Today, a South Dakota House committee passed a bill that would create a mechanism to review presidential executive orders and end state cooperation with enforcement of certain orders determined to violate the U.S. Constitution. This process would set the stage to nullify some executive orders in effect in South Dakota.
Rep. Aaron Aylward (R-Harrisburg), along with 16 Republicans, introduced House Bill 1194 (HB1194) on Feb. 1. Under the proposed law with an amendment passed today, the state legislature’s executive board would be required to review any executive order issued by the President of the United States, “if the order has not been affirmed by a vote of the Congress of the United States and signed into law, as prescribed by the Constitution of the United States.”
Upon a recommendation by the executive committee, the state attorney general would review the executive order. Under the law, the state, its political subdivisions, along with any elected or appointed official or employee of this state, would be prohibited from implementing any executive order that restricts a person’s constitutional rights or that the attorney general determines to be unconstitutional during the review.
The law would cover executive orders that relate to any of the following:
A pandemic or other public health emergency;
The regulation of natural resources;
The regulation of the agricultural industry;
The regulation of land use;
The regulation of the financial sector through the imposition of environmental, social, or governance standards; or
The regulation of the constitutional right to keep and bear arms.
On Feb. 24, the House State Affairs Committee passed HB1194 by a 7-4 vote.
Passage of HB1194 would provide a process to push back against overreaching executive authority. Immediately upon a determination of unconstitutionality by the AG, the state would be required to withdraw all resources and cease any cooperation with enforcement or implementation of the action. Because the feds lack the resources to enforce all of their laws and run all of their programs, this would likely be enough to effectively end the federal action in South Dakota in most situations, nullifying it in effect.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” provides an extremely effective method to render federal laws, effectively unenforceable because most enforcement actions rely on help, support and leadership from the states.
Fox News senior judicial analyst Judge Andrew Napolitano agreed this type of approach would be extremely effective. In a televised discussion on federal gun laws, he noted that a single state refusing to cooperate with enforcement would make federal gun laws “nearly impossible” to enforce.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing this necessary cooperation, states can nullify in effect many federal actions. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
The provisions prohibiting the state from enforcing or implementing certain federal acts rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program – whether constitutional or not. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
HB1194 now moves to the House floor for further consideration.
According to a CNN report, President Joe Biden plans to reinstate Obama-era limits on a federal police militarization program. While this sounds like progress toward ending the militarization of local police departments, the Obama limits were little more than window-dressing.
Through the federal grant programs such as the 1033 program, local police departments procure military-grade weapons. Police can also get military equipment through the Department of Homeland Security via the (DHS) “Homeland Security Grant Program.”
The DHS doles out over $1 billion in counterterrorism funds to state and local police each year. According to a 2012 Senate report, this money has been used to purchase tactical vehicles, drones, and even tanks with little obvious benefit to public safety. And, according to ProPublica, “In 1994, the Justice Department and the Pentagon-funded a five-year program to adapt military security and surveillance technology for local police departments that they would otherwise not be able to afford.”
In the wake of the Ferguson protests, Pres. Obama signed an executive order limiting some types of surplus military equipment available through federal programs or funding. A prohibited equipment list developed based on the Obama EO included tracked armored vehicles; weaponized aircraft, vessels, and vehicles of any kind with weapons installed; firearms of .50-caliber or higher; ammunition of .50-caliber or higher; grenade launchers; bayonets; and camouflage uniforms. It also placed limits on other equipment, including aircraft, wheeled tactical vehicles, mobile command units, battering rams, and riot gear. Local agencies were required to develop a use plan and get federal approval before they could obtain these items.
The Obama executive order was largely window dressing and left the 1033 program effectively intact. Most of the items on the prohibited list had been previously banned or were rarely transferred through federal surplus programs. Even with the Obama limits, police continued to have access to military surplus equipment, including high powered “assault” rifles, mine-resistant vehicles (MRAPs) and armored Humvees, aircraft, drones, night vision equipment, battering rams, and other military-grade items.
In practice, the Obama EO did little to stem the flow of military equipment to state and local law enforcement agencies. It was largely symbolic. In fact, the banned list was clearly intended to serve as a psychological bandaid. It made the public feel better about police militarization without actually changing the militarization policy in any substantive way. Obama even said he wanted to remove some of the intimidation factor inherent in militarized police forces.
Apparently, Biden wants to slap the bandaid back on and put the Obama-era window dressing back in place.
Congress took a small step toward limiting militarization in the 2020 Defense Authorization Act. A provision in that law bans grenades, bayonets, weaponized combat vehicles and weaponized drones from being transferred from the military to local police departments. But as was the case when Obama signed the original EO, this limited congressional tinkering and Biden’s orders won’t change much. The 1033 program will remain essentially intact. Military gear will continue to flow into local police agencies, just as it did when Obama was in the White House.
