The Political “Football” of Social Security

April 30, 2016 Frank Kuchar

There are many things that I’ve come to find hard to believe, but I was squarely confronted with another one this past week when my wife and I attended a two evening seminar on filing for Social Security and Medicare benefits. I’m not supposed to be old enough to be concerned with this issue yet there I sat! However, I did learn just how convoluted this entire setup is and how it is not hard to believe how these programs will destroy our country if they are not addressed and dealt with. Discounting the fact for the moment that such systems are not within the purview of government and outside the its Constitutional authority, we are in too deep to terminate them cold turkey; but we as a country must understand the truth behind them and wean ourselves off of them over the next few generations.

There are several myths about social security that have become ingrained in our social conscious. First is the idea that it was designed to be a pension plan for retirement; that was the bogus lie used to “sell” the concept to the populace in 1937. Yet when the Supreme Court stuck the law down as unconstitutional, FDR’s attorneys argued that it was really just a general tax and so it was allowed to stand.

A second myth is that the monies contributed are “held” in a trust fund for us. There is no social security trust fund as the monies withheld from our paychecks and matched by our employers has gone into the general treasury and been spent.

A result of this first myth is the common attitude among retirees and those like myself who are closing in on that mile marker that those monies are “my money – I’m entitled to it because I paid into this plan.” Again, that is based upon the belief that Social Security was intended to be a pension plan, which behind the scenes it was not. Want proof? When the law went into effect, the average lifespan for the most Americans was 64 years of age; the retirement age to collect Social Security benefits – 65 years of age! The government was betting that for the most part, it would collect more in taxes than it would have to pay out because most would die before collecting their benefits! Such is the cynical tyranny of socialist governments.

According to the Center on Budget and Policy Priorities, in 2015 Social Security benefits amounted to 24% of the federal budget. Medicare, Medicaid and other similar insurance programs added another 25%. A grab bag of other safety net programs took up yet another 10%. The problem – these percentages are only growing exponentially at a rapidly increasing rate. Witness how the projected date by government economists as to when these systems will be “broke” is a target constantly being updated to a date closer and closer to our immediate future.

I hope that my health will permit me to work for many more years so that I will be able to forego my benefits and do a small part of saving the financial future of my children and grandchildren, but who knows what the future may hold? This one thing I do know will hold – these programs are not sustainable and our politicians must put our future ahead of their political futures by addressing this looming time bomb. John Taylor said it well in regards to pension and welfare programs which had already started in the early 1800s’:

“That the error of trusting republican governments with this tyrannical power [i.e., creating pension and welfare programs], has probably caused their premature deaths, because they are most likely to push it to excess” (Construction Construed and Constitutions Vindicated, p. 341, published 1820).

-April 29, 2016

Declaration of Independence – Ignored Warnings

April 15, 2016 Frank Kuchar

All patriots are acquainted with the opening phrase of the second paragraph of our Declaration of Independence. Yet I fear that too many have never taken the time to read and/or study the entire Declaration and the complaints lodged within it against the tyranny of King George III.

One thing I am certain of – those in our government most certainly are not familiar with it, for if they were, they would heed the warnings within it and change the way in which they are exercising similar tyranny over us today.

Consider these four complaints stated by Jefferson – complaints you will readily see should serve as a warning to those in our government today.

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”

Does this not reflect the myriad of government agencies that have proliferated over the decades that are suffocating our freedom and liberties with endless regulations and oppressions? Think IRS, BLM and the EPA just to list a few.

“He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:”

Madison and others of our founders argued strenuously that the federal government’s powers were to be “few and defined”, whereas those left to the states would be “numerous and indefinite” (Federalist 45). Yet we see Congress, the executive branch with all its agencies, and the federal courts constantly and repeatedly overstepping their constitutional authority and subjecting the citizens of the several states to purported “laws” that are contrary to the constitutions adopted by the citizens of their respective states.

“For imposing Taxes on us without our Consent:”

You can scarcely find a more obtrusive and anti-freedom tax system than what we currently suffer under. Yet when we petition our representatives for relief, they talk much but deliver only more oppression – or if nothing else, stand idly by while the IRS runs roughshod over us.

