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John Calhoun’s California

In his speech announcing a Justice Department lawsuit against the State of California, Attorney General Jeff Sessions suggested that the Golden State is treading the path of the confederacy. Condemning recent California laws enacted to impede federal immigration enforcement, Sessions said: “There is no nullification. There is no secession.” The state’s political leaders did not appreciate the comparison.

Nevertheless, the attorney general has a point. California’s behavior today is reminiscent of the course charted by South Carolina in the nullification crisis of 1832, when John Calhoun previewed for the country the impulses and arguments that would later lead to secession and civil war.

Responding to the so-called “Tariff of Abominations,” which many southerners held to be an unconstitutional use of the federal government’s taxing power, South Carolina elected a special convention. That convention issued an ordinance purporting to declare the federal tariff “null, void, and no law.” The ordinance further declared it unlawful for anyone within the state, including federal officials, to enforce the payment of the taxes at issue.

To be sure, California has not (yet) gone as far as South Carolina. California’s legislation does not formally claim a power to nullify federal immigration law. And even the boldest of its recently enacted laws does not make it illegal for federal officials to enforce federal immigration law. It rather stops short at making it unlawful for some businesses to cooperate voluntarily—that is, in the absence of a court order—with federal immigration authorities.

By holding back to this extent, California hopes to stay, even if just barely, on the right side of the Supremacy Clause—that provision of the Constitution that declares the laws of the United States “the supreme law of the land . . . any thing in the Constitution or laws of any state to the contrary notwithstanding.”

Yet there is one sense in which California’s position is even more extreme than that taken by the incendiary South Carolinians of 1832. After all, the proto-confederates at least claimed, however unreasonably, that the federal law they opposed was unconstitutional. California’s politicians, in contrast, do not assert the unconstitutionality of America’s immigration laws. They just don’t want them to be enforced.

Such differences aside, today’s Californians are clearly acting in the same spirit as their nullifying predecessors. To borrow the words of the South Carolina Nullification Ordinance, California’s leaders seek, as much as they dare, “to prevent the enforcement and arrest the operation” of federal law. And their actions raise dangers similar to those that were highlighted by President Andrew Jackson when he condemned the 1832 Nullification Ordinance.

In his “Proclamation Regarding Nullification,” Jackson warned that the ultimate tendency of South Carolina’s arguments and actions was to destroy the Union itself. After all, if one state can declare a federal law unconstitutional and forbid its enforcement, then any state can declare any federal law unconstitutional and forbid its enforcement. At that point the country would have a government in name only, since the states would have to obey only those laws they saw fit to obey.

The principle behind California’s actions today is almost as deadly. If California can make it unlawful for certain citizens to cooperate freely with federal immigration authorities, then any state can make it unlawful for any citizens to cooperate freely with any federal officials. As Attorney General Sessions noted, if California can take such steps to impede federal immigration enforcement, then other states can do the same to impede the enforcement actions of the EPA, the FBI, or any other federal agency.

If such a system would not actually bring the federal government to a halt, it would at least unacceptably slow it down. Energetic execution of the laws was one of the key principles the Founders sought to attain by writing and ratifying the Constitution. Under the Articles of Confederation they had experienced the humiliations and dangers that arose from a government powerless to enforce its decisions. Thus they created a new government, limited in its scope, but fully empowered to carry its laws into effect without having to ask the permission of any state government.

Just as the federal government cannot truly exist if states can nullify its laws, so it cannot achieve the energetic execution of law the Constitution is designed to secure if states can require federal officials to obtain a court order every time they seek the cooperation of ordinary Americans. Certainly neither California nor any other state would want its own officials to operate under such a burden. Leaving aside whatever we may think about immigration policy, this is not the kind of system that any sober citizen would want, or would think is contemplated by the Constitution.

Although California has not been as barefaced in 2018 as South Carolina was in 1832, its subtleties are nevertheless unacceptably dangerous and inconsistent with the Constitution. Americans would do well to reject those dangerous subtleties in favor of the common-sense simplicity and safety of the principle articulated by Andrew Jackson: “Our Constitution does not contain the absurdity of giving power to make laws, and another power to resist them.”

