system. — Just a couple years ago, then-Attorney General Eric Holder said vote fraud was “a problem that doesn’t exist.” They operate on the honor system? What could go wrong? — That can’t be so. We’ve been assured voter fraud is a myth. The story doesn’t say who Cetin voted for. This story highlights that immigration laws and criminal laws aren’t the only laws that illegal immigrants break and are breaking. Why was FOX News the only national news organization covering this story?

Justice Jeanine Pirro (Justice with Jeanine) – https://www.youtube.com/watch?v=PSsjcLUM6xI

APPENDIX:

Executive Order: “Protecting the Nation from Foreign Terrorist Entry into the United States (Jan. 27, 2017)

EXECUTIVE ORDER

Protecting the Nation from Foreign Terrorist Entry into the United States

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:
Secti  on 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.
Numer  ous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.
der to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.
Sec.   2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.
Sec.   3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.
(b)   The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.
(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.

Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.
(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order.
Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.
(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.
(d);Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.
(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.
(f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.
(g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.
Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda.
Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational.
Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.
(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected.
Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent practicable.
Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter:
(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later;
(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and
(iii) information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; and
(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.    (b) The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels.    Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.    (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

Keep the Federal Government in Check with NULLIFICATION – Not Liberty Amendments!

Nullification - Mark Levin v. Thomas Jefferson

by Diane Rufino, October 10, 2013

Mark Levin, who wrote an excellent book “The Liberty Amendments” to urge states to call for an Article V Convention to propose constitutional amendments to restore the federal government back to some sort of constitutional limits, calls Nullifiers “kooks.”  His solution is to keep the federal government in check by a series of constitutional amendments.

My question to Mr. Levin is this:  Why do we need to AMEND the Constitution? The Constitution has never been legally altered from its original meaning. What we need to do is FINALLY ENFORCE the Constitution that was ratified by the States in 1787-1788. The government represents the CONSENT of the GOVERNED and has never been delegated any authority to autonomously expand or enlarge its powers. The Declaration of Independence, which provides the framework for our common intent and understanding of government, assures that government is a creature of the people to SERVE the people. Only the people have the power to “alter or abolish” government. The scope of government is at the will of the people. Government has no power to alter itself or to abolish any rights of the people. What does this mean?  It means that every time the government oversteps its limited authority under the Constitution, it takes sovereign power away from the People and the States. Our Founders warned about this when they included the Ninth and Tenth Amendments and that’s why those amendments are included… They remind us that any step beyond the authority in the Constitution is an infringement on the natural rights of the Individual or the sovereign rights of the States.

For the past 200 years, the government has steadily stepped beyond its constitutional authority and stepped on the rights of others. It’s time those who have had their rights trampled upon step up and say NO MORE.  Nullification is the rightful remedy, based precisely on the ideals laid out in the Declaration of Independence.  As long as it is understood that government derives from the people, is accountable to them, serves them, and is at all times subject to their right to alter or abolish it, then it should not be expected that People have to go through great pains and efforts to ask it to abide by its charter.  The Constitution is a limit on the government to hold it accountable to the People and NOT a limit on the People to demand such accountability.

The Rightful Remedy is Nullification and NOT constitutional amendments. Don’t get me wrong. When the people want to knowingly and intentionally alter their Constitution and change their form of government, then amendments are the proper remedy.  But when government oversteps the bounds of authority that the PEOPLE have set on it in the Constitution and tramples on the rights of other parties, the proper remedy to stop that usurpation and to reign in the power and scope of government is not through amendments but through Nullification. Nullification recognizes the founding American government principle that any power not expressly delegated to the government by the People (for their benefit) cannot be assumed by it. Therefore, when government attempts to overstep its (constitutional) boundaries, those laws are without legal authority, are null and void, and are unenforceable on the People.  Requiring the People to go through a series of seemingly insurmountable hoops (ie, constitutional amendments) to try to control their government seems is akin to having them beg the federal government to “Please, please, please try to respect the Constitution.”

It seems the great majority of people, including Mr. Levin, have forgotten what a Constitution is, at its core.  John Jay, who wrote five of the essays compiled in The Federalist Papers and who went on to be appointed Chief Justice of the US Supreme Court by President George Washington, wrote: “What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people and is the supreme law of the land…  It is stable and permanent, not to be worked upon by the temper of the times.. It remains firm and immovable, as a mountain amidst the raging of the waves.”  Thomas Paine, in his Rights of Man, wrote: “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.”  And in 1782, in his Notes on Virginia, Thomas Jefferson explained: “The purpose of a written constitution is to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.”

I believe Mark Levin is dead wrong in attacking the Nullification movement.  I respect him immensely, but if he truly believes that we must amend the Constitution in order to restore the Constitution – when the Constitution was never legally amended to get us in the predicament that we are in – then he has a flawed understanding of our founding principles and the American founding philosophy of government.

