HOUSE BILL 441
By Hulsey
SENATE BILL 479
By Bowling
SB0479
001415
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AN ACT to amend Tennessee Code Annotated, Title 3 and
Title 4, relative to nullification.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1. Tennessee Code Annotated, Title 4, is amended by adding Sections 2
through 13 as a new chapter.
SECTION 2. This chapter is known and may be cited as the "Restoring State
Sovereignty Through Nullification Act."
SECTION 3. The general assembly makes the following findings:
(1) Article I, Section 1 of the Constitution of Tennessee (All power is inherent in
the people) declares: "That all power is inherent in the people, and all free governments
are founded on their authority, and instituted for their peace, safety, and happiness; for
the advancement of those ends they have at all times, an unalienable and indefeasible
right to alter, reform, or abolish the government in such manner as they may think
proper.";
(2) Article I, Section 2 of the Constitution of Tennessee (Doctrine of
nonresistance condemned) declares: "That government being instituted for the common
benefit, the doctrine of nonresistance against arbitrary power and oppression is absurd,
slavish, and destructive of the good and happiness of mankind.";
(3) When "We the People" ordained and established the Constitution of the
United States of America, the people and the states granted only specific, limited powers
to the federal government, with those areas of federal powers being enumerated in
Article I, Section 8 of the Constitution of the United States;
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(4) Articles I, Il, and Ill of the Constitution of the United States, respectively, vest
the legislative, executive, and judicial powers to and within separate branches of the
federal government (horizontal separation of powers), such that lawmaking powers are
vested only in the legislative branch of the United States congress, that enforcement
powers are vested only in the executive branch (president and executive agencies), and
that judicial powers are vested only in the judicial branch (supreme court of the United
States and other inferior federal courts created by the United States congress);
(5) This horizontal separation of powers in the Constitution of the United States
reflects the understanding that our federal founding fathers had derived from both
scripture and experience that sinful man could not be trusted to always be virtuous and
public-minded, and as such, they did not want undue power to be combined in any
branch of government where, if left unchecked, it could become tyrannical;
(6) Nothing in the Constitution of the United States permits congress to delegate
or confer any lawmaking power to any other branch of government, because it has no
enumerated powers to create lawmakers. When the president and federal courts are
vested, respectively, with the executive and judicial powers, neither of those branches
are granted general powers of lawmaking. Therefore, no person, agency, or department
of any other branch of the federal government, not even the supreme court or the
president of the United States, has any lawmaking power under the Constitution of the
United States;
(7) In Article I, Section 7, paragraph 2 of the Constitution of the United States,
the text describes how federal laws are to be made. Bills must be passed by both
houses of congress and then approved by the president (or by an override of a
presidential veto by congress). This is the only method of lawmaking under the
Constitution of the United States. Thus, contrary to popular opinion, federal executive
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orders, federal agency rules and regulations, and federal court opinions are not laws at
all, and they are certainly not settled law or the supreme law of the land. Instead, any
action by the executive branch or the judicial branch that purports to be law, or that
purports to be treated as law, is a usurpation of powers not delegated to it;
(8) It is not uncommon for congress and the federal executive branch to
erroneously elevate federal court opinions to the status of "law," sometimes even
regarding court opinions as having amended the language of the Constitution of the
United States;
(9) It is not uncommon for congress and the federal courts to erroneously
elevate federal executive orders to the status of "law," sometimes even regarding
executive orders as having amended the language of the Constitution of the United
States;
(10) The principle of "separation of powers" is so innately representative of a