Even if you see the Obama/Biden limits as a positive, the multiple federal flip-flops underscore the importance of putting limits on police militarization at the state and local level. Federal policy tends to change depending on the party in power. Whatever limits Biden imposes through executive order can be undone with a stroke of the next president’s pen. The only way to effectively end police militarization for good is permanently withdrawing the state from these federal programs.
Arming ‘peace officers’ like they’re ready to occupy an enemy city is totally contrary to the society envisioned by the founders. They’ve turned ‘protect and serve’ into ‘command and control.’
In the 1980s, the federal government began arming, funding and training local police forces, turning peace officers into soldiers to fight in its unconstitutional “War on Drugs.” The militarization went into hyper-drive after 9/11 when a second front opened up – the “War on Terror.”
By taking action at the state and local level, making it more difficult for local police to get this military-grade gear and surveillance technology, and ensuring they can’t do it in secret, it makes them less likely to cooperate with the feds and removes incentives for partnerships.
While Americans obsess over election results, the U.S. government’s war machine has helped destroy millions of lives in the small desert land known as Yemen.
Many have lauded Donald Trump as the most “anti-war president” in decades. But early in his presidency, Trump loosened the rules of engagement in both Somalia and Yemen. The result was a bombing campaign that eclipsed anything seen during even the Obama and Bush years.
President Trump ramped up the war in the small impoverished Middle Eastern nation within days of taking office. According to Business Insider, Trump ordered commandos to carry out an early morning raid in Yemen that Obama had nixed. A U.S. official told NBC News, “Almost everything went wrong.”
A U.S. Navy Seal died along with an 8-year-old girl—Nawar al-Awlaki—a U.S. citizen and the daughter of an “extremist preacher” who was killed in a targeted drone strike during the Obama administration. The U.S. military conceded that “civilians were likely killed” during the botched raid.
That was just the tip of the bloody iceberg. The U.S. government admits to killing between four and 12 civilians in Yemen since 2017, although the number is likely higher. According to the monitoring group Airwars, the U.S. operation have killed as many as 154 civilians—86 at the very least.
Like the war in Somalia, Trump didn’t start it, but he escalated it significantly. According to the Business Insider report, the US admitted to carrying out 133 attacks in Yemen in 2017 alone. The vast majority of the attacks were airstrikes. That compares to just 150 confirmed strikes between all of 2002 and 2017. But the U.S. also conducted ground operations in the country, including the botched raid ordered by Trump.
According to Airwars, U.S. boots on the ground led to proportionately more civilian deaths than the airstrikes. They accounted for about 3 percent of the U.S. military actions in the country but over 40 percent of the civilian casualties.
The carnage directly caused by U.S.combat operations in Yemen pales in comparison to the humanitarian disaster caused by the broader war. But American involvement goes far deeper than direct military intervention. The U.S. has supplied billions in funding, equipment and logistical support so the Saudis could prosecute the war.
According to the Armed Conflict Location & Event Data Project (ACLED), more than 112,000 people have died as a direct result of the violence, including over 12,600 civilians killed in targeted attacks. More than 25,000 fatalities were reported in 2019, ranking it as the second deadliest year of the war. The ongoing war has destroyed the country’s infrastructure and pushed millions to the brink of starvation. In 2018, the United Nations warned that Yemen could produce the worst famine in 100 years as 13 million people face starvation.
President Trump has tried to position himself as a more non-interventionist president. He recently took credit for ending the war in Afghanistan. But it’s hard to take his anti-war rhetoric seriously when he escalated both the war in Somalia and Yemen. In fact, Trump had several opportunities to end financial and logistical support for the war in Yemen and refused to do it.
In April 2019, Trump vetoed a congressional measure that would have ended U.S. involvement in the genocidal war. He followed up by vetoing three measures that, as jourmalist Dave DeCamp put it, “Would have prohibited arms sales to Saudi Arabia and disarmed the U.S.-backed coalition that has been raining hell on Yemeni civilians since March 2015.”
The bottom line is that his reputation as a slightly less military interventionist president and some progress toward deescalating some of America’s foreign military adventurism, Donald Trump continues to run unconstitutional and illegal wars.
There is absolutely no constitutional authority for the President to bomb Yemen, or Somalia, or any other country. Congress has not declared war on any country in decades, and the president’s role as commander-in-chief does not authorize him to initiate offensive military action.
Constitutionally, Congress must “declare war” before the president can engage in offensive military action. But, instead of a declaration of war, Trump, along with Bush and Obama before him, relies on the authorization to use military force (AUMF) passed by Congress in the wake of 9/11 to justify military action across the globe, but this stretches the president’s constitutional authority far beyond the breaking point.
In practice, these resolutions authorize the president to decide if and when he wants to take military action. The AUMF passed after 9/11 to authorize the invasion of Afghanistan remains in effect today. Bush, Obama and Trump have used it to justify their independent decisions to take military action across the globe, including Yemen.