He presupposes that only the People and the States need to abide by Constitutional limits.  It doesn’t matter to him that the federal government, the one party that IS supposed to be limited by the Constitution, has repeatedly, defiantly, and grossly misinterpreted and abused its terms.  Mr. Levin is so hung up on “what the People and the States can constitutionally do” to bring the government back in line (and by that, I mean that he wants the remedy to be expressly articulated in the Constitution) that he forgets that even as he is out on his book tour to promote “The Liberty Amendments,” the federal government continues to willfully ignore its constitutional limitations and obligations. The Rightful Remedy should be the one that most effectively and immediately puts the government back in check and restores the proper balance of power between the government, People, and the States. The amendment process will take many years and will most likely fall through. And even if an Article V Convention of the States is able to move forward, the amendments produced will most likely be more symbolic than effectual.  A government that is supposed to serve the People (“that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”) should be accessible by the People and a Constitution that is supposed to protect the People from government should NOT effectively shut the People out from “altering” their government so that it isn’t “becoming destructive of its ends.” Nullification, on the other hand, checks the government at every instance.  It puts sovereign power in the hands of those who were the intended depositories – the People.

Nullification is the magic bullet.  As government hemorrhages and our nation dies of toxic ideological poisoning, Nullification is the treatment that patriots can use to get our system healthy again.

Opponents of Nullification want to take this remedy away.  They want to take the one true remedy that is based on the principles our nation was founded upon and discredit it by associating it with themes that the average uninformed American has been brainwashed on.  First, they try to dismiss it by claiming that the government trumps any action of the State on account of the Supremacy Clause.  They believe that since the government has the exclusive right and power to define the extent of its powers and to twist and bend the Constitution to serve its purposes, the Supremacy Clause is the enforcement “badge” that allows it to push any and all laws on the States. By extension, they believe that the Supremacy Clause should be a restraining order on the States so that they don’t get the urge to second-guess the actions and intentions of the federal government.

Second, they discredit Nullification by claiming that the Supreme Court has ruled it unconstitutional. They say that the theory of nullification has been rejected repeatedly by the courts (in particular by the Supreme Court in Ableman v. Booth, 1859 and in Cooper v. Aaron, 1958), and it has never been legally upheld.  Furthermore, they claim that under Article III of the Constitution, the federal judiciary has the exclusive and final power to interpret the Constitution (Marbury v. Madison, 1803). Therefore, the exclusive power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the States.  Consequently, the States have no power to challenge any decision the federal government makes with respect to the laws it passes or the decisions it hands down, and they have no power to nullify federal laws.  Opponents of nullification claim this is the constitutional.

They neglect, of course, to mention that it was the federal government itself that delegated that exclusive power to itself.

Contrary to what the opponents claim, the Supremacy Clause does NOT foreclose Nullification, as most opponents of Nullification claim.  The two principles actually work hand-in-hand.  The Supremacy Clause states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” The Supremacy Clause acknowledges that the Constitution provides legal authority to make certain laws and only laws enacted pursuant to that authority shall be considered supreme law. What it doesn’t say is what happens when the government makes laws NOT in pursuance of legitimate constitutional authority.  And that’s where Nullification steps in. Nullification reaffirms the point of the Supremacy Clause. It acknowledges that government has certain powers to legislate but that the power is not plenary. When the government acts pursuant to its constitutional power, its laws are supreme. But when it acts in abuse or violation of those powers, or assumes power not granted, Nullification provides the remedy. It provides that the States can challenge the government when it passes an unconstitutional law by refusing to enforce it upon the People.  A free people should never have to suffer the enforcement of unconstitutional laws on them.

Unfortunately, the government doesn’t want to recognize the inherent limitation in the Supremacy Clause – that only those laws made “in pursuance” to the Constitution are supreme.  It wants to continue along the self-serving path that allows it to make laws for whatever purpose it wants and to interpret the Constitution to suit it best and to claim it all under the Supremacy Clause.  People want Liberty.  Governments want concentrated power.  These are competing goals.  Our Founders understood that.  And for that very reason, the States were designated as a co-equal Sovereign. The States would forever be an antagonistic force (much like the prosecutor and defense attorney are in a criminal case) that keeps the federal government confined to its exclusive and particular sphere of authority and out of their sphere of government.  “Reserved” powers meant exactly that.  Those powers not expressly delegated to the federal government are reserved by the People and the States.

In Ableman v. Booth, the Supreme Court held that the state of Wisconsin didn’t have the right to nullify the Fugitive Slave law because of the right of the Court to exclusively determine what the Constitution says and means (Marbury v. Madison, 1803).

It should not be forgotten, however, that Ableman decision was written by Justice Roger Taney who also authored the absolute most heinous Supreme Court decision in US history – the Dred Scott decision. That alone should demonstrate how fallible the federal courts are and how tainted, skewed, politically-motivated, academically-limited, and intellectually-dishonest Supreme Court justices are.

In Cooper v. Aaron, Chief Justice Earl Warren wrote the majority opinion.  That opinion held: “The constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted ingeniously or ingenuously.”

Chief Justice Warren continued: “It is necessary only to recall some basic constitutional propositions which are settled doctrine.  Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.’ In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,’ declared in the notable case of Marbury v. Madison,  that ‘It is emphatically the province and duty of the judicial department to say what the law is.’ This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.  It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Article VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Article VI, clause 3 “to support this Constitution…..  If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”

Justice Frankfurter, concurring in the opinion, wrote separately: “The States must yield to an authority that is paramount to the State.”