“We have warned them [those in the English government] from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us.”

This statement, near the end of the Declaration, sums up the warning we are giving those in our government. There is a tsunami of anger and frustration rising up all across the land and for the same reasons as in the days of our forefathers. We all know how that matter was resolved:

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. – That whenever any Form of Government becomes destructive of these ends, it is the right of the People to alter or to abolish it, and to institute New Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Yes, those who govern us would do well to revisit our Declaration of Independence and give heed to the message and warnings it contains.

-April 15, 2016

What Happens If You Don’t…

April 8, 2016 Frank Kuchar

Pay your property taxes? Pay your income taxes? Comply with any EPA regulations regarding the use of your property? Comply with a multitude of local zoning ordinances or permits in regards to your property? We all know the answer to these questions as we’ve either experienced the consequences or know someone who has – the government, be it local, state and/or federal, swoops in and takes your property from you, fines you and perhaps even takes away your freedom by imprisoning you.

Does this sound like a government described by Patrick Henry during the Virginia ratification convention in 1788: “for liberty ought to be the direct end of your Government”? My question hardly needs a response.

John Taylor, one of the most eloquent and ardent defenders among our founders of individual liberty and limited government, had this to say on the matter of property and individual rights:

“The restrictions as to taxing property, imposed upon both the federal and state governments, also recognize only a limited power over it in either; and as to the application of taxes, it is,…expressly limited to the execution of the powers delegated, for which purpose and no other the power of taxation was bestowed. Among the powers delegated, there is none to grant pensions, or to dispose of the public money according to the dictates of caprice, or benevolence,…

Societies are not instituted for the purpose of enabling governments to destroy natural rights; and as no man possesses a natural, or necessary, or convenient power over the natural rights of another, a majority of men cannot have a right to surrender to a government an absolute power over these natural rights…the freedom of conscience and of labour are essentially natural rights…Neither nature, nor necessity, nor convenience, has invested the people, or their representatives, with an absolute power over private property, or over conscience;…” (Construction Construed, and Constitutions Vindicated, 1820, p. 276)

Let those words of wisdom from almost 200 years ago sink in. Have we not done what Taylor said we have no right to do, namely surrendered our natural rights to a capricious government? It is unfortunate that we cannot require all of these young people thronging to Bernie Sanders rallies to read Taylor’s writings before being allowed to vote. Matter of fact, maybe it would help if all Americans were to read the wisdom of our founders before they cast their votes; maybe then we could elect men and women who would see to it that our government met Patrick Henry’s stated purpose of government.

-April 8, 2016

The Federal Government’s Obligations to the States

January 29, 2016January 30, 2016 Frank Kuchar

When we look at the intrusiveness of the federal government into our lives, we should step back and ask “Where is my state government?” It was the states, acting as independent nation-states which agreed to join together as a union under a federal constitution instead of its then current confederacy. In so doing, they did not give up their independence or authority completely, but only in certain limited, defined areas. It was the intent of our founders that the state legislatures should be our protectors against assaults against our liberties and the authority of the states by the federal government, as noted by Alexander Hamilton in The Federalist No. 85:

“We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”

In examining the areas in which the federal government is to act in behalf of the states, they are limited (in broad manner) to the following:

From Article I, Section 8 of the Constitution:

To negotiate on behalf of the states with foreign nations in matters of commerce or other treaties;
To establish laws regulating naturalization as it relates to citizenship;
To coin money as a uniform standard of exchange among the states (an action prohibited to the states in Section 9);
To establish post offices and post roads between the states;
To provide for a military in defense of the states.

From Article III, Section 2:

To act as an arbitrator in disputes between two or more states.

From Article IV:

Section 2 – To guarantee the rights of citizens in each state are honored by the other states.
Section 4 –
- To guarantee that each state shall have a republican form of government;
- To protect the states from invasion and aiding in curbing domestic violence when requested by the legislature of the state in need of assistance.

