Secession and Nullification? Two Utah Legislators Advocate 4th Branch of Government

secession, nullification, con con, article v convention, brian greene, marc roberts, utah, legislators, representatives, legislature
Utah State Representatives Brian Greene (left) and Marc Roberts (right)

Should the United States have a 4th branch of government? One with the power to overturn and nullify all others? According to two sitting Utah legislators, Representatives Brian Greene (Republican – Pleasant Grove) and Marc Roberts (Republican – Santaquin), yes.

Tuesday evening, the two junior members of the Utah Legislature joined a national conference call and radio program advertised as “The place Tea Party Americans come together,” hosted by right-wing strategist Charles Kacprowicz. The two Utah Republicans spoke in favor of a constitutional convention, more commonly known as a Con Con, where state legislators representing less than one in five Americans could vote to nullify any law or judicial ruling.

“I’m encouraged by the growth in interest in a [constitutional] convention. I’m here to do whatever I can to move this forward,” said Greene, who began his time in the Utah House of Representatives in January, 2013. The young attorney is perhaps best known for his attempt during the 2013 legislative session to pass a bill that would have made it a felony for any federal law enforcement officer, such as an FBI SWAT team, to enforce federal gun laws in Utah. The legislature’s general counsel loudly cautioned that the bill was unconstitutional, but it still passed the House that year by a vote of 49-17 before dying in the Senate.

[pullquote]”The best chance we’d have of doing this is the first time. After that, there will be more resistance from the other states.” -Representative Brian Greene[/pullquote]

Kacprowicz leads a movement on the Tea Party-aligned Right who are searching for a way to nullify federal laws and court decisions they disagree with, such as Obamacare and Roe v. Wade, but without opening the door for liberal state legislatures to be able to overturn the federal laws and SCOTUS rulings the Left disagrees with, such as the controversial Citizens United decision which opened the door for unlimited corporate campaign contributions. State-based nullification attempts are most often linked to Neo-Confederate secession groups (the number of them in the Rocky Mountain region have been growing), but the attempts have been quickly overturned by the courts who point out that Article VI of the constitution clearly says that the United States Constitution trumps any laws states may pass.

The solution, Greene, Roberts, and Kacprowicz say, is to organize a Con Con where legislators from each state join together to vote to overturn federal laws and rulings. But unlike Congress, where states are given a number of seats according to their population, this version of a Con Con would give every state the same number of votes. So although California has over 38 million people, they would only have the same voting power as Wyoming with its 576,000 residents. That enormous shift in the balance of power could theoretically allow representatives of only 16 percent of the U.S. population to call the shots and dictate the course of both domestic and foreign national policy.

“The best chance we’d have of doing this,” says Greene, “is the first time. After that, there will be more resistance from the other states. So it’s imperative that we take as big of a bite of the apple as possible the first time around, rather than just taking nibbles with individual amendments.”

[pullquote]”I’ve got a DVD on my desk titled ‘Beware of Con Cons’ from the John Birch Society. Traditionally they are with us on constitutional issues. But on this they’re scared for some reason.” -Representative Marc Roberts[/pullquote]

“Brian and I are on the same page with this,” Roberts added, who joined the legislature in the same 2013 freshman class as Rep. Greene. “We’ve only got one shot at this, and if it works it’ll be that much harder to do again. It’s difficult to get nullification through.”

The idea has received significant opposition from not only the Left, but even conservative organizations which are frequently associated with the “fringe,” such as the John Birch Society (formed in 1958 to counter the civil rights movement, which it called a conspiracy to create a “soviet negro republic”) who say that if the Right can overturn laws and rulings they don’t like, so can the Left.

Representative Roberts laughed at the Birch opposition to a Con Con. “I’ve got a DVD on my desk titled ‘Beware of Con Cons’ from the John Birch Society. Traditionally they are with us on constitutional issues. But on this they’re scared for some reason. It’s kind of like the Disney movie ‘It’s a Bug’s Life,’ when those little ants realized that there were more of them than the grasshoppers, they were able to run over the grasshoppers. When the John Birchers tell us to just nullify, we’re happy to. But we need something stronger, like this.”

