(I should have waited a day, too hasty on the Nullification part, needed a rewrite.)
(I originally titled this piece “Lincoln Fought a Civil War to Keep the South in the Union, What Will Donald Trump Have to Offer to get California to Leave?”. It started out a little tongue-in-cheek, but by the time I got to the punch-line I realized it isn’t a joke, and a secession isn’t feasible, even if negotiated, and jokes are funny if they don’t have an element of truth in them. Besides California, like the Democrats’ DACA issue which it tied directly to Nullification, can’t negotiate in good faith. They want their cake and eat to too. It’s just who they are.
This is becoming not only a serious issue, but an urgent issue, if we read the body language and words of California officials correctly.)
Secession vs Nullification
While visiting the Canada Maritimes in the 1980s, at the height of the Quebec secession movement, a poll was reported that 87% of Quebec voters favored secession.
But alongside the 87% of Quebecois desiring secession, a national poll showed that 92% of the rest of Canada wanted them gone. At least that was the joke going around Nova Scotia at the time.
Something like that exists in America about California. Most Americans would just as soon see California gone. And while unthinkable in the practical sense, as Britain is trying to do with the EU, I can’t think of a way all the constitutional requirements could be met for such a case of first instance. We have rulls for adding states (Hawaii, Alaska) but none for letting them go. Of course we fought a huge war to stop a bunch of them going 150 years ago. And, irony of irony, what Democrat in Congress would vote to let 55 guaranteed electoral votes walk out the door?
Democrats couldn’t run a decent gas station. They have shown they have no interest, or skill, in running a country unless they can run it as a fiefdom, totally in charge.
California Secession and Nullification side-by-side:
Unlike the CSA, who could muster enough troops, and the cream of the Union’s pre-secession military leadership, to lead the Union Army on a four-year chase around the South, California couldn’t muster enough police to round up the federal employees in the state, and expel them across the state line, much less repel an invasion at their border.
So if the United States wanted to use force to make California stay, California would have to stay. Remember, the South, the Confederacy, ‘started” the Civil War by seceding. Arguably, Abraham Lincoln ’caused” it, simply by his election, for they even warned the Government they would do this if Lincoln were elected.
But they didn’t give Lincoln a chance to negotiate, for seven states seceded even before Lincoln was inaugurated in March, 1861. The federal government immediately declared this act to be illegal, but before any kind of conferences could be scheduled, in April, 1861 the South Carolinians fired on Ft Sumpter, in Charleston Harbor, the only federal property in the state, ending any chance for a negotiated settlement anyway. Game on.
This could never happen in California.
Though California can’t secede, like Lincoln’s election, the election of Donald Trump has caused them to enter into open defiance of federal laws as if they have indeed cut ties with the US. They have declared their border to the South to be under only their jurisdiction, and the fruits of what comes across that border exclusively under their protection.
They’ve claimed a kind of sovereignty, which someday they’ll have to explain to a federal judge (outside the state of California) and that in areas of their choosing, their law supersedes federal law.
This is called “nullification” and puts them on a dangerous road, or, in their minds, forces the federal government on a road it doesn’t want to have to travel.
In fact, we have two incidences, one from the 1830s, where the federal government balked, and some others, from the 1960s, where the federal government. California seems to be relying on us not taking the proven path.
In Arkansas, Alabama and Mississippi, 1957-to-1962, engaged in a kind of nullification of the Supreme Court’s authority, daring the federal government to force them into compliance as to who has the greater right to determine the racial configuration of their schools.
And over a five-year period, the federal government did.
The question today is: Would California be as easy to bring to heel as Faubus’ Arkansas, Barnett’s Mississippi and Wallace’s Alabama, where a few Army Airborne and National Guard troops cooled those states’ heated brow and cleaned the mess right up without a shot fired?
While there was a “resistance” at the Southern grass roots, with a private militia called the Ku Klux Klan, more skilled at terror than military tactics, the states’ legitimate military arm, state and local police, were not eager to lock horns with the US military in a fight they could never win—and where, in their heart of hearts, they knew they were wrong in the first place. (There’s a natural law here, that you can’t win a fight in which you believe you may be wrong. The Deep South is very religious, both black and white. and therefore shared a common creed, against which they would not cross if push came to shove. That may have been outcome determinative. Eisenhower, and later Kennedy, likely played their military card with this knowledge in mind. They weren’t so much as bluffing as believing the Southern states would not challenge them for moral reasons, not just the military one. A full house always beats two pair.)