But congressional AUMFs simply don’t pass constitutional muster.
No constitutional provision authorizes Congress to transfer its delegated powers to another party, including the president. In fact, doing so violates basic legal rules of construction. In contract law, when a principal (the people) delegates power to an agent (the federal government), the agent cannot transfer its delegated power to another party without specific direction within the contract. No such authorization exists in the Constitution. So, Congress can’t legally give the president a blank slate to make decisions about war at his own discretion. Congress must make that call and make it specifically before the initiation of military action.
Congress has never authorized military action in Yemen. In fact, it tried to end it and the president vetoed the measure.
It’s easy to look the other way as the U.S. wreaks havoc in faraway lands. Sadly, most Americans don’t worry too much about people dying in the country’s unconstitutional wars unless they happen to come home in coffins draped with the stars and stripes. But even if you’re so callous as to discount tens of thousands of dead, American’s wars exact a significant cost at home as well.
And we’re not just paying for it in dollars.
James Madison warned about the dangers of endless wars, calling them a threat to our liberty. We’re seeing his fears play out before our very eyes.
“Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare.” [Emphasis added]
As the American war machine grinds on, our liberties turn to dust within its gears. America needs to end the wars—for everybody’s sake.
The Federal Reserve has doubled down on its policy of devaluing your money.
During a speech in Jackson Hole last week, Federal Reserve Chairman Jerome Powell announced a shift in the central bank’s inflation policy.
In the past, the central bank has targeted a 2 percent inflation rate as measured by CPI. Now it will follow a policy of “average inflation targeting.” In effect, the Fed will allow the CPI to run “moderately” over 2 percent “for some time” to balance out periods where it runs under that level.
“Many find it counterintuitive that the Fed would want to push up inflation. However, inflation that is persistently too low can pose serious risks to the economy,” Powell said during prepared remarks at the summit.
The notion that falling prices are bad for the economy is ridiculous to begin with and is nothing more than Keynesian claptrap. But when you define inflation correctly—as an expansion of the money supply—it is anything but “too low.” In fact, it is at the highest level in history. But based on the consumer price index (CPI), “inflation” has been well below 2 percent for many years. In effect, this new policy means that the Fed will likely hold interest rates at zero for a significant amount of time—probably years—even if (when) CPI runs above 2 percent.
Fed inflation policy has evolved over time to allow for an ever-increasing devaluation of the dollar. The natural tendency in a healthy economy is for prices to decline. So originally, the Fed’s goal was “price stability. Early on, the central bank simply tried to keep prices from rising or falling. Eventually, it shifted to a 2 percent ceiling. It didn’t want rising prices, but it would tolerate them as long as they stayed below 2 percent. But eventually, 2 percent shifted from the ceiling to the target. And now the Fed has moved the goalposts once again with its 2 percent average.
The question is why does the Fed want inflation to begin with? Why does it think that falling or even stable prices “pose serious risks to the economy?”
The federal government could never get away with spending trillions every year on the welfare and warfare state if it had to directly tax Americans to pay for it. Instead, it pays for its profligacy through a hidden tax—inflation. It devalues the dollar and keeps interest rates artificially low to enable government borrowing.
The Fed doesn’t literally run off dollar bills in the basement of the Eccles Building. In practice, the Fed monetizes U.S. debt through the purchase of Treasury bonds on the open market with money it creates out of thin air. This creates artificial demand for U.S. bonds and holds interest rates artificially low. The Fed monetized trillions in debt after the 2008 financial crisis and held interest rates at zero for 7 years.
But the Fed has backed itself into a corner with its loose monetary policy. It can’t fight inflation. That requires rising interest rates. When former Federal Reserve Chair Paul Volker defeated stagflation that ran rampant in the 1970s, he allowed interest rates to rise to 20 percent. Given the amount of debt in the economy today—both government and private—a 20 percent interest rate would collapse the economy. In fact, the Fed couldn’t push rates above 2.5 percent after the Great Recession before the stock market crashed and the central bank pivoted back to rate cuts and money printing.
Since it can’t realistically fight inflation, the Federal Reserve has to keep redefining its inflation policy to justify rising consumer prices. It’s not because it’s “good for the economy.” It’s because it can’t let interest rates rise without popping the economic bubble. It can’t keep inflation constrained while maintaining the monetary policy necessary to sustain government spending. So, it simply moves the goalposts in order to justify continuing its money-printing and artificially low interest rate policies without having to explain why inflation is running hot.
Meanwhile, your purchasing power continues to diminish, the value of your savings dwindles, and the dollar flutters ever-closer to the edge of a cliff.