Reader Discussion

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on March 22, 2018 at 09:40:53 am

In 1790, Secretary of State Thomas Jefferson argued that the bill to charter a bank was unconstitutional. In 1794, he floated the idea that Virginians who participated in Bank of the United States activities within Virginia should be executed. In 1797, he circulated a petition calling for impeaching members of a Richmond federal grand jury that had handed up a presentment of Jefferson's congressman for seditious libel--a common-law crime for which he insisted the Federal Government had no power to prosecute anyone. Impeached grand jurors should be forever barred from holding any state office in Virginia, he said. In 1798, Vice President Jefferson drafted the Kentucky Resolutions of 1798, which in his draft staked out a claim to power in a state to prevent enforcement within its territory of unconstitutional federal laws.

Virginia adopted similar resolutions in 1798. The Virginia Resolutions' call upon other states to endorse Virginia's position elicited resolutions holding the Alien and Sedition Acts unconstitutional from the legislatures of Tennessee and Georgia, plus one house of the North Carolina Legislature. The governor of South Carolina and a leader in that state's legislature said at the time that South Carolina would have joined Kentucky, Virginia, Georgia, Tennessee, and that one North Carolina house, but the Virginia Resolutions had only reached the Palmetto State on the last day of its legislative session.

Yet, somehow, nullification has come to us as "Calhoun's" idea. Grant it, arguendo. Still, California isn't nullifying anything. No California authorities are calling for execution of Californians who help to enforce federal policy, for state impeachment of such people, or for state use of force against federal officials.

Rather, California is refusing to cooperate in enforcing federal immigration law. It isn't thwarting. It isn't obstructing. It is merely refusing to cooperate. This has essentially nothing in common with Jefferson's positions in 1794 and 1797, four and one-half state legislatures' positions in 1798, or the South Carolina position of 1832-33.

I wish California would cooperate with federal immigration officials, but this name-calling only clouds the issues.

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Kevin R. C. Gutzman
on March 22, 2018 at 09:53:53 am

Correction: not 1794. 1792.

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Kevin Gutzman
on March 22, 2018 at 10:53:12 am

How, pray tell, is punishing those voluntarily participating in law enforcement not thwarting of that law enforcement?

When Guido tells a business owner he best not go to the feds or he'll get hurt, it's a crime. It is also a crime when California does it. Time to "frog March" out a few state officials.

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Mark
on March 22, 2018 at 10:53:42 am

Also, the actions of California look very much like the several state "personal liberty laws" that were passed in opposition to the Fugitive Slave Act of 1793 and rejected in Prigg v. Pennsylvania.

I have no idea why Sessions wants to get into the position of coercing state assistance rather than simply strictly enforcing e-verify. If Congress is the problem with e-verify then Sessions should be making that clear.

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EK
on March 22, 2018 at 11:59:11 am

Yet - how should one characterize the actions of the Mayor of Oakland?
Is that not thwarting? Is that not obstructing?

As for name calling, one may want to check the recent (yesterday) comments of the Lt. Governor of California referring to the Director of ICE as a "Class A Prick."

I suspect that there is a bit involved here than a simple matter of California refusing to be *commandeered*

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gabe
on March 22, 2018 at 12:25:49 pm

Does anyone (else) think maybe the Feds should indict a random California official (say, the mayor of Oakland) under 8 U.S.C. 1324? Or does that statute not apply?
https://www.law.cornell.edu/uscode/text/8/1324

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f s
on March 22, 2018 at 12:31:44 pm

I suppose if Calhoun's nullification had consisted of telling people there was now going to be a higher tariff, we might have an analogy.

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Kevin Gutzman
on March 22, 2018 at 13:11:00 pm

SB54 "State lawmakers also passed the Immigrant Worker Protection Act, which prohibits local business from allowing immigration to gain access to employee records without a court order or subpoena. Mr. Becerra warned that anyone who violated the new law would face a fine of up to $10,000."

