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Sanctuary cities? That’s a constitutional ‘hell no’

Immigration writing on a chalkboard / sebastianosecondi | Shutterstock

You may not have heard of the “Nullification Crisis” that President Andrew Jackson faced in 1832. But there are many unfortunate similarities between it and what is happening today on immigration. From the unjustified obstruction of immigration law by some activist federal judges to the defiance of the federal government on sanctuary policies by governors and city mayors such as Ed Murray of Seattle, there are some interesting parallels — and lessons.

I was reminded of the Nullification Crisis recently on a tour of James Madison’s home, Montpelier, which is close to the University of Virginia in Charlottesville, Virginia. One of the docents related how President Jackson had visited Madison in the midst of his reelection campaign to get his advice. This crisis was about high tariffs which, before the implementation of the income tax in 1913 through the Sixteenth Amendment, was one of the main sources of income for the federal government.High tariff rates were resented throughout the South, particularly in South Carolina. While they benefited manufacturers in the northern states, they hurt the mostly agricultural southern states. Led by John Calhoun, South Carolina and other states asserted that they had the final authority to declare federal laws unconstitutional and thus null and void within their states. While Jackson was a moderate on tariffs and respectful of the rights states retained in our federal system, he was scornful of the nullification theory. He considered it an unconstitutional, “abominable doctrine” that “will dissolve the Union.”

In 1832, the nullifiers took control of the South Carolina government and passed the infamous “Ordinance of Nullification.” They expressed the same type of virulent hostility and contempt for (and defiance of) the Jackson administration and the tariff system that we are seeing today towards the Trump administration over enforcement of federal immigration law, including provisions against certain sanctuary policies. Those states and cities are pushing the same concept of nullification of federal law, although they are doing it in federal court.

As one would expect of Andrew Jackson, he reacted strongly to this threat from South Carolina, including issuing a Nullification Proclamation on Dec. 10, 1832. Nullification was “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed,” He wrote. The crisis was resolved by a compromise bill on tariffs that Congress passed in 1833 after passing the Force Bill, which gave the president the power to use state militias and federal forces against the nullifiers.

The similarity between these events and what is happening today are eerie. While there are many areas over which the states and the federal government share responsibility — or where the Tenth Amendment gives responsibility to the states — immigration is not one of them. Section 8 of Article I gives Congress exclusive authority to “establish a uniform Rule of Naturalization,” just as Section 8 gives Congress the exclusive authority to establish and collect all “Imposts and Excises” or tariffs. The states have no authority in these areas at all. They can no more dispute the immigration rules established by Congress than they could dispute the tariffs imposed by Congress back in 1832.

This makes perfect sense. Any other rule would produce chaos. Think of the enormous problems that would be caused by border states such as Texas or California deciding that they would ignore federal law and apply their own immigration rules to individuals coming across the Mexican border into the United States — or if states decided that they would impose their own tariffs on foreign goods coming into their states in addition to those imposed by the federal government. In fact, it was that kind of behavior that was restricting trade under the Articles of Confederation between states such as Virginia and Maryland that helped lead to the call for a constitutional convention.

When it comes to immigration and the entry of aliens into the U.S., Congress delegated to the president the extremely broad authority under 8 U.S.C. §1182 (f) to suspend the entry of any aliens or class of aliens into the U.S. if he believes it “would be detrimental to the interests of the United States.” As five dissenting judges at the Ninth Circuit Court of Appeals recently pointed out, there are a long series of decisions by the U.S. Supreme Court upholding the authority of prior presidents under this provision and severely limiting the ability of the courts to review the president’s decision.

Unfortunately, at the urging of certain states, the courts have in large part ignored the Constitution, federal law, and prior precedents. They are instead substituting their judgment for that of the president, and enjoining the president’s executive order by implementing a temporary halt to entry from certain terrorist safe havens. In essence, states such as Hawaii and Washington are turning to activist federal judges to nullify the exclusive authority of the federal government over immigration and the security of our national border — and those judges are complying.

The sanctuary policies implemented by cities such as San Francisco and Seattle also seek to nullify federal immigration law and obstruct its enforcement. 8 U.S.C. §1373 prohibits states and local jurisdictions from preventing their law enforcement officials from exchanging information with federal officials on the citizenship status of individuals they have arrested or detained. The Supreme Court upheld this provision in 2012 in Arizona v. United States.

