FAQ on the FARC
Frequently asked questions on the Federal Action Review Commission proposal
Why is is called "Federal Action Review Commission" and not just "Nullification Commission"?To try to make clear what it does, which is to review the actions of central government actors for constitutionality and declare their findings. It does not actually "do" nullification, which is the result of resistance — abandoning some action — rather than the reviewing or the resistance itself.Why is it called a "commission" and not a "grand jury"?It is a kind of grand jury, just as is a legislative committee hearing or some "board of inquiry", but people have come to associate the term with only one kind and this term avoids some of that confusion.Wouldn't it be under the control of a court?No. It is not dependent on any one court. It would, however, have the authority to choose any court in the state for services like enforcing its subpoenas, but that would be its choice.Wouldn't it be under the control of a public prosecutor?No. There is no prosecutor associated with it, unless it should choose to designate one by issuing him an indictment and designate a court for prosecution of that indictment, and that indictment or presentment could be issued to any citizen, not just a public official.Wouldn't some official control access to it?No. It would have sole control over access to itself. Presumably it would adopt some application procedure other than people just standing in line at the door, but it would decide how to do that.Why make it a constitutional amendment not not just an ordinary statute?There is now no authority in the state constitution to do many of the things it would need to do. That is true for most states, whose constitutions restrict what the legislature can do. An example is appropriating funds to compensate persons resisting usurpations and getting prosecuted for that.Shouldn't nullifying usurpations be left to the state legislature?That has proved to be unworkable. There are too many usurpations happening too rapidly that would require too quick a response to do much good. In Texas it typically takes at least four legislative sessions, each separated by two years, for any bill to build enough support to get it moved ahead of thousands of other bills to become one of the few that makes it to the floor for a vote. And most of the more important things the state would need to do to be effective are beyond the constitutional authority of the Legislature.Aren't usurpations rare? How many need such intervention?No. Every year the U.S. Congress adopts thousands more legislative provisions, and federal agencies thousands more regulations, that enable each of hundreds of thousands of federal actors to commit dozens of usurpations a day. Shouldn't people just take usurpations to court?Sometimes they should, but litigation is too expensive and too slow to make as much of it workable as would be needed. It would take perhaps a thousand times as many courts and judges to hear all the cases, and more lawyers than exist to argue all of them. The cost of that alone could collapse the economy. Most courts, unless they have a precedent from the U.S. Supreme Court to the contrary, will just dismiss cases on this for lack of standing or for "failure to state a claim for which relief may be granted". The Supreme Court can only take about 80 cases a year, and it typically costs more than $1 million for each such case.How could the FARC cope with the load of complaints it might get from so many usurpations?It can in the normal course consolidate hundreds or thousands of complaints into a single statewide response, and continue that response until all the complaints are redressed. It might not act on a single complaint, thinking it an isolated event, but a pattern of usurpations would eventually bring a response that would not just inconvenience the feds and raise their costs, but mobilize public support that would affect the results of elections, which might induce them to back off on what they are doing.Wouldn't it be better to leave it to individual acts of resistance or non-cooperation?Let people stand alone against the entire force of the central government? When most of them don't even know how to decide what is and what is not constitutional? And to do what? Stage marches, sit-ins, or "occupy" demonstrations? How well is that working for them? That might build some public support affecting elections, but it also allows protesters to be picked off one at a time, leaving the advantage to the usurpers who can always overcome any such small resistance. Only by mobilizing the entire state, and perhaps several states, with participation of most state employees and contractors, can a critical mass be built that might actually roll back attempts at further usurpation. That's why Thomas Jefferson originally proposed this method in 1798.Has your proposal been modified since it was presented by Tom Woods in his book, Nullification?Only in minor details that don't differ from his summary description of the proposal, which is the only detailed proposal in his book.Has your proposal been modified since it was adopted by the Tenth Amendment Center as a lead proposal?Not as of this date.Could citizens of other states bring complaints to the FARC?Yes, but the jurisdiction of the FARC is federal usurpations that may affect citizens of this state. In principle the usurpations don't have to occur within this state, but the FARC would be expected to refer such persons to a FARC in their own state, which means they might need to create one. We don't want people from all over the country seeking relief from our state FARC. But having this example would hopefully encourage imitation. For more important usurpations it will probably take the resistance of more than one state to drive nullification. A single state is in much the same position as an individual or small group, subject to pressure it could not withstand alone.Shouldn't the FARC also review usurpations by state agents?In principle existing grand juries can already do that. Why they don't and what needs to be done to get them to do so is the subject of a different kind of reform. Also, if it did it would encounter so much blowback that it would lose the support of the state legislature. Some reforms need to be made separately and kept separate.What could be done if the FARC exceeded its jurisdiction by hearing and deciding complaints against state agencies?In principle the State Supreme Court could intervene to confine it to its jurisdiction. However, it might be appropriate to examine some state agencies, or even private enterprises, that are acting as instrumentalities of the central government, but there would always need to be a nexus to federal actions as the driving force.How would the FARC compel state actors to refuse to cooperate with the feds?It would nave no power to compel anyone take a positive action, only to remove duties and powers. If state actors insisted on continuing to cooperate with the usurpation, it couldn't stop them, but it could relieve their supervisors of the obligation to continue to employ or pay them. They need the backing of something like a FARC finding to avoid losing their own jobs or getting successfully sued.How could state actors lose their own jobs for resisting fed usurpations?Under the present Constitution and statutes one can get fired for disobeying a federal statute or executive act, with the presumption that whatever the feds do is lawful. The only way around that is to have a process by which the fed action is found to be unlawful. The FARC provides that process.Why not just have the state legislature make certain fed usurpations state crimes?