QUESTION: Is California imposing the same restrictions on their own Police Forces or Government agencies.
Answer: NO

and

"AB 103: the detention review law. The DOJ is suing to strike down a law that requires the California attorney general to review any facility where immigrants are being detained by federal agents while waiting for an immigration court date or their deportation (or where unaccompanied minors are being held while waiting to be placed with a relative).

The lawsuit argues that where immigrants are detained is a “law-enforcement decision” and California is improperly interfering with it; it also complains that California ISN'T placing these restrictions on any other local or federal agency and is targeting immigration enforcement."

Question: Same restrictions on California agencies.
Answer: NO

AND

"AB 450: the workplace-raid law. Just like the DOJ is suing to let law enforcement cooperate more broadly with federal agents with its challenge to SB 54, it’s suing to let employers cooperate with federal agents during workplace raids or audits. The feds are suing to strike down provisions that prevent employers from letting ICE agents access “nonpublic areas” of the workplace during raids or giving ICE agents access to employee records without a judicial warrant. (Though ICE agents would still be allowed to look over an employer’s I-9 files, the form to verify an employee’s ability to work in the US legally.)

And it’s suing to stop employers from having to notify their employees within 72 hours of getting a notice of inspection of I-9 files from ICE and notify them again within 72 hours of getting the results if the employee has been flagged in the system as working illegally.

The DOJ argues that these restrictions “have the purpose and effect of interfering with the enforcement of the [federal] prohibition on working without authorization.”

This is basically the heart of the lawsuit: that California passed laws that are designed to stop the FEDERAL government from enforcing ITS laws, and that’s not permissible under the Supremacy Clause of the US Constitution"

Question: Same restrictions on California police / agencies.
Answer: NO

So how is this not obstruction? How is this not a claim that California law takes precedence over Federal law?

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Guttenburgs Press and Brewery
on March 22, 2018 at 13:12:13 pm

Sorry - forgot to attribute quotes to an article in VOX.

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Guttenburgs Press and Brewery
on March 22, 2018 at 13:32:05 pm

Fair enough - BUT would not ICE still have to "visit' employer locations once e-verify confirms a problem. California law appears to "burden" ICE AND the private employer's ability to enable this.

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gabe
on March 22, 2018 at 13:59:12 pm

The name of the game is to enforce the existing immigration laws and not to make martyrs out of stubborn state officials.

If the governor of California wants to deploy the California National Guard and State Police against ICE agents conducting clearly lawful inspections of private employers that is for them to decide. If we get to that point, California will either concede the point or clearly secede from the Union. That's their decision but it is best to have them make their decision on the weakest possible grounds.

I don't think anyone really wants to conflate illegals with kidnapped and enslaved Africans.

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EK
on March 22, 2018 at 14:12:56 pm

Arizona got slapped down in a hurry for daring to try to enforce federal immigration law when Obama's administration did not want it enforced.

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Michael T Kennedy
on March 22, 2018 at 15:33:32 pm

"I don’t think anyone really wants to conflate illegals with kidnapped and enslaved Africans."

Indeed, I was going to so comment.

Question on "martyrs" - who is *creating* or offering these martyrs? Is it California or the Federales? It would seem that California is proffering its local Sheriffs and employers for sacrifice on the alter of unrestrained immigration.

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gabe
on March 22, 2018 at 16:22:46 pm

1. Yes, the California law that prohibits citizens from assisting the federal government (without a court order) is interfering with the federal government's enforcement of federal immigration law and so violates the supremacy clause.

2. But the control of the state government over their own employee's assisting the federal government is a whole different situation. The state government's must be able to control their own employees in the course of their duties as state employees from assisting the federal government in the enforcement of federal law. It is up to the state to decide how to allocate the scare resources of state employee time on the job, and the federal government cannot dictate state enforcement priorities.

