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2011-01-22 Home Front: Politix

Idaho to invoke Nullification to spike Obamacare - will other states follow

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Posted by gorb 2011-01-22 00:54|| || Front Page|| [6 views ] Top

#1 This is one of the reasons I push for a Second Court of the United States.

Since the start of the country, the federalist and anti-federalist argument has never been resolved. While the States cannot rule as a confederacy, they must have some dynamic ability to restrain the federal government short of a constitutional convention.

As things are now, since Washington and Madison, through Jackson, Lincoln, T. Roosevelt, F. Roosevelt and later, we have a steadily more powerful "imperial presidency".

And since the 17th Amendment, the States have been deprived of any input into federal law. And the bureaucracy has been delegated immense authority to regulate on its own outside of constitutional prerogatives.

Then likewise, the federal judiciary, some 3600 judges have the ability to federalize any local or State law at whim, which thereafter by precedent becomes a part of federal jurisdiction.

A Second Court of the United States would fit right in the center of things, not as a federal court, but as a State jurisdictional body, modeled on the original US senate with parallel terms for its judges.

Inferior to the SCOTUS, but superior to the federal district courts, it would serve two functions.

First of all, while federal judges could still examine local and State laws for their constitutionality, those 8,000 annual cases on appeal from the US district courts would go first to the Second Court, which would not determine their constitutionality, but if they should be returned to their State of origin as a local or State matter, not a federal matter.

They could still be appealed to the SCOTUS, but as most cases thus appealed are refused, instead of reverting to the determination of the district courts, they would instead revert to the Second Court, and thus be returned to the States.

Only if the Second Court agreed that they were a federal matter would they be returned to the decision of the district court. They would be aided in this by the arguments in lower federal courts.

The second reason for the Second Court is to have original jurisdiction of State lawsuits with other States and with the federal government. This means that the Second Court effectively acts as a nullification court.

Right now, for example, if 26 States joined the lawsuit against Obamacare, the Second Court would decide that Obamacare is unconstitutional, because it infringes on the sovereign rights of the States and the rights of the people.

While it could still be appealed to the SCOTUS, it would be fair warning that the States reject Obamacare. And if 2/3rds of the State judges (67) found against it, the case could not be appealed to the SCOTUS.

Likewise, the States could sue against any and every federal infringement of their power, or the rights of their citizens, be it by the president, congress, bureaucracy or judiciary.

Some of the first of these lawsuits would likely totally change the death penalty in the US, so States would be free to execute condemned prisoners quickly, and as they, not some federal judge, saw fit. By hanging, if other States agreed.

There would be no more unfunded mandates. Many federal agencies would be nullified out of existence, or be severely curtailed in their activities. Most National Guard units would be returned to their home States, unless war was declared.

And yet, if the Second Court overreached, the SCOTUS could under many circumstances overrule it, again keeping the federal government in balance with the State governments and the people.

Posted by Anonymoose 2011-01-22 10:11|| 2011-01-22 10:11|| Front Page Top

#2 'Moose an obvious, but not the only, problem with your Second Court proposal is that it would be bound by existing SCOTUS precedent. The federal government has occupied so much territory that there's little left to the states and the people and every step in the federal advance has been abetted, bolstered & confirmed by SCOTUS. Restoring any part of the original balance of power among the nation, state & the people requires rolling back or avoiding that precedent. The Second Court wouldn't be successful doing that as it would be bound to decide matters in light of existing SCOTUS precedent.

I'd suggest that one could accomplish the neutering of the federal government from within the existing system. Consider: the lower federal courts are of limited jurisdiction the Supreme Court has very narrow original jurisdiction and Congress may remove matters from review by the lower courts. What would happen if Congress were to pass a law to the effect that states may remove themselves from any federal legal or regulatory scheme while simultaneously prohibiting review of the law or any related matters in the federal courts? There would be no avenue of review for state decisions in any federal court and existing SCOTUS precedent would be moot since the feds could have their agencies while the states merely decline to participate.

There are lots of way to skin these cats within the existing system.

Posted by AzCat 2011-01-22 15:32|| 2011-01-22 15:32|| Front Page Top

#3 More courts are not the answer. Who will sit on the new benches? Same old group of lawyers and insiders. Even if it starts out well, it will eventually corrupted by the left.

The only true democracy is the ability to vote with ones feet. For that to work, you need options on where to go. To have options there must be places which are different, and for that you need Federalism.

The left wants everything federalized. They want one law everywhere. They don't want you to have options. It's hard, for example, to raise taxes when people and businesses keep fleeing to low tax jurisdictions.

State sovereignty is all about Federalism, and Federalism is all about choices. Nullification is nothing more or less than an exercise in state sovereignty. That's a good thing.

Posted by Iblis 2011-01-22 15:55|| 2011-01-22 15:55|| Front Page Top

#4 Great post Mr. G. The comments at the main story are great but Rantburgers are most informative. Very enjoyable read.

