WPC: Coming SCOTUS decision could be big for Eastern Washington

The Washington Policy Center discusses US Supreme Court case Sackett vs EPA on the extend of the EPA’s power to regulate land that gets wet.

The Sackett family has spent the past 15 years in the courts disputing the Environmental Protection Agency’s blocking their right to build a home on land they own near Priest Lake, Idaho.

This past October, the U.S. Supreme Court opened its doors for the public to listen in on oral arguments for the first time in 21/2 years since the original COVID lockdown in March 2020. The first case on the docket was theirs, Sackett v. EPA, the outcome of which will have profound implications for the future of rural communities in Eastern Washington and across the country.

The EPA alleges the Sackett’s residential lot is a federally protected wetland under EPA jurisdiction. Sackett v. EPA asks the Supreme Court to clarify the scope of the EPA’s regulatory authority under the Clean Water Act. The court’s decision should of course be the final say on whether the Sacketts can build their proposed home, but it will also have sweeping implications on whether the EPA can expand the definition of “navigable waters” to include any semi-soggy lowland, ditch or parcel of land across the country.

Many will remember the saga of the Obama administration’s disastrous Waters of the United States – or WOTUS – rule. As a young staffer on Capitol Hill at the time, seared into my memory is how serious the regulatory uncertainty was for the agricultural community under the proposed rule, threatening to turn every ditch, puddle, or creek into a federally protected “navigable waterway.” The drastic expansion of the EPA’s jurisdiction in the rule was characterized as one of the most egregious oversteps by the federal government in history. Fortunately, the courts agreed and blocked its implementation.

Yet predictably the federal government continues to do its best to exert its regulatory might. Even as we await the court’s decision on Sackett, the Biden administration has barreled forward with their own rulemaking – essentially, WOTUS 2.0 – by introducing a new rule on the last business day of 2022 to expand the definition of navigable waters and again threaten rural America’s way of life.

While the Obama WOTUS rule was blocked by the courts, the Biden administration has now sought to codify a serpentine rule that avoids the legal landmines of the original WOTUS.

There was simply no reason for the Biden administration to move forward on this exercise when they knew the court would be issuing a ruling on this very matter. It only serves to cause further uncertainty for the American farmer and rancher.

Unfortunately, it’s not just bad ideas at the federal-level that are rearing their ugly heads to come after our water and threaten our agricultural lands. Legislation similar to the riparian “buffer bill” introduced during the last legislative session in Olympia has been reintroduced this week. The bill (HB 1838) – which would have exponentially cut off productive farmlands across the state while exempting urban areas – faced overwhelming public outcry and eventually did not receive a vote. Yet, it’s back again.

As Washington Policy Center’s new Eastern Washington director, it is my charge to help tell of the impacts of these misguided measures and to ensure the communities east of the Cascades have a voice in Olympia. Why is it that those who decry “big agriculture” and so-called “factory farms” are the same people who do everything they can to put the family farmer out of business?

At the core of Eastern Washington’s economy and identity is agriculture – our region’s farmers feed the country and the world. Our elected leaders in Olympia and Washington, D.C., must recognize that.

I was proud to work on efforts supporting the Sacketts’ case and was humbled to hear the arguments made before the Supreme Court in person this past October. It is my hope the court will finally provide the certainty rural America has long deserved and the victory the Sackett family has waited too long for.

AIER: The Governmentalization of Social Affairs

George Mason University professor of economics Daniel Klein writes at the the American Institute for Economic Research about the pervasive infiltration of government into the social affairs of the people and its deleterious effect on liberty.

Walter E. Williams titled one of his books, More Liberty Means Less Government. Less government means less government intervention, less government extraction, less government spending, and less government employment. More liberty means less government.

I know that you hate neologisms, yet I nonetheless propose the governmentalization of social affairs. Albert J. Nock titled a book, Our Enemy, The State. That title is catchier than Our Enemy, The Governmentalization of Social Affairs. But Nock’s title is less sound, I believe.

“Governmentalization” is ugly. But so is the thing that it signifies, so the ugliness is fitting.

By “governmentalization,” I mean government restrictions on individual liberty, but also (and what might be more important) government-sector institutions as big players, living on taxation and privileged positions. Thus, the term governmentalization captures not only government as liberty-violator but also as benefactor, permission-granter, employer, landlord, customer, creditor, educator, transporter, access-granter, grant-maker, prestige conferrer, agenda-setter, organizer, law-enforcer, prison-keeper, recordkeeper, librarian, museum curator, park ranger, and owner of myriad massive properties and resources within the polity. Every one of these activities has a public relations arm, and sway with the systems of schools and culture. Governmentalization spells governmental influence over the culture at large.

Liberty and governmentalization are opposed, by and large, the way that freedom and slavery are opposed. To support liberty is to oppose governmentalization. To favor governmentalization is to oppose liberty.

Volunordination

Yikes! Another neologism! Can you forgive me? I promise it will be the last one.

In arguing for liberty over governmentalization, classical liberals often approach the matter by explaining that liberty gives rise to volunordination, that is, concatenations or orderings of objects, affairs, activities by voluntary processes. The approach asserts that volunordination brings benefits: material, moral, cultural, and spiritual. By and large, the more that social affairs proceed by volunordination, the more beneficial they are.

Two Ways of Being Classical Liberal

Governmentalization crimps, limits, and obstructs volunordination. Improvement is dampened. Government has gotten in the way. There is a deadweight loss. We could climb higher, but governmentalization holds us back. Deirdre McCloskey and Art Carden express the approach in their book title, Leave Me Alone and I’ll Make You Rich: How the Bourgeois Deal Enriched the World. We’d all be richer if the government would leave people alone.

That approach is sound, but there is another.

Rather than framing the matter as blessings hamstrung by governmentalization, one can frame it as the evil of governmentalization being reined in by liberal principles. It’s not that volunordination is wonderful, but rather that governmentalization is evil. It’s not that we want less governmentalization because that means more liberty. Rather, we want more liberty because that means less governmentalization. Governmentalization is odious and disgusting. It is hateworthy.

We limit governmentalization by upholding liberal principles. Governmentalization is a cancer, and liberal principles shrink it. The medicine does not bring on euphoric sensations, it simply reduces the evil. In other metaphors, governmentalization is pollution, poison, a plague of locusts. Liberal principles are the abatement, the antidote, the pesticide.

We don’t expect pesticides to make us virtuous or happy. We expect them to keep locusts away.

Thus, one approach is about a blessing, volunordination, and an undesirable check on it, while the other approach is about a bane, governmentalization, and a desirable check on it. Both approaches are valid, and they complement one another. One highlights the blessings of volunordination, the other the evils of governmentalization.

Do the Thought Experiment

Ponder a world in which Americans were restricted in their liberty as much as they are now. They faced the same restrictions and taxation, all of which initiate coercion against them (including the threat of coercion). But further imagine that, of the resources extracted from the private sector, the government could only actually keep and use 25 percent, while the remaining 75 percent of the money would have to be destroyed, perhaps in a bonfire of $1000 bills.

That would be a world with fewer government players in society. The cancer would be very much reduced. But notice that in this thought experiment, liberty would not be augmented, because the initiation of coercion by government is not actually reduced.

So is liberty really at the heart of classical liberalism? I would say no. The wellbeing of humankind, the good of the whole, is. Classical liberalism sees governmentalization as a bane. (Let me note that I presuppose a reasonably stable polity throughout; absent that presupposition, the matter is murkier.)

Classical liberalism, as a distinctive outlook on human wellbeing, has a spine of liberty. Liberty checks governmentalization. In order for all those $1000 bills to be garnered by the government, and in order to protect the government from competition (thus empowering the Fed to forge $1000 bills out of thin air), the government must violate liberty. Behind the big-player status of government is Big Coercion.

Classical Liberal Obeisance

Classical liberals tend to soft-pedal the second approach. They will say, as Robert Lawson and Benjamin Powell say in their book title, Socialism Sucks. But the focus is on socialism in other countries, such as Venezuela, North Korea, and China, not the evils of governmentalization at home.

Leftists use the expression “systemic racism” to crush dissent and advance governmentalization. They ignore how governmentalization in schooling, for example, destroys Black potential. Systemic leftism is what drives disparate impacts.

There are a number of reasons why classical liberals underplay the governmentalization-sucks approach. Liberal principles can rein in governmentalization, but mind who holds the reins. Classical-liberal discourse involves an aspiration of persuading policymakers, and policymakers operate in and around government. Telling government that governmentalization sucks is not necessarily the path to persuasion. He who holds the reins also holds the lash.

There is virtue in endeavoring to persuade toward liberalization. Mixed with that virtue, however, is careerism. In most of government, its apparatus, and its satellites, leftists rule the roost. If you argue that governmentalization is hateworthy, you are hated by governmentalists.

If you wish to get on in government, in academia, in the media, in the policy community, in many other areas, you ought not make yourself obnoxious to those who dominate there. Hate tends to be mutual, so when you explain that governmentalization is hateworthy, the governmentalists hate you for doing so.

The more prosperous course is to be agreeable, by playing up the blessings of volunordination: “C’mon dears, we will all be better off if we let volunordination enrich us. Let’s not obstruct what is good for all of us.”

The governmentalists won’t be so offended. They nod a bit about days gone by, when freeing up markets was the order of the day. But they then neglect the lesson and, hey, that was then and this is now. They proceed with governmentalization. By stomaching a few ‘nice’ non-leftists they fancy themselves reasonable and open-minded. Market-friendly, even.

Meanwhile, too often, the ‘nice’ non-leftists lose touch with spirited offensives against governmentalization, assume the posture of their discourse, see to their good standing, and give up the ghost.

What Is Your Dataset on Suckiness?

There is another reason that classical liberals stick primarily to the “C’mon dears” approach.

One can use statistics to argue that obstructions dampen the blessings of volunordination. One can quantify wealth, productivity, health, longevity, and one can quantify governmentalization. One then investigates correlation. Those goods, wealth, productivity, health, longevity, are uncontroversial. Also, in particular markets, such as housing, another uncontroversial good, economists can estimate the deadweight loss that results from government obstructions.

The governmentalization-sucks approach, however, is more aesthetic and cultural. Governmentalization sucks principally because of its moral, cultural, and spiritual consequences. Those consequences are difficult to make precise and accurate, either conceptually or empirically. When it comes to consensus, the governmentalists have filled the gallery with their people, at taxpayer expense or otherwise by coercive privilege, and driven out the dissenters.

Also, governments lie about the ill consequences of governmentalization. They falsify and bury evidence, as in Venezuela, North Korea, and China.

A governmentalization-sucks argument for liberal principles is more easily dismissed as non-scientific, as subjective, normative, and mere opinion. Indeed, leftists increasing favor canceling and criminalizing exposure of the lies and the evils of governmentalization.

A Change of Approach

In the 17^th and 18^th, and much of the 19^th centuries, liberalism enjoyed a sort of ascendancy. From about 1885, however, liberalism in the Anglosphere began to falter severely. One reason was that people around 1885 felt disappointed. Liberalism seemed to promise happiness. Britain and the United States enjoyed liberalism to a good extent.

So, people woke up one morning in 1890, and what did they tell themselves? “Hey, I’m still not happy!”