“It’s unfortunate that our friends at the John Birch Society and even our own [conservative] scholars are against us on this.” Kacprowicz added. “They just don’t get it.”

Utah Political Capitol reached out to Utah House Majority Whip Greg Hughes (Republican – Draper) after the call, who told us that the Con Con issue is a divisive one among the GOP nationwide. “People are really worried about a Con Con getting out of hand. It’s kind of turning into a circular firing squad among Republicans.”

Greene told the audience of mostly supporters that one of the things he’d like to accomplish with a Con Con is a complete state takeover of all federal lands within Utah, a proposal which was put forward and passed by the legislature a few years ago by Representative Ken Ivory (Republican – West Jordan), which was also flagged by the legislature’s attorneys as potentially unconstitutional. Currently, Utah is attempting to defend the policy in federal court.

Greene criticized Ivory’s strategy to use the courts to try and gain access to federal lands (which the state of Utah could then sell to private owners, corporations, or oil and gas companies), saying “The deck is unfortunately stacked against us, because the courts tend to side with the [United States] government. So we’re spending tens of millions of dollars on these cases, where we don’t get anything out of it.” Greene says a Con Con would be the better way to go to force the United States to turn over public lands.

[pullquote]”Nullification follows a pre-Fourteenth Amendment view of Constitutional law, before due process and equal protection were extended to cover the behavior of the several states.” -researcher Rachel Tabachnick[/pullquote]

Kacprowicz also pointed out a recent article by Salon, which quoted researcher Rachel Tabachnick’s piece entitled “Nullification, Neo-Confederates, and the Revenge of the Old Right,” which says that “nullification follows a pre-Fourteenth Amendment view of Constitutional law, before due process and equal protection were extended to cover the behavior of the several states.” She also points out that this latest attempt for a Con Con is by far not the first, and that in the past the idea of calling such a convention has been used for causes including overturning federal gun laws that prohibit private citizens from owning tomahawk missiles, to imposing Christianity as an official state religion.

But none of the opposition from the Left or the more traditional Right seems to be slowing down the two Utah County Republicans. At the end of the call, Kacprowicz offered them both a position on the national steering committee to advance the nullification movement.

“Sign me up!” Greene quickly replied.

“I’d also be very interested, and am happy to be involved,” Roberts added.

[pullquote]”[Senate] President Niederhauser has been going to some of these meetings to help decide what the rules of such a convention would be.” -Speaker Becky Lockhart[/pullquote]

So could a Con Con for nullification and the creation of what would essentially be an all-powerful 4th branch of government really happen? UPC asked outgoing Utah House Speaker Becky Lockhart (Republican – Provo) what kind of support the idea has among the Republican-dominated Utah legislature. “The issue of having a convention is getting more and more attention and support,” Lockhart told us. “There is usually a bill run every five years or so calling for a [Con Con].” She also said it’s not just Utah Republicans who are warming up to the idea, and it’s gaining traction with conservative state legislators around the country.

The last time a bill calling for a Con Con was proposed in Utah was in 2011 by Representative David Clark (Republican – Santa Clara), who later resigned mid-term to join Zions Bank as a Senior Vice President. The bill died in the House without receiving a full vote.

But despite that legislation’s lack of success, some of Utah’s most powerful politicians may still be in favor of the idea. “[Senate] President Niederhauser has been going to some of these meetings,” says Lockhart, “to help decide what the rules of such a convention would be.”

Hughes also said he thinks a Con Con would be “appropriate,” but added that it’s not a priority for him. “I just don’t see the point of running forward with this.”