Quite appropriately, Attorney General Jeff Sessions has announced that he will not award any discretionary federal grants from the Justice Department to cities that violate §1373. Seattle has filed suit, claiming that the federal government has no right to cut off its access to discretionary funding. The city also makes the meritless claims that its policy does not violate federal immigration law.

Sanctuary cities are claiming that Sessions is trying to force them to enforce federal immigration law and that the loss of federal funds would violate the holding in NFIB v. Sebelius (2012). This is the Supreme Court decision that upheld Obamacare but found that the Medicaid portion of Obamacare, which required states to significantly expand their Medicaid coverage or risk losing all Medicaid funding, violated the Spending Clause of the Constitution. The federal government was “commandeering” the states by compelling them to “enact or administer a federal regulatory program.”

But Sessions is simply trying to get states to not obstruct federal enforcement. That includes abiding by the ban contained in Section 1373. Sanctuary cities are trying to prevent federal officials from finding out about criminal alien murderers, rapists, and other violent criminals that these cities would apparently rather release than have picked up and deported so they cannot further victimize Americans. Section 1373 doesn’t force local law enforcement officials to notify federal officials when they detain an illegal alien; It simply says that local governments can’t ban law enforcement officials from doing so.

The spurious legal argument that §1373 violates the anti-commandeering principle was raised by the City of New York in a lawsuit against the federal government only 11 days after the provision became federal law. New York also had a policy in place that forbade city officials from transmitting information on the immigration status of any individual to federal immigration authorities. In City of New York v. U.S. (1999), the Second Circuit Court of Appeals threw out the city’s case because the federal law was constitutional and well within congressional authority on immigration.

As the court pointed out, §1373 does not compel “state and local governments to enact or administer any federal regulatory program. Nor has it affirmatively conscripted states, localities, or their employees into the federal government’s service.” The only thing the provision does is prohibit state and local governmental entities or officials from “directly restricting the voluntary exchange of immigration information with the INS.” A contrary holding would cause chaos: “If Congress may not forbid states from outlawing even voluntary cooperation with federal programs by state and local officials, states will at times have the power to frustrate effectuation of some programs.”

We can only hope that the current nullification crisis will also be resolved once and for all when all of the lawsuits being filed by the states to prevent the enforcement of federal immigration law reach the Supreme Court.

That is clearly what is happening here: sanctuary states and cities want to “frustrate effectuation” of federal enforcement of our immigration laws. The absence of such cooperation, as the Second Circuit said, would force federal officials to “resort to legal processes in every routine or trivial matter, often a practical impossibility.” This was the same type of resistance exhibited by local governments to Brown v. Board of Education: “a refusal by local government to cooperate until under a court order to do so.”

Furthermore, refusing to award sanctuary cities funds that have to be applied for and that are entirely discretionary within the judgement of the attorney general does not come anywhere close to “commandeering” a “State’s legislative or administrative apparatus for federal purposes,” which was the key factor in the NFIB decision. The Supreme Court said that there is no violation of the Spending Clause “when a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds.”

States can make their own decisions on whether to apply for a portion of the $4.1 billion the Justice Department has available to local jurisdictions for improving their law enforcement programs. In fact, this situation raises even fewer concerns than a federal law that the Supreme Court upheld in South Dakota v. Dole (1987). That law provided that states would lose five percent of their federal highway funds if they did not raise the drinking age to 21. This was “relatively mild encouragement” compared to the Medicaid expansion in Obamacare, where the Court described the potential loss of all Medicaid funding as a “gun to the head.”

Similarly, when it comes to sanctuary cities, the Justice Department isn’t threatening the cutoff of any major entitlement funds such as Medicaid or even state highway funds. What’s at stake are discretionary grants that the states may or may not decide to apply for, and which the Justice Department may or may not choose to grant.

The Nullification Crisis was resolved when South Carolina rescinded its nullification ordinance after President Jackson issued his Nullification Proclamation. We can only hope that the current nullification crisis will also be resolved once and for all when all of the lawsuits being filed by the states to prevent the enforcement of federal immigration law reach the Supreme Court.


Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation ( Along with John Fund, he is the co-author of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” and “Obama’s Enforcer: Eric Holder’s Justice Department.”


Kansas Governor Brownback Issues Order Protecting Beliefs of Clergy About Same-Sex “Marriage”

waving flagWritten by  , Friday, 10 July 2015 

URL of the original posting site:

Kansas Governor Brownback Issues Order Protecting Beliefs of Clergy About Same-Sex “Marriage”

Kansas Governor Sam Brownback issued an executive order on July 7 that prohibits the state government from taking any action against any individual clergy, religious leader, or religious organization that “acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman.” The governor said his order protects “Kansas clergy and religious organizations from being forced to participate in activities that violate their sincerely and deeply held beliefs.”

Brownback issued the executive order, entitled “Preservation and Protection of Religious Freedom,” in response to last month’s U.S. Supreme Court ruling in the case of Obergefell v. Hodges, mandating recognition of same-sex “marriage” in all 50 states. In the order, he cited the First Amendment of the U.S. Constitution, Section Seven of the Bill of Rights of the Kansas Constitution, and the Kansas Preservation of Religious Freedom Act (which he signed in 2013), all of which protect the religious liberty of Kansans. He quoted from the latter, which provides that state government shall not “substantially burden a person’s civil right to exercise of religion.”

Building on that legal foundation, Brown noted that “the recent imposition of same sex marriage by the United States Supreme Court poses potential infringements on the civil right of religious liberty” and that “government actions and laws that protect the free exercise of religious beliefs about marriage will encourage private citizens and institutions to demonstrate tolerance for those beliefs and convictions and therefore contribute to a more respectful, diverse, and peaceful society.”burke

Getting down to specifics, Brownback ordered:

The State Government shall not take any discriminatory action against any individual clergy or religious leader on the basis that such individual declines or will decline to perform, solemnize, or facilitate any marriage, based upon or consistent with the individual’s sincerely held religious belief or moral conviction

The four Catholic bishops in Kansas issued a joint statement urging state officials to make the enactment of new legal protections for those who are opposed in conscience to same-sex marriage a top priority in coming months. The bishops praised Brownback’s order and said in a statement: “Generations of Americans have taken freedom of conscience for granted. We, sadly, do not have that luxury anymore.”It HasNever Been About Marriage

Texas Governor Greg Abbott recently issued a similar memo to all agency heads in his state, granting state employees who object on moral grounds to same-sex marriage some protection against the ruling. Abbott’s memo stated: “All state agency heads should ensure that no one acting on behalf of their agency takes any adverse action against any person, as defined in Chapter 311 of the Texas Government Code, on account of the person’s act or refusal to act that is substantially motivated by sincere religious belief.”Big Gay Hate Machine

While orders such as Brownback’s and Abbott’s mitigate some of the most harmful effects of the Supreme Court’s overreaching decision on same-sex “marriage” — about which Justice Samuel Alito said in his dissent, “The Constitution leaves that question to be decided by the people of each State” — they fall far short of other remedies available to the states. One such remedy is nullification, a little-used technique in recent history, but a viable one nevertheless. As Joe Wolverton noted in a recent article for The New American on the prospect of states using nullification to resist the application of Obergefell v. Hodges within their borders:Leftist Giant called Tyranny

Nullification, whether through active acts passed by the legislatures or the simple refusal to obey unconstitutional directives, is the “rightful remedy” for the ill of federal usurpation of authority. Americans committed to the Constitution must walk the fences separating the federal and state governments and they must keep the former from crossing into the territory of the latter.

Wolverton cited no less an authority on the Constitution than Thomas Jefferson to support the legitimacy of nullification, quoting from the Founding Father’s statement in the Kentucky Resolutions:

That the several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour [sic] of that instrument, is the rightful remedy.

Though nullification is a valid, constitutional option, no state has thus far made an attempt to apply the principal to Obergefell v. Hodges. Granted, it has been only a few weeks since the decision was made, and such matters take time. However, that is all the more reason why serious discussions to consider that possibility should now be taking place.SCOTUS GIANT

One of the strongest statements suggesting nullification came from former House Majority Leader Tom DeLay (R-Texas), who said on Newsmax TV’s The Steve Malzberg Show shortly before the High Court handed down its decision that the states should ignore any Supreme Court ruling in favor of same-sex marriage. “A ruling by the Supreme Court is nothing but an opinion if the legislative branch and the executive branch do not enforce it,” said DeLay. “Not only that, if the states would just invoke the 10th Amendment and assert their sovereignty, they can defy a ruling by the Supreme Court. It’s in the Constitution. We can tell the court what cases they can hear.”