Of course, Chief Justice Earl Warren also wrote the opinion in Brown v. Board of Education, the case upon which the Cooper case was based.  Is it any wonder that he would try to deny states the opportunity to challenge the merits of that decision?

The Supreme Court likes to cite its early decision in Marbury v Madison (1803).  Opponents of Nullification like to cite Marbury v. Madison. They say that this case definitively establishes the principle that the Supreme Court has the exclusive power to interpret and define the Constitution.  And it’s no wonder why this case is a favorite of the Court, of government in general, and of those who favor our current bloated, energetic centralized government.  Since this decision was an enlargement of government powers by giving the federal judiciary plenary power to interpret the Constitution and proclaim what the law of the land is (without being subject to any check or balance under the Constitution), it put the government in a further position to hold a monopoly on the meaning and scope of its powers.  Nullification doesn’t ask us what the Supreme Court says on a particular matter.  Nullification applies regardless of what the Court has said because it, like every other branch, is capable of acting outside of Constitutional authority.  Nullification is an implied principle.  It is the implied (enforcement) power behind the Tenth Amendment just as the federal government has the implied power to enforce its laws and policies under the Supremacy Clause. If the States are truly to be co-sovereigns as our system was intended and designed, under the Constitution and especially with the Bill of Rights (Ninth and Tenth Amendments), then the States must have an equal opportunity to assert their rights under the Tenth Amendment, as well as the Peoples’ rights under the Ninth Amendment. To say that the government alone can assert its sovereignty (under the Supremacy Clause) would be to absolutely deny the concept of Dual Sovereignty and to severely jeopardize the precious balance of sovereign (government) power that uniquely defines our American system of government and which most strongly protects our individual liberty.

As we all know, We the People are vested, under Natural Law and God’s Law, with fundamental rights. The Declaration of Independence acknowledges this and further states that People, in order to organize into productive societies and in order not to sacrifice any of their rights, establish governments (by the “consent of the governed,” by a temporary delegation of their right to exercise and defend their rights, and for the primary purpose of protecting and securing individual rights).  The People, because they are sovereign and have the Natural right to determine their form of government and also because they have the right to take their sovereign power back from government, have the right to “alter or abolish” their government when it becomes destructive of its ends.  As we know, the Declaration provides the foundation for the Constitution. It establishes the philosophy or ideology of Individual Rights, Sovereignty, and Government. The Constitution then created or established a limited government based on that philosophy/ideology and on those principles.  The States, fearing that the Constitution drafted and adopted at the Convention in 1787 might try to step on the rights and powers of the People and the States, insisted that the Constitution be amended with certain “declaratory and limiting phrases” – which would be our Bill of Rights.  Two of those amendments were the Ninth and Tenth Amendments which guarantee that those powers not expressly delegated from the People/States to the federal government are reserved to the People and States, respectively.  This is precisely the type of government referred to and envisioned in our Declaration…  one that only gives to a government those powers that the People are knowingly, intelligently, and voluntarily willing to give it.  But if the Ninth and Tenth Amendments are to MEAN anything, then there has to be an implied enforcement power.  That power to keep the federal government limited is what federalism is all about. It is all about acknowledging the power of the States to forcibly assert its dominance on those reserve powers. Nullification is an implied power.  Just like the Supremacy Clause has an associated enforcement power which the government is so fond of asserting, the States have Nullification.

It should be noted that Marbury v. Madison was a powerful decision in a few very important aspects.  In particular, the decision emphasized and reinforced two key constitutional themes:

(1)  Justices on the Supreme Court are bound to interpret the Constitution strictly and according to the intention of the Founders and those who ratified it (at the time it was ratified).  Justices are bound by ORIGINAL INTENT and STRICT RULES of CONSTRUCTION (words don’t magically change definition as the times change and the Constitution doesn’t evolve with evolving times. Only through the Amendment process (which is how the People declare their intent to alter their form of government and its terms) can the Constitution be altered or amended to reflect changing times. “That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.”

(2)  Justices must adhere strictly to their oath, which is to the Constitution (as ratified) and not to any administration or political party.  Anytime a justice veers from his oath and doesn’t interpret the Constitution according to strict construction and original intent he commits TREASON.  “The framers of the Constitution contemplated that the Constitution would serve as a rule for the courts, as well as of the Legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government?  If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.”

On the other hand, Jefferson disagreed with Marshall’s reasoning with respect to judicial review, the doctrine the case is known for establishing.  In Marbury, Chief Justice Marshall declared that it is emphatically the duty of the federal judiciary to say what the law is. “Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.  If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

Marshall continued: “An act of the legislature repugnant to the constitution is void.  This theory is essentially attached to a written Constitution.”  In other words, when the Constitution – the nation’s highest law – conflicts with an act of the legislature, that act is invalid.  Jefferson criticized the decision by arguing that “the Constitution has erected no such tribunal” with such power.  He argued that “to consider the judges as the ultimate arbiters of all constitutional questions would be a very dangerous doctrine that which would place us under the despotism of an oligarchy.”