Whad’ya know, (relative) liberalism was not a paradise. It did not eliminate the fundamental problems of man’s existence. It did not relieve man of the fundamental challenge of upward vitality, and thereby, true happiness.

It seemed that liberalism had failed. Its opponents lied about what liberals had promised. Does Adam Smith ever come across as promising a panacea? The last sentence of The Wealth of Nations tells Britain in 1776, “to accommodate her future views and designs to the real mediocrity of her circumstances.”

Still, if liberals had given more emphasis to the evils of governmentalization, as opposed to the promise of volunordination, then disappointment would have been less, gratefulness and equanimity greater, and aversion to governmentalization stronger.

Albert Venn Dicey wrote in his 1905 book, Lectures on the Relation Between Law & Public Opinion in England During the Nineteenth Century:

The augmentation…of the public revenue by means of taxation is not only a diminution of each taxpayer’s private income and of his power within a certain sphere to do as he likes, but also an increase in the resources and the power of the state.

More liberty means less government, and less government means less miserableness, servility, fickleness, hypocrisy, denial, mendacity, baseness, and degeneracy. Liberal backbone checks the evil that is the governmentalization of social affairs.

Tenth Amendment Center: Patrick Henry’s Warning on “Implied Authority”

TJ Martinell at The Tenth Amendment Center writes about Patrick Henry’s insistence on certain amendments to the proposed Constitution of the United States before ratification in Patrick Henry’s Warning on “Implied Authority”. He argued that it must be explicitly stated that the Constitution did not provide any powers the federal government that were not explicitly stated in the Constitution, lest Congress construe that they did have the power.

Patrick Henry’s impassioned remarks during the final days of the Virginia Ratifying Convention were the culmination of week-long arguments between skeptics of the proposed Constitution and its supporters, such as James Madison.

In modern context, it is easy at first glance to find much of what Henry said to be, unfortunately, pro-slavery. In fact, many modern scholars focus completely on what they might call pro-slavery scare tactics. But this surface understanding of his statements misses the bigger issue at stake for opponents of ratification – whether the new Constitution opened the door for a federal government to invent new authority and subvert state sovereignty.

The convention was closely divided on its support for the Constitution. Henry had hoped the state legislature convening would force the convention to adjourn. Instead, the legislature accommodated, allowing the convention to go on.

After the convention’s presiding officer George Wythe moved to ratify the Constitution, Henry leapt up in protest, adamantly insisting, as he had many times during the debates, that the document required amendments addressing numerous concerns. Chief among them was his fear that the Constitution gave the federal government “implied” powers not specifically stated.

Among other things, Henry demanded that its limited scope of power be specifically stated in the form of an amendment (bold emphasis added):

“With respect to that part of the proposal which says that every power not granted remains with the people, it must be previous to adoption, or it will involve this country in inevitable destruction. To talk of it as a thing subsequent, not as one of your unalienable rights, is leaving it to the casual opinion of the Congress who shall take up the consideration of that matter. They will not reason with you about the effect of this Constitution. They will not take the opinion of this committee concerning its operation. They will construe it as they please.”

He also reiterated his sentiment that the Articles of Confederation was an acceptable government and need not be changed:

“We now act under a happy system, which says that a majority may alter the government when necessary. But by the paper proposed, a majority will forever endeavor in vain to alter it. Three fourths may. Is not this the most promising time for securing the necessary alteration? Will you go into that government, where it is a principle that a contemptible minority may prevent an alteration?”

Further, there was no risk either to undermining what was already included in the Constitution or threatening full ratification by other states due to opposition (bold emphasis added);

“It would be in vain for me to show that there is no danger to prevent our obtaining those amendment, if you are not convinced already. If the other states will not agree to them, it is not an inducement to union. The language of this paper is not dictatorial, but merely a proposition for amendments. The proposition of Virginia met with a favorable reception before. We proposed that convention which met at Annapolis. It was not called dictatorial. We proposed that at Philadelphia. Was Virginia thought dictatorial? But Virginia is now to lose her preminence. Those rights of equality to which the meanest individual in the community is entitled, are to bring us down infinitely below the Delaware people. Have we not a right to say, Hear our propositions!”

The reason Henry devoted so much attention to the issue of “implied powers” is because it was the fundamental issue. If the federal government possessed implied powers, then it could (and would) interpret itself to have the authority to undermine or violate other rights.

Henry’s contention was that the new Constitution did not adequately clarify this, contrary to what the Federalists said.

Henry and other opponents of ratification strongly believed that if the Constitution was adopted without amendments, the ramifications were many and varied. One Henry specifically mentioned was the question of slavery. Under the Articles of Confederation, it was left to the states to decide whether to retain or abolish slavery. However, Henry believed the Constitution would bestow this power to Congress via “implied powers.”

One way would be to call slaves to arms for national defense and offer them their freedom for their participation, as the British had offered American slaves during the War of Independence.

Henry said (bold emphasis added):

“That power which is said to be intended for security and safety may be rendered detestable and oppressive. If they give power to the general government to provide for the general defence, the means must be commensurate to the end. All the means in the possession of the people must be given to the government which is intrusted with the public defence.

“In this state there are two hundred and thirty-six thousand blacks, and there are many in several other states. But there are few or none in the Northern States; and yet, if the Northern States shall be of opinion that our slaves are numberless, they may call forth every national resource. May Congress not say, that every black man must fight? Did we not see a little of this last war? We were not so hard pushed as to make emancipation general; but acts of Assembly passed that every slave who would go to the army should be free.”

Or, if northern states composed a majority in Congress they could simply vote to abolish slavery on the auspices of having the “implied authority,” Henry said. When others at the convention objected to this, he pointed out that the federal government would have the power of granting passports – something specifically prohibited in the Articles of Confederation – even though it doesn’t specifically grant that authority.

“They can exercise power by implication in one instance, as well as in another. Thus, by the gentleman’s own argument, they can exercise the power, though it be not delegated.”

It’s easy to argue that Henry was simply trying to preserve slavery. But his position requires nuance. We don’t have to defend Henry’s comments to place them in the context of the broader constitutional debate.

While saying slavery is “detested,” he added “is it practicable, by any human means, to liberate them without producing the most dreadful and ruinous consequences?”

As he viewed it, the institution of slavery was a Southern issue, and how it was dealt with affected Southerners. His fear was that the matter would be dealt with nationally by people far removed the situation and fundamentally unconcerned with the consequences.

“Every other property of the people of Virginia, is in jeopardy, and put in the hands of those who have no similarity of situation with us,” he said. “This is a local matter, and I can see no propriety in subjecting it to Congress.”

There are a couple of points to consider.

One is that Henry did not advocate for slavery, although he opposed abolition. The institution had been brought in more than a century prior, and by the time of Henry’s birth it had become an indispensable part of the region’s economy. There were also perceived problems with ending the institution that even southern abolitionists acknowledged. Henry referred to this as slavery’s “fatal effects.”

For Henry, it was really about local control. His view was that those directly impacted by slavery – the people in the Southern states – should decide how to deal with the institution. He didn’t want people who had no stake in the issue and little real knowledge of the situation in the southern states to make decisions on their behalf.

Lastly, Henry had this attitude regarding every issue, not just slavery. If it was a local matter, it needed to be handled locally. The peculiarity of slavery’s presence in debates over freedom and individual rights doesn’t undermine Henry’s perspective.

We see this in Henry’s final statement during the convention, which drew such rancor that he was forced to sit down.

“I see the awful immensity of the dangers with which it is pregnant. I see it. I feel it. I see beings of a higher order anxious concerning our decision. When I see beyond the horizon that bounds human eyes, and look at the final consummation of all human things, and see those intelligent beings which inhabit the ethereal mansions reviewing the political decisions and revolutions which, in the progress of time, will happen in America, and the consequent happiness or misery of mankind, I am led to believe that much of the account, on one side or the other, will depend on what we now decide. Our own happiness alone is not affected by the event. All nations are interested in the determination. We have it in our power to secure the happiness of one half of the human race. Its adoption may involve the misery of the other hemisphere.”

Despite his intense rhetoric, James Madison shortly after got up to say he agreed with Henry on the amendments: he favored their inclusion and saw nothing in them that would undercut powers already included in the Constitution.

The convention would ultimately ratify the Constitution, with the inclusion of recommended amendments that eventually lead to the creation of the Bill of Rights.

Considering what transpired just years after, history has vindicated Henry’s worst fears over implied powers.

To give one example, the federal government would soon debate what “necessary and proper” meant in the Constitution and whether that authorized Congress to charter a national bank. Even with the Tenth Amendment making it clear implied powers did not exist, the Supreme Court would aid the Federalists in effectively redefining words to circumnavigate constitutional limitations.

Tenth Amendment Center: Resistance is Crucial to the Advancement of Liberty

In Resistance is Crucial to the Advancement of Liberty, the Tenth Amendment Center discusses the importance of resisting the consolidation of power in government. Consolidation of power is the most destructive danger to liberty. In the United States, the Constitution separated federal power into three branches – the legislative, executive, and judicial – and much power was left to the individual states. Resisting that consolidation is the most important thing a citizen can do to preserve liberty, and the government knows it. The government is so frightened of resistance that they recently declared the electrical symbol for resistance shown above a domestic terrorism symbol, because it fears any threat to the consolidation of power.

As is now obvious to the open-eyed observer, the federal government has absorbed most of the state power and the distinctions between branches are becoming more and more blurry. The various federal administrative agencies are ostensibly part of the executive branch, but watching the previous administration fight with congress over control of the agencies shows just how blurred the lines have become. Congress delegates most lawmaking to these administrative agencies in order to dodge responsibility for laws, and the executive has little control over the agencies actions or even over who heads the agencies.

Additionally, the recent talk about expanding the Supreme Court and limiting the current life tenure of justices to some shorter period, is an attempt not just to politicize the court but to bring it under the sway of both the Congress and national political parties. What better way to control the justices than to control their future job prospects? A limited term justice must find a job after leaving the bench, and it today’s environment of blacklisting, boycotting, and otherwise threatening political opponents, a former justice will have to have toed the party line or otherwise ingratiated themselves with powerful figures in order to get that coveted professorship or corporate law position.

While there are definitely cracks in the federal edifice and signs of failure and opposition, there’s no telling how powerful or destructive the federal government may become before falling apart.

Patrick Henry told us that “government is no more than a choice among evils.”

Thomas Paine held the same view. In Common Sense, he wrote, “Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one.”

What makes government become intolerable?

Consolidation.

That was the term the founding generation used to describe a centralized government with vast power and control – the kind of government we have today.

During the Virginia Ratifying Convention, Patrick Henry warned against consolidation.

“Dangers are to be apprehended in whatever manner we proceed; but those of a consolidation are the most destructive.” [Emphasis added]

He went on to predict that consolidation would, “end in the destruction of our liberties.”

History proved Henry correct.

If consolidation ends in the destruction of our liberties, the key to regaining liberty is “un-consolidation,” or to use an actual word — decentralization.

Political decentralization devolves and distributes political power. This promotes competition in the political marketplace, with various jurisdictions opposing and checking growing power in others.

Most people intuitively understand the problems inherent in economic monopolies. With no competition, a monopolist can easily abuse its customers. It can limit selection. It can raise prices. It can get away with crappy customer service.

