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An Unconstitutional Military Strike

Wednesday, August 28, 2013
By Alan Caruba

I don’t know why the White House doesn’t just send Syria’s Bashar al-Assad a map of where it intends to attack with Tomahawk and other missiles. The bottom line, however, is that this much heralded military adventure is unconstitutional. The President has no authority to initiate the use of the military against Syria.

This has not stopped presidents from engaging the nation in wars, but the last declaration of war, as specified in Article 1, Section 8, Clause 11, occurred on December 11, 1941 against Germany as a response to its formal declaration of war against the United States. Three days earlier Japan had attacked Pearl Harbor initiating a state of war.

As the Tenth Amendment Center points out, “Unless fending off a physical invasion or attack, the president is required to get a Congressional declaration of war before engaging in military hostilities in another country.”

Let us be clear about this. Syria has not declared war on the United States and, while the use of gas goes against an international convention against it, the Assad regime has already killed 100,000 Syrians in a civil war. Nor is Syria the only nation in the Middle East known to have used gas. Saddam Hussein gassed several thousand Kurds in Halabja, Iraq in 1988 and used it in his eight-year war against Iran. The West’s response was to do nothing except to condemn it.

As Daniel Pipes, president of the Middle East Forum, points out, “Warfare is a very serious business whose first imperative is to deploy forces to win—rather than to punish, make a statement, establish a symbolic point, or preen about one’s morality.”

President Obama’s first mode of governance is to make a speech and then to assume the problem is solved. From his very first speech in Cairo in 2009, those in charge in the Middle East interpreted his policies as weakness.

When President Clinton lobbed a few missiles by way of retaliation for al Qaeda attacks on U.S. embassies in Africa, Osama bin Laden concluded the U.S. was weak and set about planning the two attacks on the Twin Towers.

Dr. Pipes warns that “Bashar al-Assad’s notorious incompetence means his response cannot be anticipated. Western strikes could, among other possibilities, inadvertently lead to increased regime attacks on civilians, violence against Israel, an activation of sleeper cells in Western countries, or heightened dependence on Tehran. Surviving the strikes also permits Assad to boast that he defeated the United States.”

The Wall Street Journal opined that “there is no good outcome in Syria until Assad and his regime are gone. Military strikes that advance that goal—either by targeting Assad directly or crippling his army’s ability to fight—deserve the support of the American people and our international partners. That’s not what the Administration has in mind.”

What Obama has in mind is a symbolic attack in much the same way killing bin Laden was both necessary and symbolic. In making the announcement Obama declared “Yet his death does not mark the end of our effort.  There’s no doubt that al Qaeda will continue to pursue attacks against us.  We must –- and we will — remain vigilant at home and abroad,” adding that ”As we do, we must also reaffirm that the United States is not –- and never will be -– at war with Islam.”

Islam, however, is at war with the United States and the West. That is the declared aim of both al Qaeda and the Muslim Brotherhood.

The war in Syria is a civil war. There is no good outcome no matter whether the Assad regime wins or is overthrown. There is no strategic or tactical victory to be achieved by the United States in either case. Simply punishing the regime for using gas achieves nothing except to expend several million dollars’ worth of missiles.

The Tenth Amendment Center points out that “As they did in the war against Libya, those violating these strict constitutional limitations will like refer to an attack on Syria as something other than ‘war.’ But, changing the words they use to describe their actions doesn’t change the constitutional ramifications. Under the Constitution, a war is a war whether you call it a war or something else.”

The time is long past when America must address whether our military interventions in the Middle East have demonstrated any success. To date, they have not. The majority of Americans are opposed to an attack on Syria and both the Constitution and the collected wisdom of the public argue strongly against it.

We are, however, too far down the road thanks to the administration’s declared intention to do so. War it has been said is to be an extension of politics. We will witness a political gesture and one that is intended to demonstrate Obama is a leader internationally and domestically. He is neither.

It will be an attack on the constitutional powers of Congress as much as an attack on Syria.

