Category Archives: Nullification

4th Amendment Civil Rights Congress Current Events Nullification Surveillance Uncategorized

Politicians are Lying to You on NSA Spying!

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nsa-action-1In their continuous efforts to create the impression that the government is doing something to keep Americans safe, politicians in Washington have misled and lied to the public. They have violated their oaths to uphold the Constitution. They have created a false sense of security. And they have dispatched and re-dispatched 60,000 federal agents to intercept the telephone calls, text messages and emails of all Americans all the time.

In the process, while publicly claiming they only acquire identifying metadata — the time, date, location, duration, telephone numbers and email addresses of communications — they have in fact surreptitiously gained access to the content of these communications.

On June 1, one of the three claimed legal authorities for all this, Section 215 of the Patriot Act, expired, as Congress was unable to agree on either its reinstitution or the enactment of a substitute. At the time that Section 215 was about to expire, President Obama, Attorney General Lynch and FBI Director Comey warned that the NSA’s computers would go dark and the American public would be at the mercy of our enemies. Their warnings were nonsense.

The NSA is a military entity that utilizes the services of military computer experts and agents, employs civilians, and hires companies that provide thousands of outside contractors. After nearly 14 years of spying on us — all authorized by a secret court whose judges cannot keep records of what they have ordered or discuss openly what they know — the NSA now has computers and computer personnel physically located in the main switching offices of all telecom and Internet service providers in the United States. It has 24/7 access to the content of everyone’s telephone calls, emails and text messages.

The data amassed thereby is so vast that the government cannot sift through it quickly or effectively enough to stop such notorious events as the Boston Marathon bombings, the Ft. Hood massacre and the attempted massacre last month outside of Dallas. The Justice Department acknowledged this last month when it revealed that all this spying has not succeeded in stopping any terrorist plots and has not aided any federal prosecutions of terrorism.

Then why do it? Because the feds want to calm American nerves by giving the impression that they are doing something — even though we know that they know that what they are doing fails to keep us safe.

They are giving us a false impression. But they owe us the truth, not falsehoods designed to make themselves look like they are doing what they claim. Their spying has failed to enhance our safety.

It also has failed to protect our freedoms. The Constitution requires probable cause as a precondition for all search warrants. That is a level of evidence about the place to be searched or the person or thing to be seized sufficient to induce a judge to conclude that a crime probably has been committed. Without this probable cause requirement, nothing would stop the government from searching and seizing whatever it wants. Yet that is where we are today. The NSA’s unconstitutional standard of “government need” reinstitutes the general warrants — search where you wish and seize what you find — which the Fourth Amendment was written to prohibit.

Both the Patriot Act and the Freedom Act, the substitute law enacted by Congress, do away with the probable cause requirement. Both of those laws permit the FISA court to issue general warrants based on the government’s needs, rather than probable cause. It is the government-need standard, which is no standard at all, that has resulted in spying on all persons all the time.

When Section 215 of the Patriot Act expired, the NSA’s legal (yet unconstitutional) authority to spy did not. The propaganda that its computers were shut down is false. Section 702 of the FISA law and President Bush’s October 2001 executive order were and are still valid, and both have been interpreted to unleash the NSA.

Section 702 permits warrantless surveillance of Americans who speak with foreigners, and the NSA has gotten FISA warrants to intercept the calls of the folks to whom those Americans speak, to the sixth degree. That alone encompasses all persons in the United States. Bush’s executive order was given to all military intelligence agencies — of which the NSA is but one. It instructed the military to intercept the calls and emails of whatever Americans it needs to listen in upon to enhance safety. That executive order still stands. This is why the hand wringing and false claims that the NSA computers went dark is untruthful. The computers violate our privacy and assault our liberty and fail to enhance our safety, but they are not dark.

Last week, one of the pro-spying politicians was clever, even cute, when he issued the one-liner: “You can’t enjoy civil liberties from a coffin.” His statement was a craven articulation of failure. The government’s job is to keep us free and safe. If it keeps us safe but not free, it has failed to do its job. Today it does neither. I suggest to him Patrick Henry on this: “Give me liberty or give me death.”

Which one-liner better embodies American values, history and traditions?

COPYRIGHT 2015 ANDREW P. NAPOLITANO

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Bills Civil Rights Current Events Nullification Obamacare Uncategorized

Obamacare Can Still Be Stopped.

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Obamacare can still be stopped!!

And no, it’s not going to be stopped by McConnell and Boehner – or Roberts and Scalia.  It’s going to be stopped by people like you – pressing your state to resist.  In fact, Obamacare’s ability to become reality in the long term is like a house of cards.  The act is not viable economically and unstable politically.  The only way it can gain a foothold at this point is through compliance in the states.  Resistance will kill it.

States were “given an option” – run the exchange, partner with the feds on running it, or leave it to DC to figure out.  It doesn’t matter what “cards we were dealt” – as some governors are saying.  Running an unconstitutional program for the feds is just plain wrong.  And the first – and easiest – thing for states to do is to just say no.

Shifting the burden for health insurance exchanges to the feds effectively sabotages the implementation of Obamacare.

