Supremacy Clause? What Supremacy Clause? We Don't Need No Supremacy Clause.

It's known as the Supremacy Clause.  You'll find it in the Constitution.  Article VI, Paragraph 2.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Among those who are passionately committed to forcing the federal government to adhere to the Constitution, every jot and tittle of it, well, maybe not that part.  Because, you know.

Welcome to the Show Me State where, according to John Schwartz in the Times, they aren't just nibbling around the edges.

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

That's different from Colorado and Washington making possession of marijuana legal.  They didn't say that federal drug laws can't be enforced there.  They didn't say that federal agents who try to enforce federal law will be arrested and criminally charged.  They just said that state law will allow possession.  There's a hope that the feds will leave them alone, but they didn't try to require it.  

Because, you know, the Supremacy Clause. 


But in Missouri?  Well, maybe.  The law passed in both houses of the legislature.  The Governor, Jay Nixon, vetoed it.  Because, it was unconstitutional.  You know, the Supremacy Clause.  He laid it out, with full legal analysis. (It's reproduced at the bottom of this post.)  But the bottom line, really, is in the sentences that begin the last 2 paragraphs on page 2.

Of course, an individual state is not empowered to determine which federal laws it will comply with, nor is it empowered to declare a federal act to be unconstitutional. . . .

The doctrine of supremacy is as logically sound as it is legally well-established.

You know, the Supremacy Clause.
 
But the Missouri legislature?  They believe in gun rights and the Constitution.  Except, you know, The Supremacy Clause.  And unless a couple of people switch their votes, they'll be overriding the veto next month.

And then?

A federal court will declare it unconstitutional.  Which it is.  

Regardless of whether you think it's a good idea.

Because, you know, the Supremacy Clause.  Which "We the People of the United States" adopted as part of the founding document.  One of the purposes of which, you may recall was to 

ensure domestic Tranquility.

It's easy to make fun of this sort of thing, but in fact it's dangerous.  If states are free to nullify parts of the Constitution, we stop being a nation and become instead a coalition.  There's no uniformity because there's no federal law.  God knows there are too many, but if they were all optional.

And there's that oath of office thing.  Which brings me, at last, to Jay Barnes.  There are 109 Republicans in the  Missouri State House.  108 of them voted for this bill.  Jay Barnes didn't.

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

Because, you know, the Supremacy Clause.  Which is actually part of the Constitution. 

   Jay Nixon Veto Statement

Noblesse Very Oblige

Back in the 1950s, Bob Hope used to tell this joke.

An American was in the Soviet Union explaining to a Russian citizen how we have the greatest country in the world.

"In America," he said, "anyone can get on a train, go to Washington, go up to the White House, and announce that President Eisenhower is a fool."

The Russian responded.

"It's no different here.  Anyone can get on a train, go to Moscow, go up the the Kremlin, and announce that President Eisenhower is a fool."

I. Ohio

By the time I get around to posting this, Fred Treesh will be dead, killed by employees of the Ohio Department of Rehabilitation and Correction. (Ain't no rehabilitatin' for Fred, and any correctin' involved is in fixin' a mistake god made, but I digress.)

Treesh was indicted by a grand jury in Lake County on a charge of aggravated murder with two death specifications, tried before a jury in the court of common pleas which found him guilty and said he should be killed.  The judge agreed.  Represented by appointed counsel, Treesh appealed the verdict and death sentence.  He filed for and pursued post-conviction relief in Ohio's courts and habeas corpus relief in federal court.  The Parole Board recommended that the governor deny clemency, and the governor did.

It was, then, all nice and legal.  And so, at 10 this morning, Fred Treesh will be strapped to a table at the Southern Ohio Correctional Facility (no pretense of rehabilitation there) and murdered.

It is murder, specifically aggravated murder (Ohio's only capital offense).  The crime is set out in section 2903.01(A) of the Ohio Revised Code.  It's a duly enacted law, passed by both houses of the General Assembly, signed by the Governor.

No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another’s pregnancy.

No pregnancy involved here, but that's just an alternative.  When they strap him down to a table, stick needles into him, and pump him with pentobarbital so he will die, that's purposely causing the death of another with prior calculation and design.  It's all nice and proper, procedures followed: indictment, trial, appeals, court orders, gubernatorial authorization, the whole nine yeards.  But murder it is.  (The Nuremberg defense, "I was just following orders," is not an established part of Ohio's criminal jurisprudence.)

Still, there's a procedure.  Whatever you or I may think, the courts say it's fine.  No tribunal has yet declared this version of Ohio's death penalty law unconstitutional or said that the death penalty generally is.

Ohio is, of course, one of the 50 states.  Some authorize murder, some don't. 

II. The United States

The federal government, too, has a death penalty law.  Passed by both houses of Congress, signed by the President. There are, currently, 60 people on federal death row.  Like Fred Treesh, they were indicted and charged and tried and duly sentenced and have had and are proceeding with appeals and habeas petitions and clemency requests and whatever.  It is a safe bet that some number of them will, in time, be executed.

We are, ostensibly, a nation that honors the Rule of Law.  No one, we say, is above the law. 

This is the Fifth Amendment to the Constitution.  It's the law of the land.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Notice that there's a part that reads, "nor shall any person . . . be deprived of life, liberty, or property, without due process of law."