It’s worth noting that the Constitution lacks a clear statement authorizing the federal courts to nullify the acts of co-equal branches, yet the Supreme Court went ahead and assumed that power for itself (under the guise of “judicial review”).  There is also no statement in the Constitution that prohibits States from nullifying acts of the federal government (yet it is strongly implied in the Tenth Amendment and the Supremacy Clause), but the Supreme Court went ahead and denied that power to the States.

As one lawyer and opponent of Nullification writes: “Anyone who believes that Nullification is legitimate either 1) Hasn’t read relevant Supreme Court opinions, or 2) believes that centuries of Constitutional precedent should simply be thrown aside.”  Obviously this lawyer hasn’t read Thomas Jefferson, the author of our Declaration and consultant to James Madison, the author of our Constitution, or James Madison himself.  Both warned about putting too much power in the federal judiciary.

Thomas Jefferson wrote to William C Jarvis in 1820: “To consider the Judges of the Superior Court as the ultimate arbiters of constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps – and their power is the most dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single tribunal.  I know no safe depository of the ultimate powers of society but the people themselves.”   

Jefferson wrote to Charles Hammond in 1821: “The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.”

And Abraham Lincoln, in criticizing the Dred Scott decision, said: “If the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.”

I have read what our Founders wrote about Nullification.  I believe it to be as legitimate a doctrine as any other check and balance doctrine on which our government was based.  I believe it to be as foundational a principle as limited government and “government of the People.”  I will never place the opinions of any federal court judge over the very words of those who defined our American notion of ordered liberty and our system of government. I know what the intentions were of our Founders – to honor the spirit of our American Revolution and to secure individual liberty.  I always question the intentions and judgment of federal court judges.

Justice Felix Frankurter, who served on the Supreme Court from 1939-1962, once said this about the high Court’s decisions: “The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”  And we should take his advice and disregard the Court’s opinion in Cooper – and in Ableman too!

Attorney General Edwin Meese, III (Attorney General under President Ronald Reagan), a constitutional scholar, was highly critical of the Cooper v. Aaron decision, and in fact delivered these words to Tulane University Law in 1986:

      “A decision by the Supreme Court does not establish a ‘supreme Law of the Land’ that is binding on all persons and parts of government, henceforth and forevermore.  Obviously it does have binding quality: It binds the parties in a case and also the executive branch for whatever enforcement is necessary.  But there is a necessary distinction between the Constitution and constitutional law.  The two are not synonymous. The Constitution is a document of our most fundamental law.  It begins ‘We the People of the United States, in Order to form a more perfect Union…’ and ends up, some 6,000 words later, with the 26th Amendment. It creates the institutions of our government, it enumerates the powers those institutions may wield, and it cordons off certain areas into which government may not enter. It prohibits the national authority, for example, from passing ex post facto laws while it prohibits the states from violating the obligations of contracts. The Constitution is, in brief, the instrument by which the consent of the governed – the fundamental requirement of any legitimate government – is transformed into a government complete with ‘the powers to act and a structure designed to make it act wisely or responsibly.’ Among its various ‘internal contrivances’ (as James Madison called them) we find federalism, separation of powers, bicameralism, representation, an extended commercial republic, an energetic executive, and an independent judiciary. Together, these devices form the machinery of our popular form of government and secure the rights of the people. The Constitution, then, is the Constitution, and as such it is, in its own words, ‘the supreme Law of the Land.’

      Constitutional law, on the other hand, is that body of law which has resulted from the Supreme Court’s adjudications involving disputes over constitutional provisions or doctrines. To put it a bit more simply, constitutional law is what the Supreme Court says about the Constitution in its decisions resolving the cases and controversies that come before it.

      The Supreme Court is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution – the executive and legislative no less than the judicial – has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes an oath precisely to that effect.  For the same reason that the Constitution cannot be reduced to constitutional law, the Constitution cannot simply be reduced to what Congress or the President say it is either. Quite the contrary. The Constitution, the original document of 1787 plus its amendments, is and must be understood to be the standard against which all laws, policies and interpretations must be measured.

     But in their task of interpreting the Constitution, the courts have on occasion been tempted to think that the law of their decisions is on a par with the Constitution. That is, they have reduced the Constitution to constitutional law.

     Some thirty years ago, in the midst of great racial turmoil, our highest Court succumbed to this very temptation. By a flawed reading of our Constitution and Marbury v. Madison, and an even more faulty syllogism of legal reasoning, the Court in a 1958 case called Cooper v. Aaron appeared to arrive at conclusions about its own power that would have shocked men like John Marshall and Joseph Story.  In this case the Court proclaimed that the constitutional decision it had reached that day was nothing less than ‘the supreme law of the land.’ Obviously the decision was binding on the parties in the case; but the implication that everyone would have to accept its judgments uncritically, that it was a decision from which there could be no appeal, was astonishing; the language recalled what Stephen Douglas said about Dred Scott. In one fell swoop, the Court seemed to reduce the Constitution to the status of ordinary constitutional law, and to equate the judge with the lawgiver. Such logic assumes, as Charles Evans Hughes once quipped, that the Constitution is ‘what the judges say it is.’ The logic of Cooper v. Aaron was, and is, at war with the Constitution, at war with the basic principles of democratic government, and at war with the very meaning of the rule of law.