Although Lockhart declined to say whether or not she personally supports a Con Con, she did respond to Rep. Greene’s statement that the legislature’s lawsuit to force the U.S. government turn over all federal lands to Utah—a move she is personally in favor of—is a waste of tens of millions of dollars. Lockhart called that “interesting.”

9 Replies to “Secession and Nullification? Two Utah Legislators Advocate 4th Branch of Government

  1. ” the John Birch Society (formed in 1958 to counter the civil rights movement, which it called a conspiracy to create a “soviet negro republic”)”

    This description goes beyond sloppy and shallow reporting. It’s utterly false. Visit JBS.org for a more accurate description or at least visit Wikipedia. Absolutely no excuse for this.

    1. More than happy to go into more detail on the John Birch Society if you’d like:

      A key partner in the Nullify Now! tour is the John Birch Society (JBS), founded in 1958 to fight the perceived infiltration of communism throughout American society. Fred Koch, father of the billionaires Charles and David Koch, was one of its founding members. Marginalized for decades for its outlandish conspiracy theories, it has recently made a comeback, largely via the Tea Party movement and as part of the Ron Paul Revolution.

      The JBS was a major force in the battle against the Civil Rights Movement. In addition to the publication of books and pamphlets, the JBS placed advertisements in newspapers in 1965, asking, “What’s Wrong with Civil Rights?” The ads filled a full half page with fine print outlining the communist conspiracy and United Nations plot that the JBS believed to be behind the movement, including plans for a “Soviet Negro Republic” in the United States. Like many segregationists, the JBS claimed that racial unrest resulted from the Civil Rights Movement, not from previously existing discrimination against African-Americans.

      The JBS promotes nullification as a possible way to avoid secession. As an essay on the organization’s website puts it, “states weary of the assault on their sovereignty don’t need to secede to rid themselves of this repugnant despotism and unrepentant cronyism. They need only nullify every act of the central government that exceeds its constitutional authority, every time, without exception.”

      The JBS works directly with state legislators on enacting model bills. In early 2013, a “JBS Weekly Update” on the Florida Tenth Amendment Center website featured Oklahoma State Rep. Mike Ritze (R), who was described as having “recently introduced HB 1021 to nullify ObamaCare.” In an accompanying video, Ritze identifies the JBS as the organization “providing the leadership,” and he calls for new members to help add more Birchers to the Oklahoma legislature.

      JBS has also led efforts to nullify the Affordable Care Act and current and potential federal gun laws. It produces extensive guides for activists, and its media productions regularly track, report on, and encourage activism on nullification legislation. Recent articles in the JBS magazine, the New American, have included “States Aim to Nullify Obama Gun Control” and “Sheriffs and Legislators Are Acting to Nullify Obama Gun Controls.”

  2. Wow way to libel the John Birch Society. What kind of crummy reporting is this? You do realize you’re in Utah, right? A lot of people in Utah know the truth about JBS and what it stands for. Bad place to try to lie about them. After so many decades, it is beyond clear that JBS has been correct all along (check out the current occupant of the WH and the loon running the senate if you need any more evidence of that!)

    Anyway I’m really tempted to buy into the arguments in favor of a con con and these legislators sound like they are good people with good intentions. But I have to wonder: What if the Statist Left hijacks the process and attacks our Constitution? I think a better idea for now would be to make the federal government obey the Constitution we have first. Then we can discuss amending it.

  3. I think a couple of facts are in order in this discussion. First, a convention can only proposed amendments to our present Constitution. The issue of nullification is already on the agenda of such a convention and therefore will be discussed. Whether it will receive the necessary two-thirds vote in a convention to propose such an amendment along with the three-fourths vote needed to ratify is open to debate.

    The second point is that a convention is currently mandated. The Constitution mandates Congress call a convention if two-thirds or 34 state legislatures submit applications for a convention call. Thus, if 34 states submit 34 applications, Congress must call.

    You can read the 762 applications from 49 states at http://www.foavc.org. I think fact substantially alters the entire picture.