That's popular with many, but it won't work. If a state actor arrests a federal actor for doing what the feds think is enforcing the law, the case will just be removed to federal court and dismissed. Federal law gives federal courts removal jurisdiction to seize control of state cases that way. It is very easy to do. A simple notice by the defendant to both the state and federal court automatically removes the case until the federal judge decides what to do about it. Simple one-page document. Doesn't even take a filing fee.
How can a federal court just dismiss a state criminal prosecution?
Under the current doctrine of qualified immunity, a government actor can't be held liable for enforcing the law or carrying out his lawful duties. Originally it was only a defense against judgment, allowing a trial to go forward to bring out the facts, but later courts have adopted the practice of dismissing cases before trial if the defendant was merely acting while on duty, no matter what the action might be. As a practical matter that makes fed actors accountable only to fed prosecutors and courts, who generally won't discipline fed actors unless what they do creates a lot of unfavorable publicity, and probably not even then. Feds tend to form a self-protective tribe that sticks together, just as state actors do. They come to adopt an "us against them" siege mindset with respect to the general public, who they sometimes regard as all criminals except for a few VIPs.
Wouldn't it at least do some good to make the state arrest of a fed even if it couldn't be prosecuted?
Maybe once or twice, but it would soon be lost on a back page. And it carries a risk to the state actor who makes the arrest. He could be charged with the federal felony of interfering with a federal officer. The state actor could incur large legal costs for a defense and go to prison for many years. That kind of fed response to resistance or non-cooperation is one of the reasons the FARC proposal includes authority to create a civil defense fund for resisters.
Why not just have the state attorney general defend the state actor in fed court?
The federal courts won't allow that. The U.S. Supreme Court case of Massachusetts v. Mellon, 262 U.S. 447 (1923), forbade states to directly represent their citizens in federal court. However, it didn't forbid the state from providing compensation for private attorneys to do so.
Why not just have the state legislature appropriate a civil defense fund, without adopting an amendment or creating a FARC?In Texas and most other states the state legislature doesn't have constitutional authority to appropriate funds for that. Even if it did, there would still need to be a procedure for deciding who qualifies to receive the funds. That would be one of the jobs of the FARC, freeing applicants from having to sue to get compensated.Why not just a board appointed by the governor or perhaps the legislature?That has been tried on other matters and generally doesn't work. It makes it a political decision and the feds and those behind their usurpations have more clout than ordinary citizens do. The reason the FARC is chosen the way proposed is to make it independent of such political pressures.Why have county grand juries select the candidates for the pool from which FARC members are chosen at random?Because they are more likely to comply with the duty to nominate candidates knowledgeable about the Constitution who are not unduly influenced by getting government money, who are the kind of people the FARC would need as members to work.Shouldn't the FARC members randomly represent the general population instead of mostly rural counties?The FARC is not a legislative body that has to represent anyone in making its investigations. It is also to be expected that rural people will be more likely to interpret the Constitution as it was originally meant than urban people are.Could this be the remedy for all fed usurpations?No. It can only work for a few things where the feds commit the usurpations within the state and need state cooperation to do it. Other things would be beyond the reach of such non-cooperation. However, rolling back usurpations of one kind could have an effect on others and create a different political climate that would favor reform.Might the FARC not create a crisis by finding too many fed usurpations too soon that are too large?Yes, and it is hoped they would restrain themselves to avoid that, which would mean not providing support for a lot of abused people until the time was ripe. We just need to hope they would realize that they need to build up slowly, starting with smaller usurpations, and getting support from other states, leaving to later large usurpations like IRS collection of income taxes on compensation for labor. But there is no way to write a rule for that.