“For decades,” the governor said, “President Jordan, Justice Moore, most of the members of the Farris Commission, and all the scholars associated with the Christian colleges and law schools proclaimed that each state had the fundamental right to nullify federal legislation that it deemed unconstitutional or improper. They were wrong. They were wrong because it was settled law from the earliest days of the republic, it was settled law after the Civil War, and it was settled law again after the civil rights movement that only the federal courts have the power to determine whether federal legislation is unconstitutional. So instead of following the unlawful path charted by our opponents, we did what the Constitution required. We turned to the federal courts to decide the matter. And, as has been the case so many times before, our federal judges stood firm in favor of the fundamental rights and freedoms of our Constitution, which do and must prevail, no matter how popular, convenient, or compelling the case for overriding them in the name of a purportedly greater good.
“But then,” he continued, “for the first time in our national life, the other two branches of our federal government refused to recognize and accept the judgment of their third and co-equal branch, the judiciary. Congress turned to its constitutional power of impeachment to remove those judges, even though it was clear to everyone that the judges’ conduct did not constitute ‘treason, bribery, or other high crimes or misdemeanors’ as required by the Constitution. For that particular misdeed by Congress, our Constitution provides no remedy.
“So,” the governor asked, “where does that leave our states and the majority of the American people whom we represent? It is one of the oldest maxims in law that each right must have a remedy. The principle is so ancient and so fundamental that every law student still learns a bit of legal Latin:
Ubi jus ibi remedium
—where there is a right, there is a remedy. It is the cornerstone of what lawyers call equity—the doing of the just or fair thing even if strict application of the law itself does not produce a just or fair result. So when the Constitution provides a preferred remedy that is unavailable, then we have the right to an alternative remedy. In this case the preferred remedy—declaration of unconstitutionality by the federal judiciary—has been rendered unavailable by the improper impeachments and threatened impeachments by Congress. So in these circumstances, and these circumstances only, we turn to an alternative remedy, in this case the doctrine called interposition.
“I know it sounds complicated, but let me give a simple explanation. When an unconstitutional law—in this case the so-called Blessing—threatens to deprive the people of a state of their constitutionally protected rights, and none of the preferred remedies is available, then the state has the right to interpose various protections between the unconstitutional law and the rights that are threatened. The fact that twenty-two state legislatures from all parts of the country have come to exactly the same conclusion provides powerful validation of the justice and fairness of our course of action. Each of the twenty-two states whose governors are standing here with me has declared—based on the decisions of the federal courts rendered
prior to
the commencement of the administration’s campaign of impeachment and intimidation of federal judges—that the so-called Blessing is invalid and thus has no legal force or effect in any of our states. Second, it shall be a violation of state law in each of our states for any person, including any federal or state law enforcement personnel, to take any action in furtherance of enforcing the so-called Blessing.
“So,” he concluded, “what does this mean for the citizens of our twenty-two states? It means that non-evangelical Christians and people of all religions can be confident in their right to worship as they please. It means that homosexual men and women and their families can be confident not only that we recognize and respect their civil rights but that we will act vigorously to protect them. It means that your personal sexual behavior in the privacy of your own home is of no interest to our governments. And it means that in this part of America, we still proudly pledge ‘liberty and justice for all’ and not, as the theocrats would have it, ‘liberty and justice for all
who believe
.’
“Finally, my fellow governors have asked me to address specifically our fellow Americans residing in the states whose governors are not standing with us here today. We are one country, and we are all confident that the day will come when this attack on our federal court system ceases, when the theocratic program of the current administration is rejected and reversed, and America returns to its proud role as a beacon of freedom in the world. But in the meantime, each of you in Kansas and Texas, and Oklahoma and Alabama, and all those other states—each of you is our brother or sister, and we pledge that you will find sanctuary with us if needed. No woman threated with prosecution for adultery, no doctor or family-planning counselor whose life is at risk, no gay couple who lives in dread that their children will be taken from them, no Catholic or Jew or Muslim or Hindu—none of you will be turned away at our borders. You will find sanctuary in each of our states, and all of us here are sworn to do everything possible to attend to your material needs until this madness stops.”
The press immediately dubbed the twenty-two states opting out of The Blessing as the Secular Bloc, which quickly was shortened to “Sec Bloc.” Most citizens of the Sec Bloc states felt an enormous sense of relief. They wanted to believe that Jordan would be content with the status quo. After all, if the other states wanted to live by The Blessing, they could; perhaps they would just leave the Sec Bloc alone. Moreover, the display of political will demonstrated by the governors and legislatures of the Sec Bloc was the first political success—indeed the first political act of any scale—in opposition to the Christian Nation program since the death of John McCain. It was tempting to believe that the political establishment had woken up and erected for the first time a serious speed bump, and that the limits of the theocratic effort finally had been reached.
Tempting, but wrong. At first, the White House simply announced that the attorney general and Department of Justice were studying the actions by the dissenting states and that the president would speak when the legal review had been concluded. One week later, the president called a press conference and started with a statement. His treatment of the interposition issue was almost casual in tone, even dismissive. The president said the Justice Department had reported back to him that the purported “interposition” was of no legal effect. Accordingly, as far as the federal government was concerned, The Blessing was in full force in every state, and all federal law enforcement personnel had been instructed to act accordingly. Any federal law enforcement officer not doing his or her duty would be dismissed, and any person interfering with federal law enforcement would be prosecuted. At the end, almost as an afterthought, Jordan mentioned that the attorney general had advised him that he had concluded that there were substantial grounds to believe that various state officials, in attempting interposition, had violated the Defense of Freedom Act, and he was convening a grand jury to consider indictments.