Source: © Alan Caruba, 2013

Obama Breeds Rebellion Among the States

By Alan Caruba

The resistance to Obamacare is writing a new chapter in U.S. history. It may well become the most unpopular law since Prohibition became an Amendment to the Constitution in 1919. By 1933, another Amendment repealed it.

Obamacare passed by a straight Democratic party vote on Christmas Eve in 2009. No Republican voted for it and, as one poll recently revealed, a third of Americans are still unaware it is the law of the land. A divided Supreme Court gave it a pass, calling it a tax, but it is a profoundly unconstitutional law insofar as the federal government may not pass a law that requires Americans to purchase something and to fine them if they do not. It is also playing havoc with the economy, delaying recovery as it deters hiring and encourages firing.

Nonetheless, a number of states have gone on record seeking to nullify its enforcement and some are doing the same as regards gun control. Arizona became famous when it passed its own immigration law in response to the federal government’s failure to protect its border with Mexico. The proposed “Gang of Eight” immigration law is facing stiff opposition for its various provisions, most of which do not address the central issue of security on the southern border.

How out of touch is the President? He went to Mexico and blamed the violence arising from its drug cartels on America, saying “Most of the guns used here to commit violence came from America.” He made no mention of the scandalous “Fast and Furious” scheme in which the ATF actually ran guns into Mexico, claiming they would track them. It took an executive order to throw a blanket of silence over it and a compliant media to ignore that scandal.

It is, however, Obamacare that poses the greatest threat to the nation, intruding on the patient-doctor relationship, robbing billions from Medicare to pay for it, requiring states to fund more Medicaid when many are strapped to meet other needs, and putting 16% of the nation’s economy under federal control.

A total of twenty-seven states have filed suit against Obamacare. Two federal judges have upheld its individual mandate to purchase health insurance and two others have ruled that it is unconstitutional.

Twelve states have introduced versions of the Federal Health Care Nullification Act that was drafted by the Tenth Amendment Center. They include Texas, Montana, Wyoming, Oregon, Alabama, and Maine. All declare that Obamacare is “hereby declared to be invalid, shall not be recognized, is specifically rejected, and shall be considered null and void and of no effect.”

In South Carolina, on May 1st, the state House passed a bill that declares the bill null and void and goes a step further, criminalizing its implementation. Earlier Governor Nikki Haley, in her state of the state address, said that South Carolina does not want and cannot afford Obamacare, saying of the President’s namesake, “not now, not ever.”

The following day, Kansas Governor Sam Brownback sent a letter in response to Attorney General Eric Holder’s opposition to its Second Amendment Protection Act, declaring it unconstitutional; essentially tell him to piss off. “The people of Kansas,” said the Governor, “have clearly expressed their sovereign will.” The same day, Missouri passed a comparable law protecting the Second Amendment.

Not since the years leading up to the Civil War was kicked off on December 20, 1860 when South Carolina voted for secession, has there been such open resistance to the mandates of the federal government by the states on a range of issues. Earlier, in 1832, President Andrew Jackson had threatened to send troops to South Carolina to enforce federal laws.

Nullification, however, will not succeed as a means to rid the nation of Obamacare. To Obama’s dismay, his gun control law failed in Congress when even members of his party joined in voting against it. The fate of immigration reform remains unknown but it will come to a vote soon enough.

The reason why nullification will fail is embedded in the Constitution. The Supremacy Clause states “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the land; and the judges in every State shall be found thereby, any Thing in the Constitution or Laws of any State to the Contrary, notwithstanding.”

That has not discouraged the legislatures of many states from expressing their opposition to Obamacare, intrusions on the Second Amendment right of citizens to bear arms, and to demand the federal government enforce the laws regarding its borders.

There isn’t a constitutional scholar that does not support the Supremacy Clause. The Heritage Foundation has a policy paper on the subject of nullification that says “there is no clause or implied power in either the national or the various state constitutions that enables states to veto federal laws unilaterally.”