In light of these I ask – “How’s the national government doing in regards to fulfilling its obligations?” I can’t see where it is earning a passing grade in any of these areas. Our biggest problem in the destruction of our liberties by the national government stems, I believe, from its utter rejection of its first obligation in Article IV, Section 4 above.

Consider the recent ruling of the SCOTUS on marriage in which it has forced states that have previously rejected recognition of gay marriage that they must do so. When citizens of a state through their representatives have said they do not wish to recognize such marriages are told by the national government they must, then the republican form of government in that state has been destroyed. Or again, if the citizens of a state through their legislators decide they wish to have restrictive gun laws, for the national government to step in and countermand the laws of that state, then once more, the republican form of government in that state has been destroyed.

There are many more such examples I could list similar to these two, but I hope you see the point. The federal government is restricted to a few and defined (in the words of James Madison) areas, and those left to the states are broad and undefined. I would submit that given the current condition of world affairs, the federal government should butt out of the business of the states and start concentrating on its obligations to the states, and that it is time for the states to start demanding that the federal government honor its obligations, starting with the one in Article IV, Section 4, Clause 1.

-January 29, 2016

This Land’s NOT Your Land, This Land’s NOT My Land…

January 29, 2016 Frank Kuchar

I remember singing “This land is your land, this land is my land” in elementary music classes, but my how the sentiment has changed from “is” to “not”! We have witnessed some startling developments as related to our Constitutional rights this past week in the confrontation between rancher Cliven Bundy and the Federal Department of the Bureau of Land Management. You can read the news stories and blog essays about what happened there but I want to take a few paragraphs to delve below the surface of these events.

(As an aside, in the standoff between armed citizens and those armed members of this government agency, we have witnessed the precise reason why we have the second amendment right to bear arms – to resist the tyrannical overreach of the central government as well as the further trampling upon our Constitutional right of free speech when these government agents limited such speech to only certain restricted areas.)

There are some basic Constitutionally-related issues that need to be addressed. First, who controls the land that is in dispute, and the corollary to it, who should control that land, Nevada or Washington DC? Second, should any government entity control the land to begin with? Third, if the land is “owned” by the state of Nevada, under what Constitutional authority does the federal government have in interfering with how the land is used?

Let us begin by turning to our Constitution and reading what properties it authorizes the general government to “own”. Article I Section 8 lists the “enumerated powers” of the general government, and within those powers are given the kinds of properties it may possess: (1) Post offices and post roads, (2) the District of the seat of the government, (3) Forts, (4) Magazines, (5) Arsenals, (6) Dockyards, and (7) other “needful” buildings. All of these properties were to be purchased by the general government upon the consent of legislature of the state from which the property was to be acquired. The Union of the States did acquire property by other means, namely purchasing land from foreign countries (e.g., the “Louisiana Purchase”, Alaska) or as a result of war (Arizona, New Mexico, California, etc). However, once these territories were divided into states, those states became as much a sovereign entity as the original thirteen. Further, Article IV, Section 3 states that Congress shall have the power to either dispose of its territory or property as well as “make all needful Rules and Regulations” regarding said territory.

The general government owns approximately 85% of the state of Nevada, which pretty much destroys any notion of state sovereignty as far as the citizens of Nevada are concerned. There is a dispute in this case as to whether or not the grazing range used by Mr. Bundy is federal or, as he alleges, land properly belonging to Nevada. It appears that the property is technically federal land. So the question is, does the property in Nevada at the heart of the dispute fall into any of those seven categories of property listed in Article I Section 8 of the Constitution, and if not, then even though Nevada may have at some point ceded the land to the general government, such would be an unconstitutional exchange. The federal government has no business being in possession of that land. It should belong to the citizens of Nevada to either sell to private individuals/companies or lease to ranchers such as Mr. Bundy.

Therefore, since the “federal” government has no constitutional right to own that land, the land should revert back to the state of Nevada, and as Nevada is a sovereign entity, the “federal” government has no right to interfere in how the land is used. This is why I advocate for the return of all lands and property currently owned by the general government that do not fall within those above listed categories of the Constitution back to the states wherein such property is located.