Now, think of the federal government as a monopoly. Because that’s exactly what it is.

We need to break the monopoly if we want to regain liberty. We need to decentralize, disperse and minimize political power in order to shrink government to, as Paine put it, “its best state … a necessary evil.”

This strategy requires letting go of centralized political power. That includes resisting the temptation to try to wrest control of the overreaching consolidated government and impose liberty from on high.

This is a difficult concept to grasp in an American political culture that operates almost exclusively through the consolidated government in Washington D.C. People always tend to think in terms of grabbing and wielding political power. This will always fail because political power is the problem.

But a lot of people argue that you need political power to force decentralization. As one person put it, “The great paradox is that in order to diffuse power, you must first acquire it.”

This is wrong.

The paradox is that forcing a diffusion of power is actually a centralization of power. In order to diffuse power, you must first resist it.

Lysander Spooner nailed it on resistance.

“The right of the people, therefore, to resist an unconstitutional law, is absolute and unqualified, from the moment the law is enacted.”

He called resistance “a constitutional right.”

“And the exercise of the right is neither rebellion against the constitution, nor revolution—it is a maintenance of the constitution itself, by keeping the government within the constitution.”

At the Tenth Amendment Center, we talk a lot about resisting overreaching federal power through state and local action. This leads people to believe they have to consolidate power at the state or local level. Having political allies in state and local government certainly helps, but it’s not necessary. And it’s certainly not the first step.

It starts with people resisting.

Think about the nullification of federal marijuana prohibition. Before California legalized medical marijuana in 1996, there were a lot of people who were willing to violate the “law” and use cannabis anyway. It was that groundswell of resistance that led to political changes at the state level. Rosa Parks offers another example. Her willingness to say, “No!” to an unjust law sparked more widespread resistance that eventually led to political change.

Necessity forced the American colonist to adopt a strategy of resistance. They had no political power – and there was no way they were ever going to gain any in faraway London. They had two choices – resist or submit.

They chose to resist.

The Sugar Act in 1764 sparked resistance and it ramped up significantly with the passage of the Stamp Act in March 1765.

The Stamp Act required all official documents in the colonies to be printed on special stamped paper. This included all commercial and legal documents, newspapers, pamphlets, and even playing cards. As historian Dave Benner explained in his article on the Stamp Act, the standard American position held that the act violated the bounds of the British constitutional system. Objecting to the notion that Parliament was supreme, and could impose whatever binding legislation it wished upon the colonies, the colonies instead adopted the rigid stance that colonists could only be taxed by their local assemblies. They claimed this principle stretched all the way back to 1215 and the Magna Carta.

Resistance started with protests. Patrick Henry drafted a series of resolutions. In the seventh, He asserted, “the Inhabitants of this Colony, are not bound to yield Obedience to any Law or Ordinance whatever,” outside of those passed by the colonial assemblies.

John Dickinson wrote, “IF you comply with the Act by using Stamped Papers, you fix, you rivet perpetual Chains upon your unhappy Country. You unnecessarily, voluntarily establish the detestable Precedent, which those who have forged your Fetters ardently wish for, to varnish the future Exercise of this new claimed Authority.”

John Hancock was perhaps most emphatic, declaring, “The people of this country will never be made slaves of by a submission to the damned act.”

They didn’t.

Patriots throughout the 13 colonists blocked the distribution of stamped paper, forced stamp agents to resign, and effectively made that act impossible to enforce. Ultimately, mass resistance and noncompliance forced Parliament to repeal the hated law.

Historian Dave Benner summed up colonial resistance this way.

“Rather than hoping the next election will produce preferable results or waiting for the courts to weigh in on controversial law, the patriots took a fierce stand against an odious law. In doing so, they inspired tireless masses to their cause, brought about a reversal of policy without representation in Parliament, and changed the world as we know it.”

The problem is this strategy is scary, hard, and often requires sacrifice. Many people felt the heavy hand of the law in the early days of the movement to nullify marijuana prohibition. Rosa Parks went to jail. And the British ultimately drug American colonists into a war.

On the other hand, politics is relatively easy. You just gain power and then impose your will. But this is the antithesis of liberty. And at some point, the political pendulum will swing away from you as it always does and people you hate will control that power.

There is no easy path to liberty. As Thomas Paine wrote, “Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it.”

Ammoland: Leaked ATF Resignation Letter Shows Agents’ Frustration Over Politicization

Ammoland has an article citing an ATF agent’s resignation, complaining over the increasing politicization of prosecution through the Department of Justice. While one person’s letter cannot cover the entire range of agents’ beliefs, it is still unlikely that this agent’s complaints are unique. The entire resignation letter is posted at the original article linked just below.

Leaked ATF Resignation Letter Shows Agents’ Frustration Over Politicization

A leaked resignation letter provided to AmmoLand News shows the ATF agency in turmoil over political pressure.

Brandon M. Garcia was a career Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) special agent until he resigned over the politicization of the federal agency and the Government’s attempt to divide people.

Garcia sent a lengthy six-page resignation letter (embedded below) laying out his reasons for leaving the Bureau after 18 years of service. He explains that he didn’t do the job for money or “fun.” He wanted to put violent criminals behind bars. But lately, he doesn’t feel like he knew what the mission was anymore. He was asked to do things that didn’t make sense, and when he asked “why,” he was always told because “they” said so.

“I don’t know what the mission really is anymore, but I don’t like it. For the past couple of years, I have found myself asking “why” a lot more often. As of late, the answer is typically because “they” said so. I still don’t know who “they” are. But I seem to disagree with whoever “they” are on pretty much everything,” Garcia wrote in his resignation letter.”

The former Special Agent highlights how crimes across the country are prosecuted differently depending on if the state is a “red” state or a “blue” state. He explains that agents are expected to set aside their personal and political beliefs but says that the same standard doesn’t apply to the entire Department of Justice. He claims other ATF employees are struggling with the same realization.

Garcia claims that the “woke left” is running the country. He specifically targets the DOJ Civil Rights Division. He insinuates the low morale at the ATF and in law enforcement, in general, is because of the anti-law enforcement movement that he feels is being pushed by the administration and Joe Biden’s Attorney General. Merrick Garland. He says the DOJ was using COVID as a “scapegoat.” He points out that the last time that morale was as low as it is now was under the Obama administration, which was also hostile to law enforcement. He also points out that each administration celebrates diversity unless it is the diversity of thought.

“The last time morale was this low with ATF was probably 2013-2016. Coincidentally, that was also the last time we had an administration openly criticize law enforcement,” Garcia wrote. “Both administrations preached diversity, or rather “celebrate” it, but then expect everyone to have the same liberal opinion.”

The now former Agent wrote that he believes the country is more divided than ever, pushing people to extremes, and leaving those in the middle to suffer. He thinks the Government is “adding fuel to the fire.” Garcia thinks that the ATF’s leadership isn’t fighting for agents. According to him, the leadership is just going along with the administration not to lose their job. Biden demoted former ATF Acting Director Marvin Richardson for not going far enough with the new final rule surrounding the redefinition of a firearm.

Garcia believes that the ATF focuses too much on “the gun.”

He claims the recent actions by the ATF show that it is aligned with the left and says he doesn’t want to investigate the gun. He wants to investigate the criminal. He claims that the ATF used the failed vaccine mandate to increase the ATF’s budget to concentrate on “the gun.” He claims that the ATF “catered” to Biden’s dislike of guns. He says that most ATF agents are pro-gun and anti-criminal. He states that ATF agents didn’t become agents to go after law-abiding citizens for non-compliant firearms or to argue what a gun is or is not.

“Did our leaders forget that ATF agents are law enforcement? Most agents are pro-gun. All agents should be anti-criminal. We did not become ATF agents so we could collect data, ensure firearms are in compliance, seize trigger groups, argue about what a firearm is or is not, seize firearms for reasons other than prosecuting criminals, or spend countless hours inputting data to justify someone else’s existence in HQ. We became ATF agents so we could work the streets and smack evil in the mouth. We took this job because we are willing to risk it all and hope that we can make the streets just a little bit safer for the law abiding, upstanding citizens of the USA. At least that’s why I became an ATF agent,” Garcia wrote.

Garcia talks about how the Biden administration talks about guns and violent crime in the same sentence and pushes for banning certain types of firearms, but in blue states, those charged with gun crimes are only given a slap on the wrist.

He also states that violent crimes committed with firearms are usually “pled down to non-violent crimes, and the defendant again avoids prison.”

He also believes that banning guns wouldn’t stop crime. Garcia logically points out that criminals do not obey the laws. He doesn’t think criminals will stop using firearms no matter what the law says. He believes that banning guns will only affect law-abiding citizens.

The former Special Agent believes that the administration is targeting the conservative population. Garcia points out that very few people were charged with rioting during the summer of 2020, but hundreds have been arrested for the January 6 event for just being there. He even insinuates that pallets of bricks and frozen water bottles were planted at the scene of the 2020 summer riots.

“We can probably agree that law abiding citizens do not commit gun crime. I think that we can probably also agree that the majority of gun owners tend to be more conservative than liberal. So essentially, gun control will only affect law abiding, conservative citizens. Therefore, the Government is only punishing the conservative population. Similarly, in the summer of 2020, rioters were allowed to burn cities, assault the police, and terrorize citizens with little to no consequence. However, the chaos associated with January 6 has resulted in hundreds and hundreds of prosecutions. The vast majority of the defendants have been convicted of simply being there. They didn’t even have pallets of bricks or frozen water bottles staged at the scene, let alone Molotov cocktails for them to throw at the police. Still, 18 months later, the left continues to be absolutely obsessed with it,” Garcia said.

Garcia calls out President Joe Biden for blaming January 6 on Trump. He highlights Biden was saying you can’t be “pro-insurrection and pro-cop.” He insinuates that Biden and the Democrats are not “pro-cop.” he says that the administration changed the definition of “hypocrisy” like they changed the definition of “vaccine.”

“Where was the support of law enforcement from the Democratic party during the presidential campaign? For at least the past 10 years, the Democratic party and the DOJ Civil Rights Division has consistently justified criminal behavior, advocated for decriminalization, and scrutinized the officer’s actions when an officer was assaulted. That is the equivalent of asking a domestic violence victim what they did to cause their spouse to beat them up,” Garcia wrote.

During the January 6 event, a Capitol Police Officer shot and killed Ashli Babbitt. Garcia surmised if the protestors and Babbitt were left-wing, then the liberal media would crucify the officer, making sure he would never have worked again. He believes the DOJ is the “driving force behind this double standard.” He calls for equal treatment under the law.

He claims that politicians do not care about the truth. He says that they only care about public opinion. Garcia claims that the majority of the population supports law enforcement. He says most criminals dislike cops but that the Democrats are trying to appease the criminal population.

Garcia also takes issue with the amount of “violent federal defendants released following their detention hearing.” He says the system was broken. The agent blames the revolving door of prison as the reason for the rise of violent crime over the past few years.

Garcia says guns are not the problem. He believes that the problem is not holding criminals accountable for their actions. The former agent doesn’t think seizing firearms will combat violent crime. He believes that more violent criminals should be locked up and accuses legislators and members of the judicial system with neglecting their oath to uphold the Constitution.