Because this can’t go on forever. At some point, the Fed will completely lose control of inflation. Now that the genie is out of the bottle, she’s not going back inside. Money printing can only go so long before inflation starts to run out of control. If the central bank still fails to act, it runs the risk of hyperinflation.
“Combined with a record level of debt accumulation by the US government, real concerns around the longevity of the U.S. dollar as a reserve currency have started to emerge.”
Eventually, economics always wins.
Even without hyperinflation, the constant devaluation of the dollar erodes the average person’s wealth. And the money-printing enables the government to continue growing. If you really want to limit the government, it’s imperative to end the Fed.
One of the biggest misconceptions I hear about the Constitution is that it was written to “protect our liberty.”
It wasn’t. At least not in a direct sense.
The confusion likely arises from the words of the Declaration of Independence:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
It’s true that the Constitution was written during a time when protecting unalienable rights was widely viewed as the primary role of government. But the Constitution is not a philosophical document. It is a legal document that formed a political union and created a central government.
That’s all it does. Asking it to “protect your rights” is really asking too much. That wasn’t why it was written or ratified.
Now the Constitution does reflect the philosophy espoused in the Declaration in that it established a general government of limited, enumerated powers. The decentralized nature of the political system it created was intended to encourage liberty.
By strictly limiting the authority of the general government, the founding generation hoped it would never possess enough the power to intrude on our rights.
But there isn’t any provision in the Constitution that actually empowers the federal government to protect our liberty. In fact, the founding generation would have almost certainly considered that too much power for a general government to wield.
In practice, this means the federal government really doesn’t have any responsibility to “protect your rights” beyond staying within its constitutionally delegated powers. Its obligation isn’t to act in order to protect liberty, it is to not act outside of its legitimate authority.
In the same way, the Bill of Rights was never intended to empower the federal government to protect your rights. As the preamble to the Bill of Rights makes clear, it was intended to add “further declaratory and restrictive clauses” to the Constitution “in order to prevent misconstruction or abuse of its powers.” I have often said it would be better named “The Bill of Restrictions.”
A lot of people want the Constitution to deliver something it never promised. They want the government to serve as a liberty enforcement squad. This is a dangerous proposition. In order to protect your liberty, the government must define your liberty. The best thing the government can do is stay out of the way. The Constitution created a limited federal government for that purpose.
But it’s ultimately up to us to hold it within its limits. Unfortunately, by insisting that the government “protect their rights” they are doing the exact opposite.
But Congress will never abolish the central bank. It can’t even come up with the will to audit the Fed.
So what can we do?
Even though state action can’t end the Fed, there are steps states can take that will undermine the Federal Reserve’s monopoly on money. By passing laws that encourage and incentivize the use of gold, silver and cryptocurrency in daily transactions by the general public, state action has the potential to create a wide-reaching impact and set the foundation to nullify the Fed’s monopoly power over the monetary system.
Over the last two years, a number of states took concrete steps in this direction.
Repeal Taxes on Sound Money
The first step is to repeal taxes on gold and silver.
Imagine if you asked a grocery clerk to break a $5 bill and you were charged a 35 cent tax. Silly, right? After all, you were only exchanging one form of money for another. But that’s essentially what a sales tax on gold and silver does.
Sales tax and capital gains taxes treat gold and silver as a commodity instead of money. They also create a barrier to using gold and silver in everyday transactions. Repealing taxes is a crucial first step toward the use of specie as money.
Last year, Kansas and West Virginia both repealed their sales tax on the sale of gold, silver and other precious metal bullion. This is an important first step toward creating currency competition and breaking the Fed’s monopoly on money. They joined at least 37 states that have already done the same.
While repealing state sales taxes on precious metals may seem like a relatively small step, it removes one barrier to owning gold and silver and eliminates a penalty on the use of sound money.
Gold Bullion Depositories
Establishing gold bullion depositories that facilitate the use of sound money is another step states can take to undermine the Fed’s monopoly on money.
Gov. Greg Abbott signed legislation creating the state bullion and precious metal depository in June of 2015. The facility began accepting deposits on June 6, 2018. The depository provides a secure place for individuals, businesses, cities, counties, government agencies, and even other countries to store gold and other precious metals.
You don’t have to be a Texas resident to use the depository. Any U.S. citizen can set up an account online and then ship or personally deliver metal to the facility. The Texas Bullion Depository accepts gold, silver, platinum, rhodium and palladium.
The law also creates a mechanism to facilitate the everyday use of gold and silver in business transactions.
While the depository does not currently have a system in place to facilitate everyday transactions with gold and silver, it remains part of the long-term plan. According to an article in the Star-Telegram, state officials want a facility “with an e-commerce component that also provides for secure physical storage for Bullion.”
Ultimately, depositors will be able to use a bullion-funded debit card that seamlessly converts gold and silver to fiat currency in the background. This will enable them to make instant purchases wherever credit and debit cards are accepted.
