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“Crossing The Constitutional Line”: Gun Bill In Missouri Would Test Limits In Nullifying U.S. Law

Unless a handful of wavering Democrats change their minds, the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them here. A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.

The law amounts to the most far-reaching states’ rights endeavor in the country, the far edge of a growing movement known as “nullification” in which a state defies federal power.

The Missouri Republican Party thinks linking guns to nullification works well, said Matt Wills, the party’s director of communications, thanks in part to the push by President Obama for tougher gun laws. “It’s probably one of the best states’ rights issues that the country’s got going right now,” he said.

The measure was vetoed last month by Gov. Jay Nixon, a Democrat, as unconstitutional. But when the legislature gathers again on Sept. 11, it will seek to override his veto, even though most experts say the courts will strike down the measure. Nearly every Republican and a dozen Democrats appear likely to vote for the override.

Richard G. Callahan, the United States attorney for the Eastern District of Missouri, is concerned. He cited a recent joint operation of federal, state and local law enforcement officials that led to 159 arrests and the seizing of 267 weapons, and noted that the measure “would have outlawed such operations, and would have made criminals out of the law enforcement officers.”

In a letter explaining his veto, Mr. Nixon said the federal government’s supremacy over the states’ “is as logically sound as it is legally well established.” He said that another provision of the measure, which makes it a crime to publish the name of any gun owner, violates the First Amendment and could make a crime out of local newspapers’ traditional publication of “photos of proud young Missourians who harvest their first turkey or deer.”

But the votes for the measure were overwhelming. In the House, all but one of the 109 Republicans voted for the bill, joined by 11 Democrats. In the Senate, all 24 Republicans supported it, along with 2 Democrats. Overriding the governor’s veto would require 23 votes in the Senate and 109 in the House, where at least one Democrat would have to come on board.

The National Rifle Association, which has praised Mr. Nixon in the past for signing pro-gun legislation, has been silent about the new bill. Repeated calls to the organization were not returned.

Historically used by civil rights opponents, nullification has bloomed in recent years around a host of other issues, broadly including medical marijuana by liberals and the new health care law by conservatives.

State Representative T. J. McKenna, a Democrat from Festus, voted for the bill despite saying it was unconstitutional and raised a firestorm of protest against himself. “If you just Google my name, it’s all over the place about what a big coward I am,” he said with consternation, and “how big of a ‘craven’ I was. I had to look that up.”

The voters in his largely rural district have voiced overwhelming support for the bill, he said. “I can’t be Mr. Liberal, St. Louis wannabe,” he said. “What am I supposed to do? Just go against all my constituents?”

As for the veto override vote, he said, “I don’t know how I’m going to vote yet.”

State Representative Doug Funderburk, a Republican from St. Peters and the author of the bill, said he expected to have more than enough votes when the veto override came up for consideration.

Adam Winkler, a professor of law at the University of California, Los Angeles, who follows nullification efforts nationally, said that nearly two dozen states had passed medical marijuana laws in defiance of federal restrictions. Richard Cauchi, who tracks such health legislation for the National Conference of State Legislatures, said: “Since January 2011, at least 23 states have considered bills seeking to nullify the health care law; as of mid-2013 only one state, North Dakota, had a signed law. Its language states, however, that the nullification provisions ‘likely are not authorized by the United States Constitution.’ ”

What distinguishes the Missouri gun measure from the marijuana initiatives is its attempt to actually block federal enforcement by setting criminal penalties for federal agents, and prohibiting state officials from cooperating with federal efforts. That crosses the constitutional line, said Robert A. Levy, chairman of the libertarian Cato Institute’s board of directors — a state cannot frustrate the federal government’s attempts to enforce its laws.

Mr. Levy, whose organization has taken a leading role in fighting for gun rights, said, “With the exception of a few really radical self-proclaimed constitutional authorities, state nullification of federal law is not on the radar scope.”

Still, other states have passed gun laws that challenge federal power; a recent wave began with a Firearms Freedom Act in Montana that exempts from federal regulations guns manufactured there that have not left the state.

