I have resisted writing this post for several days. The last time I broached this subject in February, my readers were less than happy about what I wrote. In that article, Obama Exercises His Right of Nullification, I celebrated the fact that Obama had used his right of nullification by deciding not to enforce an unconstitutional law. The law in question was the Defense of Marriage Act; a law that we conservatives happen to like. All across the conservative blogosphere, Obama was castigated for his actions. People like Rush Limbaugh and Newt Gingrich did the same.
It seemed that I was alone in the conservative camp celebrating that Obama had set the (most recent) preceident in applying the principle of nullification and thus opening the door for conservatives to use that same principle to rid this country of any number of unconstitutional federal laws that are currently on the books. Recently I have been vindicated by none other than our favorite constructionist constitutional lawyer, Publius-Huldah. Her latest post is titled The Oath Of Office: The Check On Usurpations By Congress, The Executive Branch, & Federal Judges. Let me share the first part of her essay with you:
Rush Limbaugh recently 1 castigated our putative president for announcing that his regime would not enforce the Defense of Marriage Act. Rush said:
“…He’s ordering his Justice Department not to defend a federal law. Nobody has said the law is unconstitutional other than Obama and Holder, and they don’t have the power to do that … For a president to ignore a federal law … for him to act as legislature and court …is hugely troubling …”
Newt Gingrich commented to the same effect to Newsmax on Feb. 25, 2011; and added that “it’s a violation of his [Obama's] constitutional oath” and “could lead to a constitutional crisis”.
Not so, Rush & Newt! Actually, it is a President’s sworn duty to refuse to enforce any unconstitutional “law” made by Congress. And contrary to the misinformation with which we are constantly bombarded, judges are not vested with exclusive authority to declare Acts of Congress unconstitutional.
The Truth is that a President, the States, local governments, and individual citizens, together with the courts, all have the Right &Duty to overrule – to spurn & cast out – unconstitutional laws made by Congress. For it is a fundamental [though long suppressed] Principle of our Founding that an unconstitutional “law” is no “law” at all – it is a “mere usurpation, and deserves to be treated as such”.
Our Framers placed “Oaths of Office” in the Constitution. When honored, these Oaths function as “checks” on the powers of the federal government and protect us from usurpations. Each Branch of the federal government has “the check of the Oath” on the other two branches.
The States, whose officials also take the Oath of Office, have the same check on all three branches of the federal government.
And WE THE PEOPLE, the “original fountain of all legitimate authority” (Federalist No. 22, last para), have the Right to overrule violations of the Constitution by elected & appointed officials.
I hope you’ll read the entire essay. It is, as always, masterfully done.
Now folks, I am under no illusion that Obama has suddenly converted into a strict constitutionalist. He obviously cherry-picked a law that he personally disagreed with to apply his right and obligation to refuse to enforce a law that Congress passed in violation of the constitution. A law that only the States have standing to pass.
There are two points I want to make here: First, if we conservatives truly believe the constitution we so strongly believe in does in fact limit the powers of this Federal government and the Founders provided for checks and balances, then we should not turn a blind eye to an unconstitutional law just because we happen to favor that particular law. We would be as guilty of cherry-picking , as Obama.
Secondly, we conservatives need to walk through the door that Mr. Obama has inadvertently opened for us. If we can sweep the 2012 elections, hopefully our new leaders will have the strength of character to use their right and obligation to systemically begin nullifying all the unconstitutional laws that our Congress has passed in the last 100 years. It is possible to return to the Constitutional Republic that our Founders gave us. We have the right, as Plubius-Huldah explains, to impeach Presidents that violate the Constitution. We have the right to impeach federal judges that insist on making unconstitutional decisions. We can only exercise that right by electing people who truly believe in the Constitution.
A note to my readers: I noted that Plubius-Huldah has recently added a letter to the DHS to her side-bar. Apparently she has found evidence that they have been visiting her site. We should be prepared to go to her defense if DHS decides to shut-down her site.
fleeceme
March 31, 2011
That was an excellent piece. I agree completely with you, if we believe in and defend the Constitution, then we can not cherry pick which laws we wish to support or attack. In actuality, we do not have a decision in the process. Either the law is constitutional and right, or is unconstitutional and wrong, our personal feelings on the matter are immaterial. The rub is on the issues that might blur the lines, which I think the Defense of Marriage act might have done for some people.
Conservatives on Fire
March 31, 2011
A good point, Colin. Things are not always black and white.
Adrienne
March 31, 2011
Idaho started down the path of nullification re Obamacare and dropped it (much to my dismay.) I’m with Tom Woods on this one and believe nullification is a right of the states. I, too, was raked over the coals.
Here’s my biggest point. If the feds can impose any and all law without regard for what the states want, then we no longer live in the United States, but in just a big blob of a country. Buh bye, states.
The federal government has already far exceeded it’s constitutional duties and needs to close down 95% of it’s departments.
Conservatives on Fire
March 31, 2011
I agree. Tom woods is right on the money. As Plubius-Huldah point out, our stae politicians take the oath as well. the y need to live-up that oath and protect our people against usurpton of the constitution by any branch of the Federal Government.
jonapope
March 31, 2011
This was a really good article! I even had to tweet it. I had never considered the fact that Obama has opened the door to nullifying laws that are deemed unconstitutional. And the essay that was referenced was equally enlightening where it was said that the Supreme Court is not the only arbiter as to whether or not a law is constitutional. Keep up the great posting!