-April 23, 2014

2016 – The Obamacare Hammer Has Dropped

January 22, 2016 Frank Kuchar

This year, in addition to receiving your W-2 tax form from your employer, you are going to receive a Form 1095-C. This is a form that is now required under the so-called “Affordable Care Act.” Unless you work in your company’s payroll or benefits’ departments, you are probably not aware of the burden these departments are experiencing in producing these forms. As I am a payroll and benefits professional and have just finished completing these forms for my employer, allow me to share just how burdensome these reporting requirements are on businesses. (Oh, by the way, the Act also requires your insurance carrier to send you a Form 1095-B as well).

The form requires employers to indicate on one line whether or not you were offered insurance coverage that met the minimum standards as required by the Act. There are a number of different codes that must be used, depending upon certain parameters. Unless the code is the same for all twelve months of the year, the proper code for each month must be recorded in a box for that month. On a second line, businesses are required to record in a box for each month, unless it was the same for all twelve, whether you enrolled in the coverage offered, or if not, the appropriate code indicating why you didn’t (e.g., you were not an employee at the time, you were an employee but was in a probationary period, etc.). Obviously the codes in each month’s box on these two lines must match up (in other words, you could not have the code for having been offered insurance on one line if on the second line the code indicates you were not yet an employee).

If your company has the misfortune to be “self-insured”, it must also list the names of the dependents covered under the plan as well as their social security numbers (the employer is expected to make at least three “good faith” efforts to obtain these numbers in case they are not in a database kept by the company).

Unless you work for a large company that has a robust payroll/benefits accounting system that has been modified to track and produce this data, this information is not readily available in their databases. Consequently it must be compiled from perhaps multiple places into an Excel spreadsheet for example and then merged into a template (that you have to create) so that you can then print the information onto the required form in the proper boxes.

Once these are distributed to the employees, the employer must then report a summary of this information on a Form 1094 which requires a month-by-month accounting of how many employees were active on a particular day of the month and how many of them were eligible for insurance as of the first of that month. This form and a copy of all of the Form 1095-Cs must then be forwarded to the IRS so that the Obamacare “Gestapo” can be sure that you have the required coverage and if not, to impose a penalty – oh excuse me Chief Justice Roberts – a tax on you for your failure to acquire the mandated minimum coverage (or fine your employer for not offering the required insurance).

So now you have an insider’s perspective on the regulatory hammer that has fallen on both your employer and insurance carrier. With these compliance costs hammering businesses and insurers, is it any wonder that premiums are going up and businesses are reluctant to hire more full-time employees or have the profits necessary to expand and hire?

-January 22, 2016

A Tale of Two Speeches

January 15, 2016 Frank Kuchar

This past Tuesday President Obama gave the final “State of the Union” address of his presidency. I’ve noticed over the years that in every speech any of our recent presidents have given, they always proclaim “and the state of our union is strong.” This President’s final speech ended on that proclamation, but such could not be further from the truth.

We have seen our nation sorely divided at several times during our history. The Federalists under John Adams versus the Republicans led by Thomas Jefferson. The southern states versus the northern states throughout most of our history. Racial divisions, economic divisions, etc have at times been severe, and today these are as prominent as they have not been for some time, thanks in large part to this president’s leadership (or lack of) and agenda.

Today, these speeches by the sitting president have turned into a big production with little relation to what was originally intended by the founders. Any more, they are nothing more than a big “pep rally” where the party In power gives itself a huge “pat on the back” and a long laundry list of “ornaments” it wants to “hang on the tree” of government expansion.

Such was not always the case. As a matter of fact, if you read some of these addresses by our early presidents you will see where they read more like a corporate annual report – facts, plans and real accounting of revenues and expenditures. Not only this, but in some instances the speeches were not even delivered orally, but rather were sent to the Congress in letter form.

