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Constitutional education, history, commentary, reform, compliance, and interpretation.

2010/04/26

Flaws in other nullification legislation

On jbs.org and other sites there is a so-called "model" nullification legislation that is similar to many measures that have already been introduced in state legislatures. It, like the lawsuit of several state attorney-generals on the subject, is severely flawed.

Consider a few of its provisions:
C. Any official, agent, or employee of the United States government or any employee of a corporation providing services to the United States government that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this act shall be guilty of a felony and upon conviction must be punished by a fine not exceeding five thousand dollars ($5,000), or a term of imprisonment not exceeding five (5) years, or both.

D. Any public officer or employee of the State of ________ that enforces or attempts to enforce an act, order, law, statute, rule, or regulation of the government of the United States in violation of this act shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding two (2) years, or by a fine not exceeding one thousand dollars ($1,000), or both such fine and imprisonment.

E. Any aggrieved party shall also have a private action against any person violating the provisions of subsections (C) or (D).


Here are a few of the flaws:

1. The bill contemplates provisions that are not in the Health Care Bill, which specifically forbids criminal prosecution or levies or liens to collect the "penalties" for failing to purchase insurance, but leaves it to the discretion of IRS agents to withhold them from federal government payments to the person, or take them out of tax payments first, with a remainder owing that they can claim is not the penalty but unpaid taxes.

2. It won't work to prosecute IRS agents for tax enforcement. The cases would just be removed to federal court and dismissed. But it could trigger federal prosecution of anyone attempting to enforce such a state statute for interfering with a federal agent.

3. IRS agents can do everything from outside the state and thus outside state jurisdiction, through private intermediaries like banks.

4. It does not provide for legal or financial support for persons engaged in civil disobedience in response to the provisions of the state statute.

A sound approach to nullification is discussed here.

There seems to be a naive faith that this is a simple game involving only a few pieces on a small board and only a couple of moves to victory. It is not. It is vastly more complex than games like chess or go, involving thousands of pieces on millions of squares against thousands of opponents, with largely unknown rules and without being able to see most of the board. For every move you have to anticipate every countermove and plan your next move after each. If you are going to play best learn to play well, because if you make a single wrong move it can ruin everything for the cause of freedom.

Law professor Randy Barnett makes the case as to why the health care reform legislation signed by the president is unconstitutional. But law professor Ilya Somin doesn’t see legal action succeeding against health care reform. However, he shows how it might succeed, and is worth reading on this matter. The litigation needs to be thoroughly rethought before it makes the situation even worse by giving the opposition a new precedent.

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