By making gold and silver available for regular, daily transactions by the general public, the new depository has the potential for a wide-reaching effect. In practice, the Texas Bullion Depository will operate much like the privately-owned UPMA already established in Utah.
In 2019, Texas passed a constitutional amendment and enabling legislation that exempts precious metals stored in the Texas Bullion Depository from certain taxes. Enactment of this law ensures there won’t be any barriers to using gold and silver stored in the depository for everyday financial transactions.
The Crypto Alternative
Gold and silver aren’t the only currency alternative. Cryptocurrency could also crowd out federal reserve notes.
In 2018, Wyoming enacted several laws to facilitate and encourage the use of cryptocurrency, positioning itself to become the national leader in cryptocurrency and blockchain sectors.
The first law created a legal framework for chartering “special purpose depository banks” tailored to serve cryptocurrency and blockchain businesses. The second law specifies that digital assets are property within the Uniform Commercial Code and authorizes security interests in digital assets. The law also clears the way for banks to serve as crypto custodians. A third bill signed by the governor enables securities to be issued in a tokenized form in Wyoming. “Normally, a stock certificate is a piece of paper…If you want to use a blockchain token to represent a stock certificate, [that would be] legal in Wyoming. [It would be] a legally issued security,” the sponsor of the bill said.
In combination, these laws have not only set Wyoming on the path toward becoming the cryptocurrency capital; they also take an important first step toward generating currency competition.
If other forms of money, whether it be cryptocurrencies or gold and silver, gain a foothold in the marketplace against Federal Reserve notes, people will be able to choose them over the central bank’s rapidly-depreciating paper currency. The freedom of choice expanded by these laws helps allow Wyoming residents to secure the purchasing power of their money.
All of these state efforts open the door for a serious push-back against the Fed and its monopoly on money. But state action alone won’t accomplish the goal. Ultimately, it will be up to everyday people to take advantage of these state laws and actually start using gold, silver and cryptocurrency as money.
For more details on state efforts to undermine the Federal Reserve’s monopoly on money, make sure you read our latest State of the Nullification Movement report. You can download it for free HERE.
This article was originally featured at the Tenth Amendment Center and is republished with permission.
Over the last several weeks, we have seen some libertarians participating in Black Live Matters protests against police violence. This has led to criticism. Should libertarians be linking arms with “Marxists” even if they have a common cause?
This raises a broader strategy question: should libertarians work with people ideologically opposed to their broader principles if the partnership can lead to an incremental shift toward liberty? For instance, should libertarians work with Black Lives Matter to fight against the growing police state? Or right-wingers to fight gun laws? (more…)
For the fiscal year (beginning Oct 1), the Trump administration has spent $2.74 trillion more than it’s taken in. The previous record deficit for an entire fiscal year was $1.4 trillion set in 2009 during Obama’s tenure in the White House. Despite Keynesian claims that the spending was necessary to stimulate the economy in the midst of the Great Recession, the (at the time) historic deficit set off a right-wing firestorm and birthed the Tea Party. With a Republican now sitting in the Oval Office today and spending magnitudes higher—crickets.
Spending in response to the coronavirus pandemic drove the June deficit to these astronomical levels. Uncle Sam blew through $1.1 trillion last month alone. Outlays were up by a staggering 223 percent on the month. That pushed federal spending for the fiscal year to just over $5 trillion.
The government shutdown of the economy has also squeezed government receipts. Revenue was down 28 percent, falling to $241 billion in June. Uncle Sam should get some relief with an influx of tax payments this month with the filing deadline set for July 15, but there is no end in sight to the spending. It seems almost certain Congress will pass another stimulus bill before the end of the year. And Donald Trump will sign it.
It’s easy to blame the deficit on COVID-19, but the Trump administration was already spending as if there was a crisis before the pandemic. Through the first two months of fiscal 2020, the deficit was already 12 percent over 2019’s huge Obama-like number and was on track to eclipse $1 trillion. Prior to this year, the U.S. government had only run deficits over $1 trillion four times, all during the Great Recession. We were approaching that number prior to the pandemic, despite what Trump kept calling “the greatest economy in the history of America.”
The June deficit adds to an already unfathomable level of debt, yet nobody seems particularly concerned. Virtually everybody agrees that trillions in government spending is “necessary” to boost the economy and mitigate the effect of the COVID-19 government shutdowns—Republicans and conservatives included.
Everybody is a Keynesian now.
But lack of concern or the perception of necessity does not change fundamental economics. Borrowed money has to be paid back. And yet nobody seems to be asking the most significant question: who is going to pay for all of this?
That answer is simple—you and me.
We will all be on the hook for this massive bill. We will either pay for it in higher real taxes or a massive inflation tax—probably both.