republican form of government that the Constitution of Tennessee (Article Il, Sections 1
and 2) upholds and reinforces this principle of horizontal "separation of powers" within
the three departments of our Tennessee state government;
(11) When creating a federal government by ratifying the Constitution of the
United States, the people and the states also designed a second, and more important,
"separation of powers," that being a vertical separation of powers between the superior
sovereign states and the inferior federal government;
(12) A vertical "separation of powers" was explicitly set out in Article I, Section 8
of the Constitution of the United States, wherein only limited, enumerated, lawmaking
powers were granted to the federal government;
(13) This vertical "separation of powers" was also incorporated into the United
States bill of rights, whereby (a) in the first amendment, congress was specifically denied
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lawmaking power within those fields listed in the first amendment; (b) in the ninth
amendment, the federal government was specifically prohibited from interfering with
rights not mentioned in the Constitution of the United States; and (c) in the tenth
amendment, the federal government was specifically denied powers not delegated to it
in the Constitution of the United States;
(14) This vertical "separation of powers" was generally well-known by the people
and the states, and was known and respected by the federal government, for over one
hundred (100) years of our nation's history, but the principle has in more recent decades
been first disregarded, and subsequently even disbelieved, as if the federal government
was supreme in all areas and was unlimited in its jurisdiction. Whether this shift in
jurisprudence was intentional or accidental, active or passive, the shift is nevertheless
not supported by the Constitution of the United States, by the laws of the United States,
or by the constitutions of any of the sovereign states. The shift is thus an illegal
usurpation of the Constitution of the United States, of the various state constitutions, and
of the unalienable rights of the people;
(15) Any federal action that violates the horizontal "separation of powers"
imposed by the Constitution of the United States, or that exceeds the jurisdictional limits
imposed by the vertical "separation of powers," is therefore void, since the Constitution
of the United States is the supreme law of the land;
(16) "[A] law repugnant to the Constitution is void." An act of congress
repugnant to the Constitution of the United States cannot become a law. The
Constitution supersedes all other laws and the individual's rights shall be liberally
enforced in favor of him, the clearly intended and expressly designated beneficiary.
Marbury v. Madison, 5 U.S. 137 (1803);
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(17) "An unconstitutional law is void and is as no law. An offense created by it is
not crime. A conviction under it is not merely erroneous but is illegal and void and
cannot be used as a legal cause of imprisonment." Ex parte Siebold, 100 U.S. 371
(1879);
(18) "An unconstitutional act is not law; it confers no rights; it imposes no duties;
it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as
though it had never been passed." Norton v. Shelby County, 118 U.S. 425 (1886);
(19) "Where rights secured by the Constitution are involved, there can be no
rule-making or legislation which would abrogate them." Miranda v. Arizona,
384 U.S. 436 (1966);
(20) As Thomas Jefferson explained in the Kentucky Resolution of 1798: "When-
so-ever the [Federal] government assumes undelegated power, its acts are
unauthoritative, void and of no force." He added, "Where powers are assumed which
have not been delegated, a nullification of the act is the remedy. That every state has a
natural right and duty in cases not within [the authority of the Constitution]... to nullify of
their own authority all assumptions of powers by others within their own states
boundaries." The Constitution of the United States binds federal lawmakers by oath to
support the Constitution, and when they fail to do so, the rightful remedy is for states to
nullify their usurpations and to declare their acts void;
(21) Every constitutional officeholder, whether local, state, or federal, must first
know and understand these important constitutional limitations of power, and thereafter,
must determine individually how best to defend the rights of the people and to fulfill the
oath of office. As illustrative of this principle, in 1832, Tennessee's own Andrew
Jackson, as president, vetoed a bill to recharter the Bank of the United States.
