Tuesday, August 13, 2013

The Limits of Federal Law

From Patricia Evans:

"From The Committee for Constitutional Government, Gloucester, VA

The federal Constitution is not a contract between the states and the federal government, but rather a contract between the states, in which they created an agent, the federal government, to carry out specified duties for the common good and the defense of all. 

Our founding fathers from Virginia were clear in their belief that, as a sovereign and independent state, they joined other states in establishing the contract that is the Constitution of the United States. It did NOT enter into a position of unlimited subordination to the federal government, but ceded only certain enumerated and defined powers, reserving to it and to the people, all other rights and powers

As Thomas Jefferson said, “The general government, created by this compact, was not made the exclusive or final judge of the extent  of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself the measure of the general government’s administration or maladministration of the delegated powers." 

The enumerated powers of the federal government are precisely defined in the Constitution. What the federal government is authorized to do, and only what it is allowed to do, is clearly listed. This was established by the states when the Constitution was written and ratified, confirming that the federal government had limited powers and the states or the people retained all other powers.
As for what laws may be passed by the federal government, Article One, Section One states:

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. It makes it clear that only the Congress may make laws.
According to our Constitution, can judges make laws with their decisions? NO
According to the Constitution, can the President make laws with executive orders? NO

Furthermore, if a state should determine that a federal law is invalid because it steps outside the boundaries of the Constitution, then that state can determine that the law is invalid.

Therefore, can a state pass and enforce a law that nullifies a federal law?                              
Those who say it cannot, cite what is called the Supremacy Clause, which they interpret to say that federal law is supreme over state law. But what does the Supremacy Clause say? Article Six, paragraph two states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the land. 
The unknowing – or perhaps deliberately misleading– contend that this clause says that US law trumps state law.

Let's look closer.

“Thereof” refers to the Constitution. Thus laws are to be made in pursuance to the Constitution. 

What about “shall be made in Pursuance” ? Pursuance means following or in keeping with.

Thus only those laws that are in keeping with the Constitution are the supreme law of the land. Those not in keeping with the Constitution are not valid laws. In order for them to be constitutional they must be found in the enumerated powers - those that are allowed and listed. (Most are found in Article One, Section Eight. - Review the list below)

Whereas it is true that states cannot pick and choose which federal laws they choose to obey, the litmus test is whether the law is constitutional.

Who is to say what is constitutional? The states. It was the states that made the rules and formed the contract.

If a law is found within the listed powers in the Constitution, then it is constitutional. That power was ceded by the states to the federal government. But, if a law is not found in the listed powers, powers that were not ceded, then it is unconstitutional and the Supremacy Law does not apply as trumping state laws.

For example: ObamaCare. Nowhere in the Constitution is there any mention of the government having the authority to control health care. The Supreme Clause does not excuse its implementation. The healthcare law is obviously not “in pursuance thereof.” Any state law to the contrary of implementing ObamaCare trumps federal law and according to the Constitution, is legal.

Likewise, any law that abridges the right to keep and bear arms falls into the same category. The Constitution not only does not mention, it specifically prohibits Congress from making laws that infringe on the right to keep and bear arms. Any such law – or judicial ruling or executive edict -is unquestionably unconstitutional and does not have supremacy over state laws

The better question would be: When does federal law trump state law? It is clear that it does so only when the federal law is constitutional, i.e., when it is found in the enumerated powers.

Review the enumerated powers listed below:

U.S. Constitution - Article 1 Section 8

Article 1 - The Legislative Branch
Section 8 - Powers of Congress

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; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

"Educate and inform the whole mass of the people. They are the only sure reliance for the preservation of our liberty."  - Thomas Jefferson