When it comes to the rapidly growing national surveillance state, federal agencies such as the NSA and FBI get most of the attention. But in fact, state and local law enforcement agencies, and increasingly private third-parties, make federal surveillance possible. A careful look at Immigration and Customs Enforcement (ICE) facial recognition surveillance reveals just how intertwined federal, state, local and third-party spying has become.
I’ve been arguing for years that the federal government encourages and funds surveillance technology at the state and local levels across the U.S., thereby gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself.
The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE.
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
The feds created the infrastructure supporting the national surveillance state, and they supply a lot of the funding, but state and local law enforcement agencies do the grunt-work. And increasingly, private companies are stepping in to fill the gaps.
ICE reveals how this system functions in the real world.
Like most law enforcement agencies, ICE has waded into the world of facial recognition. But as an article published by Nextgov explains “rather than build its own database and biometric apps, the agency opts to use third-party services from the private sector, state and local law enforcement and other federal agencies.”
An ICE division known as Homeland Security Investigations (HSI) conducts all of the agency’s facial recognition services. According to the Nextgov report, third parties including other government agencies and private vendors do all of the actual work.
According to a privacy impact assessment (PIA) issued May 13 and released publicly last week, HSI agents either send photos to the facial recognition service through encrypted email or upload through a third-party website. At no point does HSI manage any facial recognition software or image databases.
The report lists a number of facial recognition “service providers” used by ICE.
State and local law enforcement
Regional and Subject Matter-Specific Intelligence Fusion Centers
Federal Agencies—This includes a number of databases starting with DHS’s Automated Biometric Identification System, or IDENT. This is currently on track to be replaced by the cloud-based Homeland Advanced Recognition Technology, or HART, system. ICE investigators also have access to the State Department’s Consular Consolidated Database allowing it to check images against passport photos. It can tap into the FBI’s Next Generation Identification System (NGI), a massive database that stores photos on more than 38 million convicted criminals. And finally, ICE can access the Defense Department’s Automated Biometric Identity System (ABIS). This is primarily used in support of military operations and could soon be connected directly to the IDENT/HART system, according to the PIA.
Commercial Vendors – primarily for open-source collections of publicly available images. Some vendors have also developed facial recognition software that HSI agents can use. In such cases, after an agent uploads an image to the application, the vendor is required to “delete the image immediately upon creation of a face template.” The PIA notes that, “While HSI cannot directly control the means or methods of a vendor’s data collection efforts, if HSI discovers that an FRS violates the privacy settings of an open-source system, HSI will discontinue using that vendor’s FRS.”
All of these existing databases allow ICE to run a facial recognition program without investing in facial recognition technology or expending the manpower to gather the data.
The Nextgov report focuses on ICE and facial recognition surveillance, but federal agencies almost certainly utilize the same strategy to facilitate other kinds of surveillance. It can tap into databases containing location data, cell phone information, license plate data, drone surveillance data and more without having to actually operate stingray devices, ALPRs, or drones. State and local cops gather the data and then dump it into these massive databases that every law enforcement agency in the country can access – including the feds.
The federal government continues to build out a national surveillance state, partnering with state, local and private entities to create a tangled web that becomes increasingly difficult to untangle. This is why it’s critical to limit the use of surveillance technology and data sharing at the state and local levels. Every limit on surveillance in a county or city takes a small bite out of the system. Data that is never gathered can’t be shared.
Qualified immunity is a legal doctrine that shields cops from liability for actions taken in the line of duty unless they violate rights “clearly established” by existing judicial precedent. No statute exists granting qualified immunity. It evolved over time based on a series of Supreme Court cases.
In practice, qualified immunity makes it extremely difficult to prosecute police officers for using excessive force or committing other acts of misconduct. As Supreme Court Justice Byron White wrote in the 1986 case Malley v. Briggs, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Reuters called it “a highly effective shield in thousands of lawsuits seeking to hold cops accountable for using excessive force.”
But how did we end up with qualified immunity in the first place? The legal doctrine evolved over time thanks to federal judicial activism and was applied to every police department in the United States through the incorporation doctrine. The very existence of qualified immunity reinforces an ugly truth. We can’t trust the federal government to protect our rights. It almost always defers to government power.
We can trace the origins of qualified immunity back to the Civil Rights Act of 1871. The act was codified into law by 42 U.S. Code §1983—“Civil action for deprivation of rights.” In effect, it allows any U.S. citizen to sue a state or local official in federal court for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”
This was one of the first federal laws passed based on the 14th Amendment. The statute arguably overreaches the intent of the 14th. Regardless, for the first time, it created an avenue for individuals to hold state officials accountable through the federal courts.
Although §1983 did not specifically provide for an immunity defense, lawyers for government officials often argued for immunity based on common law, arguing it was implicit in the statute. Early on, immunity defenses were built on a case-by-case basis and not based on settled federal court precedent. But in the 1967 case Pierson v. Ray, the Supreme Court cemented the doctrine of qualified immunity into federal jurisprudence. The Court held that government officials who violate the law or constitutional limits on power in “good faith” can raise “qualified immunity” as a defense.