What DeLay described regarding telling the federal courts which cases they can hear is governed not by the 10th Amendment, which protects the sovereignty of the states, but by Article III, Section 2 of the Constitution, which gives Congress the power to make exceptions to and regulate the jurisdiction of the federal courts. Former Representative Ron Paul (R-Texas) attempted to utilize this power when he introduced his We the People Act in 2004 and 2009. The bill, if it had passed, would have removed jurisdiction of federal courts from cases involving the establishment of religion, sexual orientation, abortion, and marriage.

Invoking such power made more practical sense when DeLay mentioned it prior to Obergefell v. Hodges being decided. Since the court has now ruled, it would be difficult to rescind its jurisdiction to decide on marriage cases retroactively. However it is not too late to use the other tool that DeLay recommended, the 10th Amendment, to which Justice Alito alluded when he said, “The Constitution leaves that question to be decided by the people of each State.”

If the decision should be decided by the states, then the states must declare that the power usurped by the Supreme Court in rendering that decision is null. Leftist Giant called Tyranny

Related articles:

Political Leaders Voice Discontent With Supreme Court Marriage Ruling

Catholic Leaders Vow to Stand Against Contraception Mandate, Same-sex Marriage

Texas AG: “Reach of Court’s Opinion Stops at the Door of the First Amendment”

Supreme Court Rubber Stamps Same-sex “Marriage” — Time for Nullification

Rome: Hundreds of Thousands Protest Against Same-sex Unions

Marriage Can’t Be Redefined

Sen. Lee and Rep. Labrador Propose Protection for Religious Liberty

Southern Baptist Leader: Prepare for Civil Disobedience Over Gay Marriage Ruling

As Gov. of Texas, Would Abbott Continue to Stand for States’ Rights?

freedom combo 2

South Carolina to Nullify Obamacare

By / 12 December  2013

The “South Carolina Freedom of Health Care Protection Act,” or South  Carolina’s House Bill 3101, will likely pass through the South Carolina  Senate chamber and could effectively eliminate Obamacare in South Carolina. It  could also serve as a model that other conservative states could look to when  trying to formulate their own plans for eliminating Obamacare in their  states.

In all likelihood South  Carolina will soon be the first state to exempt their populace from any  participation in the Obamacare scheme.

NullifyOcareState Senator Tom Davis, who sponsored the bill,  says, “It will essentially have five components to it, all of which in my  judgment are legal, effective, and within the state’s power to do. What the  Supreme Court said in Printz v. United States is that states are not merely  political subdivisions of the federal government to carry out what the federal  government does; they are sovereign entities. Congress can pass laws, but it  cannot compel the states to utilize either their treasury or personnel to  implement those federal laws.”

South Carolina’s Senate is dominated by Republicans, but even some of the  Democrat members are likely to agree to the bill. Governor Nikki Haley (R-SC)  has been an outspoken opponent of Obamacare and will also very likely jump at  the chance to be the first Governor in the United States to stand up to the  Obama administration by outlawing Obamacare in South Carolina.

Of course, the federal government could enact and handle Obamacare in South  Carolina without the state’s help, but given how badly the Obamacare rollout has  gone thus far, it’s unlikely they’ll be able to do this effectively. Things will  only get worse as other Republican dominated states move forward with similar  plans. There is just no way that the federal government can make Obamacare work  if some states simply refuse to comply with the law.


The talking heads and political wonks may not believe that nullification  still exists… but it does. There can be no real balance of power between the  states and the federal government without it. So let’s stand and cheer South  Carolina on as they prove a state still has the right to nullify federal law.  Way to go, Palmetto State!

About the author: Onan Coca

Onan is a graduate of Liberty University (2003) and earned his M.Ed. at  Western Governors University in 2012. Onan lives in the Atlanta area with his  wife, Leah. They have three children and enjoy the hectic pace of life in a  young family. Onan and Leah are members of the Journey Church in Hiram, GA.



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