Gary Marbut, a gun rights advocate in Montana who wrote the Firearms Freedom Act, said that such laws were “a vehicle to challenge commerce clause power,” the constitutional provision that has historically granted broad authority to Washington to regulate activities that have an impact on interstate commerce. His measure has served as a model that is spreading to other states. Recently, the United States Court of Appeals for the Ninth Circuit struck down Montana’s law, calling it “pre-empted and invalid.”

A law passed this year in Kansas has also been compared to the Missouri law. But Kris W. Kobach, the Kansas secretary of state, disagreed, saying it had been drafted “very carefully to ensure that there would be no situation where a state official would be trying to arrest a federal official.”

In Missouri, State Representative Jacob Hummel, a St. Louis Democrat and the minority floor leader, said that he was working to get Democrats who voted for the bill to vote against overriding the veto. “I think some cooler heads will prevail in the end,” he said, “but we will see.”

Taking up legislative time to vote for unconstitutional bills that are destined to end up failing in the courts is “a waste of taxpayers’ money,” Mr. Hummel said, adding that more and more, the legislature passes largely symbolic resolutions directed at Congress.

“We’re elected to serve the citizens of the state of Missouri, at the state level,” he said. “We were not elected to tell the federal government what to do — that’s why we have Congressional elections.”

The lone Republican opponent of the bill in the House, State Representative Jay Barnes, said, “Our Constitution is not some cheap Chinese buffet where we get to pick the parts we like and ignore the rest.” He added, “Two centuries of constitutional jurisprudence shows that this bill is plainly unconstitutional, and I’m not going to violate my oath of office.”

Mr. Funderburk, the bill’s author, clearly disagrees. And, he said, Missouri is only the beginning. “I’ve got five different states that want a copy” of the bill, he said.

 

By: John Schwartz, The New York Times, August 28, 2013

August 30, 2013 Posted by | Politics | , , , , , , , , | Leave a comment

“As Maine Goes”: A Bipartisan Call To Overturn Citizens United

When the Maine State House voted 111-33 this week to call for a constitutional amendment to overturn the US Supreme Court’s ruling in Citizens United v. Federal Election Commission, the support for this bold gesture was notably bipartisan. Twenty-five Republicans joined four independents and all eighty-two Democrats to back the call.

Similarly, when the Maine State Senate voted 25-9 for the resolution, five Republicans joined with nineteen Democrats and independent Senator Richard Woodbury to “call upon each Member of the Maine Congressional Delegation to actively support and promote in Congress an amendment to the United States Constitution on campaign finance.”

What happened in Maine this week was a big deal for several reasons:

1. Maine became the thirteenth state to urge Congress to develop an amendment to address the money-in-politics crisis that is unfolding as a result of Supreme Court rulings that that have effectively struck down campaign-finance regulations and ushered in a new era of unlimited spending by wealthy individuals and corporate interests. Maine joins West Virginia, Colorado, Montana, New Jersey, Connecticut, Massachusetts, California, Rhode Island, Maryland, Vermont, New Mexico and Hawaii in calling for an amendment. Washington, DC, has also backed the drive.

2. The swift action by both houses of the Maine legislature, coming less than a month after West Virginia urged Congress to act, confirms the momentum that is building for the movement, which has been backed by almost 500 communities nationwide. Though media coverage has been scant, it is rare in recent history for a grassroots movement to amend the constitution to have attracted so much official support at the municipal, county and state levels nationwide.

3. As in a number of other states, the significant level of bipartisan support in Maine provides a reminder that this movement is attracting support from across the partisan and ideological spectrum.

That final point merits particular attention.

Because of the often narrow and simplistic way in which political debates are covered in the United States—if they are covered at all—there is a tendency to think that all Democrats are reformers, while all Republicans are backers of big money in politics. That’s not the case. Polling has consistently shown that Republicans support for restrictions on corporate spending in elections very nearly parallels that of Democrats. And, while there are too many national Democrats who buy into big-money equations, there are Republicans who have begun to raise the right objections—and point to the right answers. Notably, Congressman Walter Jones Jr., a very conservative Republican congressman from North Carolina, is a cosponsor—along with Kentucky Democrat John Yarmuth—of a constitutional amendment proposal that would overturn key provisions of the Citizens United decision and establish that campaign contributions can be regulated by Congress and state legislatures.