Chief Justice Earl Warren wrote the majority opinion.
“Under the prevailing view in this country, a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.”
The next step forward for qualified immunity came in the 1971 case Bivens v. Six Unknown Named Agents. The case opened the door for individuals to sue federal government officials for violations of rights given that §1983 only applied to state and local officials. Justice William Brennan wrote, “While there is no explicit right to file a civil lawsuit against federal government officials who have violated the Fourth Amendment, this right can be inferred. This is because a constitutional protection would not be meaningful if there were no way to seek a remedy for a violation of it.”
In 1982, Harlow v. Fitzgeraldestablished qualified immunity for federal government officials and set the stage for the current definition of qualified immunity. The Court held that government actors are entitled to qualified immunity due to “the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.”
“Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” [Empashis added]
“The test requires courts to undertake an objective analysis of the circumstances surrounding the use of force. Even if a court decides that the use of force was unreasonable and thus unconstitutional, the second step of the inquiry is the qualified immunity analysis: Was it ‘clearly established‘ that this kind of force in this kind of circumstance is unconstitutional? If not, the officer escapes liability.” [Emphasis added]
Grahm also established that all police excessive force cases involving arrests, searches, or investigatory stops must be evaluated under the Fourth Amendment, not the due process clause of the 14th.
Wurman argues that the “clearly established” test erects an almost insurmountable hurdle to those trying to prove excessive force or a violation of their rights.
“The qualified immunity test poses an almost insurmountable analytical problem—the permutations are infinite. A given situation is rarely exactly like another. There will always be sufficient distinguishing facts to decide that there was no clearly established law.”
Bivens and subsequent cases all involved federal government officials, but eventually, the court effectively abandoned the statutory process in §1983 and began hearing cases against state agents directly under the Constitution. As Wurman explained, “Immunity doctrine traditionally looked to the common law to derive immunities in §1983 cases. This approach was lost, quite possibly as a result of historical accident, as the Court began to hear Bivens actions directly under the Constitution and not under any statute.”
Later, he writes, “[The Court] subsequently invented immunity doctrine out of whole cloth in other federal-officer cases and exported that doctrine to the §1983 cases rather than importing the relevant doctrine from the state-officer cases.”
The rationale for federalizing state and local police misconduct cases was good-intentioned. When Congress passed the Civil Rights Act of 1871, it was next to impossible for African-Americans to get a fair shake in many state courts and government officials could abuse their rights with virtual impunity.
But the end-result of centralizing power in the federal government was worse. Now it’s next to impossible for any person in any state to get a fair shake when challenging police misconduct. The federal courts have cemented a system in place that gives law enforcement officers almost complete immunity and allows them to violate any individual’s rights with virtual impunity.
Through the incorporation doctrine that applies the federal Bill of Rights to state and local governments, this system protects police officers in every city, county and state in the U.S. from Honolulu, Hawaii to West Quoddy Head, Maine.
A decentralized system where cases were heard under state law and state constitutions would undoubtedly have problems. Some states would probably extend almost complete protection to law enforcement officers just like the federalized system. But surely some would be better.
The lesson here is pretty clear. Government protects its own. Centralized power almost never benefits the average person in the long-run. And we cannot count on federal courts to protect our rights.
Welcome to your future. Your government is spending it right now. And your children’s and grandchildren’s future to boot.
The U.S. Treasury projected that it would borrow $2.99 trillion in the second quarter fo this year. The Trump administration also plans to borrow another $677 billion in the July-September quarter, bringing the total fiscal 2020 debt to $4.48 trillion.
To put it into some perspective, before the pandemic, the CBO projected that the federal deficit would come in at just over $1 trillion in fiscal 2020. The government is set to borrow nearly three times that in just three months. And the one-year total borrowing will nearly equal the total of the four biggest yearly budget deficits on record. The level of government borrowing will crush the previous quarterly record of $596 billion set during the height of the 2008 financial crisis. It’s nearly two-and-a-half times the total amount of money the U.S. Treasury borrowed in all of 2019.
The national debt hit $25 trillion just a few weeks ago and it’s already knocking on the door of $26 trillion. By the end of the fiscal year, it will likely be well north of $27 trillion and climbing.
Here’s the most important thing to remember: Uncle Sam was already borrowing and spending at an unsustainable pace before coronavirus.
The federal government has run deficits over $1 trillion in four fiscal years, all during the Great Recession. The fifth trillion-dollar deficit was coming down the pike in fiscal 2020, despite what President Trump kept calling “the greatest economy in the history of America.” Simply put, the Trump administration was already running significant budget deficits even before the coronavirus crisis and debt was piling up at a dizzying pace. The deficit already featured numbers you would expect to see during a massive economic slowdown—before the massive economic slowdown. Response to the pandemic put spending and debt in hyperdrive.