The Defense of Freedom Act, the updated version of the infamous Alien and Sedition Acts from the early days of the Union, was passed by Congress at President Palin’s behest following the 7/22 attacks. Its martial law provisions survived judicial review, but the “sedition” part, which initially had been struck down by the Supreme Court on First Amendment grounds, had entered into force earlier in the year when the post-Moore court reversed its position. The sedition provisions, similar to those that also had been in effect during parts of the First World War, provided that no use of the mails or other instruments of interstate commerce (including telephone, fax, or Internet) could be used for the transmission of “any material urging treason, insurrection, or forcible resistance to any law.” The president’s casual concluding remark was explosive: the administration was considering prosecuting the Sec Bloc governors and legislators for “sedition” due to their actions in “resisting” The Blessing.
We had not anticipated this move, and Jordan’s response was a major disappointment. I asked Sanjay to come in to share his views with the governor. Sanjay’s advice was clear:
“Jordan’s casualness, Governor, was not an affectation. Your interposition response was fully anticipated by the feds. Their only uncertainty was how many states would go along. The days allotted to the purported review of interposition by Justice was a fiction; my sources tell me that the response to interposition had been ready to go before you began the speech at the Statue of Liberty. Their main strategy now is most likely to be a show of force designed to intimidate Sec Bloc states from pursuing secession. They will find a few Sec Bloc states with loyal FBI bureaus and where the National Guard will accept a call to federal duty. They will then proceed in these states with high-profile arrests and prosecutions of governors, Democratic leaders in the legislature, newspaper publishers, and others.”
“Will they try that here?” the governor asked.
“Highly unlikely, Governor,” Sanjay answered. “I think they will be more tactical. I have found five states where, by arresting the governor, lieutenant governor, and the head of one branch of the legislature, the governorship will pass to a Republican. This is not one of them. Also, I doubt they can count on the Guard and other federal law enforcement here in New York.”
“OK. Good. Go on.”
“After the arrests, I am quite sure that the proceedings will be martial law proceedings in military tribunals. With missing governors, or new leadership loyal to Jordan, a number of the states that stood with you at the statue will be knocked out of the secession movement. But in addition to those, I fear that governors and legislative leaders of a number of other states simply will be intimidated by the threat of arrest and disappearance. For the rest, I believe they have a plan for the Christian militias to instigate violent confrontations in the state capitals, to which the administration will respond by federalizing the National Guard in that state and establishing military security. That “security” will either intimidate or outright prevent the state legislatures from convening. That will make a secession vote impossible. That, sir, is what I believe you face. You had twenty-one other states with you for interposition. I believe that number could drop to fifteen or, in the worst case, as few as eight, for secession.”
“Can they really take over the New York Guard?” the governor asked. I answered.
“Yes. Since 2007, a governor’s consent is not required for the president to assume command of the Guard in a state. What we need to do is ensure that all the senior officers are loyal to you, sir. If they are not, we must replace them while we can. I’ll go see each of them. OK?”
“Take the jet.” There were benefits to working for Mike Bloomberg.
We needed to replace only about a half dozen Guard senior officers in New York State. Within two weeks I had sworn written statements from all the senior officers that they would refuse orders from Washington and answer only to the governor, notwithstanding any order to the contrary. This was a brave thing for these men and women to do. If we lost, it would be treason. I had similar meetings with each of the FBI, Homeland Security, and other federal law enforcement agencies in the state. They were in a difficult place, but most of them were New Yorkers, many were Catholics and Jews who felt personally threatened, and most were opposed to the Christian Nation idea. I simply asked if they would recognize the state’s interposition statute and decline orders to enforce The Blessing. Most said yes. And New York—unlike many other Sec Bloc states, such as California—was not home to large regular military bases close to urban areas. With the Guard and law enforcement on our side, it would be difficult for Jordan to mount the sort of direct intimidation and intervention that Sanjay predicted.
The day I came to work for the governor, he asked me to start work on secession, but he emphasized that the word was not to be uttered in meetings and that no one—not even other senior staff—was to know that it was an option that he was actively analyzing. Once again it was our opponents who provided the template for the move that we were now considering. Secession scenarios had been analyzed and promoted by the fringe groups on the right, many of them fundamentalist, for decades. By 2011 there were six active secessionist organizations in the state of Texas alone, groups like Texas Nationalist Movement and Texas Secede. Although some had been simply nutty, others had pursued a sophisticated investigation of the legal, moral, and philosophical arguments that would have supported a split from the United States. For most of this time, the notion of secession had been a fringe idea, a powerful taboo that required mainstream politicians to avoid any hint of association or sympathy with these groups. But early in the Palin administration, following revelations of her husband’s flirtations with a secessionist group in Alaska, Governor Rick Perry in Texas had broken the taboo and publicly acknowledged the movement, implying there might be circumstances where secession would be legitimate.
The law on secession here in the United States is completely straightforward. Under the Constitution, unilateral secession is prohibited. In the 1869 case of
Texas v. White
, Chief Justice Chase wrote, “What can be indissoluble if a perpetual Union [established under the Articles of Confederation], made more perfect [the express goal of the Constitution], is not?” Notwithstanding the obsession of some Christian fundamentalists with compacts and covenants, their view of the American union as a voluntary compact that could be exited at will was simply incorrect. As the chief justice explained, “The act which consummated [Texas’s] admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other states was as complete, as perpetual, and as indissoluble as the union between the original states. There was no place for reconsideration or revocation except through revolution or through consent of the states.” As a result, I was clear with the governor from our earliest discussions of the subject that talk of secession was talk of revolution. And for that he didn’t need a lawyer, but he would have to call on the considerable body of moral and political philosophy regarding the justification of illegal and violent resistance to the established order.