This last point, a high moral ground, could be outcome determinative in detailing California’s nullification, for while they cannot muster the military might to resist a real military incursion into the state to enforce federal law, their political class seems to carry a sense deep moral purpose in their resistance to federal intrusion. Watch and listen to this Oakland mayor threaten police resistance to ICE raids. There is a John Brown quality to her zealotry. In a state where God is nearly outlawed, she is claiming near God-anointed sovereign authority to deny federal law, and threatens to use police force to resist federal officers.
In which the California Nullification Crisis may come down to the same math of competing moral values from the 1960s, only reversed; with the state government and its elites knocking heads with the ordinary Californians’ moralities. We’ll see how that works out.
This is what federal authorities need to be wary of, the True Believers among the elites, like this mayor, unconstitutional and illegal, criminally so. They may be reason for for arrests, and a basis for federal agents to draw their weapons if threatened.
Since we can’t show California the door, and expel it, we have no choice but to suppress it, and stamp out the revolt and be prepared to use the same degree of power Ike and JFK were prepared to use. This includes martial law, curfews, military occupation of California state offices, dragnets and mass arrests. All these things will be on the table.
Today, California is in full nullification mode over immigration, while others states, are waiting in the wings. Not to mention just a few federal courts. And the steam appears to rising in the tea kettle.
Sadly, California and other states had been eased into defying all sorts of federal laws for many years, especially the Obama years, but also the Clinton, even Bush years. Law had become a thing, if inconvenient, that could be circumvented, or ignored, versus the hard legislative work of changing it. This was especially true on matters of immigration, alongside the post-Reagan change in global business attitudes concerning cheap labor (and global government), creating a permanent rift inside the Republican Party, and even the conservative movement, which are reminiscent of the changing attitudes about slavery in the 1850’s and the rise of the then-new Republican Party.
The biggest casualty of the Obama years, besides the American working classes, has been the general respect for the Rule of Law, and the constitutional pecking order of law, namely that federal law outranks state law (McCulloch v Maryland, 1819) , and if you don’t like it, change one of the other. On immigration, Obama played both sides of the issue, suing Arizona (and winning) when it tried to enforce federal law on immigration when the feds, under orders from Obama, wouldn’t, then turning that same federal law on its head by inviting hundreds of thousands of illegals into the country, a step-child of those actions, DACA, the Dreamer Executive Order; cynicism several times over.
First sanctuary cities, going back 30 years, now sanctuary states, those states claiming, again with religious-like zeal, to declare any alien, legal or illegal, in their state qualified to enjoy the perquisites of citizenship without federal oversight….so, even if Trump could put a lid on the border, there’s 11-million already here and no election will be safe.
Which brings us back to the original “nullification” issue, the Crisis of 1832, and Andrew Jackson’s failure to enforce federal authority, and instead punting that issue back into Donald Trump’s lap today, where he has to rectify a 185 year old oversight or stroke of indifference.
The reason the Southern Civil Rights rebellion never took place in 1957-1962 was that quick projection of American power, begun by General Eisenhower in Arkansas.
Scholars opine that nullification by a state against federal law is illegal unless that federal law is unconstitutional. (That mayor in Oakland is claiming a “legal” authority to deny federal law on the advice of really bad lawyers, awaiting a comeuppance from higher federal courts.)
The only nullification that ever worked was in fact a state’s rejection of a constitutional federal law, which South Carolina pulled off when they declared, by state ordinance, that the 1828 and 1832 Tariff Acts by Congress were null and void in South Carolina.
Why President Andrew Jackson let them get away with this is a mystery, for he left dangling in the air the bluff California is employing now, that if the stakes are high enough, the federal government will buckle.
Jackson could have secured the customs houses of South Carolina with fewer troops than JFK ordered to escort James Meredith onto the campus of Old Miss, yet he chose instead to go back to Congress and ask them to write a new law that South Carolina and John Calhoun could live with—
—leaving the power and uthority of United States federal law dangling, in part to be revisited 30 years later at Ft Sumpter. One wonders how history might have been changed had Jackson sent in troops just to put an exclamation mark on the primacy of federal law in 1832? It could be argued that if he had sent troops into South Carolina to bring them to heel there may not have a civil war, or a secession of 11 states in 1860, itself partly predicated on the notion that the US government would not try to prevent them to leave militarily. That new guy, Abraham Lincoln, had other ideas, for his single mission, from the beginning, was to raise the armies and find the military leaders to force them back into the fold.
Had Jackson enforced federal law in 1832, 1860 might have turned out differently. How? We can’t say, but it’s not a stretch to consider, as MacKinlay Kantor wrote in 1965, slavery would have ended anyway, only likely without the tremendous loss of life, Jim Crow, or the modern race business in America that was spawned by the way it ended.