He ends by saying he believes in God, I believe “in The Constitution, and I believe that bad guys belong in prison.” He doesn’t think the Government believes in those anymore.

Project Veritas: Leaked FBI Domestic Terrorism Symbols Guide

Project Veritas has published an FBI memo titled Domestic Terrorism Symbols Guide which purports to show the symbols of anti-government and anti-authority violent extremists. Unfortunately it shows a plethora of very common symbols, including anything referencing the Second Amendment of the US Constitution and the historic Gadsden flag.

FBI Whistleblower LEAKS Bureau’s ‘Domestic Terrorism Symbols Guide’ on ‘Militia Violent Extremists’ Citing Ashli Babbitt as MVE Martyr

Project Veritas released a newly leaked document today provided by an FBI whistleblower, which shows how the Bureau classifies American citizens it deems to be potential “Militia Violent Extremists” [MVEs].

In the document, the FBI cites symbols, images, phrases, events, and individuals that agents should look out for when identifying alleged domestic terrorists.

The “Unclassified/Law Enforcement Sensitive” document says it is for “FBI Internal Use Only.”

Of note, under the “Symbols” section, is a prominent citation of the Second Amendment, where it explains that “MVEs justify their existence with the Second Amendment, due to the mention of a ‘well regulated Militia,’ as well as the right to bear arms.”

Right below that, under the “Commonly Referenced Historical Imagery and Quotes” section, Revolutionary War images such as the Gadsden Flag and the Betsy Ross Flag are listed. Each flag displayed in the document comes with a brief description of what it means.

Under the “Common Phrases and References” section of the leaked document, Ashli Babbitt is cited as a person that MVEs consider to be a Martyr.

The same document also refers to Ruby Ridge, Waco, and even Timothy McVeigh, tying in traditional American ideas and symbols with radical and/or violent events in the past.

Rutherford Institute: US Gov. Waging Psychological Warfare on the Nation

John and Nisha Whitehead at the Rutherford Institute writes Everything Is a Weapon: The U.S. Government Is Waging Psychological Warfare on the Nation. One note, when the author talks about cryptocurrency being used for government surveillance, not all cryptocurrencies allow for that kind of tracking. In fact, most cryptocurrencies were designed to provide privacy. On the other hand, cryptocurrencies that are sponsored by the government, banks, or large tech companies are often designed specifically to provide that kind of surveillance and tracking of money.

“Have you ever wondered who’s pulling the strings? … Anything we touch is a weapon. We can deceive, persuade, change, influence, inspire. We come in many forms. We are everywhere.”— U.S. Army Psychological Operations recruitment video

The U.S. government is waging psychological warfare on the American people.
No, this is not a conspiracy theory.
Psychological warfare, according to the Rand Corporation, “involves the planned use of propaganda and other psychological operations to influence the opinions, emotions, attitudes, and behavior of opposition groups.”
For years now, the government has been bombarding the citizenry with propaganda campaigns and psychological operations aimed at keeping us compliant, easily controlled and supportive of the police state’s various efforts abroad and domestically.
The government is so confident in its Orwellian powers of manipulation that it’s taken to bragging about them. Just recently, for example, the U.S. Army’s 4th Psychological Operations Group, the branch of the military responsible for psychological warfare, released a recruiting video that touts its efforts to pull the strings, turn everything they touch into a weapon, be everywhere, deceive, persuade, change, influence, and inspire.
This is the danger that lurks in plain sight.
Of the many weapons in the government’s vast arsenal, psychological warfare may be the most devastating in terms of the long-term consequences.
As the military journal Task and Purpose explains, “Psychological warfare is all about influencing governments, people of power, and everyday citizens… PSYOP soldiers’ key missions are to influence ‘emotions, notices, reasoning, and behavior of foreign governments and citizens,’ ‘deliberately deceive’ enemy forces, advise governments, and provide communications for disaster relief and rescue efforts.”
Yet don’t be fooled into thinking these psyops (psychological operations) campaigns are only aimed at foreign enemies. The government has made clear in word and deed that “we the people” are domestic enemies to be targeted, tracked, manipulated, micromanaged, surveilled, viewed as suspects, and treated as if our fundamental rights are mere privileges that can be easily discarded.
Aided and abetted by technological advances and scientific experimentation, the government has been subjecting the American people to “apple-pie propaganda” for the better part of the last century.
Consider some of the ways in which the government continues to wage psychological warfare on a largely unsuspecting citizenry.
Weaponizing violence. With alarming regularity, the nation continues to be subjected to spates of violence that terrorizes the public, destabilizes the country’s ecosystem, and gives the government greater justifications to crack down, lock down, and institute even more authoritarian policies for the so-called sake of national security without many objections from the citizenry.
Weaponizing surveillance, pre-crime and pre-thought campaigns. Surveillance, digital stalking and the data mining of the American people add up to a society in which there’s little room for indiscretions, imperfections, or acts of independence. When the government sees all and knows all and has an abundance of laws to render even the most seemingly upstanding citizen a criminal and lawbreaker, then the old adage that you’ve got nothing to worry about if you’ve got nothing to hide no longer applies. Add pre-crime programs into the mix with government agencies and corporations working in tandem to determine who is a potential danger and spin a sticky spider-web of threat assessments, behavioral sensing warnings, flagged “words,” and “suspicious” activity reports using automated eyes and ears, social media, behavior sensing software, and citizen spies, and you having the makings for a perfect dystopian nightmare. The government’s war on crime has now veered into the realm of social media and technological entrapment, with government agents adopting fake social media identities and AI-created profile pictures in order to surveil, target and capture potential suspects.
Weaponizing digital currencies, social media scores and censorship. Tech giants, working with the government, have been meting out their own version of social justice by way of digital tyranny and corporate censorship, muzzling whomever they want, whenever they want, on whatever pretext they want in the absence of any real due process, review or appeal. Unfortunately, digital censorship is just the beginning. Digital currencies (which can be used as “a tool for government surveillance of citizens and control over their financial transactions”), combined with social media scores and surveillance capitalism create a litmus test to determine who is worthy enough to be part of society and punish individuals for moral lapses and social transgressions (and reward them for adhering to government-sanctioned behavior). In China, millions of individuals and businesses, blacklisted as “unworthy” based on social media credit scores that grade them based on whether they are “good” citizens, have been banned from accessing financial markets, buying real estate or travelling by air or train.
Weaponizing compliance. Even the most well-intentioned government law or program can be—and has been—perverted, corrupted and used to advance illegitimate purposes once profit and power are added to the equation. The war on terror, the war on drugs, the war on COVID-19, the war on illegal immigration, asset forfeiture schemes, road safety schemes, school safety schemes, eminent domain: all of these programs started out as legitimate responses to pressing concerns and have since become weapons of compliance and control in the police state’s hands.
Weaponizing entertainment. For the past century, the Department of Defense’s Entertainment Media Office has provided Hollywood with equipment, personnel and technical expertise at taxpayer expense. In exchange, the military industrial complex has gotten a starring role in such blockbusters as Top Gun and its rebooted sequel Top Gun: Maverick, which translates to free advertising for the war hawks, recruitment of foot soldiers for the military empire, patriotic fervor by the taxpayers who have to foot the bill for the nation’s endless wars, and Hollywood visionaries working to churn out dystopian thrillers that make the war machine appear relevant, heroic and necessary. As Elmer Davis, a CBS broadcaster who was appointed the head of the Office of War Information, observed, “The easiest way to inject a propaganda idea into most people’s minds is to let it go through the medium of an entertainment picture when they do not realize that they are being propagandized.”
Weaponizing behavioral science and nudging. Apart from the overt dangers posed by a government that feels justified and empowered to spy on its people and use its ever-expanding arsenal of weapons and technology to monitor and control them, there’s also the covert dangers associated with a government empowered to use these same technologies to influence behaviors en masse and control the populace. In fact, it was President Obama who issued an executive order directing federal agencies to use “behavioral science” methods to minimize bureaucracy and influence the way people respond to government programs. It’s a short hop, skip and a jump from a behavioral program that tries to influence how people respond to paperwork to a government program that tries to shape the public’s views about other, more consequential matters. Thus, increasingly, governments around the world—including in the United States—are relying on “nudge units” to steer citizens in the direction the powers-that-be want them to go, while preserving the appearance of free will.
Weaponizing desensitization campaigns aimed at lulling us into a false sense of security. The events of recent years—the invasive surveillance, the extremism reports, the civil unrest, the protests, the shootings, the bombings, the military exercises and active shooter drills, the lockdowns, the color-coded alerts and threat assessments, the fusion centers, the transformation of local police into extensions of the military, the distribution of military equipment and weapons to local police forces, the government databases containing the names of dissidents and potential troublemakers—have conspired to acclimate the populace to accept a police state willingly, even gratefully.
Weaponizing fear and paranoia. The language of fear is spoken effectively by politicians on both sides of the aisle, shouted by media pundits from their cable TV pulpits, marketed by corporations, and codified into bureaucratic laws that do little to make our lives safer or more secure. Fear, as history shows, is the method most often used by politicians to increase the power of government and control a populace, dividing the people into factions, and persuading them to see each other as the enemy. This Machiavellian scheme has so ensnared the nation that few Americans even realize they are being manipulated into adopting an “us” against “them” mindset. Instead, fueled with fear and loathing for phantom opponents, they agree to pour millions of dollars and resources into political elections, militarized police, spy technology and endless wars, hoping for a guarantee of safety that never comes. All the while, those in power—bought and paid for by lobbyists and corporations—move their costly agendas forward, and “we the suckers” get saddled with the tax bills and subjected to pat downs, police raids and round-the-clock surveillance.
Weaponizing genetics. Not only does fear grease the wheels of the transition to fascism by cultivating fearful, controlled, pacified, cowed citizens, but it also embeds itself in our very DNA so that we pass on our fear and compliance to our offspring. It’s called epigenetic inheritance, the transmission through DNA of traumatic experiences. For example, neuroscientists observed that fear can travel through generations of mice DNA. As The Washington Post reports, “Studies on humans suggest that children and grandchildren may have felt the epigenetic impact of such traumatic events such as famine, the Holocaust and the Sept. 11, 2001, terrorist attacks.”
Weaponizing the future. With greater frequency, the government has been issuing warnings about the dire need to prepare for the dystopian future that awaits us. For instance, the Pentagon training video, “Megacities: Urban Future, the Emerging Complexity,” predicts that by 2030 (coincidentally, the same year that society begins to achieve singularity with the metaverse) the military would be called on to use armed forces to solve future domestic political and social problems. What they’re really talking about is martial law, packaged as a well-meaning and overriding concern for the nation’s security. The chilling five-minute training video paints an ominous picture of the future bedeviled by “criminal networks,” “substandard infrastructure,” “religious and ethnic tensions,” “impoverishment, slums,” “open landfills, over-burdened sewers,” a “growing mass of unemployed,” and an urban landscape in which the prosperous economic elite must be protected from the impoverishment of the have nots. “We the people” are the have-nots.
The end goal of these mind control campaigns—packaged in the guise of the greater good—is to see how far the American people will allow the government to go in re-shaping the country in the image of a totalitarian police state.
The facts speak for themselves.
Whatever else it may be—a danger, a menace, a threat—the U.S. government is certainly not looking out for our best interests, nor is it in any way a friend to freedom.
When the government views itself as superior to the citizenry, when it no longer operates for the benefit of the people, when the people are no longer able to peacefully reform their government, when government officials cease to act like public servants, when elected officials no longer represent the will of the people, when the government routinely violates the rights of the people and perpetrates more violence against the citizenry than the criminal class, when government spending is unaccountable and unaccounted for, when the judiciary act as courts of order rather than justice, and when the government is no longer bound by the laws of the Constitution, then you no longer have a government “of the people, by the people and for the people.”
What we have is a government of wolves.
Our backs are against the proverbial wall.
“We the people”—who think, who reason, who take a stand, who resist, who demand to be treated with dignity and care, who believe in freedom and justice for all—have become undervalued citizens of a totalitarian state that views people as expendable once they have outgrown their usefulness to the State.
Brace yourselves.
As I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, “we the people” have become enemies of the Deep State.