     Just as Dred Scott had its partisans a century ago, so does Cooper v. Aaron today. For example, a U.S. Senator criticized a recent nominee of the President’s to the bench for his sponsorship while a state legislator of a bill that responded to a Supreme Court decision with which he disagreed. The decision was Stone v. Graham, a 1980 case in which the Court held unconstitutional a Kentucky statute that required the posting of the Ten Commandments in the schools of that state. The bill co-sponsored by the judicial nominee – which, by the way, passed his state’s Senate by a vote of 39 to 9 – would have permitted the posting of the Ten Commandments in the schools of his state. In this, the nominee was acting on the principle Lincoln well understood – that legislators have an independent duty to consider the constitutionality of proposed legislation. Nonetheless, the nominee was faulted for not appreciating that under Cooper v. Aaron, Supreme Court decisions are the law of the land – just like the Constitution.  He was faulted, in other words, for failing to agree with an idea that would put the Court’s constitutional interpretations in the unique position of meaning the same as the Constitution itself.

     My message today is that such interpretations are not and must not be placed in such a position. To understand the distinction between the Constitution and constitutional law is to grasp, as John Marshall observed in Marbury, ‘that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.’ This was the reason, in Marshall’s view, that a ‘written Constitution is one of the greatest improvements on political institutions.’

     Likewise, James Madison, expressing his mature view of the subject, wrote that as the three branches of government are coordinate and equally bound to support the Constitution, ‘each must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.’ And, as his lifelong friend and collaborator, Jefferson, once said, the written Constitution is ‘our peculiar security.’

     Once again, we must understand that the Constitution is, and must be understood to be, superior to ordinary constitutional law. This distinction must be respected. To do otherwise, as Lincoln once said, ‘is to submit to government by judiciary.’”

It is amazing to me how far we as a nation, as a collective people, have strayed from the principles of individual liberty. Too many people believe they must check with the federal government to see what their rights are and what their Constitution means. Sadly, Mark Levin is one of those Americans.

Here is my biggest problem with Mr. Levin’s promotion of his “Liberty Amendments” – aside from his outright rejection of Nullification: The government has consistently and unabashedly overstepped its authority in the Constitution when it has suited its purposes. In fact, there has rarely been a time when it confined itself to the articles which were delegated to it by the People and the States. Yet Mr. Levin is adamant that the People, in order to try and regain the rights they are entitled to and the proper (and limited) scope of government in their lives, MUST abide strictly by what the Constitution allows them to do.  Again, never mind that the People nor the States ever assented to the changes that the federal government assumed for itself under the Constitution that SHOULD HAVE BEEN made legally through the Article V amendment process….. Mr. Levin still is steadfast that the People need to go through the arduous amendment process in order to get the government to do what it is/ was constitutionally REQUIRED to do.

Being the Deputy Director of the North Carolina Tenth Amendment Center, I naturally am disappointed that Levin has publicly rejected Nullification.  Mr. Levin says that Nullification is not a viable option in limiting the size and scope of the federal government.  When considering how to restore the government to its constitutional limits, he takes the position that Nullification should never be a remedy that is on the table.  In other words, he believes that the People should be carefully, strictly, and narrowly limited in their ability to define and constrain their government. He believes that the only options available should be those both expressly provided in the Constitution and NOT foreclosed by any decision, determination, or proclamation by the government itself.

Michael Maharrey, with the Tenth Amendment Center, defines Nullification as, “those of us with the authority to say no to the federal government executing that authority.”  As every supporter of Nullification knows, the individual states pre-existed the federal government.  While there were some founders (Nationalists) who wanted a national government with a general veto power over any and all legislative acts of the states which it disagreed with, this position was flatly rejected by the majority of delegates (Federalists) to the Constitutional Convention who thought it was the States that needed to be the parties with the veto power over the federal government. These Founders included James Madison and Thomas Jefferson (who may not have been at the Convention but was in constant contact with Madison regarding the task at hand).  As Maharrey explains: “The states created the federal government and enumerated power to it.”  In his writings and when he presents, he is quick to cite Madison’s famous Federalist No. 45 to emphasize the limits of such power enumerated by the states to the federal government, particularly in Article I, Section 8:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

      The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”

Nullification - Michael Maharrey 2013

Maharrey explained that outside of those few and defined powers, everything else, all other power, is reserved and resides in the sovereignty of the individual people and in the states, in accordance to the Ninth and Tenth Amendments to the Constitution.  Nullification, in short, stands for the proposition that the federal government CANNOT be permitted to hold a monopoly over the interpretation of the Constitution and the definition of its powers and scope of government.  Government is a “creation” of the People and not its ruler.