(Aside: I’m not a scholar, and historians of the period will know more. Andy Jackson could have had several reasons, but, being a military man, fear of a fight probably not one of them. But unlike the presidents who had gone before him Andy was a first generation American (his parents Scotch-Irish) who, even as a lawyer and judge (no formal schooling required), and congressman, before becoming a general (Battle of New Orleans—it was in all the papers, and a #1 hit song for Johnny Horton in 1959—just ask Brian Kilmeade). Jackson did not appear to be immersed in the knowledge or passion for the core principles that defined America. In fact, he broke the chain with the Founders, taking America in another direction. Some say it was good, others say it was bad. I’ll keep my own counsel and simply say it was predictable, considering his lack of understanding about what it meant “to be American” in the sense the Founders meant it. It’s one of my on-going theories, not fully explored, that most of America’s darker histories and mistakes can be traced to people who had not been here long enough, generally three generations, so as to become fully assimilated into what “to be American” really means.)
In the end, Nullification works or doesn’t work depending entirely on the federal government’s willingness to use force to enforce federal law.
With California, we may have to finally pay Andy Jackson’s bar tab, long overdue.
I point this out because of the similarities with the dilemma Democrats now face about getting legal status for Dreamers, and actually having something to give Washington in return…the Wall, end of chain migration and lottery immigration…but can’t seem to be able to bring themselves to give up in order to gain Dreamers legal status, especially if it appears those Dreamers, once legal, still may not be allowed to become citizens and vote for a very long time.
This may all be a diversion, for the sanctuary movement appears to be gaining momentum, creating for Washington a greater and greater mountain to climb to restore the Rule of Law. With zealots like the mayor of Oakland or Xavier Becerra, California Attorney General waiting and anxious to greet, protect and empower them, this Dreamer issue may only be a way to drag the campaign out, where 11 million (or more), not 700K Dreamer, can completely overturn the electoral laws and maps of America.
The theory is that at some point the problem will be too big to attack head on by Washington. Shades of Andy Jackson.
There is a sense that there is a presumption among Democrats, and some Republicans, that this swarm of illegals will just be too big too fail.
What is Donald Trump’s and Jeff Sessions’ recourse here?
Of course, Washington may withhold some, or all, federal funds to California if it persists. Even federal judges there will find their rulings to be only temporary. I expect Trump to play his legal cards exactly as Jeff Sessions says play them, by the book, even though it’s hard to allow little judicial popinjays invoking what are clearly incorrect readings of law to back up their decisions. Sessions is likely the steadying hand here.
What has to happen, as Ike and JFK recognized, is that a state acting as if it were sovereign, nullifying federal law, daring the federal government to force compliance, has to be dealt with as gravely a threat as the confederacy secession acts of 1860.
What would be the best course, assuming some casualties would be incurred? With no military, still armed militias (more than one) abound. And street protests targeting federal troops a certainty, with no guarantee local police will assist. If California officially resists or impedes federal officers, martial law, military occupation, will be on the table. Arrest of city and state officials may be necessary (my recommendation, without deference to their rank). I would expect a speedy exodus south to the border just by a show of force, illegals far more aware of their surroundings than the average politician.
A Supreme Court ruling this session would bolster Trump and Sessions’ authority while whittling down little judges to their original size, we hope.
What about a formal sit-down with the governor, and other key officials about what’s coming? Send Mattis, who would control the military, and Mnuchin, who will no longer sign their checks. Tell them what’s coming, and give them a respectable amount of time to comply.
If we had to send troops, would there be civilian casualties? Uniformed casualties? Knowing Californians, knowing the mindset of the Latino NGO’s that sponsor illegals, knowing ANTIFA, I really don’t see how it can be avoided.
Right now California is acting a sovereign state, telling the United States to go pound sand, clearly inviting a surrender, n0t a higher level of response. And they are encouraging copycats, New Jersey the latest. California has become distinctly anti-America and anti-Constitution, and anti- common American moralities and values. It has operated as if it were a Peoples Republic and have been pounding their chests now for a few years.
In gathering them up and sending them back, I’d treat them more kindly that the indifferent people who brought them here and harbored and protected them for cynical political purposes. Like the Nuremberg Trials, if it takes 10 years, try them all.
Nullification was not started by Donald Trump, nor his presence in the White House, but by a lawless regime before him who decided that if he could not make law constitutionally he would encourage it extra-constitutionally. Nullification has been encouraged by the same people who hated states rights just a few years ago, especially as it pertains to immigration and how that illegal immigration plays into the hands of an extra-legal worldwide shadow government meant to destroy national sovereignty, natural identity and the natural laws of individual human liberty.
(Oh, about the logo, it’s the California High Speed rail System, Years overdue, not half way completed, broke, at a standstill, and no prospects for new money, the perfect metaphor for the “sovereign state: California sees itself becoming.)