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Devin Watkins
on March 22, 2018 at 16:27:30 pm

I should note, this is because the statute discriminatory targeted the federal government intentionally placing a special burden federal enforcement. It is possible for a state to create a non-discriminatory law on say privacy reasons that prohibits disclosure of certain information to anyone (including the federal government) without a court order. Think of a HIPPA like law at the state level. That might frustrate the federal government's efforts, but wouldn't necessary be unconstitutional unless congress explicitly preempted such statutes in this narrow context.

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Devin Watkins
on March 22, 2018 at 17:31:16 pm

Yes, and THAT (non-discriminatory) law would have to apply to both Federal and State agents. This appears to be the problem with California SB 54 (if i recall bill name correctly).

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gabe
on March 22, 2018 at 18:11:28 pm

It's too bad the Army demilitarized the Presidio and gave it to the Park Service.

I can imagine Governor Moonbeam, Attorney General Bacerra, San Fran Nan Pelosi and the Mayor of Oakland staging a fake stand-off, Sumter-like, complete with a pretend naval blockade by Bay tugs and tour boats, a non-explosive mining of the waterfront with anchored weather balloons and 1812 Overture cannons.

All smoke, noise and play-acting, signifying nothing but political theater.

But, California's usual theater of the absurd aside, its obstruction of justice on immigration is a matter not nearly of the constitutional significance but of much more serious public safety importance than the Kentucky and Virginia Resolutions and the Nullification crisis.

And deploying Sessions in federal court from level one (an Obama judge) to level two ( a panel of Obama judges) to level three (an en banc court of Obama and Obama-lite judges) to level four ( 2 Obama judges and 2 Obama-lite judges and a 5th judge who's trying to figure out what he wants to be when he grows up) will be even slower than Jeff Sessions hiding under the desk in his office at the "Robert F. Kennedy" Department of Justice (talk about Swamp absurdity) Building.

Maybe Trump should call up federal troops to enforce immigration laws in California. President Jackson made the threat and meant it, and Ike actually did call up the Army (one of many reasons to "like Ike.") Deploying a General named "Mad Dog" seems the right strategy for a bluff. Or Trump could try Lincoln's Maryland approach: declare an insurrection and impose martial law. Kept that state snug as Union bug. Not a threat of secession or insurrection thereafter.

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timothy
on March 22, 2018 at 18:56:46 pm

Anyone paying attention to the $1.3 trillion budget passed by the House today and not being excited about the ability of states to "unacceptably slow...down" the federal government ...

is on the wrong side of the Constitution.

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Michael Boldin
on March 22, 2018 at 20:41:18 pm

That moment the Heritage people from the Heritage Foundation use the exact same arguments as Rachel Maddow.

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Michael Maharrey
on March 23, 2018 at 07:44:39 am

I simply do not understand what you mean, Mr. Mahharey.

How on God's green earth is it (as you allege) "the exact same arguments as Rachel Maddow" for one to make the patently apt, if not perfectly applicable, historical analogy between, on the one hand, South Carolina's threat to nullify federal tariff law (unilaterally declare it unconstitutional and therefore void as to South Carolinians, which would constitute criminal obstruction of justice) and to interpose its state law ( to claim the state's right to oppose what it asserted were unconstitutional tariff actions of the federal government by interposing itself between the federal government and the people of South Carolina by taking actions intended to thwart federal enforcement of tariff laws. In Cooper v. Aaron the Supreme Court rejected interposition declaring it an unconstitutional subversion of the Supremacy Clause.) and, on the other hand, California's official actions taken under color of law to obstruct enforcement of federal immigration law by outlawing state and private cooperation with federal enforcement of immigration law (criminal obstruction of justice) and to substitute and interpose its official state policy of non-enforcement of immigration law (subversion of the Supremacy Clause as recently reaffirmed by a Supreme Court decision, Arizona v. United States, voiding most of Arizona's separate immigration enforcement law?)

Some folks would consider it an intellectual and moral slur to be compared to Rachel Maddow. Defend yourself, man.

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timothy
on March 23, 2018 at 08:51:58 am

Again: Nullification was not unilateral (whatever that means) declaration of unconstitutionality and inapplicability, it was actual armed intervention. As the Nullification Convention met in South Carolina, 60,000 Carolinians were engaged in military drills, the state was stocking up on military equipment, and the state was preparing for war with the Federal Government.