    1. To Bill Walker. This article had no clue as to the amendment we are proposing. It is called the Countermand Amendment and gives the States if 60% make a Countermand Resolution, the ability to repeal, not nullify any Federal law, reg, rule, executive order, treaty, court ruling.
      You are right, the convention is only for proposing amendment(s). In our case it is one amendment with a Delegate Resolution that makes the Convention Republican Convention with one State one Vote, with the amendment as part of the resolution to be passed by the convention. You are wrong in the 2/3rd vote, under a Republican form of convention, following Article 4 Section 4, the convention is majority rule, 51% or more.
      No nullification is not on an agenda for any convention, because no single application has reached the 34 States mark and none of those amendments has anything to do with nullification.

  4. I wrote this the other day, but not published. So here goes again and better than before!.
    The article tells me one thing very well. As the National Director for Citizen Initiatives, along with Charles as our Executive Director and other great people, we are doing very well. The amount of spin and straight up lying that goes on when one is stating an issue, idea or proposal always tells you, you are on the right track.
    No where in this article does it talk about the Countermand Amendment that we propose, lawfully using Article V of the US Constitution. There is around the edges, but then stated as a Con Con, vs the amendment wording itself.
    As to the “Con Con”, this and a lot of other inflammatory comments that are designed to rile up the JBS folks, that is exactly what that was used for, inflaming the JBS! Article V has two means to amend the Constitution, Congress putting forward an amendment, passing by 2/3rd in each house then 3/4 of the State Legislatures passing and ratifying. Oh, before I go any further. the title of this piece of work? Well, it wasn’t intended to be positive, but the end of the title 4th Branch of Government. Well folks, that has existed prior to the Constitution being written, that “4th Branch” is the State Legislatures! Oh gee, what a novel idea! Anyway, that method has created 27 Amendments to the US Constitution. The second method is for the States to propose amendment, in this case making application for an amendment convention for the purposes of proposing amendment(s), in Citizen Initiatives case, the Countermand Amendment.
    In the fifth paragraph the author shows opposition to One State, One Vote, under Article 4, section 4 of the US Constitution, that is spelled out, a Republican form with all States having equal standing. JBS, pay attention, what the author was complaining about is exactly what your worry is, that NY, Cal, NJ, the big population States would run the convention, not all States having equal voice and standing.
    What the author was somewhat alluding to may have also been that when the Countermand Amendment is ratified, then 30 States can and will repeal Federal Law, rules, regs, executive orders, judicial decisions, treaties and excessive spending! That my JBS friends scares the crap out of the left!
    Before I forget, Charles is quoted talking about a Salon article, the one linked in this article was not the one he was discussing and in fact has zero to do with the subject at hand (well, since the author is anti-gun and ant-Bill of Rights, his agenda). The actual Salon article is http://www.salon.com/chromeo/article/the_right’s_quiet_but_insane_plot_against_democracy_the_12_solution/ where the authors there, although not friendly to our agenda did get the meat of the intent and scope of the Countermand Amendment, they too were scared because the outcome is returning to the States and to the People our government and nation!
    I could go on and on but one thing that must be cleared up is that Rep Greene did not “criticized Ivory’s strategy to use the courts”.
    Now, to the JBS folks here. The author is obviously to the far left of the Constitution and does a poor job of fear mongering to the educated person. However to the ignorant person on this issue, scare, I sure he did. That said, there are many conservatives that know the author and this “paper” is so far to the left they are on a conservative/Constitutionalist right shoulder. There are many who are concerned that JBS is so far to the right they are on the left shoulder of a conservative/Constitutionalist, which if you allow that to happen means then that JBS and the left? Not a dimes difference! So I strongly suggest educating yourselves on the Constitution, not the “radicalization” the leaders in JBS have done.

  5. Mark, you sir are clueless. Might want to actually read Article V of the US Constitution vs listening to the likes of this and the JBS and Eagle Forum.

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