Glenn Greenwald: Congress Demands More Internet Censorship

Journalist Glenn Greenwald writes Congress, in a Five-Hour Hearing, Demands Tech CEOs Censor the Internet Even More Aggressively

Facebook CEO Mark Zuckerberg, Twitter CEO Jack Dorsey, and Google/Alphabet CEO Sundar Pichai testify before the House Energy and Commerce Committee, Mar. 25, 2021

Over the course of five-plus hours on Thursday, a House Committee along with two subcommittees badgered three tech CEOs, repeatedly demanding that they censor more political content from their platforms and vowing legislative retaliation if they fail to comply. The hearing — convened by the House Energy and Commerce Committee’s Chair Rep. Frank Pallone, Jr. (D-NJ), and the two Chairs of its Subcommittees, Mike Doyle (D-PA) and Jan Schakowsky (D-IL) — was one of the most stunning displays of the growing authoritarian effort in Congress to commandeer the control which these companies wield over political discourse for their own political interests and purposes.

As I noted when I reported last month on the scheduling of this hearing, this was “the third time in less than five months that the U.S. Congress has summoned the CEOs of social media companies to appear before them with the explicit intent to pressure and coerce them to censor more content from their platforms.” The bulk of Thursday’s lengthy hearing consisted of one Democratic member after the next complaining that Facebook CEO Mark Zuckerberg, Google/Alphabet CEO Sundar Pichai and Twitter CEO Jack Dorsey have failed in their duties to censor political voices and ideological content that these elected officials regard as adversarial or harmful, accompanied by threats that legislative punishment (including possible revocation of Section 230 immunity) is imminent in order to force compliance (Section 230 is the provision of the 1996 Communications Decency Act that shields internet companies from liability for content posted by their users).

Republican members largely confined their grievances to the opposite concern: that these social media giants were excessively silencing conservative voices in order to promote a liberal political agenda (that complaint is only partially true: a good amount of online censorship, like growing law enforcement domestic monitoring generally, focuses on all anti-establishment ideologies, not just the right-wing variant). This editorial censoring, many Republicans insisted, rendered the tech companies’ Section 230 immunity obsolete, since they are now acting as publishers rather than mere neutral transmitters of information. Some Republicans did join with Democrats in demanding greater censorship, though typically in the name of protecting children from mental health disorders and predators rather than ideological conformity.

As they have done in prior hearings, both Zuckerberg and Pichai spoke like the super-scripted, programmed automatons that they are, eager to please their Congressional overseers (though they did periodically issue what should have been unnecessary warnings that excessive “content moderation” can cripple free political discourse). Dorsey, by contrast, seemed at the end of his line of patience and tolerance for vapid, moronic censorship demands, and — sitting in a kitchen in front of a pile of plates and glasses — he, refreshingly, barely bothered to hide that indifference. At one point, he flatly stated in response to demands that Twitter do more to remove “disinformation”: “I don’t think we should be the arbiters of truth and I don’t think the government should be either.”

Zuckerberg in particular has minimal capacity to communicate the way human beings naturally do. The Facebook CEO was obviously instructed by a team of public speaking consultants that it is customary to address members of the Committee as “Congressman” or “Congresswoman.” He thus began literally every answer he gave — even in rapid back and forth questions — with that word. He just refused to move his mouth without doing that — for five hours (though, in fairness, the questioning of Zuckerberg was often absurd and unreasonable). His brain permits no discretion to deviate from his script no matter how appropriate. For every question directed to him, he paused for several seconds, had his internal algorithms search for the relevant place in the metaphorical cassette inserted in a hidden box in his back, uttered the word “Congressman” or “Congresswoman,” stopped for several more seconds to search for the next applicable spot in the spine-cassette, and then proceeded unblinkingly to recite the words slowly transmitted into his neurons. One could practically see the gears in his head painfully churning as the cassette rewound or fast-forwarded. This tortuous ritual likely consumed roughly thirty percent of the hearing time. I’ve never seen members of Congress from across the ideological spectrum so united as they were by visceral contempt for Zuckerberg’s non-human comportment:https://www.youtube-nocookie.com/embed/vsA4u7i20_0?rel=0&autoplay=0&showinfo=0

But it is vital not to lose sight of how truly despotic hearings like this are. It is easy to overlook because we have become so accustomed to political leaders successfully demanding that social media companies censor the internet in accordance with their whims. Recall that Parler, at the time it was the most-downloaded app in the country, was removed in January from the Apple and Google Play Stores and then denied internet service by Amazon, only after two very prominent Democratic House members publicly demanded this. At the last pro-censorship hearing convened by Congress, Sen. Ed Markey (D-MA) explicitly declared that the Democrats’ grievance is not that these companies are censoring too much but rather not enough. One Democrat after the next at Thursday’s hearing described all the content on the internet they want gone: or else. Many of them said this explicitly.

At one point toward the end of the hearing, Rep. Lizzie Fletcher (D-TX), in the context of the January 6 riot, actually suggested that the government should create a list of groups they unilaterally deem to be “domestic terror organizations” and then provide it to tech companies as guidance for what discussions they should “track and remove”: in other words, treat these groups the same was as ISIS and Al Qaeda. https://www.youtube-nocookie.com/embed/owN9C1PZgG8?rel=0&autoplay=0&showinfo=0

Words cannot convey how chilling and authoritarian this all is: watching government officials, hour after hour, demand censorship of political speech and threaten punishment for failures to obey. As I detailed last month, the U.S. Supreme Court has repeatedly ruled that the state violates the First Amendment’s free speech guarantee when they coerce private actors to censor for them — exactly the tyrannical goal to which these hearings are singularly devoted.

There are genuine problems posed by Silicon Valley monopoly power. Monopolies are a threat to both political freedom and competition, which is why economists of most ideological persuasions have long urged the need to prevent them. There is some encouraging legislation pending in Congress with bipartisan support (including in the House Antitrust Subcommittee before which I testified several weeks ago) that would make meaningful and productive strides toward diluting the unaccountable and undemocratic power these monopolies wield over our political and cultural lives. If these hearings were about substantively considering those antitrust measures, they would be meritorious.

But that is hard and difficult work and that is not what these hearings are about. They want the worst of all worlds: to maintain Silicon Valley monopoly power but transfer the immense, menacing power to police our discourse from those companies into the hands of the Democratic-controlled Congress and Executive Branch.

And as I have repeatedly documented, it is not just Democratic politicians agitating for greater political censorship but also their liberal journalistic allies, who cannot tolerate that there may be any places on the internet that they cannot control. That is the petty wannabe-despot mentality that has driven them to police the “unfettered” discussions on the relatively new conversation app Clubhouse, and escalate their attempts to have writers they dislike removed from Substack. Just today, The New York Times warns, on its front page, that there are “unfiltered” discussions taking place on Google-enabled podcasts:

*New York Times* front page, Mar. 26, 2021

We are taught from childhood that a defining hallmark of repressive regimes is that political officials wield power to silence ideas and people they dislike, and that, conversely, what makes the U.S. a “free” society is the guarantee that American leaders are barred from doing so. It is impossible to reconcile that claim with what happened in that House hearing room over the course of five hours on Thursday.

Organic Prepper: Would YOU Be Considered a Domestic Terrorist Under This New Bill?

Robert Wheeler at The Organic Prepper talk about the Domestic Terrorism Prevention Act of 2021 and asks Would YOU Be Considered a Domestic Terrorist Under This New Bill? If you go looking for the bill, please note that there was a DTPA of 2020 and one for 2019, and 2018, and 2017… so be sure you’re looking at the right one. There are also news articles relating to some of the old acts saying things like “the legislation doesn’t mention MAGA rallies anywhere,” but we currently don’t have text for this years act.

After 9/11, the entire country collectively lost its mind in the throes of fear. During that time, all civil and Constitutional rights were shredded and replaced with the pages of The USA PATRIOT Act.

Almost 20 years later, the U.S. has again lost its collective mind, this time in fear of a “virus” and it’s “super mutations” and a “riot” at the capitol. A lot of people called this and to the surprise of very few, much like after 9/11, Americans are watching what remains of their civil liberties be replaced with a new bill.

The Domestic Terrorism Prevention Act of 2021

The DTPA is essentially the criminalization of speech, expression, and thought. It takes cancel culture a step further and all but outlaws unpopular opinions. This act will empower intelligence, law enforcement, and even military wings of the American ruling class to crack down on individuals adhering to certain belief systems and ideologies.

According to MI Congressman Fred Upton:

“The attack on the U.S. Capitol earlier this month was the latest example of domestic terrorism, but the threat of domestic terrorism remains very real. We cannot turn a blind eye to it,” Upton said. “The Domestic Terrorism Prevention Act will equip our law enforcement leaders with the tools needed to help keep our homes, families, and communities across the country safe.

Congressman Upton’s website gives the following information on DTPA:

The Domestic Terrorism Prevention Act of 2021 would strengthen the federal government’s efforts to prevent, report on, respond to, and investigate acts of domestic terrorism by authorizing offices dedicated to combating this threat; requiring these offices to regularly assess this threat; and providing training and resources to assist state, local, and tribal law enforcement in addressing it.

DTPA would authorize three offices, one each within the Department of Homeland Security (DHS), the Department of Justice (DOJ), and the Federal Bureau of Investigation (FBI), to monitor, investigate, and prosecute cases of domestic terrorism. The bill also requires these offices to provide Congress with joint, biannual reports assessing the state of domestic terrorism threats, with a specific focus on white supremacists. Based on the data collected, DTPA requires these offices to focus their resources on the most significant threats.

DTPA also codifies the Domestic Terrorism Executive Committee, which would coordinate with United States Attorneys and other public safety officials to promote information sharing and ensure an effective, responsive, and organized joint effort to combat domestic terrorism. The legislation requires DOJ, FBI, and DHS to provide training and resources to assist state, local, and tribal law enforcement agencies in understanding, detecting, deterring, and investigating acts of domestic terrorism and white supremacy. Finally, DTPA directs DHS, DOJ, FBI, and the Department of Defense to establish an interagency task force to combat white supremacist infiltration of the uniformed services and federal law enforcement.