So, by way of example, I close by sharing with you some quotes from President Thomas Jefferson’s first “Annual Message” (as it was called then), and you can compare the tenor of it with what you heard on Tuesday evening:

“When we consider that this government is charged with the external and mutual relations only of these states; that the states themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns, we may well doubt whether our organization is not too complicated, too expensive; whether offices or officers have not been multiplied unnecessarily, and sometimes injuriously to the service they were meant to promote. I will cause to be laid before you an essay toward a statement of those who, under public employment of various kinds, draw money from the treasury or from our citizens. Time has not permitted a perfect enumeration, the ramifications of office being too multipled and remote to be completely traced in a first trial. Among those who are dependent on executive discretion, I have begun the reduction of what was deemed necessary. The expenses of diplomatic agency have been considerably diminished. The inspectors of internal revenue who were found to obstruct the accountability of the institution, have been discontinued. Several agencies created by executive authority, on salaries fixed by that also, have been suppressed, and should suggest the expediency of regulating that power by law, so as to subject its exercises to legislative inspection and sanction. Other reformations of the same kind will be pursued with that caution which is requisite in removing useless things, not to injure what is retained….

Considering the general tendency to multiply offices and dependencies, and to increase expense to the ultimate term of burden which the citizen can bear, it behooves us to avail ourselves of every occasion which presents itself for taking off the surcharge; that it may never be seen here that, after leaving to labor the smallest portion of its earnings on which it can subsist, government shall itself consume the residue of what it was instituted to guard.

In our care, too, of the public contributions intrusted to our direction, it would be prudent to multiply barriers against their dissipation, by appropriating specific sums to every specific purpose susceptible of definition; by disallowing applications of money varying from the appropriation in object, or transcending it in amount; by reducing the undefined field of contingencies, and thereby circumscribing discretionary powers over money; and by bringing back to a single department all accountabilities for money where the examination may be prompt, efficacious, and uniform.”

This is just a sample of what a real President, intent upon upholding the Constitution he took an oath to protect and having an interest in securing our freedom and liberties would say. Alas, this is not the kind of rhetoric we heard on Tuesday evening.

-January 15, 2016

Checkmate

January 8, 2016 Frank Kuchar

In the game of chess two sides struggle to keep the each other’s power in check so as to protect their “king.” When you consider how our Constitution structures our republic according to the concept of federalism, you can see how it is much like a game of chess. In this case the struggle is not between pieces in a game, but rather between the forces of tyranny and individuals seeking to preserve their freedom and liberties.

In the game of chess, each piece has its own unique role to play, with its own level of power and ability to affect the outcome of the game. Like in chess where there are five pieces that work in concert to protect the king, within our Constitution there also exists five “checks-and-balances” against the forces of tyranny.

Within the federal government we have the three departments that are supposed to serve as a check against the excesses of one another. Whenever any one of these departments fails to serve its role as a check against the encroaching, extra-constitutional power of the other two, it is as though in the game of chess that piece has been “captured” by the opposing force and removed from the board and is no longer effective in the outcome of the game.

Outside the federal government are the states which, in a system of federalism, are sovereign in their sphere of authority which they retained under the Constitution. During the Constitutional Convention in 1787, the state ratification debates and the essays that emerged from those debates (namely the writings of the Anti-Federalists and the Federalist Papers authored by Hamilton, Madison and Jay), the states were repeatedly avowed to be the guardians against tyrannical overreach by the federal government. Yet, like the branches of the federal government, when the states abdicated their sovereignty in the areas retained by them under the Constitution they too have been “captured” and “removed from the game.”

This leaves the final and most powerful “piece” in this “chess match” – the queen, which in this case is the American people. It is “We the People” who hold sovereignty over both state and federal government, and it is “We the People” who are to be the ultimate deciders in this match. However, if the “queen” is unaware or not concerned as to its crucial role, it has in effect allowed itself to be cornered and though not necessarily “off the board”, it might as well be. You may consider yourself to be more of a “pawn” and not the powerful “queen”, but together, united, the American people can be an unstoppable force against this surge of tyranny washing upon the shore of our liberties.