If our Founding Fathers and founding revolutionaries had taken Mark Levin’s approach towards government, the colonies would never have had any legal ground to sever ties with Great Britain and the Articles of Confederation would still be the legally operable constitution that unites our states (since the people themselves were never apprised of the real purpose of the Convention – to scrap the government created by the Articles of Confederation, to start from scratch, and to draft a new Constitution and create a new government – and hence the delegates were without proper authority to do what they did).

Thomas Jefferson wrote: “That if those who administer the general government be permitted to transgress the limits fixed by the federal compact (ie, the US Constitution), but a total disregard to the special delegations of powers therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction, contended by the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism – since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers. That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a Nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the RIGHTFUL REMEDY.”   [Kentucky Resolutions of 1799]

James Madison, in his Notes on Nullification (1834), explained: “…when powers are assumed which have not been delegated, a nullification of the act“ is “the natural right, which all admit to be a remedy against insupportable oppression…”

In the Virginia Resolutions of 1798, Madison wrote: “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the states (alone) are the parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants (of power) enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact, the states who are parties thereto have the right, and are duty-bound, to INTERPOSE for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them…”

At North Carolina’s ratifying convention, James Iredell told the delegates that when ‘Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.’  In December 1787, Roger Sherman of Connecticut observed that an ‘excellency of the constitution’ was that ‘when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.’”

I’ll take James Madison and Thomas Jefferson and even James Iredell, the men who defined our liberty, as authorities on what is constitutional or not over Mr. Levin.

Constitutional attorney, Publius Huldah, recently wrote: “Resistance to tyranny is a natural right – and it is a duty.”   I’ll support Ms. Huldah’s position anyday over those attorneys who oppose Nullification.  Ms. Huldah sides with the People and their Natural Rights.  Those other attorneys side with a centralized, all-powerful and all-knowing government – the very thing we fought a Revolution to rid ourselves of.

In the United States, natural rights are protected by government and not violated by it.  At least that was the American ideal.

Nullification is the Rightful Remedy when you understand the simple truth – that anytime the federal government oversteps its constitutional bounds, it is taking away OUR liberty and our right to govern ourselves.  The federal government is not just stepping on the States’ rights, but it is a usurpation of INDIVIDUAL liberty.  Nullification is our immediate remedy to re-assert and reclaim those rights.  Read the Declaration of Independence again.  All government power comes from the individual.  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.  That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”  Constitutions are written to define what powers the people have consented to give government. Constitutions are a permanent and fixed manifestation of the will of the people as to what inherent powers of self-government they agree to delegate to a common government for their behalf.   They are to be strictly construed and always read in a light most favorable to the individual since it is the individual from whom the power arises and the individual who has the most to lose.  Constitutions are not to be re-interpreted, misconstrued, re-labeled, or diminished in any way, shape, or form. They are not supposed to be “worked upon by the temper of the times.”  All power not expressly delegated resides in the People. Any attempt by a government to assume more powers than it was delegated naturally is a usurpation of the inherent rights and liberties of the People.

Again, as Thomas Paine wrote in his Rights of Man (1791): “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation.”  For anyone who wishes to dismiss Thomas Paine in any discussion of our founding government principles, consider this. It was Thomas Paine that George Washington had his men read as they pressed on in tattered clothes and bloodied bare feet and without pay to fight the Revolutionary War.  Washington wanted his men to understand full well what they were fighting for in America’s quest for independence and the right to govern as they saw fit in order to secure their God-given rights. No man would rightfully sacrifice his life to substitute one tyrant government for another.

When any government continues to usurp the powers of the People, or believes its powers to be more important than the rights of the People to limit their government, or to continue to redefine its powers, it becomes tyrannical. Our Constitution explicitly empowered every American with the right to limit their government. “

That whenever any Form of Government becomes destructive of these ends, it is the right of the People to alter or to abolish it, and to institute new Government…”   The federal government has no right or power to interfere with the right of the People to do so.  Similarly, it has no right to take away the remedy of Nullifcation.

Thomas Woods, author of the best-selling book Nullification: How to Resist Federal Tyranny in the 21st Century asks: “How can the Supreme Court, part of an agent of the states, have the absolutely final say, even above the sovereign entities that created it?” As Madison explained in his Report of 1800, the courts have their role, but the parties to the Constitution naturally have to have some kind of defense mechanism in the last resort.

The Tenth Amendment was added, along with the rest of the Bill of Rights, as an express “further limitation” on the federal government. In other words, the federal government would be limited by the recognition and assertion of States’ Rights and States’ powers.  The preamble to the Bill of Rights states clearly that “a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…”  In other words, the parties that created and signed the Constitution (which then created the federal government) insisted that the Ninth and Tenth Amendments be added in order to more emphatically limit the federal government (all branches) through an emphasis on States’ rights and People’s rights. As such, the Supreme Court has no power to limit the power of the States in its ability to hold the federal government in check. The Bill of Rights is supposed to limit the government; the courts can’t limit the Bill of Rights.  After all, the Bill of Rights is also a limit on the federal courts !!