Posted by Dale 2011-01-22 17:13|| 2011-01-22 17:13|| Front Page Top

#5 This is just another man made portent of what's about to come. More and more states are lining up against the program. Soon you'll see the magic 2/3rds. SCOTUS is not that dumb to invite a possible Constitutional Convention which would surely see the means to finally bring them and their house down more than a couple of notches of power. Whenever the question would be to dump this noxious program or see both it and power drained from the ruling class, they'll toss it under the bus.

Posted by Procopius2k 2011-01-22 17:44|| 2011-01-22 17:44|| Front Page Top

#6 AzCat: Within the federal court system, as things are right now, there is no such thing as binding precedent, unless a superior court binds an inferior court in a particular case based on a previous case.

All an inferior court has to do is say that the precedent does not apply in a subsequent case, and unless the superior court reverses their decision and says it does, then the precedent is effectively changed, *by default*.

But a Second Court of the United States goes beyond this. This is because it is not concerned with whether an appealed case is constitutional or not, but whether its jurisdiction is properly in the federal courts.

For example, a federal judge may assert that the infamous "Bong Hits for Jesus" case has been involved in constitutional arguments *twice*, and even though the SCOTUS has agree to hear it *twice*, were a Second Court of the United States in existence, it would assert that the matter should be settled at the State level, as there is absolutely no serious constitutional question involved.

And while the parties involved are so contentious as to still appeal it beyond the Second Court, in considering whether to hear the case, the SCOTUS would at least have the opinion from the States that it is not worthy as a federal issue.

And to still decide to hear the case, the SCOTUS would be expressing its contempt for the opinion of the individual States. This is something I suspect they would avoid doing over much, and because they have some 8,000 cases sent their way a year, it would be far more productive for them to hear cases that the States thought were worthy for federal hearing.

And much of the power of the Second Court comes from defaults of the SCOTUS. If the SCOTUS does not hear a case, it first reverts to the decision of the Second Court. And then, *only* if the Second Court says it is a federal matter does it revert further back to the decision of the US District Court.

So unless the SCOTUS agrees to hear hundreds, or even thousands of the cases appealed to it, just to snub the Second Court, the States will get things their way.

Posted by Anonymoose 2011-01-22 18:10|| 2011-01-22 18:10|| Front Page Top

#7 It's a lovely idea, Anonymoose, but it'll never happen.

Posted by trailing wife 2011-01-22 20:40|| 2011-01-22 20:40|| Front Page Top

#8 I am not sure that a Constitutional Convention is a good idea these days:
1) We don't have the geniuses who wrote the original
2) EVERYONE would work to get their favorite causes inserted into the new Constitution. Every leftist cause would fight to get in. You would probably end up with something like the EU constitution - a monstrosity that no one likes.

Posted by Rambler in Virginia 2011-01-22 21:28|| 2011-01-22 21:28|| Front Page Top

#9 Those men were stuff of courage not fear. We take measure of our own fears instead. Remember it still takes 3/4ths to ratify and if you have any belief let it be that the lefties can't get that kind of validation for their agenda while the center and right can. They fear that amongst all. Let them take council of their own fears and make concessions to avoid such a situation.

As far as a telephone book, regardless of the elegance of the American Constitution, it now is interpreted literally by a law library that makes such phone books seem small by comparison. Trying to ignore that only puts off what needs to be done.

Posted by Procopius2k 2011-01-22 22:08|| 2011-01-22 22:08|| Front Page Top

#10 If I follow your logic Moose: you want a choke point on access to the federal courts in order to stem the flow of cases to them and thereby starve the federal government of its power. You'd install a Second Court as the federal judicial gatekeeper and force SCOTUS to pass judgment on the Second Court's determinations as to whether or not a given issue was sufficiently federal in nature before it was allowed to reach the federal courts.
A whole new court system isnt necessary to accomplish your end; it can be done via a Congressional modification to the jurisdictional statute that determines the basis for access to the federal courts. Modification of the existing jurisdictional statute to completely eliminate the power of all lower federal courts to hear supplemental claims based on state law would accomplish approximately the same thing by completely eliminating the ability of federal District & Circuit courts to hear claims based in state law (if thats the problem youre trying to solve).
Further, states can already largely prevent state law questions from going to the federal courts if their courts base decisions wholly on state laws. A decision from a state court citing both federal and independent and adequate state grounds for the decision wont be reviewed by the federal courts as the independent and adequate state grounds are themselves wholly sufficient (this is the important part) if the state law isnt in conflict with the federal law, the area isnt one in which the federal government has preempted state authority, etc.
That last bit is where existing SCOTUS precedent would scuttle your hopes of a Second Court acting as a gatekeeper to the federal judiciary. Existing precedent already states, in essence, that there exist only a vanishingly few areas in which states are free to act free of federal meddling. One *MUST* eviscerate that existing precedent or your Second Court would be no more than a rubber stamp bureaucracy passing nearly everything through to the federal side.

Posted by AzCat 2011-01-22 22:15|| 2011-01-22 22:15|| Front Page Top

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