Bipartisan support for reform is more evident in the states. State legislators are active at the grassroots, knocking on doors and meeting constituents face to face. They recognize the deep frustration with a political process that seems to have spun out of control, and they reject the premise that corporations and wealthy individuals have a constitutional right to buy elections.

“There has to be a way to secure First Amendment rights to speech and still control the amount of dollars spent on campaigns,” says Maine state Senator Edward Youngblood, a Republican who went so far as to appear at rallies calling for a constitutional amendment. “It should be plain to everyone after the election we’ve just had, which broke records for spending, that the system isn’t getting better.”

Youngblood is right, and the group that organized support for reform in his state, Maine Citizens for Clean Elections, wisely reached out to Democrats, Republicans, independents and third-party backers in pursuit of a “multi-partisan” coalition.

The approach has excited national groups such as Public Citizen’s Democracy Is for People Campaign, Move to Amend and Free Speech for People. Indeed, Free Speech for People’s Peter Schurman declared, “This terrific bi-partisan vote is a huge win, not only for Maine, but for all Americans. Republicans, independents, and Democrats alike are clamoring for a constitutional amendment to reverse Citizens United and bring back real democracy. We’re thrilled that Maine is now helping lead the way forward.”

He’s right, especially when it comes to the emphasis on drawing support from all parties for a reform that seeks to restore genuine competition based on ideas—as opposed to a shouting match between billionaires.

 

By: John Nichols, The Nation, May 1, 2013

May 5, 2013 Posted by | Campaign Financing, Citizens United | , , , , , | 2 Comments

“Birther Hypocrisy”: Right Wing Has No Problem With Canadian Born Senator Ted Cruz Running For President

A great moment in the annals of birtherism took place last week at CPAC….and nobody much appeared to notice.

Shortly after Sarah Palin finished cooing over the introduction she had received from Senator Ted Cruz—during which the half-term governor reminded us that we need more people like the Texas Senator in Washington—Palin turned her attention to President Obama’s support for background checks for those who wish to purchase a gun.

“More background checks?” Palin asked. “Dandy idea, Mr. President -should’ve started with yours.”

While Palin’s return to birtherism accomplished the intended laugh from the appreciative crowd, there was someone in the room who was likely not laughing.

That would be Senator Ted Cruz—the man who so glowingly introduced Ms. Palin and a man who clearly views himself as being on a populist track to the White House. He’s not alone in that regard as four percent of the votes registered in the CPAC straw poll were cast in support of Mr. Cruz, the man often referred to as the Republican Barack Obama.

Ironically, there can be little doubt that among those who expressed their support for a Cruz presidency at CPAC were attendees who continue to question the current president’s constitutional right to hold the office.

I say it is ironic because, while so many on the Right invested heavily in making the argument that Barack Obama lacked constitutional qualification to be our Commander In Chief due to his alleged foreign birth in Kenya, it turns out that Tea Party hero Cruz finds himself in precisely the same circumstance—except that Cruz’s foreign point of origin is openly acknowledged.

Ted Cruz was born in Calgary, Canada, the son of an American mother and a Cuban father. Were we to buy into the birtherism claim that Obama was, indeed, born in Kenya, then he too would have been foreign born as the son of an American mother and a father who was a citizen of a foreign land.

While the controversy that has dogged President Obama has focused on the President’s claim that he came into the world in a hospital in Hawaii, if we are to accept the argument of birther-in-chief Donald Trump—who made a ‘name’ for himself in politics by alleging that the President had, indeed, been born in a foreign country—then there is no way that Senator Cruz could be qualified to run for the presidency.

Yet, there is no shortage of Cruz supporters who are prepared to argue that he is a natural born American, despite being born in Canada. Why? Because his mother was, unquestionably, an American citizen at the time of Cruz’s birth.

But is being born to an American mother in a foreign land enough to meet the constitutional requirements to hold the office?