In conclusion, one only has to look at the enormity of the constitutional crisis we currently face and then look at the likely chance that Mr. Levin’s Article V Convention will offer any real relief.  It is very unlikely that our constitutional republic can be properly restored under that scenario – at least not in the near future. The American people are growing too restless and frustrated to wait.  In his article about a Nullification event in Wisconsin, Christian Gomez wrote: “As Washington continues to show no signs of retreating from its expansionist federal polices, encroachment in the lives of individuals, interference in healthcare, the free market, and violating the Constitution, the battle is not lost. Nor is it far from over, but it could be: ‘All it takes for evil to succeed is for a few good men to do nothing,’ Edmund Burke once said. In the case of the Restoring the Republic gathering in Pewaukee, Wisconsin, it is clear that more than just a few good men and women have no intention of doing nothing. So long as the people can be educated about Nullification, then hope is not fleeting.”

 

References:

Thomas Woods, “Is Nullification Unconstitutional?,” February 5, 2013.  Referenced at:  http://www.tomwoods.com/blog/is-nullification-unconstitutional/

Christian Gomez, “’Restoring the Republic’ Event in Wisconsin Addresses Nullification,” The New American, September 25, 2013.  Referenced at: http://www.thenewamerican.com/usnews/constitution/item/16619-restoring-the-republic-event-in-wisconsin-addresses-nullification

Publius Huldah, “Mark Levin Refuted: Keep the Feds in Check with Nullification,” Freedom Outpost, September 14, 2013.  Referenced at:  http://freedomoutpost.com/2013/09/mark-levin-refuted-keep-feds-check-nullification-amendments/

Cooper v. Aaron, 358 U.S. 1 (1958)

Ableman v. Booth, 62 U.S. 506 (1859)

Marbury v. Madison, 5 U.S. 137 (1803),

Edwin Meese III, “The Law of the Constitution.”  A Speech delivered to Tulane University on October 21, 1986.  Referenced at:  http://www.justice.gov/ag/aghistory/meese/1986/10-21-1986.pdf

Federalist No 45.  http://avalon.law.yale.edu/18th_century/fed45.asp

James Madison, Report of 1800.  http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=875&chapter=63986&layout=html&Itemid=27

 

APPENDIX:

Ableman v. Booth (1859)  –

The Court noted:  “It appears that the State court has not only claimed and exercised this jurisdiction, but has also determined that its decision is final and conclusive upon all the courts of the United States, and ordered their clerk to disregard and refuse obedience to the writ of error issued by this court, pursuant to the act of Congress of 1789, to bring here for examination and revision the judgment of the State court.”

It went on to explain why the federal government and the Supreme Court must be supreme in their particular spheres of authority:

The Constitution was not formed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home, for if this object could be attained, there would be but little danger from abroad, and, to accomplish this purpose, it was felt by the statesmen who framed the Constitution and by the people who adopted it that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the General Government, and that, in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities. And it was evident that anything short of this would be inadequate to the main objects for which the Government was established, and that local interests, local passions or prejudices, incited and fostered by individuals for sinister purposes, would lead to acts of aggression and injustice by one State upon the rights of another, which would ultimately terminate in violence and force unless there was a common arbiter between them, armed with power enough to protect and guard the rights of all by appropriate laws to be carried into execution peacefully by its judicial tribunals.

The language of the Constitution by which this power is granted is too plain to admit of doubt or to need comment. It declares that:

This Constitution, and the laws of the United States which shall be passed 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.’

But the supremacy thus conferred on this Government could not peacefully be maintained unless it was clothed with judicial power equally paramount in authority to carry it into execution, for if left to the courts of justice of the several States, conflicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free from the local influences of which we have spoken. And the Constitution and laws and treaties of the United States, and the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and another thing in another. It was essential, therefore, to its very existence as a Government that it should have the power of establishing courts of justice, altogether independent of State power, to carry into effect its own laws, and that a tribunal should be established in which all cases which might arise under the Constitution and laws and treaties of the United States, whether in a State court or a court of the United States, should be finally and conclusively decided. Without such a tribunal, it is obvious that there would be no uniformity of judicial decision, and that the supremacy, (which is but another name for independence) so carefully provided in the clause of the Constitution above referred to could not possibly be maintained peacefully unless it was associated with this paramount judicial authority.

The same purposes are clearly indicated by the different language employed when conferring supremacy upon the laws of the United States, and jurisdiction upon its courts. In the first case, it provides that this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, and obligatory upon the judges in every State.

The words in italics show the precision and foresight which marks every clause in the instrument. The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution. And as the courts of a State, and the courts of the United States, might, and indeed certainly would, often differ as to the extent of the powers conferred by the General Government, it was manifest that serious controversies would arise between the authorities of the United States and of the States, which must be settled by force of arms unless some tribunal was created to decide between them finally and without appeal.