Those who read the bill aren’t so gung ho to shred the Constitution

Congresswoman Tulsi Gabbard has some serious reservations. In a recent interview on Fox News Primetime, Gabbard stated that the bill effectively criminalizes half of the country. (Emphasis ours)

“It’s so dangerous as you guys have been talking about, this is an issue that all Democrats, Republicans, independents, Libertarians should be extremely concerned about, especially because we don’t have to guess about where this goes or how this ends,” Gabbard said.

She continued: “When you have people like former CIA Director John Brennan openly talking about how he’s spoken with or heard from appointees and nominees in the Biden administration who are already starting to look across our country for these types of movements similar to the insurgencies they’ve seen overseas, that in his words, he says make up this unholy alliance of religious extremists, racists, bigots, he lists a few others and at the end, even libertarians.”

Gabbard, stating her concern about how the government will define what qualities they are searching for in potential threats to the country, went on to ask:

“What characteristics are we looking for as we are building this profile of a potential extremist, what are we talking about? Religious extremists, are we talking about Christians, evangelical Christians, what is a religious extremist? Is it somebody who is pro-life? Where do you take this”

Tulsi said the bill would create a dangerous undermining of our civil liberties and freedoms in our Constitution. She also stated the DPTA essentially targets nearly half of the United States.

“You start looking at obviously, have to be a white person, obviously likely male, libertarians, anyone who loves freedom, liberty, maybe has an American flag outside their house, or people who, you know, attended a Trump rally,” Gabbard said.

Tulsi Gabbard is not the only one to criticize the legislation

Even the ACLU, one of the weakest organizations on civil liberties in the United States, has spoken out. While the ACLU was only concerned with how the bill would affect minorities or “brown people,” the organization stated that the legislation, while set forth under the guise of countering white supremacy, would eventually be used against non-white people.

The ACLU’s statement is true.

As with similar bills submitted under the guise of “protecting” Americans against outside threats, this bill will inevitably expand further. The stated goals of the DPTA are far-reaching and frightening enough. It would amount to an official declaration of the end to Free Speech.

Soon there will be no rights left for Americans

In the last twenty years, Americans have lost their 4th Amendment rights, and now they are losing their 1st. All that remains is the 2nd Amendment, and both the ruling class and increasing numbers of the American people know it.

Dark days are ahead.

Here is also an interview with Tulsi Gabbard on the issue.

FFF: The Real Constitutional Crisis

Laurence Vance at the Future of Freedom Foundation talks about the ever-spreading Constitutional crisis in the US.

According to the Merriam-Webster dictionary, a crisis (plural: crises) is:

All federal programs that are not explicitly authorized by the Constitution should be eliminated.
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1a: the turning point for better or worse in an acute disease or fever

b: a paroxysmal attack of pain, distress, or disordered function

c: an emotionally significant event or radical change of status in a person’s life; a midlife crisis

2: the decisive moment (as in a literary plot); The crisis of the play occurs in Act 3.

3a: an unstable or crucial time or state of affairs in which a decisive change is impending; especially: one with the distinct possibility of a highly undesirable outcome; a financial crisis, the nation’s energy crisis

b: a situation that has reached a critical phase; the environmental crisis, the unemployment crisis

And likewise in other dictionaries.

The Constitution

Regardless of any flaws or problems that the Constitution had or has (the countenance of slavery, the assumption of the right of eminent domain, ambiguous clauses, the income tax), it is the supreme law of the land that the federal government is supposed to follow. The Constitution is neither a long nor an obscure document. Any American with a computer or smart phone can access it in a matter of seconds. Yet most Americans are woefully ignorant about the Constitution.

The Constitution was drafted in 1787, ratified in 1788, and took effect in 1789. It established the United States as a federal system of government where the states, through the Constitution, granted a limited number of powers to a central government. As James Madison, the father of the Constitution, so eloquently explained in Federalist No. 45,

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

There are about thirty enumerated congressional powers listed throughout the Constitution. Most of those powers are found in the eighteen paragraphs of Article I, Section 8. Six of them concern the militia and the military. Four of them concern taxes and money. The rest relate to commerce, naturalization, bankruptcies, post offices and post roads, copyrights and patents, the federal courts, maritime crimes, and the governance of the District of Columbia. The last paragraph gives Congress the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” The Bill of Rights (the first ten Amendments to the Constitution) was added to the Constitution in 1791. The first eight Amendments protect civil liberties and fundamental rights. the Ninth and Tenth Amendments make it clear that all rights and powers not delegated to the federal government are retained by the people and the states.

The ignorance that most Americans have of the Constitution is exceeded by the ignorance of the Constitution that most congressmen have. Members of Congress swear to uphold the Constitution. Article VI, Clause 3, of the Constitution requires that senators and representatives be “bound by oath or affirmation, to support this constitution.” U.S. law requires that members of Congress be sworn in before they can take their seats. The congressional oath of office begins, “I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” One would think that members of Congress — most of whom have at least a bachelor’s degree and many of whom are lawyers — would have a firm grasp of what the Constitution says. Yet they are often the worst offenders when it comes to violations of the Constitution.

The crisis

It was called a constitutional crisis.

After the death of a black man, George Floyd, while in the custody of a white Minneapolis police officer on May 25, anti-police demonstrations erupted in large, predominantly black cities across the country. Yet, Portland, Oregon, which is about 77 percent white and 6 percent black, became the epicenter of anti-police demonstrations this past summer. Some of the demonstrations were peaceful, but others not so much. Protesters shut down streets, broke windows, set fires, committed acts of vandalism and looting, and clashed with police. Then, on July 10, it was reported that armed federal forces were making arrests and using tear gas against the demonstrators.

Writing in the Guardian, Trevor Timm, the executive director of the Freedom of the Press Foundation, mentioned the Constitution in his report about Portland: “A remarkable and nightmarish scene playing out in Portland should terrify anyone who cares about the US constitution: unmarked vans full of camouflaged and unidentified federal agents are pulling up next to protesters on street corners, then snatching and arresting them with no explanation.” Writing for the Associated Press, journalist Gillian Flaccus is the one who termed the events in Oregon a “constitutional crisis”: “Federal law enforcement officers’ actions at protests in Oregon’s largest city, done without local authorities’ consent, are raising the prospect of a constitutional crisis — one that could escalate as weeks of demonstrations find renewed focus in clashes with camouflaged, unidentified agents outside Portland’s U.S. courthouse.” In a lawsuit filed against the Department of Homeland Security, the United States Marshals Service, Customs and Border Protection, and the Federal Protective Service, the Oregon Attorney General, Ellen Rosenblum, accused the federal agencies of violating the constitutional rights of Oregon residents.

According to the Constitution (Article I, Section 8, Paragraph 15): “[Congress shall have power to] provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions.” The Insurrection Act of 1807 requires state legislatures or governors to request help from the federal government. It empowers the president to call into service the U.S. Armed Forces and the National Guard to address “an insurrection, domestic violence, unlawful combination or conspiracy, in any state, which results in the deprivation of Constitutionally secured rights, and where the state is unable, fails, or refuses to protect said rights.” The armed federal forces that descended uninvited on Portland were not members of the Militia, U.S. Armed Forces, or the National Guard. Under the guise of “protecting” federal property and maintaining “law and order,” they were functioning as de facto secret police — wearing military fatigues, sporting all manner of weapons, driving unmarked vehicles, compiling dossiers on journalists, grabbing people indiscriminately off the streets without regard to their lawful presence or personal behavior, assaulting people who weren’t engaged in criminal activity, detaining people who weren’t near federal property, and holding people for hours without charge.

But according to acting Department of Homeland Security (DHS) Secretary Chad Wolf, “I don’t need invitations by the state, state mayors, or state governors, to do our job. We’re going to do that, whether they like us there or not.” According to attorney and chronicler of the police state John Whitehead, “Just about every nefarious deed, tactic or thuggish policy advanced by the government today can be traced back to the DHS, its police state mindset, and the billions of dollars it distributes to local police agencies in the form of grants to transform them into extensions of the military.”

Constitutional scholar and senior judicial analyst at Fox News Judge Andrew Napolitano well explained the constitutional crisis in Portland:

The only constitutional role for armed federal forces in Portland, Oregon, was to assist U.S. marshals in protecting federal property and personnel there.

Under the U.S. Constitution, the feds have no lawful role in policing streets unless requested to do so by the governor or legislature of any state.

The feds’ activities are unconstitutional because they are using government force to arrest people without probable cause or arrest warrants. We know there is no legal basis for these “arrests,” as they have not charged anyone.

The First Amendment to the Constitution requires the government to protect speech, not assault those who exercise it. If these indiscriminate beatings and kidnappings are intended to deter folks from publicly dissenting, it is profoundly unconstitutional, counterproductive and will be costly to the federal government.

Under the Constitution, the ability to regulate for health and safety belongs to the states and local governments. The feds simply do not have the lawful authority to fill in gaps in local law enforcement, no matter how offended they may be.

This last point is why Sen. Rand Paul (R-Ken.) commented about the situation in Portland, “We cannot give up liberty for security. Local law enforcement can and should be handling these situations in our cities but there is no place for federal troops or unidentified federal agents rounding people up at will.”

Past constitutional crises

There have been other constitutional crises since the adoption of the Constitution in 1789.

The Constitution wasn’t even ten years old when the first constitutional crisis took place. In 1798, in the name of “national security,” the Federalist majority in Congress passed, and President John Adams signed into law, four pieces of legislation known collectively known as the Alien and Sedition Acts. The Naturalization Act, the Alien Friends Act, and the Alien Enemies Act targeted noncitizens (who were perceived to be political opponents of the Federalists) by extending the residency period for aliens seeking citizenship, allowed the president during peacetime to imprison or deport aliens considered “dangerous to the peace and safety of the United States,” and authorized the president to imprison or deport any male citizen of a hostile nation above the age of 14 during times of war. The most egregious piece of legislation was the Sedition Act. It authorized fines or imprisonment for persons who, in speech or print, criticized “the government of the United States, or either house of the Congress of the United States, or the President of the United States.” (The office of the vice president, which at the time was held by Adams’s nemesis, Thomas Jefferson, was not mentioned.) Critics of the Sedition Act argued that it blatantly violated the freedom of speech and freedom of the press clauses of the First Amendment. Federal courts prosecuted many Jeffersonian newspaper editors for violating the Sedition Act.

The so-called Civil War was itself a constitutional crisis. According to Thomas J. DiLorenzo, author of The Problem with Lincoln (2020), Abraham Lincoln ruled as a de facto dictator. He essentially “resurrected the Sedition Act,” imprisoned judges, suspended the writ of habeas corpus, authorized government officials to read Americans’ mail, imprisoned “tens of thousands of Northern state citizens” for “criticizing the government,” and “shut down more than three hundred opposition newspapers in the Northern states.”

The Sedition Act was actually resurrected in 1918 while the United States was fighting World War I. The Espionage Act of 1917 made it a crime for any person to convey information intended to interfere with the U.S. war effort. The Sedition Act amended and broadened the Espionage Act. It effectively criminalized speech and expression that criticized the government. Whoever “shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag” could receive a $10,000 fine and twenty years in jail. Under the Sedition Act, Americans were arrested for reading aloud the Declaration of Independence or singing German beer-hall songs. Although World War I ended in 1918, the Sedition Act was not repealed until 1921.

