Whitaker is Correct & The Liberal Law Professors are Wrong

by KrisAnne Hall, JD

Just in case you were wondering, here are the facts that prove acting Attorney General Matthew Whitaker is correct and the liberal law professors are wrong.  During a September 2013 campaign speech, Interim US Attorney General Matthew Whitaker made some very bold comments that have the federal supremacists in defensive battle mode.  Whitaker said,

“Now we need to remember that the states set up the federal government and not vice versa. And so the question is, do we have the political courage in the state of Iowa or some other state to nullify Obamacare and pay the consequences for that?”

“The federal government’s done a very good job about tying goodies to our compliance with federal programs, whether it’s the Department of Education, whether it’s Obamacare with its generous Medicare and Medicaid dollars and the like,” he added. “But do I believe in nullification? I think our founding fathers believed in nullification. There’s no doubt about that.”

A federal supremacist at University of Texas, law professor and CNN contributor Stephen Vladeck, according to an article on CNN by Andrew Kaczynski, calls Whitaker’s statements “irreconcilable not only with the structure of the Constitution.”  Interestingly this federal supremacist attitude is not supported by the chief Justice of the United States Supreme Court even when he declared the mandate to be a tax.  John Roberts, writing for the majority in the first Affordable Care Act opinion, NFIB v Sebelius, 567 U.S. 519 (2012) confirms Whitaker’s understanding of the State’s authority to nullify Obamacare.  As a matter of fact, Roberts gives the States a directive to nullify Obamacare if they did not want to “embrace” these policies as their own, citing Massachusetts v. Mellon, 262 U. S. 447, 482 (1923), as his agreeing precedent.

“In the typical case we look to the States to defend their prerogatives by adopting “the simple expedient of not yielding” to federal blandishments when they do not want to embrace the federal policies as their own. Massachusetts v. Mellon, 262 U. S. 447, 482 (1923) . The States are separate and independent sovereigns. Sometimes they have to act like it.”

This is the same reasoning SCOTUS used in Mack, Printz v US, 521 U.S. 898 (1997), when it decided against the federal government and certain Brady Bill provisions. The court quotes James Madison in Federalist #39:  “[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.”  Using Madison’s reasoning, the court then concluded, [t]his separation of the two spheres is one of the Constitution’s structural protections of liberty.”  The sphere’s Madison and the Court where speaking of are those that are clearly outlined in the Constitution:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Tenth Amendment.

If powers are not specifically delegated to the federal government they are reserved to the States.  When power is reserved to the States, as James Madison said, the “States have the right and are duty bound” to defend that sphere.

Federal supremacist Stephen Vladeck continues his criticism of the principle of Nullification by saying that Nullification is contrary to the text of the Constitution itself, citing the Supremacy Clause of Article VI, which he claims “not only makes federal law supreme, but expressly binds state courts to apply it.”  Since Mr. Vladeck is a professor one would have to assume that he can read.  It then leads this author to the inevitable conclusion that Vladeck must be intentionally deceiving his readers by not accurately quoting the text of Article VI clause 2.  To clear up the confusion laid before us by Vladeck, and in full disclosure let’s just look at this clause in its entirety:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

A simple, elementary reading of this clause indicates Vladeck’s deception.  This clause does not make federal law supreme.  Quite to the contrary, it makes the Constitution supreme and places all other laws beneath it.  According to the Supremacy Clause not all federal laws are supreme, only those laws that are made “in pursuance to the Constitution.”  When federal laws are not made in pursuance to the Constitution, those laws are not supreme, and as this language of the Constitution asserts, the Judges in every State are NOT bound by them.  Time and again, the drafters of this clause make this principle abundantly clear.  Here are just two examples:

“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.

No legislative act, therefore, contrary to the Constitution, can be valid.” Alexander Hamilton, Federalist 78

“…the power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.”  James Wilson Pennsylvania Ratifying Convention 1787

Andrew Kaczynski, comments in apparent shock that Whitaker would refer to the courts as the “inferior branch of the federal government.”  Apparently he has never taken the time to read how the courts were formed and the purpose and limit to judicial power as described by the people who created this branch of government.  One statement made by Alexander Hamilton should help us to see that once again Whitaker is right, and the federal supremacists are wrong:

“This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power…” Federalist #78

Hamilton’s comments were one of concern that the judiciary being the weakest branch would need to be supported by the people to ensure that it was not abused by the other two branches.  Whitaker’s statement about the judiciary being the inferior branch of the federal government should not be shocking to the American people, it should be, as Hamilton identified it, “incontestable.”