The United States Constitution requires that a candidate for the office of the president be a “natural-born” citizen. While what constitutes a natural born citizen is not defined in the text of the Constitution and has never been directly addressed by the Supreme Court, we do know that there have been laws promulgated that defines the status of a child born outside of the United States to parents where either one or both are American citizens.

According to the State Department—

Birth Abroad to Two U.S. Citizen Parents in Wedlock

A child born abroad to two U.S. citizen parents acquires U.S. citizenship at birth under section 301(c) of the Immigration and Nationality Act (INA) provided that one of the parents had a residence in the United States or one of its outlying possessions prior to the child’s birth. The child is considered to be born in wedlock if the child is the genetic issue of the married couple.”

It would thus appear that for Senator Cruz to qualify as a natural-born citizen under this paragraph, (a) both of his parents would need to be U.S. citizens at the time of birth; and (b) one of the parents had a residence in the US at the time of birth.

Senator Cruz’s mother was clearly an American citizen—having been born in Delaware—at the time she gave birth to her son. However, Mr. Cruz’s father was a Cuban immigrant who, according to a statement issued this week by Cruz’s spokesman, was not an American citizen prior to his taking his wife to Canada to work in the oil business.

Thus, under this definition, it would appear that an argument could be successfully made that Senator Cruz is not a natural-born U.S. citizen.

It is worth noting that other candidates for president have fallen under this definition of qualification. Governor George Romney was born in Mexico to two parents who were both American citizens at the time of his birth. Thus, there were no serious challenge set forth to Romney’s meeting the constitutional test of being a natural born citizen.

There is, however, an additional definition that could cover Senator Cruz as set forth by the State Department:

“Birth Abroad to One Citizen and One Alien Parent in Wedlock

A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child’s birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.) The U.S. citizen parent must be genetically related to the child to transmit U.S. citizenship.”

Under this definition, it would seem clear that Senator Cruz would meet the qualifications to run for President as his mother lived in the United States for at least ten years after she was fourteen years of age prior to going to Canada (note that the rule does not require that the ten years be consecutive.)

Accordingly, it appears—at least to me—that Senator Cruz is in the clear should he decide to take a run at the White House.

But…if you agree that Cruz is constitutionally qualified to seek the presidency and you are one of those who expended so much energy going after President Obama’s qualifications as a natural-born citizen, many of us would like to know how you justify such blatant hypocrisy? After all, even if Obama was born in Kenya, he was born to a mother who was an American citizen at her birth and who had also spent the requisite amount of her life after turning fourteen years of age living in the United States (see update on this law at the end of the article.)

To get an answer to this question, I reached out to Donald Trump’s office to get his take on this issue as he would appear to consider himself a leading authority on this subject.

At the time of publication of this article, there has been no response from Mr. Trump.

Again, my own understanding of how we have treated the question of natural-born citizenship would conclude that Senator Cruz is fully qualified under the Constitution to seek the top office in the land if that should be his wish. He was never naturalized as an American citizen because it was never necessary to do so. He was one of us from the moment he arrived in this world.

But if Cruz is qualified, there can be no argument that Barack Obama was not qualified in the same way, even if you choose to believe that he is Kenyan born. To allow the blatant hypocrisy of those who spent endless hours of time and untold sums of money seeking to discredit Barack Obama only to now be perfectly willing to give Senator Cruz a pass on the subject would simply be wrong and cannot be allowed, now or in the future should Cruz seek the office, to pass unnoticed.

UPDATE: A reader correctly notes that when Barack Obama was born, his mother was three months shy of her 19th birthday which means that had he been born in Kenya, his mother would not have reached the 5 years after her 14th birthday as required by the law for him to be a natural born American. This is true. However, subsequent acts of Congress relaxed the requirement to a total number of years a parent must live in the U.S. to five years, including just two years after the age of 14 (note that this happened long before Obama entered political life.) This means that Obama’s mother would have still qualified even if the President was born in Kenya and his mother was just 16. What’s more Congress made the law retroactive to 1952. As Obama was born in 1961, he would be a natural born citizen under the same law cited in the article.

 

By: Rick Ungar, Op-Ed Contributor, Forbes, March 21, 2013

March 22, 2013 Posted by | Birthers | , , , , , , , , | Leave a comment

   

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