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.