Conservatives on Fire
March 31, 2011
Thank you for stopping by and sharing your thoughts. I hope you will come back often. I just came back from visiting your site. Politically Corrected News is a great site. I always enjoy good satire. I’m ading you site to my blogroll.
Publius/Huldah
March 31, 2011
Thank you so much, all of you, for your comments. Everyone here who posted “gets it”! And Jim Gourdie seems to have the makings of a brilliant political strategist. Yes, obama opened the door for future Presidents to nullify unconstitutional laws! We must hit on that again & again everywhere we can. And teach that EVERYONE who has taken the Oath is legally & morally obligated to nullify unconstitutional Laws, executive orders, federal court opinions, and pretended “treaties”.
And yes, DOMA is unconstitutional as (1) outside the scope of the legislative powers delegated to Congress [Marriage is an object reserved by the States or the People], and (2) it purports to amend a provision of the Constitution – Art. IV, Sec. 1 [and Congress may not amend the Constitution by making a "law"].
The “full faith and credit clause” (Art. IV, Sec. 1) causes the problem which DOMA purportedly fixed: Must one State recognize the homosexual “marriage” performed legally in another State? But I am developing an idea on how to fix this ghastly problem.
Thank you again. I work all the time on this; and yes! my Stat Counter revealed frequent visits from five different DHS offices. So, I decided to challenge them! You know what they say, “Don’t mess with old ladies!” PH
Conservatives on Fire
March 31, 2011
PH, thank you so much for coming by and sharing more of your thoughts. It’s an honor. Your work always seem to inspire me. As for your comment about not messing with old ladies, the same goes for us old men. If you ever need help from the blogosphere in regards to the DHS, please let me know and I’ll do evrything I can to spread the word and get you support.
Cheers!
bunkerville
March 31, 2011
Great comments. This is a deep one, and past my pay grade. I want to jump in and say yes. Something in the back of my head tells me this is a worrisome road. Perhaps the law of unintended consequences?
Conservatives on Fire
March 31, 2011
Past your pay grade. That’s a good one. I hear what you’re saying. I think the point to keep in mind is that although a law may be unconsttitutional ofr the federal government does not mean it is unconstitutional for the states to have such a law. Does that help you feel any better or do you have a different concern?
bunkerville
March 31, 2011
I see your point. I think of jury nullification. A judge decides the jury didn’t have it right, and throws it out. So others decide if something is not constitutional. Will it not be in the eye of the beholder? True, some cases no doubt will be obvious to most folks. What happens when we get into the “not so clear” cases. When those deciding are others than ourselves? Does this not give the left just as much right to nullify?
Conservatives on Fire
March 31, 2011
Yes, of course the left would have the same rights. I’m not suggesting that nullification will take place without being contested. But how else can a system of checks and balances work?
bunkerville
March 31, 2011
Much of our State law is based on precedent or case law. How this gets sorted out with nullification is not clear to me. Good exercise in working the gray matter! Here is a bit from Wikipedia. That is why we must insist on good Judges, not motivated by personal opinion.
However, it is universally accepted that the Founding Fathers of the United States, by vesting “judicial power” into the Supreme Court and the inferior federal courts in Article Three of the United States Constitution, thereby vested in them the implied judicial power of common law courts to formulate persuasive precedent; this power was widely accepted, understood, and recognized by the Founding Fathers at the time the Constitution was ratified.[37] Several legal scholars have argued that the federal judicial power to decide “cases or controversies” necessarily includes the power to decide the precedential effect of those cases and controversies.[38]
Conservatives on Fire
March 31, 2011
Okay! Now I’m way past my pay grade. Maybe PH will come back and help us out on this.
Infidel de Manahatta
March 31, 2011
I don’t know where this myth started that nine unelected members of the Supreme Court are the only ones who can decide if a law is constitutional or not. That wasn’t the original intention.
Andrew Jackson certainly never believed it.
Conservatives on Fire
March 31, 2011
Exactly right! And as PH pointed out so cleary the oaths of office fro the President on down to state lgislators obligates to treat a federal law that they deem to be unconstitutional as ausurption and nothing more. ” A law that is unconstitutional is no law at all.”
Steve Dennis
March 31, 2011
This will be interesting moving forward as states start to pass nullification laws. The New Hampshire House recently passed such a law which I thought would naturally be struck down by the Supreme Court if the law made it there, but perhaps Barack Obama has unwittingly set a precendent which will uphold this law if it ends up becoming law.
Conservatives on Fire
March 31, 2011
I think he has set at least the most recent precedent on the issue. the question now being raised is how do things get resolved when different branches of government disagree. how is it decided who is right? Interesting.
rjjrdq
April 1, 2011
My understanding is that gay marriage is not banned under DOMA, just not recognized federally. The constitutional argument Publius is using is not the one the Obama regime used. They played the discrimination card.
Conservatives on Fire
April 1, 2011
An interesting take, rjjrdq. I hadn’t thought of that.