Pretty much everybody accepts that borrowing and spending are necessary due to the economic destruction wrought by the government shutdowns. As the AP put it, “Private economists believe that the government has little choice but to spend the money now to prevent an even worse downturn and possibly even a situation like the Great Depression of the 1930s.”
Whether the government as a choice or not remains up for debate. What’s not debatable is that at some point we’re going to have to pay for all of this.
Never forget—borrowed money has to be paid back. Uncle Sam is effectively taking future productivity and spending it now. When the bills start coming due, the government will have two choices. It can raise taxes or it can pay the debt off through inflation.
I’d expect both.
Don’t think you can reelect Trump and avoid tax increases. The president can’t snap his fingers and suspend economic reality. At some point in the not-too-distant future, Congress will have to raise taxes to address budgetary realities. But tax increases are unpopular and politically unpalatable, so also expect a lot of inflation.
In fact, the Federal Reserve is already inflating the money supply at an unprecedented rate. Were it not for the central bank backstopping all of this borrowing, bond prices would tank and interest rates would soar. But the Fed is set up and primed to monetize all of this debt through QE Infinity. In effect, the central bank is printing money and buying U.S. Treasury bonds. Ostensibly, by creating artificial demand for Treasuries, the Fed will be able to soak up excess supply and hold interest rates down. It has no choice because rising interest rates would be the death knell for this debt-riddled, overleveraged economy.
“No man can, by natural right, oblige the lands he occupied, or the persons who succeed him in that occupation, to the paiment of debts contracted by him. For if he could, he might, during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to the living, which would be the reverse of our principle.”
Politicians have short time-horizons. That’s why they generally make poor decisions. They don’t care about the future beyond the next election cycle. They certainly don’t care about my children. Elected officials do the popular thing now to secure reelection tomorrow. with little concern for the long-term consequences. It’s a neverending game of kick the can down the road—until you run out of road.
Three trillion borrowed dollars in the span of three months will make that road mighty short.
I hear a lot of bad constitutional arguments justifying this or that federal action. One common justification for expanding federal power is: “This thing is necessary! It needs to be done.”
But it doesn’t follow that the federal government has to do the thing. In fact, the founding generation expected that the states and the people would do most of the “necessary things” – not the federal government.
Tench Coxe was a prominent and influential advocate for ratification of the Constitution and a delegate for Pennsylvania to the Continental Congress in 1788-1789. He later served as Secretary of the Treasury. He wrote three essays published in the Pennsylvania Gazette in early 1788 under the pen-name “A Freeman.”
In these essays, Coxe offered some of the most forceful arguments asserting the limited nature of the federal government under the proposed Constitution. He insisted that many, if not most, of the “necessary” things for society would be taken on by state and local governments, not the federal government. He wrote:
“It will be found, on a careful examination, that many things, which are indispensibly necessary to the existence and good order of society, cannot be performed by the fœderal government, but will require the agency and powers of the state legislatures or sovereignties, with their various appurtenances and appendages.” [Emphasis added]
Why can’t the federal government perform these things? Because as James Madison explained in Federalist #45, “The powers delegated to the federal government by the proposed Constitution are few and defined.” [Emphasis added]
Coxe drove his point home by listing ten broad areas where the federal government has no authority to act. Several of these are self-evident, but the long list included in the tenth point drives home the extremely limited nature of the federal government supporters of the Constitution promised.
“They cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns or boroughs; creating new state offices; building light houses, public wharves, county gaols, markets, or other public buildings; making sale of state lands, and other state property; receiving or appropriating the incomes of state buildings and property; executing the state laws; altering the criminal law; nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive or judicial, civil or ecclesiastical.” [Emphasis Added]
In his second essay, Coxe approaches the issue from the other side, enumerating “what the state governments must or may do.” Again, many of the items Coxe lists as the exclusive purview of the states reveals just how far the federal government has usurped state authority.
“The several states can create corporations civil and religious; prohibit or impose duties on the importation of slaves into their own ports; establish seminaries of learning; erect boroughs, cities and counties; promote and establish manufactures; open roads; clear rivers; cut canals; regulate descents and marriages; licence taverns; alter the criminal law; constitute new courts and offices; establish ferries; erect public buildings; sell, lease and appropriate the proceeds and rents of their lands, and of every other species of state property; establish poor houses, hospitals, and houses of employment; regulate the police; and many other things of the utmost importance to the happiness of their respective citizens. In short, besides the particulars enumerated, every thing of a domestic nature must or can be done by them.” [Emphasis Added]
So yes – a lot of things are “necessary.” But that doesn’t mean the federal government can do them. The federal government remains limited by its delegated powers. “Necessary” isn’t a constitutional argument.
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