President Jackson opposed the bank's political power and financial influence, but his
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veto was based substantially on constitutional grounds, notwithstanding the judgment of
prior presidents and congress, not to mention the supreme court's decision upholding
the bank's validity. President Jackson argued that the "separation of powers" principle
meant that none of the branches of the federal government can pretend to have
exclusive or supreme right to settle constitutional differences of opinion among them,
since each public officer who takes an oath to support the Constitution swears that he
will support it as he understands it, and not as it is understood by others. He further said
the opinion of judges has no more authority over congress than the opinion of congress
has over judges, and on that point, the president is independent of both of them;
(22) President Andrew Jackson's veto illustrates that every officeholder must
reach an independent judgment about the jurisdictional scope of the federal government
under the Constitution of the United States and must thereafter act consistently on those
judgments;
(23) The Constitution of the United States assures the people and the states that
their respective rights and powers will be respected by the federal government;
(24) Each member of the general assembly shall, before they proceed to
business, take an oath or affirmation to support the Constitution of Tennessee, and of
the United States, and also the following oath: "I ______ do solemnly swear (or affirm)
that as a member of this General Assembly, I will, in all appointments, vote without favor,
affection, partiality, or prejudice; and that I will not propose or assent to any bill, vote, or
resolution, which shall appear to me injurious to the people, or consent to any act or
thing, whatever, that shall have a tendency to lessen or abridge their rights and
privileges, as declared by the Constitution of this state." (Tennessee Constitution, Article
X, Section 2);
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(25) The people are the ultimate source of human governmental power under
our constitutions, and the states, through their elected officers, are dutybound to fulfill
their oath of office to preserve the rights of the people, it is therefore long overdue, and
therefore urgently necessary, for this state to prescribe the manner in which, under the
authority of the Constitutions of the United States and of Tennessee, the people's rights
and the state's sovereignty may be asserted as against federal officeholders, whether
individually or collectively; and
(26) This act is written to aid the people and the government of this state in the
implementation and enforcement of the various provisions of the Constitution of the
United States that expressly limit federal power and federal jurisdiction, and in
furtherance of the rights of the people as set forth in Article I, Section 1 and Article I,
Section 2 of the Constitution of Tennessee.
SECTION 4. As used in this chapter:
(1) "Federal action" includes federal law; a federal agency rule, policy, or
standard; an executive order of the president of the United States; an order or decision
of a federal court; and the making or enforcing of a treaty; and
(2) "Unconstitutional federal action" means a federal action enacted, adopted, or
implemented without authority specifically delegated to the federal government by the
people and the states through the United States Constitution.
SECTION 5. This chapter contemplates the review of any federal action to determine
whether the action is an unconstitutional federal action. When evaluating a federal action, the
general assembly shall consider the plain reading and reasoning of the text of the United States
Constitution and the understood definitions at the time of the framing and construction of the
Constitution by the framers before making a final declaration of constitutionality, as
demonstrated by:
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(1) The ratifying debates in the several states;
(2) The understanding of the leading participants at the constitutional
convention;
(3) The understanding of the doctrine in question by the constitutions of the
several states in existence at the time the United States Constitution was adopted;
(4) The understanding of the United States Constitution by the first United States
congress;
(5) The opinions of the first chief justice of the United States supreme court;
(6) The background understanding of the doctrine in question under the English
Constitution of the time; and
(7) The statements of support for natural law and natural rights by the framers
and the philosophers admired by the framers.
SECTION 6. It is declared that federal laws, federal executive actions, and federal court
opinions must comply with the jurisdictional limitations of the United States Constitution. It is
further declared that any federal action outside the enumerated powers set forth in the United
States Constitution are in violation of the peace and safety of the people of this state, and
therefore, said acts are declared void and must be resisted.
SECTION 7. One (1) proper manner of resistance is a state action of nullification of the
federal action.
SECTION 8.
(a) Nullification is the process whereby this state makes an official declaration
that:
(1) A specific federal action has exceeded the prescribed authority under
the United States Constitution;
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(2) Said action, as being ultra vires, will not be recognized as valid within
the bounds of this state;
(3) Said action, as being ultra vires, is null and void in this state;
(4) An officeholder, agency, or government employee, whether state,
county, or city, serving under the authority of the Constitution of Tennessee shall
not assist in any attempted enforcement of said federal action; and
(5) State or local funds collected under the authority of the Constitution of
Tennessee shall not be used to assist in any attempted enforcement of said
federal action.
(b) The general assembly has sole authority to prescribe the crimes, penalties,
fines, or other consequences of the violation of a bill of nullification by any person found
within the boundary of this state. Said consequences must be specified in the bill of
nullification before a final vote is taken on its passage.