In chess, if a pawn reaches the back line of the opposing side of the board, it can elect to have a previously captured piece restored to the board in its place. So it is in our struggle to preserve freedom. Though it appears as if Congress has been “captured” in that it has refused to blunt the excesses of both the judiciary and executive branches, it can be restored if “We the People” elect constitutionally-minded men and women to serve in that body. We can restore the power of the states by putting men and women in our state offices who will recognize and reassert their constitutionally-guaranteed roles as a shield against federal encroachment. And finally, if the people of this once great republic will awaken to this danger and band together, we can put the “king” of tyrannical governmental power in check; failure to do so will allow tyranny to put our “king” of freedom in checkmate.

-January 8, 2016

Jefferson & Madison’s Answer to Federal Overreach

December 18, 2015 Frank Kuchar

Rumors are swirling that once again President Obama is going to not only exceed federal constitutional authority, but also his presidential authority by issuing additional gun control regulations via executive order. Since Congress lacks the will to carry out its constitutional obligation to impeach him and remove him from office, what alternatives are left to us? To answer that question I want to take us back to the early years of our republic when the Federalists controlled the presidency (John Adams) as well as both houses of congress.

In June 1798, Congress passed and President Adams signed The Alien and Seditions Act, which was an abusive violation of individual rights and the Constitution as far as some of the citizens of Kentucky and Virginia were concerned. In response Jefferson wrote on behalf of the state government of Kentucky what we today know as “The Kentucky Resolutions of 1798”, and he convinced Madison to do the same for the state of Virginia (“The Virginia Resolutions of 1798”). In both of these documents they laid out the case that this legislation was in violation of the Constitution. Jefferson more stridently declared no less than five times that the state of Kentucky held the legislation to be “altogether void and of no force.”

Madison’s draft was not as forceful as that of Jefferson’s and was much shorter, but in both cases these two giants of constitutional republicanism and federalism appealed to their sister-states to join them in resisting this law. Madison summed up the appeal at the end of his resolutions with these words:

“…the General Assembly [of Virginia] doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each, for cooperating with this State in maintaining unimpaired the authorities, rights, and liberties, reserved to the States respectively, or to the people.”

In his appeal, Jefferson went so far as to declare that “every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits.” Yet he also expressed the same approach as Madison that all of the states should band together in opposition to this usurpation by the “General Government” – “…that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories.”

When Obamacare was enacted over thirty states filed suit with the Supreme Court as to its unconstitutionality, and we all know how Chief Justice Roberts’ twisted logic blunted that effort. What should have been done regarding that legislation, and as Jefferson stated about “these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution“, was to band together with the legislatures of each of them issuing the same kind of declaration as Jefferson and Madison did on behalf of Kentucky and Virginia in 1798.

Unfortunately, Jefferson’s and Madison’s pleadings fell on deaf ears, and so the Act remained in effect until Jefferson was elected president and the Democrat-Republicans gained control of Congress in 1801 when they repealed the law. However, consider this scenario: over 30 states (or more) join hands and stand up as a united group against these onerous overreaches of the general government, be it Obamacare, the EPA, you name it; what would be the likelihood that Washington could roll over that many states like they might be able to do to one or a few?

If you read The Federalist Papers, the debates of the Constitutional Convention and the state ratifying conventions as well as the writings of the Anti-Federalists, you will hear one common argument among them all – namely, “in our political system…the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority” (Alexander Hamilton, Federalist #28). It’s time for the states today to stand upon the shoulders of Jefferson and Madison and follow their lead.

-December 18, 2015

The Refugee Crisis: Showdown between Federal and State Sovereignty

December 4, 2015 Frank Kuchar

A number of states are forbidding the federal government from settling within their jurisdictions some of the thousands of Syrian refugees President Obama wants to admit into the US. The President has declared that he will force the states to accept however many of these refugees as he sees fit, and so the stage is set for a major constitutional showdown, like two gunslingers in an old western movie squaring off against one another.