OK, we routinely stretch the point.  See, for instance, what we did to José Padilla or what we're doing to Bradley Manning.  Hell, see the whole fucking mess at Gitmo.  But we have in those cases at least a pretense of process (though the courts needed to force it at Gitmo).  Here's what we don't have.

Virtually everyone agrees, Nixon was wrong.
 
I'm no particular fan of Chief Justice Roberts, but when he's right, he's right.  In United States v. Stevens, he wrote the opinion for the not-quite unanimous Court (Alito alone dissented) declaring that the statute making visual depictions of animal cruelty a crime.  Sure, he said, Clinton promised that the law would be used wisely when he signed the legislation.  So what.

Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,” Reply Brief 6–7. The Government hits this theme hard, invoking its prosecutorial discretion several times. See id., at 6–7, 10, and n. 6, 19, 22. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 473 (2001).

Of course, it's just a week since the Court decided Clapper v. Amnesty International USA holding that regardless of whether the federal program of wiretapping under Section 1888(a) of the Foreign Intelligence Surveillance Act is constitutional, nobody can go to court to challenge it.  You have a right not to be subject to unconstitutional surveillance, but you have to trust the government's good sense and good will about it.  Roberts signed off on the opinion.
Still.  That's just phone calls.
This one, as they say, is murder.
You may recall that when Obama ran for President in 2008 his campaign championed "Yes, we can."  Who knew this is what he meant?

   Holder: Yes, We Can 

As we've said before, 

Trust us, we won't abuse the power

just isn't a working model for government in a democratic republic.

BECAUSE SOMETIMES THEY PUT THE RUBBER HOSES AWAY AND CHEER THE BAD GUYS ON - The States Thumbing Their Noses at the Courts So They Can Kill People Edition

It's right there in the Constitution, the second clause of the Sixth Article. We call it the "Supremacy Clause."

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

And it's been settled (although sometimes unsettling) since Marbury v. Madison in 1803 that

[i]t is emphatically the province and duty of the judicial department to say what the law is.

Which would seem to put the decisions of the federal courts pretty clearly into the controlling power of the Supremacy Clause.

That's regardless of whether Andy Jackson ever really said, in response to the Court's declaration in Worcester v. Georgia,

John Marshall has made his decision; now let him enforce it

Jackson successfully defied the Court.  States and communities that tried to defy orders to integrate their schools after Brown v. Board of Education, not so much (thanks, initially at least, to Eisenhower's grudging willingness to send in the national guard to enforce the Court's decisions).  And despite much grumbling and dissatisfaction, and a promise by Newt to refuse to obey Supreme Court decisions should he be elected President (whew, dodged that bullet), when the courts decide something, it's to be obeyed.

The remedy isn't defiance, it's appeal to a higher court.

In Rhode Island, Governor Chafee will almost certainly be surrendering Jason Pleau to the feds so that they can try to kill him. After the back and forth and back ending in a loss before the First Circuit sitting en banc (opinion here), Chafee (and Pleau) asked the Supreme Court for a stay until they can get a ruling on their appeals. But Breyer, without opinion, turned them down.  And, as I say, Pleau will almost certainly be given to the feds - maybe as soon as Tuesday.

That's the one part of the Rule of Law that tends really to count.

Remember, there was no insurrection after Bush v. Gore.  Clinton didn't refuse to leave the White House.  Gore didn't set up a separate government.  No state has tried to secede since Appomatox.

And while there has certainly been plenty of defiance of general principles (see Arpaio, Joe, and County, Maricopa, for instance) once the dust settles and the courts order and the appeals are over, they kinda sorta, and with lots of muttering, pretend to do what they're told.

Unless, it seems, they're told to stop killing people. From AP.

California on Friday joined other states in defying a federal government order to turn over a key execution drug.
. . .
U.S. District Judge Richard Leon in March ruled that the Food and Drug Administration erred in allowing the prisons to import the foreign-made drug. The judge ordered the FDA to confiscate all foreign-made sodium thiopental and to warn prisons that it was now illegal to use the drug. The FDA followed the Washington D.C.-based judge's order and sent demand letters to prisons. But beginning with Nebraska on April 20, more than a dozen states have refused to comply with the FDA order.

They're not just appealing.  They're not seeking a stay pending appeal.  They're just refusing.

Nyah, nyah.  You can't make us.

California Department of Corrections and Rehabilitation lawyer Benjamin Rice and the other states with foreign-bought sodium thiopental contend they aren't bound by the ruling made by a federal judge in Washington D.C. 

Maybe.  Maybe not.

But it isn't their decision to make.

Don't want to obey? Ask for a stay and appeal.

Is it a full-blown constitutional crisis.  Maybe not full-blown. Court orders are, in fact, defied all the time.  The typical remedy is to hold the person or entity in contempt, lock someone up, add daily and accumulating fines - maybe huge ones, until compliance.

Or they can treat it as civil disobedience. You know how that works.

 

Pepper spray.

Fire Hoses.

Beating the shit out of people.

Because some things can't be tolerated.

 

So here are some questions.

Why hasn't DOJ done anything? Why hasn't Obama? Where's the national guard? The dogs? The fire hoses? The pepper spray?

Where's the fucking outrage?

Why aren't the law and order types jumping on the state for refusing a court order?

Oh, yeah. How foolish of me.

DOJ isn't complaining about the states defying the courts because it wants them to.  It's appealing the orders to confiscate the drugs.

I mean, let's be serious about this.

We're talking about the government killing people.

Can't let something like the Supremacy Clause get in the way.

Law of Rule.