SECTION 9. State nullification of federal action may be accomplished in any of the
following ways:
(1) The governor may, by the governor's own executive authority, issue an
executive order nullifying the same, whereby all executive departments of the state are
bound by said order;
(2) Any member of the general assembly may introduce a bill of nullification in
the general assembly. For any such proposed bill of nullification, the bill is not subject to
debate or passage in committees, and proceeds directly to the floor of each house.
Each house must give its members notice of five (5) legislative days before the bill is
scheduled for debate on the respective floor for purposes of amendments thereto in
accordance with house rules, as applicable, including amendments that provide
penalties or punitive measures to ensure compliance with the bill by state and local
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governmental departments, agencies, and officers. Within five (5) legislative days after
such period of notice, the bill must be scheduled for debate on the floor of each house,
and thereafter, within three (3) legislative days after the debate is closed, must be
presented for a vote on each floor. The bill, if passed in the same manner as other
general law, has the force and effect of law, and becomes effective immediately upon
enactment. The time constraints listed in this subdivision (2) may be changed by
majority vote of any house of subsequent general assemblies;
(3) Any court operating under the authority of the Constitution of Tennessee may
render a finding or a holding of nullification in any case in which it otherwise has proper
venue and jurisdiction, wherein the parties to said case will, upon final judgment, be
bound thereby in the same manner as in other cases;
(4) Any combination of ten (10) counties and municipalities may, through the
action of the executive or through the action of a majority of the governing legislative
body, submit a petition of nullification to the speaker of the house of representatives,
with a copy to the office of the attorney general and reporter, and upon satisfactory proof
that said petitions are valid, the speaker of the house of representatives shall proceed to
introduce the bill and follow the same methods and protocols as described in subdivision
(2); and
(5) The signed petitions of two thousand (2,000) registered voters of this state
may submit signed petitions of nullification to the speaker of the house of
representatives, with a copy to the office of the attorney general and reporter, and upon
satisfactory proof that said signatures are valid, the speaker of the house of
representatives shall proceed to introduce the bill and follow the same methods and
protocols as described in subdivision (2). Said voter petitions must not be submitted
individually, but said petitions must be coordinated and compiled in batches, by county
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of voter registration, of not less than twenty-five (25) voters per county in a bundled
batch.
SECTION 10. The result of the roll call vote on each house floor must be published in
the official records of each house and disseminated to the people in the same manner as with
other bills.
SECTION 11. The procedures contained in this chapter are available to challenge any
federal action, whether said action is past, present, or future. A bill of nullification must not be
rejected because of any perceived statute of limitation or because said federal action was taken
in the distant past. Any federal action may be considered, or reconsidered, as the people or
their representatives may think proper.
SECTION 12. Regarding the same federal action, a bill of nullification must not be
considered by the general assembly more than once each legislative session. If said bill fails,
then it may be considered again in any succeeding year, but not more than once per year. If
said bill is enacted, then the provisions of the bill become the law of this state.
SECTION 13. Formal pleadings or petitions are not required for a bill of nullification. It
is sufficient if the pleading or petition is in substantially the form as set forth below:
Petition for Action Under the
"Restoring State Sovereignty Through Nullification Act."
Regarding your claim that the federal government has exceeded its authority under the U.S.
Constitution, please list the following:
1. Date or Year of federal action: _____________________
2. Identify the federal branch, official, or agency: _________________________
3. Give the official name of the action, if known. If not known, then give the name by
which the action is commonly known or identified: _________________________________
_________________________________________________________________________
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4. Identify the specific action, or part of the action, that you assert is unconstitutional:
__________________________________________________________________________
Identification of Petitioner (Registered Voter):
____________________________ _____________________________
Signature Printed Name
_________________________________________________________________________ __
Street Address, City, County — Must match voter registration.
SECTION 14. If a provision of this act or its application to a person or circumstance is
held invalid, then the invalidity does not affect other provisions or applications of the act that can
be given effect without the invalid provision or application, and to that end, the provisions of this
act are severable.
SECTION 15. This act takes effect upon becoming a law, the public welfare requiring it.