More recently, there is the USA PATRIOT Act, passed in the aftermath of the September 11 attacks. It vastly expanded the federal government’s authority to spy on Americans, while at the same time reducing checks and balances on those powers. It is an assault on both the First and Fifth Amendments. Napolitano terms sections 215 and 505 of the PATRIOT Act as “fatal to freedom,” “weapons of mass surveillance,” and “instruments of a totalitarian government that defy the Constitution.”

The real constitutional crisis

There is currently a constitutional crisis in America, and it has existed since long before the Portland protests and the PATRIOT Act. It is a crisis that has been perpetrated by both political parties in the Congress, approved by the president, sanctioned by the Supreme Court, and carried out by the bureaucrats who administer the myriad departments, bureaus, agencies, corporations, endowments, commissions, administrations, authorities, and boards of the federal government.

The existence of Social Security is a constitutional crisis. Not only is Social Security immoral because it takes money from those who work and gives it to those who don’t, the Constitution nowhere authorizes the federal government to have a retirement program, a pension plan, a forced savings account, or a disability plan.

The existence of Medicare and Medicaid is a constitutional crisis. Not only should no American be forced to pay for the health care of any other American, nowhere does the Constitution authorize the federal government to subsidize any American’s health insurance or health care, pay for anyone’s prescription drugs, have health-care programs, or have anything whatever to do with health insurance, health care, or medicine.

The existence of the war on drugs is a constitutional crisis. Not only is the drug war a failure and a colossal waste of the taxpayers’ money, nowhere does the Constitution authorize the federal government to regulate, monitor, or restrict Americans’ consumption, medical, or recreational habits; what Americans put in their mouths, noses, veins, or lungs; or Americans’ eating, drinking, or smoking habits.

The existence of federal aid to education is a constitutional crisis. Nowhere does the Constitution authorize the federal government to have a Head Start program, student loans, Pell Grants, teacher-education or certification requirements, school accreditation, math and science initiatives, a Department of Education, an Elementary and Secondary Education Act, a Higher Education Act, special-education mandates, or national standards, or to have anything to do with the education of anyone’s children. Education should be a service obtained on the free market just like any other service.

The existence of the welfare state is a constitutional crisis. Nowhere does the Constitution authorize the federal government to have food stamps, refundable tax credits, Section 8 housing vouchers, or entitlement programs. Nowhere does the Constitution authorize the government to fight poverty, maintain a safety net, provide public assistance, or guarantee income security. All charity should be private and voluntary.

The existence of foreign aid is a constitutional crisis. Article I, Section 8, Paragraph 1 of the Constitution says that the Congress shall have power “To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.” It does not say that taxes should be collected to provide for the general welfare of people in other countries. Like domestic charity, foreign charity should be entirely voluntary.

The existence of federal subsidies for art, culture, and the humanities is a constitutional crisis. Government funding for them is basically providing welfare for cultural elitists. It is always immoral for the government to take the resources from some Americans and redistribute them to other Americans. And the Constitution nowhere authorizes the federal government to subsidize them. Although the Constitution does authorize the national government to issue patents and copyrights, it does not follow that that entails giving subsidies to inventors and writers.

The existence of the Transportation Security Administration (TSA) is a constitutional crisis. The TSA provides security for private entities — the airlines. But not only is the security provided not paid for, not asked for, and just security theater, the Constitution nowhere authorizes the federal government to provide security for the airlines or any other private business.

The existence of the National Railroad Passenger Corporation (NRPC) is a constitutional crisis. Amtrak, as the NRPC is more commonly known, is a government corporation that has relied on government subsidies every year it has been in operation. But since when does the Constitution authorize the federal government to have a corporation, be a stockholder in a corporation, appoint and confirm a board of directors, or operate a passenger rail service?

The existence of the Equal Employment Opportunity Commission (EEOC) is a constitutional crisis. The existence of the EEOC is predicated on the idea that the federal government should prevent and punish acts of discrimination in employment that it considers to be unjustified. But not only is discrimination not aggression, force, coercion, or violence — and therefore, as far as the law is concerned, not the concern of government — the Constitution nowhere authorizes the federal government to have an EEOC or oversee any employer’s hiring or firing practices.

The existence of the National Organ Transplant Act (NOTA) is a constitutional crisis. It outlaws the selling of one’s body organs. Aside from the obvious fact that if you own your own body, then you certainly own the organs in your body, the Constitution nowhere authorizes the federal government to be concerned in the least with what Americans want to do with the organs in their body.

What is so perplexing and frustrating about the massive constitutional crisis that the United States is in is that it could quickly and easily be fixed. All federal programs that are not explicitly authorized by the Constitution should be eliminated. All federal departments, bureaus, agencies, corporations, endowments, commissions, administrations, authorities, and boards that carry out functions not explicitly authorized by the Constitution should be shuttered. Doing that would reduce the federal government by about 95 percent. And therein lies the problem. Not only do the Congress, the hundreds of government agencies and programs, and the entrenched bureaucracy resist a reduction in the government of any size, most Americans receive some kind of payment, benefit, or subsidy from the federal government.

Tenth Amendment Center: The Anti-Commandeering Doctrine

Mike Maharrey at the Tenth Amendment Center discusses The Anti-Commandeering Doctrine and its use to combat federal overreach.

The anti-commandeering doctrine provides a powerful tool to undermine overreaching, unconstitutional federal power. So, what is this doctrine? What is it based upon? And how can it be used as an effective tool for liberty?

How Do We Confront Federal Overreach?

Most people assume the feds have the final say. When Uncle Sam says jump, states and local government simply ask, “How high?” But given that the federal government was intended to limit its actions to constitutionally delegated powers and all other authority was left “to the states and the people” per the Tenth Amendment, how do we hold the federal government in check? How do we stop it from exercising powers not delegated?

This isn’t a new question. In fact, those skeptical of the Constitution raised it during the ratification debates. James Madison answered it in Federalist #46.

In his blueprint for resisting federal power, Madison offered a number of actions, but most significantly, he suggested that a “refusal to cooperate with officers of the union” would impede federal overreach.

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.” [Emphasis added]

What Is the Anti-Commandeering Doctrine?

Anti-commandeering is a longstanding Supreme Court doctrine. In a nutshell, the anti-commandeering doctrine prohibits the federal government from “commandeering” state personnel or resources for federal purposes.

In effect, the federal government is constitutionally prohibited from requiring states to use their personnel or resources to enforce federal laws or implement federal programs. State and local governments cannot directly block federal agents from enforcing federal laws or implementing federal programs, but they do not have to cooperate with the feds in any way. For instance, a local sheriff cannot block ATF agents from enforcing a federal gun law, but the ATF cannot force the sheriff’s office to participate in the enforcement effort.

Which Supreme Court Cases support the Anti-Commandeering Doctrine?

The anti-commandeering doctrine rests on five landmark cases, the first dating back to 1842.

Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it:

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution

New York v. United States (1992) the Court held that the regulations in the Low-Level Radioactive Waste Policy Amendment Act of 1985 were coercive and violated the sovereignty of New York, holding that “because the Act’s take title provision offers the States a ‘choice’ between the two unconstitutionally coercive alternatives–either accepting ownership of waste or regulating according to Congress’ instructions–the provision lies outside Congress’ enumerated powers and is inconsistent with the Tenth Amendment.

Sandra Day O’Connor wrote for the majority in the 6-3 decision:

As an initial matter, Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

She later expounded on this point.

While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.

Printz v. United States (1997) serves as the lynchpin for the anti-commandeering doctrine. At issue was a provision in the Brady Gun Bill that required county law enforcement officers to administer part of the background check program. Sheriffs Jay Printz and Richard Mack sued, arguing these provisions unconstitutionally forced them to administer a federal program. Justice Antonin Scalia agreed, writing in the majority opinion “it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme.”

Citing the New York case, the court majority declared this provision of the Brady Gun Bill unconstitutional, expanding the reach of the anti-commandeering doctrine.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program.

Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

Independent Business v. Sebelius (2012), the Court held that the federal government cannot compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place. Justice Robert Kennedy argued that allowing Congress to essentially punish states that refused to go along violates constitutional separation of powers.

The legitimacy of Congress’s exercise of the spending power “thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Pennhurst, supra, at 17. Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system. That system “rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ ” Bond, 564 U. S., at (slip op., at 8) (quoting Alden v. Maine, 527 U. S. 706, 758 (1999) ). For this reason, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, supra, at 162. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.

Murphy v. NCAA (2018), the Court held that Congress can’t take any action that “dictates what a state legislature may and may not do” even when the state action conflicts with federal law. Samuel Alito wrote, “a more direct affront to state sovereignty is not easy to imagine.” He continued:

The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States … Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.

Taken together, these five cases firmly establish a legal doctrine holding that the federal government has no authority to force states to participate in implementing or enforcing its acts.

Madison’s advice in Federalist #46, supported by the anti-commandeering doctrine, provides a powerful tool that states can use against federal acts and regulatory programs.

Can’t the Federal Government Punish Wayward States By Cutting Funding?

In simple terms, the federal government cannot use funding to coerce states to take a desired action. Independent Business v. Sebelius directly addressed this issue.

The federal government can withhold funding related to any action that a state refuses to take, but with some significant limitations and caveats. For instance, if the state refuses to enforce federal marijuana laws, the federal government can possibly cut some funding relating to drug enforcement. But it cannot cut unrelated funding to punish the state. In other words, Congress couldn’t cut education funding to punish a state for not cooperating with marijuana prohibition.

How Do We Determine What Is or Isn’t Constitutional? Isn’t that the Supreme Court’s Job?

The short answer is it doesn’t matter. Constitutionality isn’t part of the equation. The anti-commandeering doctrine doesn’t depend on a finding of constitutionality. States can refuse to provide personnel or resources for any federal activity regardless of its constitutionality. The utilization of state recourses, funds and personnel are totally at the discretion of the state government.

Will This Strategy Work?

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

Partnerships don’t work too well when half the team quits. By withdrawing all resources and participation in federal law enforcement efforts and program implementation, states, and even local governments, can effectively bring the federal actions to an end.

Consider the 36 states that have legalized marijuana despite federal prohibition.

The legalization of marijuana in a state removes a layer of laws prohibiting the possession and use of marijuana even though federal prohibition would remain in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

The same is true for virtually every federal action, from gun control, to Obamacare, to FDA mandates. The federal government depends on the states. And the states don’t have to cooperate.

Rutherford Institute: The Federal Coup to Overthrow the States Is Underway

Constitutional law attorney and government watch dog John Whitehead writes The Federal Coup to Overthrow the States and Nix the 10th Amendment Is Underway

“I don’t need invitations by the state, state mayors, or state governors, to do our job. We’re going to do that, whether they like us there or not.”—Acting Homeland Security Secretary Chad Wolf’s defense of the Trump Administration’s deployment of militarized federal police to address civil unrest in the states

This is a wake-up call.

What is unfolding before our very eyes—with police agencies defying local governments in order to tap into the power of federal militarized troops in order to put down domestic unrest—could very quickly snowball into an act of aggression against the states, a coup by armed, militarized agents of the federal government.

At a minimum, this is an attack on the Tenth Amendment, which affirms the sovereignty of the states and the citizenry, and the right of the states to stand as a bulwark against overreach and power grabs by the federal government.