These federal supremacists, when attacking the Constitution’s foundational principles will always revert to a common fallacy of logic to appeal to the emotion of the people by name-calling and labeling.  In this particular context, the popular fallacy implied by both Vladeck and Kaczynski is that people who support Nullification are racists and that the principle of Nullification was a racist tool used in the Civil War to protect the institution of slavery and in the Civil Rights movement to oppress blacks.  Calhoun’s defense of nullification and Mississippi’s resistance to Brown is selectively highlighted to drive home their point.  Yet they also have to selectively OMIT the use of nullification by abolitionist States to defy federal laws of the fugitive slave act and to ignore the Supreme Court’s opinion in Dred Scott that men were property.  Without Nullification by these abolitionist States, the federal government, with the full support of the Supreme Court would have protected the institution of slavery and defied the principles of the Declaration of Independence and the Constitution that “all men are created equal and endowed by their Creator with certain unalienable Rights…” We are supposed to accept that the misuse of a principle makes the principle itself invalid (Sounds a great deal like the anti-gun argument.)  They also selectively omit the use of nullification to defy federal marijuana laws, and federal laws banning gay marriage. AND they don’t seem to want to talk about the MISUSE of nullification by California to defy the Uniform Rules of Naturalization because THAT misuse of nullification is SUPPORTED by these leftists who want non-citizens to live off of tax-payer benefits and vote in elections.

CNN’s legal analyst, Michael Zeldin attempts to deny these facts by claiming that the principle of Nullification is “purely political.”  That is an interesting comment considering that every claim this article levels against Nullification is purely political and not legal.  The drafters of the Constitution asserted time and time again that unconstitutional federal laws were “null and void,” and that they were “no law at all.”  Who can claim, with any semblance of legal reasoning that a law that is null and void, that carries the weight of no law at all, should bind anyone, anywhere?   Therefore the justification for anti-nullifiers is purely political.  The purely political nature of these supremacist, anti-nullifiers is supported by the reality of their hypocrisy mentioned above.  Whitaker makes the statement that States can and should nullify “Obamacare” and these supremacists lose their ability to reason.  However, when States assert that they do not have to follow the federal Uniform Rules of Naturalization, or do not have to recognize federal marijuana laws, these political activists disguising themselves as “legal analysts” or “professors of the Constitution” all fall silent.  Yes, federal supremacy has to be purely political because it has no factual or historical foundation in America or the Constitution.

Finally, CNN’s federal supremacists, as do most federal supremacists, assert a final defense to their indefensible argument of complete federal supremacy by raising aloft the standard of judicial idolatry, namely a distortion of Supreme Court Opinion in Marbury v. Madison, 5 US 137 (1803).  Sadly, we have are so far removed from this opinion written in 1803, by Chief Justice John Marshall, I wonder if any modern law professor, pundit, or analyst has actually read the case.  I believe the overwhelming majority have simply read and accepted the summary and definition provided to them by some modern law book.  Once again, actually reading the case affirms the supremacy of the Constitution and the invalidity of laws made by Congress that are inconsistent with that document.  Here is a small sampling:

 “The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on.” Marbury v. Madison, 5 US 137, 177 (1803) (emphasis mine).

Marbury v. Madison does not deny nullification.  It does not deny the State’s authority to be an essential check and balance to unconstitutional federal power, to guard Liberty and protect their sphere of power.  Considering both the Kentucky Resolution of 1799 and the Virginia Resolution of 1800, the fact that this court is actually glaringly silent on the question of nullification, says to the people that nullification was not contradicted by this court.  Marbury did, however, incontestably establish the Constitution as supreme over federal laws.  It did not establish the court’s power to be the ultimate arbiters of the Constitution.  It did reaffirm the court’s duty, as established by the creators of the Constitution, to be a check on the legislative branch using the Constitution as the standard.

When supremacists like Vladeck, Zeldin, and their ideological kinfolk in the law schools & think tanks say “all federal laws are supreme,” when they declare the federal government through their courts to be “the ultimate arbiters” of the Constitution, they are not only operating contrary to the language of the Constitution itself, but contrary to Marbury v Madison which they have reshaped into their own image.  They are asserting a gross and absurd reality that denies not only the words of the Constitution, the tenor in which it was written, but they are also declaring the people of America are not free, but mere subjects to an oligarchy of their choosing; today the legislature, tomorrow the judiciary.  Who rules, to them, is merely dependent upon which political tribe happens to hold power.  Their assertion of arbitrary power is so radical and so contrary to the principles of Liberty, it is no wonder they have to resort to label-lynching and fallacies of logic.  They have no basis in fact or history, so they want to scare and intimidate every American from learning the truth.

This political bullying will only stop when the people learn truth and those who know truth are no longer afraid to speak it out loud, just like Mr. Whitaker.  I applaud Matthew Whitaker for his statements.  I just hope he has the courage to live up to his convictions and not be bullied by the tired accusation of being racist simply because political loyalist are afraid his action may support the big orange boogeyman that they all love to hate.