The states, though, can express their displeasure and their opposition to federal laws and that is what lies at the heart of the spate of nullification laws that have been passed. As sovereign republics, the states can and do express themselves and, through their elected Senators and Representatives, have the power in concert to repeal obnoxious and injurious federal laws.

That will be the fate of Obamacare.

© Alan Caruba, 2013

Posted by Alan Caruba at 3:01 PM

Texas Bills Would Nullify NDAA’s Indefinite Detention, TSA’s Intrusive Screening

Written by  Raven Clabough

State lawmakers in Texas are fighting to reassert their citizens’ Fourth, Sixth, and Eighth Amendment rights. Republican legislators have submitted two bills, one to remove the indefinite detention provisions in the National Defense Authorization Act (NDAA), and the other to stop the intrusive screening procedures of the Transportation Security Administration (TSA).

HB149, the Texas Liberty Preservation Act filed by state Rep. Lyle Larson, targets the most controversial provisions of the 2012 National Defense Authorization Act. The online Huffington Post reports,

HB 149 specifically calls out Section 1021 and 1022 of the NDAA, which were recently subjects of a federal lawsuit filed by plaintiffs concerned that the language within the passages could be used to indefinitely detain U.S. citizens.

In October, a federal appeals court rejected the notion that the indefinite detention provisions found within the NDAA pose a reasonable threat to American citizens and blocked an injunction issued by another judge in May who had determined that the NDAA did not “pass constitutional muster.”

According to the appeals judges, “the public interest” outweighed the concerns raised by the plaintiffs. They determined that “the statute does not affect the existing rights of United States citizens.”

Lawmakers in the Lone Star State disagree. According to HB 149, sections 1021 and 1022 of the NDAA are “inimical to the liberty, security, and well-being of the citizens of the State of Texas” and violate both federal and state constitutions.

HB 149 notes that the Tenth Amendment to the Constitution, which greatly limits the role of the federal government, has been violated as the government has usurped powers that it was not intended to have. It states,

It is the policy of this state to refuse to provide material support for or to participate in any way with the implementation within this state of Sections 1021 and 1022 of the National Defense Authorization Act for fiscal year 2012.

Violators of this statute may receive imprisonment of up to a year, a fine of no more than $10,000, or both, according to the bill.

The Tenth Amendment Center notes that Texas is just one in a string of states that has worked to override the provisions found within the NDAA:

Local communities in Colorado sent out the first warning shots, passing resolutions and ordinances rejecting such power earlier this year.

Then … Virginia Governor Bob McDonnell signed House Bill 1160, making that state the first to pass a law not only rejecting the federal act, but fully banning any state agency from cooperating with the feds on it.

Over 15 local communities have reportedly done the same. And Michigan is considering similar legislation.

Residents of Texas who support the legislation are encouraged to contact their state representative and senator here.

A second bill in Texas targets the controversial screening procedures of the Transportation Security Administration. HB 80, filed by GOP state Rep. David Simpson, is intended to prohibit what is perceived to be federal overreach by the TSA.

The Huffington Post writes:

The measure declares that any “intentional” touching of “the [private parts] of the other person, including touching through clothing,” without probable cause would be considered a violation of the law. It would also prohibit removing a “child younger than 18 years of age from the physical custody or control of a parent or guardian of the child,” and establishes broader restrictions on harassment or inconveniencing those desiring to avoid such searches.

The bill also asserts that it is the role of the state’s attorney general to defend the statute, and lists a variety of justifications he may use to do so:

If the government of the United States, the defendant, or the defendant’s employer challenges the validity of Section 39.03(a)(4), Penal Code, as added by this Act, on grounds of unconstitutionality, preemption, or sovereign immunity, the attorney general of this state … shall take any actions necessary on behalf of the state to defend the validity of the statute. The attorney general may make any legal arguments the attorney general considers appropriate, including that this Act constitutes a valid exercise of:

(1)  the state’s police powers;

(2)  the liberty interests of the people that are secured by the United States Constitution;

(3)  the powers reserved to the states by the Tenth Amendment to the United States Constitution; or

(4)  the rights and protections secured by the Texas Constitution.