If you’re still deluding yourself into believing that this thinly-veiled exercise in martial law is anything other than an attempt to bulldoze what remains of the Constitution and reinforce the iron-fisted rule of the police state, you need to stop drinking the Kool-Aid.

This is no longer about partisan politics or civil unrest or even authoritarian impulses.

This is a turning point.

Unless we take back the reins—and soon—looking back on this time years from now, historians may well point to the events of 2020 as the death blow to America’s short-lived experiment in self-government.

The government’s recent actions in Portland, Oregon—when unidentified federal agents (believed to be border police, ICE and DHS agents), wearing military fatigues with patches that just say “Police” and sporting all kinds of weapons, descended uninvited on the city in unmarked vehicles, snatching protesters off the streets and detaining them without formally arresting them or offering any explanation of why they’re being held—is just a foretaste of what’s to come.

One of those detainees was a 53-year-old disabled Navy veteran who was in downtown Portland during the protests but not a participant. Concerned about the tactics being used by government agents who had taken an oath of office to protect and defend the Constitution, Christopher David tried to speak the “secret” police. Almost immediately, he was assaulted by federal agents, beaten with batons and pepper sprayed

Another peaceful protester was reportedly shot in the head with an impact weapon by this federal goon squad.

The Trump Administration has already announced its plans to deploy these border patrol agents to other cities across the country (Chicago is supposedly next) in an apparent bid to put down civil unrest. Yet the overriding concerns by state and local government officials to Trump’s plans suggest that weaponizing the DHS as an occupying army will only provoke more violence and unrest.

We’ve been set up.

Under the guise of protecting federal properties against civil unrest, the Trump Administration has formed a task force of secret agents who look, dress and act like military stormtroopers on a raid and have been empowered to roam cities in unmarked vehicles, snatching citizens off the streets, whether or not they’ve been engaged in illegal activities.

As the Guardian reports, “The incidents being described sound eerily reminiscent of the CIA’s post-9/11 rendition program under George W Bush, where intelligence agents would roll up in unmarked vans in foreign countries, blindfold terrorism suspects (many of whom turned to be innocent) and kidnap them without explanation. Only instead of occurring on the streets of Italy or the Middle East, it’s happening in downtown Portland.”

The so-called racial justice activists who have made looting, violence, vandalism and intimidation tactics the hallmarks of their protests have played right into the government’s hands

They have delivered all of us into the police state’s hands.

There’s a reason Trump has tapped the Department of Homeland Security and the U.S. Customs and Border Protection for this dirty business: these agencies are notorious for their lawlessness, routinely sidestepping the Constitution and trampling on the rights of anyone who gets in their way, including legal citizens.

Indeed, it was only a matter of time before these roving bands of border patrol agents began flexing their muscles far beyond the nation’s borders and exercising their right to disregard the Constitution at every turn.

Except these border patrol cops aren’t just disregarding the Constitution.

They’re trampling all over the Constitution, especially the Fourth Amendment, which prohibits the government from carrying out egregious warrantless searches and seizures without probable cause.

As part of the government’s so-called crackdown on illegal immigration, drugs and trafficking, its border patrol cops have been expanding their reach, roaming further afield and subjecting greater numbers of Americans to warrantless searches, ID checkpoints, transportation checks, and even surveillance on private property far beyond the boundaries of the borderlands.

That so-called border, once a thin borderline, has become an ever-thickening band spreading deeper and deeper inside the country.

Now, with this latest salvo by the Trump administration in its so-called crackdown on rioting and civil unrest, America itself is about to become a Constitution-free zone where freedom is off-limits and government agents have all the power and “we the people” have none.

The Customs and Border Protection (CBP), with its more than 60,000 employees, supplemented by the National Guard and the U.S. military, is an arm of the Department of Homeland Security, a national police force imbued with all the brutality, ineptitude and corruption such a role implies.

As journalist Todd Miller explains:

In these vast domains, Homeland Security authorities can institute roving patrols with broad, extra-constitutional powers backed by national security, immigration enforcement and drug interdiction mandates. There, the Border Patrol can set up traffic checkpoints and fly surveillance drones overhead with high-powered cameras and radar that can track your movements. Within twenty-five miles of the international boundary, CBP agents can enter a person’s private property without a warrant.

Just about every nefarious deed, tactic or thuggish policy advanced by the government today can be traced back to the DHS, its police state mindset, and the billions of dollars it distributes to local police agencies in the form of grants to transform them into extensions of the military.

As Miller points out, the government has turned the nation’s expanding border regions into “a ripe place to experiment with tearing apart the Constitution, a place where not just undocumented border-crossers, but millions of borderland residents have become the targets of continual surveillance.”

In much the same way that police across the country have been schooled in the art of sidestepping the Constitution, border cops have also been drilled in the art of “anything goes” in the name of national security.

In fact, according to FOIA documents shared with The Intercept, border cops even have a checklist of “possible behaviors” that warrant overriding the Constitution and subjecting individuals—including American citizens—to stops, searches, seizures, interrogations and even arrests.

For instance, if you’re driving a vehicle that to a border cop looks unusual in some way, you can be stopped. If your passengers look dirty or unusual, you can be stopped. If you or your passengers avoid looking at a cop, you can be stopped. If you or your passengers look too long at a cop, you can be stopped.

If you’re anywhere near a border (near being within 100 miles of a border, or in a city, or on a bus, or at an airport), you can be stopped and asked to prove you’re legally allowed to be in the country. If you’re traveling on a public road that smugglers and other criminals may have traveled, you can be stopped.

If you’re not driving in the same direction as other cars, you can be stopped. If you appear to be avoiding a police checkpoint, you can be stopped. If your car appears to be weighed down, you can be stopped. If your vehicle is from out of town, wherever that might be, you can be stopped. If you’re driving a make of car that criminal-types have also driven, you can be stopped.

If your car appears to have been altered or modified, you can be stopped. If the cargo area in your vehicle is covered, you can be stopped.

If you’re driving during a time of day or night that border cops find suspicious, you can be stopped. If you’re driving when border cops are changing shifts, you can be stopped. If you’re driving in a motorcade or with another vehicle, you can be stopped. If your car appears dusty, you can be stopped.

If people with you are trying to avoid being seen, or exhibiting “unusual” behavior, you can be stopped. If you slow down after seeing a cop, you can be stopped.

In Portland, which is 400 miles from the border, protesters didn’t even have to be near federal buildings to be targeted. Some claimed to be targeted for simply wearing black clothing in the area of the demonstration.

Are you starting to get the picture yet?

This was never about illegal aliens and border crossings at all. It’s been a test to see how far “we the people” will allow the government to push the limits of the Constitution.

We’ve been failing this particular test for a long time now.

It was 1798 when Americans, their fears stoked by rumblings of a Quasi-War with France, failed to protest the Alien and Sedition Acts, which criminalized anti-government speech, empowered the government to deport “dangerous” non-citizens and made it harder for immigrants to vote.

During the Civil War, Americans went along when Abraham Lincoln suspended the writ of habeas corpus (the right to a speedy trial) and authorized government officials to spy on Americans’ mail.

During World War I, Americans took it in stride when President Woodrow Wilson and Congress adopted the Espionage and Sedition Acts, which made it a crime to interfere with the war effort and criminalized any speech critical of war.

By World War II, Americans were marching in lockstep with the government’s expanding war powers to imprison Japanese-American citizens in detainment camps, censor mail, and lay the groundwork for the future surveillance state.

Fast-forward to the Cold War’s Red Scares, the McCarthy era’s hearings on un-American activities, and the government’s surveillance of Civil Rights activists such as Martin Luther King Jr.—all done in the name of national security.

By the time 9/11 rolled around, all George W. Bush had to do was claim the country was being invaded by terrorists, and the government was given greater powers to spy, search, detain and arrest American citizens in order to keep America safe.

The terrorist invasion never really happened, but the government kept its newly acquired police powers made possible by the nefarious USA Patriot Act.

Barack Obama continued Bush’s trend of undermining the Constitution, going so far as to give the military the power to strip Americans of their constitutional rights, label them extremists, and detain them indefinitely without trial, all in the name of keeping America safe.

Despite the fact that the breadth of the military’s power to detain American citizens violates not only U.S. law and the Constitution but also international laws, the government has refused to relinquish its detention powers made possible by the National Defense Authorization Act (NDAA).

Then Donald Trump took office, claiming the country was being invaded by dangerous immigrants and insisting that the only way to keep America safe was to build an expensive border wall, expand the reach of border patrol, and empower the military to “assist” with border control.

That so-called immigration crisis has now morphed into multiple crises (domestic extremism, the COVID-19 pandemic, race wars, civil unrest, etc.) that the government is eager to use in order to expand its powers.

Yet as we’ve learned the hard way, once the government acquires—and uses—additional powers (to spy on its citizens, to carry out surveillance, to transform its police forces into extensions of the police, to seize taxpayer funds, to wage endless wars, to censor and silence dissidents, to identify potential troublemakers, to detain citizens without due process), it does not voluntarily relinquish them

This is the slippery slope on which we’ve been traveling for far too long.

As Yale historian Timothy Snyder explains, “This is a classic way that violence happens in authoritarian regimes, whether it’s Franco’s Spain or whether it’s the Russian Empire. The people who are getting used to committing violence on the border are then brought in to commit violence against people in the interior.”

Sure, it’s the Trump Administration calling the shots right now, but it’s government agents armed with totalitarian powers and beholden to the bureaucratic Deep State who are carrying out these orders in defiance of the U.S. Constitution and all it represents.

Whether it’s Trump or Biden or someone else altogether, this year or a dozen years from now, the damage has been done: as I make clear in my book Battlefield America: The War on the American People, we have allowed the president to acquire dictatorial powers that can be unleashed at any moment.

There’s a reason the Trump Administration is consulting with John Yoo, the Bush-era attorney notorious for justifying waterboarding torture tactics against detainees. They’re not looking to understand how to follow the law and abide by the Constitution. Rather, they’re desperately seeking ways to thwart the Constitution.

As Harvard constitutional law professor Laurence Tribe recognizes, “The dictatorial hunger for power is insatiable.

This is how it begins.

This is how it always begins.

Don’t be fooled into thinking any of this will change when the next election rolls around.

Tenth Amendment Center: Step by Step for Liberty

Michael Boldin at the Tenth Amendment Center has a nice, short article about the federal government’s usurpation of powers never delegated to it by the Constitution – Step by Step for Liberty: Small Things Grow Great by Concord.

Let us remember that if we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom!

Writing as Candidus in the Boston Gazette on Oct. 14, 1771, Samuel Adams recognized an important and timeless truth. Turning a blind eye to an attack on liberty only guarantees that more attacks will come in the future.

The same goes for violations of the Constitution, which the Founders often referred to as “usurpations,” or the exercise of “arbitrary power.”

In his 1791 Opinion on the Constitutionality of a National Bank, Thomas Jefferson agreed with Adams in principle when he wrote:

“I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’ [10th Amendment] To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.” [emphasis added]

Here’s something that shouldn’t be surprising: Jefferson was right.

But turning things around from a government with tens of thousands of unconstitutional “laws,” regulations, rules and orders on the books isn’t going to happen in a single step either…

Click here to read the entire article at the Tenth Amendment Center.