The outcome of this confrontation is far more critical to the future of what’s left of our republic than the welfare of these refugees. It goes to the very heart of the structure of our federally constituted republic and whether or not we shall finally fall into the pit feared by the Anti-Federalists at the time of the ratification of the Constitution by becoming a singular nationalized country instead of a union of independent, sovereign states.

To begin with, nowhere in the Constitution is the federal government granted the authority over the matter of granting refugees admittance. You can read it forwards and backwards, but that enumerated power is not stipulated. This being the case, then this authority must be a power retained by the citizens of the several states, who in their capacity as a body politic, according to the tenth amendment, have every right to make the determination as to the settlement of refugees within their borders.

How is it then that we have reached this juncture of a constitutional crisis over who has authority over immigration policy? Article I, Section 8, Clause 4 of the US Constitution stipulates that “Congress shall have the power…to establish an uniform Rule of Naturalization,…” At the time of the writing of the Constitution, there was a distinct difference in meaning between the terms “naturalization” and “immigration”, and they were not synonymous. For the first one hundred years of our history the federal government was only concerned with legislation which laid down the requirements aliens would have to satisfy to become citizens of the United States, while the states enacted their own laws regarding who would be permitted to enter their borders. It was not until the late 1800s that Congress began to enact immigration legislation. Over the past 130 or so years the courts have gradually upheld the federal government’s assumption of this power, but with varying degrees of suspect constructions (which makes this assumption on the part of the federal government even more dubious). The conventional argument is that the naturalization clause of the Constitution includes the authority over immigration as well, but such was not the meaning understood by the original authors of the Constitution. Note the absurd contortion Justice Kennedy resorted to in upholding this argument in the 2012 case of Arizona v. United States:

“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. … This authority rests, in part, on the National Government’s constitutional power to ‘establish an uniform Rule of Naturalization,’ U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations….”

In order to substantiate that naturalization includes authority over immigration, he has to fall back on the authority of the federal government to deal with foreign nations. Really? Such so-called reasoning flies in the face of etymology and our early history (which would be the best indicator of which “sphere of influence” this matter resided).

In light of this and President Obama’s threat, we need to step back and consider the structure of the relationship between the federal government and the states as it was originally intended. In his throwing down of the gauntlet over this issue, the President is claiming that the federal government can set aside the wishes of the citizens of a state in regards to matters that are constitutionally retained by them.

The question becomes, ”Does this assertation comport to the form of the union created by the Constitution?” Our system vests sovereignty in but one place – the people of the several, yet united, states. The sovereign people of the states agreed to grant authority (or limited sovereignty if you will) to two spheres – the federal and state governments – via constitutions. It is in the US Constitution we see the spheres of authority between these two entities clearly delineated, and that neither “sphere” is permitted to invade that of the other.

In Construction Construed, and Constitutions Vindicated, published in 1820, John Taylor of Caroline, after quoting both Madison’s and Hamilton’s comments to this point in The Federalist Papers, succinctly summed up this principle with these words:

“The co-ordinacy of institution, the independence of each other, and the mutuality of the right of construing the federal constitution, are thus recognised and asserted, as existing in the federal and state governments; and the principle, which pervades the whole, must also pervade the parts. If the entire federal government possesses no supremacy over, and can require no subordination from the entire state governments, whilst acting within their respective spheres, no part or department of that government can exert a supremacy over, or exact a subordination from, the corresponding parts or departments of the state governments.”

To apply this to our current showdown between the states and President Obama, if the matter of admitting refugees is a matter left to the discretion of the states, and “If the entire federal government possesses no supremacy over, and can require no subordination from the entire state governments,” then for Obama to claim he can force the states to do otherwise is to turn Taylor’s principle on its head, namely, that if one part of the federal government can eviscerate the authority of the states in one matter, then the entire federal government can do likewise in all areas, and the significance of even the semblance of states’ existence is reduced to the theatre of the absurd.

It may well be that having the federal government control those permitted to immigrate into the United States, especially in this day and time, is the best course of action; but as Chief Justice John Marshall stated in McCulloch v. Maryland in 1819, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”

-December 4, 2015