If the bill becomes law, it will take effect in September of 2013.

This is not the first time Texas legislators have attempted to pass such a measure. In 2011, Representative David Simpson, who filed HB 80, spearheaded two bills which did not pass, HB 1937 and HB 1938, both of which specifically targeted the TSA. HB 1937 would have banned offensive touching of individuals who sought access to public buildings or transportation and punished those who broke the law. HB 1938 would have outlawed the use of “nude body scanners” at all Texas airports.

Unsurprisingly, HB 80 has garnered the favor of privacy advocates who view the TSA’s screening methods as being far too intrusive.

Tenth Amendment Center communications director Mike Maharrey said in a statement,

If you walk up to somebody and grab their crotch out on the street, it will land you in jail. Blue uniforms and federal badges don’t grant some goon the power to sexually assault you, or at least they shouldn’t.

A person doesn’t forfeit her or his personal dignity or Fourth Amendment protections with the purchase of an airline ticket.

Both HB 149 and HB 80 are examples of nullification, as Texas is using the authority found within the Tenth Amendment to reject federal overreach.

Ken Hoover of The John Birch Society observed last year, “We all are aware of how the so-called ‘war on terror’ has been used to chip away at our liberties.” Pointing to TSA procedures specifically, he continued, “It would appear that the main casualty of the ‘war on terror’ has been the Fourth Amendment. These intrusions need to be stopped.”

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The Revolt Against the NDAA Hits Congress

House Republicans say they’re going to fix controversial provisions in Obama’s defense spending bill. Don’t believe it.

http://mjcdn.motherjones.com/preset_12/detainee-protest.jpg

By Adam Serwer
Fri May. 4, 2012 3:00 AM PDT

Facing a serious civil liberties backlash, Congress is considering changing a controversial counter terrorism law it passed last year. Yet the leading fix, backed by House Republicans, may not be a fix at all.

Last year, during consideration of the National Defense Authorization Act, Congress came close to authorizing the indefinite detention of American citizens captured on US soil who were suspected of terrorism. Ultimately, the House, the Senate, and the White House agreed on a compromise that would let federal courts decide whether such detentions were constitutional. That is, when confronted with the knotty question of whether the US government can detain its own citizens within the nation’s borders without charging them with a crime, Congress decided not to decide. Still, activists on the left and right remain concerned, because although President Barack Obama promised not to use that power, the law does not explicitly prevent him from doing so. In the months since Obama signed the bill in January, a strange-bedfellows alliance has raised such a ruckus over the legislation that Congress is now considering three separate proposals to amend the law.

“There has been significant constituent concern” over the NDAA, says Claude Chafin, a spokesman for Republicans on the House Armed Services Committee.

The revolt against the NDAA has brought together organizations and activists that disagree on almost every other issue—tea party activists, the states’ rights Tenth Amendment Center, the American Civil Liberties Union, and Occupy Wall Street protesters. The NDAA is “waking people up to the idea that the federal government shouldn’t have this kind of power,” says Michael Boldin, the director of the Tenth Amendment Center. “We’re seeing this weird mishmosh coalition of people.” In mid-April, Boldin’s group joined a number of other conservative organizations in filing a friend-of-the-court brief in support of liberal journalist Chris Hedges’ anti-NDAA lawsuit against the Obama administration.

The NDAA backlash has already fueled action on the state level. In Virginia, Republican Gov. Bob McDonnell recently signed a bill that could prohibit state authorities from “knowingly” aiding in the military detention of a US citizen. The Arizona Legislature passed a bill making it a misdemeanor for state officials to help the feds detain US citizens under the NDAA, and the Maine Legislature passed a joint resolution urging Congress and the president to amend the law to make it clear that Americans apprehended on US soil can’t be detained without trial. All three states have legislatures with Republican majorities.