The Virginia precursors on which Calhoun avowedly reiled included discussion of hanging Virginians who participated in Bank of the United States activity within Virginia, impeaching federal grand jurors and forever banning them from ever again holding office (including as petit jurors) in Virginia, etc.

Contrast today's California. The measures people in this thread are analogizing to 1830s South Carolina include various paperwork requirements enforceable by fines for noncompliance. This ain't your great-great-grandfather's Nullification.

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Kevin Gutzman
on March 23, 2018 at 09:12:50 am

What a silly comment!

No one has said that California is arming for war in order to nullify federal enforcement. That South Carolinians may have done so while Californians (so far) are not is of absolutely no relevance to the legal issue.

Secondly, you question use of the word "unilateral" because you SAY you do not know what it means BUT whatever it means it is inappropriate when applied to nullification. That's both illogical (to claim you don't know the meaning of a word while declaring that whatever it means it's inappropriate) and disingenuous (because surely you do know the meaning of the word "unilateral.")

And you surely know, also, that California has, indeed, acted "unilaterally."

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timothy
on March 23, 2018 at 09:22:04 am

Silly comment? My point is that it's ridiculous to compare what California is doing to what South Carolina did in the 1830s--you know, the topic of this piece. The one about which we're commenting.

The word "unilateral" is inappropriate in relation to a declaration of unconstitutionality because there's no such thing as a multilateral declaration of unconstitutionality. Findings of unconstitutionality always come from particular institutions--individual institutions. "Unilateral" is at best superfluous; at worst, its use betrays confused thinking.

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Kevin Gutzman
on March 23, 2018 at 09:48:09 am

I fail to see what all of the fuss is about. If California wishes to nullify federal law and to, eventually, secede from the Union, who cares? Let it. For that matter, encourage it to do so. Let the People's Republic of Kalifornia blossom forth. It will be one less thorn in the side of the rest of this country. We don't need a wall along the Mexican border. Instead, we need to build a wall around California.

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David
on March 23, 2018 at 10:07:42 am

Now you've gone from a) making a legally/constitutionally irrelevant distinction (the degree of preparation for armed resistance) and b) illogical disingenuousness ("Gee, I don't know what "unilateral" means but whatever it means it does not apply to nullification.'') to c) niggling assertions about the use of the word 'unilateral," the meaning of which you appear now to understand.

To avoid any repetition of your feigned lack of dictionary knowledge, ''niggling" means to find fault in a petty way.

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timothy
on March 23, 2018 at 14:41:20 pm

I'm glad no one called Sessions a traitor to his race!

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ken masugi
on March 23, 2018 at 15:24:06 pm

That would not happen since there are no white supremacists in the Republican Party.

The only talk of racial supremacy I read about is from the handful of surviving Neo-Nazis, the Nation of Islam, Maxine Waters (and others of her ilk in the Congressional Black Caucus) and the Democrat Party (historically America's party of racism, Jim Crow and sex-discrimination) which insists on preserving racial preferences and on treating African-Americans as robotic political pawns rather than fully-functioning human beings.

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timothy
on March 25, 2018 at 00:47:28 am

An outstanding share! I've just forwarded this onto a colleague
who had been doing a little homework on this. And he in fact
bought me dinner due to the fact that I discovered it for him...
lol. So allow me to reword this.... Thanks for the meal!!

But yeah, thanx for spending time to discuss this issue here
on your internet site.

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Pacific Rim Uprising
on March 25, 2018 at 02:41:35 am

[…] Source: Libertylawsite.org, 3-22-2018, CARSON HOLLOWAY […]

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John Calhoun’s California - PoliticsDiscussion.com
on March 26, 2018 at 00:41:14 am

[…] John Calhoun’s California […]

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Image of SB 54-Nullification by the Confederate State of California - California Political Review
SB 54-Nullification by the Confederate State of California - California Political Review

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