This judicial power was justly regarded as indispensable not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the General Government. And as the Constitution is the fundamental and supreme law, if it appears that an act of Congress is not pursuant to and within the limits of the power assigned to the Federal Government, it is the duty of the courts of the United States to declare it unconstitutional and void. The grant of judicial power is not confined to the administration of laws passed in pursuance to the provisions of the Constitution, nor confined to the interpretation of such laws, but, by the very terms of the grant, the Constitution is under their view when any act of Congress is brought before them, and it is their duty to declare the law void, and refuse to execute it, if it is not pursuant to the legislative powers conferred upon Congress. And as the final appellate power in all such questions is given to this court, controversies as to the respective powers of the United States and the States, instead of being determined by military and physical force, are heard, investigated, and finally settled with the calmness and deliberation of judicial inquiry. And no one can fail to see that, if such an arbiter had not been provided in our complicated system of government, internal tranquillity could not have been preserved, and if such controversies were left to arbitrament of physical force, our Government, State and National, would soon cease to be Governments of laws, and revolutions by force of arms would take the place of courts of justice and judicial decisions.

We do not question the authority of State court or judge who is authorized by the laws of the State to issue the writ of habeas corpus to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States…..

No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him or to require him to be brought before them…..   Now, it certainly can be no humiliation to the citizen of a republic to yield a ready obedience to the laws as administered by the constituted authorities. On the contrary, it is among his first and highest duties as a citizen, because free government cannot exist without it. Nor can it be inconsistent with the dignity of a sovereign State to observe faithfully, and in the spirit of sincerity and truth, the compact into which it voluntarily entered when it became a State of this Union. On the contrary, the highest honor of sovereignty is untarnished faith. And certainly no faith could be more deliberately and solemnly pledged than that which every State has plighted to the other States to support the Constitution as it is, in all its provisions, until they shall be altered in the manner which the Constitution itself prescribes. In the emphatic language of the pledge required, it is to support this Constitution.  And no power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws, and for that purpose to bring here for revision, by writ of error, the judgment of a State court, where such questions have arisen, and the right claimed under them denied by the highest judicial tribunal in the State.

The Fugitive Slave Act is fully authorized by the Constitution of the United States.”  [pp. 516-525]

 

Is Nullification Unconstitutional

By Thomas Woods, February 5, 2013

These days we’re seeing a lot of newspaper columns condemning the idea of state nullification of unconstitutional federal laws. A common claim is that nullification is “unconstitutional.” I’ve addressed this claim in bits and pieces elsewhere, but I figured I’d write up one post I can use to counter this argument once and for all.

The most common claim, which one hears quite a bit from law professors (this is not meant as a compliment), is that the Supremacy Clause precludes nullification. “Federal law trumps state law” is the (rather inane) way we hear the principle expressed these days.

What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

In other words, the standard law-school response deletes the most significant words of the whole clause.  It’s safe to assume that Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause.  His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land.  Citing the Supremacy Clause merely begs the question.  A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.”

Hamilton himself explained at New York’s ratifying convention that while on the one hand “acts of the United States … will be absolutely obligatory as to all the proper objects and powers of the general government,” at the same time “the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.” In Federalist 33, Hamilton noted that the clause “expressly confines this supremacy to laws made pursuant to the Constitution.”

At North Carolina’s ratifying convention, James Iredell told the delegates that when “Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.” In December 1787 Roger Sherman observed that an “excellency of the constitution” was that “when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.”

Another argument against the constitutionality of nullification is that the Constitution nowhere mentions it.

This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.

The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist.  The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people.  Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose of and is alien to the structure of that document.

James Madison urged that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant.  Jefferson spoke likewise: should you wish to know the meaning of the Constitution, consult the words of its friends.

Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Virginians were given this interpretation of the Constitution by members of the five-man commission that was to draft Virginia’s ratification instrument.  Patrick Henry, John Taylor, and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

Nullification derives from the (surely correct) “compact theory” of the Union, to which no full-fledged alternative appears to have been offered until as late as the 1830s. That compact theory, in turn, derives from and implies the following:

1) The states preceded the Union.  The Declaration of Independence speaks of “free and independent states” (and by “states” it means places like Spain and France) that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of a group of states, which they proceeded to list one by one.

The states performed activities that we associate with sovereignty. Massachusetts, Connecticut, and South Carolina outfitted ships to cruise against the British. It was the troops of Connecticut that took Ticonderoga. In New Hampshire, the executive was authorized to issue letters of marque and reprisal. In 1776 it was declared that the crime of treason would be thought of as being perpetrated not against the states united into an indivisible blob, but against the states individually.

Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted.  The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.

2) In the American system no government is sovereign, not the federal government and not the states.  The peoples of the states are the sovereigns.  It is they who apportion powers between themselves, their state governments, and the federal government.  In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

3) Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power.  No other arrangement makes sense.  No one asks his agent whether the agent has or should have such-and-such power.  In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created.  James Madison explains this clearly in the famous Virginia Report of 1800:

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature.

In other words, the courts have their role, but in “great and extraordinary cases” it would be absurd for the states, the fundamental building blocks of the United States, not to be able to defend themselves against the exercise of usurped power. The logic of sovereignty and the American Union demand it.

And as for “but Madison later claimed he never supported nullification!” see my article: “Nullification: Answering the Objections,” by Tom Woods, Liberty Classroom [http://www.libertyclassroom.com/objections/ ] and/or pages 288-290 of my book Nullification.