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Congress is now considering three bills designed to quiet the uproar. One, sponsored by Rep. Ron Paul (R-Texas), would repeal the detention sections of the NDAA entirely. Another, sponsored by Rep. Adam Smith (D-Wash.), would ensure that suspected terrorists captured on US soil, whether they are citizens or not, could not be detained indefinitely without trial.

Then there’s a third bill, proposed by Rep. Scott Rigell (R-Va.), called the Right to Habeas Corpus Act. Rigell’s bill, which has 32 cosponsors, would do basically nothing. That’s because all it does is affirm the right of American citizens to have a judge evaluate the legality of their detention, and there has been no disagreement over that right since the Supreme Court affirmed it in 2004. The question has been whether the United States could hold suspected terrorists without ever charging them with a crime. Under Rigell’s bill, a future president could still potentially indefinitely detain an American citizen arrested in the United States on suspicion of terrorism, while Smith’s bill would prevent them from doing so.

Rigell’s bill is “addressing a habeas problem that doesn’t exist, and ignoring the real problem, which is indefinite detention without charge or trial,” says ACLU legislative counsel Chris Anders.

Rigell’s office didn’t respond to a request for comment. But Anders notes that detention authority can be a “confusing” and “difficult” area in which to legislate, partially because many of the issues aren’t entirely settled. Of the two bills that would actually alter the NDAA, Smith’s has 56 cosponsors in the House. Paul’s bill has five cosponsors.

Republicans in the House, however, seem much warmer to Rigell’s mostly symbolic legislation, with Chafin insisting it would “put to rest any doubt to the…purpose of last year’s NDAA.” The law’s critics don’t believe that. “We don’t trust Congress, who just passed this thing into law, to all of a sudden say, ‘Oh, we were wrong; we’re going to change it,’” Boldin said. That’s probably a safe bet.

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New Law: Virginia will not cooperate with NDAA detention

image

Posted by Tenth Amendment

Contact: Mike Maharrey
Communications director
O: 213.935.0553
media@tenthamendmentcenter.com
www.tenthamendmentcenter.com

For Immediate Release:April 18, 2012

RICHMOND, Va. – On Wednesday, the Virginia legislature overwhelmingly passed a law that forbids state agencies from cooperating with any federal attempt to exercise the indefinite detention without due process provisions written into sections 1021 and 1022 of the National Defense Authorization Act.

HB1160 “Prevents any agency, political subdivision, employee, or member of the military of Virginia from assisting an agency of the armed forces of the United States in the conduct of the investigation, prosecution, or detention of a United States citizen in violation of the United States Constitution, Constitution of Virginia, or any Virginia law or regulation.”

The legislature previously passed HB1160 and forwarded it to Gov. Bob McDonnell for his signature. Last week, the governor agreed to sign the bill with a minor amendment. On Wednesday, the House of Delegates passed the amended version of the legislation 89-7. Just hours later, the Senate concurred by a 36-1 vote.

Bill sponsor Delegate Bob Marshall (R-Manassas) says that since the legislature passed HB1150 as recommended by the governor, it does not require a signature and will become law effective July 1, 2012.

Several states recently passed resolutions condemning NDAA indefinite detention, but Virginia becomes the first state to pass a law refusing compliance with sections 1021 and 1022.

“In the 1850s, northern states felt that habeas corpus was so important that they passed laws rejecting the federal fugitive slave act. The bill passed in Massachusetts was so effective, not one single runaway slave was returned south from that state. Today, Virginia joins in this great American tradition,” Tenth Amendment Center executive director Michael Boldin said. “When the federal government passes unconstitutional so-called laws so destructive to liberty – it’s the people and the states that will stand up and say, ‘NO!’ May the other states now follow the lead taken today by Virginia.”

For more information on the new Virginia law, click HERE.

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The Tenth Amendment Center exists to promote and advance a return to a proper balance of power between federal and State governments envisioned by our founders, prescribed by the Constitution and explicitly declared in the Tenth Amendment. A national think tank based in Los Angeles, the Tenth Amendment Center works to preserve and protect the principle of strictly limited government through information, education, and activism.

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