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

2010/11/21

Flawed Texas HB 297

The bill by Texas Rep. Leo Berman (R-Tyler), HB 297, http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=82R&Bill=HB297 , might get applause from the unknowing and unthinking, but it is poorly thought through, and can only serve to undermine any competent nullification effort.

People need to develop detailed and knowledgeable scenarios for how any legislation would actually work out. Bold statements that are toothless only hurt the cause, even if they are enacted.

First, the Patient Protection and Affordable Health Care Act (PPACA) requires almost no cooperation from state agents or contractors that is limited to it. Since IRS agents are not allowed to levy or lien to collect the "mandates" -- insurance premiums -- it has to rely on employer tax withholding, and the mandate will be buried among other taxes, such as FICA, so there is no way state employers can refuse to withhold only the amounts going to the mandates.

As for the criminal penalties against IRS or other federal agents, since they will only be going after other taxes instead of the mandates, which at that point will have already been collected, the penalties would have to be imposed against collection of other taxes. That might seem like a good thing to do, but does this bill really intend to challenge all withholding? If it does perhaps it should spell that out.

Now what happens if an attempt were made to enforce the criminal sanctions? Leaving aside the fact that IRS agents could do everything from outside the territorial jurisdiction of the State, through the banks, there is a reason why no state or local government attempts to prosecute federal agents for crimes. Any attempt will be immediately removed to federal court, where it will be summarily dismissed, on the grounds that an agent has immunity for anything he does while on duty. http://en.wikipedia.org/wiki/Removal_jurisdiction

Sue state agents for withholding? Even if the Texas AG chooses not to defend the state agents, which he is legally required to do, all that state agent has to do is remove the case to federal court where it will be dismissed, likely within hours.

We need more than gestures or protests on this and other federal usurpations. Legislation that pleases some constituents on first impression, but which has no chance to actually work, is not the way to spend scarce legislative or activist resources.

To those who might argue that the feds would need the cooperation of state agents to remove federal agents from state custody, because it would be unwilling to use force, they are underestimating the feds. The federal government would use force, not perhaps initially to make state agents comply with its orders, but just to remove any federal agents from state custody. This kind of thing has been done, and the feds are fully prepared to overwhelm state and local agents with superior forces. All the President has to do is call out the National Guard, which is part of the military and subject to his orders, and if that weren't enough he would use the rest of the military. This scenario has been wargamed many times and they are well-prepared.

But this argument misses the point. Which federal agents would be in jail? The PPACA prevents just PPACA enforcement actions from being singled out, so the state would have to jail all IRS agents for all their actions. Sounds appealing, but if it were attempted the political blowback would kill the nullification movement for a generation or more. We have to proceed incrementally. Take on too much too soon and the result will be worse than if we had done nothing at all.

An alternative approach that might actually work is presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm .

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