The federal government needs states to be complicit to pull this off.  Otherwise, these decisions on who was creating exchange wouldn’t even have been included in the first place.  The fact of the matter is that DC doesn’t have the resources or the manpower to run these exchanges in every state.  Some analysts are saying that they only have the capacity to do so in 30-40 states, and any more than that will lead towards a collapse of the system.

So far, 36 states have rejected the creation of an Obamacare exchange.  But, most of these actions were done by an action of a Governor, and not legislatively.  While this is a strong first step and will have significant effect in the long run, these Gubernatorial actions are highly susceptible to a quick change.  An opinion, an election – can bring in a new attitude or a new governor willing to take the opposite.

Right now? Contact your state representative to introduce a bill banning it, even if your governor has already approved or denied the exchange.  Make a state exchange illegal with a veto-proof majority and you’ve just made your DC-loving governor – or a future one- irrelevant.  You can find model legislation here (.pdf)

Obama

Obama

4th Amendment Civil Rights Current Events Nullification Obamacare Surveillance Uncategorized

Obama A Lone Wolf President

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Obama

Obama

Can the president rewrite federal laws? Can he alter their meaning? Can he change their effect? These are legitimate questions in an era in which we have an unpopular progressive Democratic president who has boasted that he can govern without Congress by using his phone and his pen, and a mostly newly elected largely conservative Republican Congress with its own ideas about big government.

These are not hypothetical questions. In 2012, President Obama signed executive orders that essentially said to about 1.7 million unlawfully present immigrants who arrived in the U.S. before their 16th birthdays and who are not yet 31 years of age that if they complied with certain conditions that he made up out of thin air they will not be deported.

In 2014, the president signed additional executive orders that essentially made the same offer to about 4.7 million unlawfully present immigrants, without the age limits that he had made up out of thin air. A federal court enjoined enforcement of the 2014 orders last month.

Last week, the Federal Communications Commission — the bureaucrats appointed by the president who regulate broadcast radio and television — decreed that it has the authority to regulate the Internet, even though federal courts have twice ruled that it does not.

Also last week, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, whose director is appointed by the president, proposed regulations that would outlaw the only mass-produced bullets that can be fired from an AR-15 rifle. This rifle has been the target of the left for many years because it looks like a military weapon; yet it is a lawful and safe civilian rifle commonly owned by many Americans.

This week, the president’s press secretary told reporters that the president is seriously thinking of signing executive orders intended to raise taxes on corporations by directing the IRS to redefine tax terminology so as to increase corporate tax burdens. He must have forgotten that those additional taxes would be paid by either the shareholders or the customers of those corporations, and those shareholders and customers elected a Congress they had every right to expect would be writing the tax laws. He has eviscerated that right.

What’s going on here?

What’s going on is the exercise of authoritarian impulses by a desperate president terrified of powerlessness and irrelevance, the Constitution be damned. I say “damned” because when the president writes laws, whether under the guise of administrative regulations or executive orders, he is effectively damning the Constitution by usurping the powers of Congress.

The Constitution could not be clearer.

Article I, section 1 begins, “All legislative Powers herein granted shall be vested in a Congress of the United States.” Obama actually asked Congress to write the laws he is now purporting to write, and Congress declined, and so he does so at his peril.

In 1952, President Truman seized America’s closed steel mills because steel workers went on strike and the military needed hardware to fight the Korean War. He initially asked Congress for authorization to do this, and Congress declined to give it to him; so he seized the mills anyway. His seizure was challenged by Youngstown Sheet & Tube Co., then a huge operator of steel mills. In a famous Supreme Court decision, the court enjoined the president from operating the mills.

Youngstown is not a novel or arcane case. The concurring opinion by Justice Robert Jackson articulating the truism that when the president acts in defiance of Congress he operates at his lowest ebb of constitutional power and can be enjoined by the courts unless he is in an area uniquely immune from congressional authority is among the most highly regarded and frequently cited concurring opinions in modern court history. It reminds the president and the lawyers who advise him that the Constitution imposes limits on executive power.

The president’s oath of office underscores those limits. It requires that he enforce the laws faithfully. The reason James Madison insisted on using the word “faithfully” in the presidential oath and putting the oath itself into the Constitution was to instill in presidents the realization that they may need to enforce laws with which they disagree — even laws they hate.

But Obama rejects the Youngstown decision and the Madisonian logic. Here is a president who claims he can kill Americans without due process, spy on Americans without individualized probable cause, start wars on his own, borrow money on his own, regulate the Internet, ban lawful guns, tell illegal immigrants how to avoid the consequences of federal law, and now raise taxes on his own.

One of the safeguards built into the Constitution is the separation of powers: Congress writes the laws, the president enforces the laws, and the courts interpret them. The purpose of this separation is to prevent the accumulation of too much power in the hands of too few — a valid fear when the Constitution was written and a valid fear today.

When the president effectively writes the laws, Congress is effectively neutered. Yet, the reason we have the separation of powers is not to protect Congress, but to protect all individuals from the loss of personal liberty. Under Obama, that loss has been vast. Will Congress and the courts do anything about it?

Judge Andrew Napolitano

 

COPYRIGHT 2015 ANDREW P. NAPOLITANO