Author: stewart

South Carolina House changes rules to advance anti-vaccine mandate bill

From the Greenville News: https://www.greenvilleonline.com/story/news/local/south-carolina/2021/12/09/south-carolina-house-changes-rules-advance-anti-vaccine-bill-federal-covid-mandate-unvaccinated/6449577001/

Devyani Chhetri

Greenville News
After passing its new voting lines on Thursday, the South Carolina House changed its rules and advanced a bill against the federal vaccine mandate.

On Dec. 9, the House Ways and Means Committee amended House bill H.3126 sponsored by several Upstate lawmakers and led by Rep. Stewart Jones, R-Laurens, to add language that blocks employers in state and local governments and school districts from firing or suspending unvaccinated employees.

The bill, if passed by the Senate and later signed by Gov. Henry McMaster, will make private workers fired or suspended due to their unvaccinated status eligible for unemployment benefits.

It also allocates $10 million to the Department of Health and Environmental Control and the Medical University of South Carolina each to fund COVID-19 testing for private employers.

A previous version of the bill barred private employers from mandating vaccines and firing unvaccinated employees.

The bill would have also made employers liable to be sued by employees who were let go for not following a vaccine requirement. Moreover, employers would have to compensate the fired unvaccinated workers with wages.

That language was struck down after major pushback from the House Democrats and business communities in South Carolina.

Related:Federal court blocks vaccine requirement for federal contractors

Mandate news:Federal judge blocks vaccine mandate for health care workers

More:Circuit Court accepts Gov. Henry McMaster’s argument, stays federal vaccine mandate for businesses

Jones, while introducing the bill to the floor, said that an employer’s move to fire an unvaccinated employee is “discriminatory” in nature. That private businesses and public offices cannot mandate an “unlawful” mandate that violates the individual freedoms of employees.

Minority Leader Rep. Todd Rutherford, D-Richland, implied that a move to control how employers handle vaccine requirements is equivalent to another version of a mandate, but this time passed by the state legislature.

“We’re going to take away the freedom that they [business owners] have to operate their own business,” Rutherford said.

“You don’t have a concern that all of a sudden business owners in this state are going to be told what to do when to do it? And if they don’t do it, that they can get sued? You don’t have a concern about taking that right and creating causes of action against them?” Rutherford asked Jones.

Rep. Russell Ott, D-Calhoun, who is the assistant minority leader, said that the bill came up for discussion rather quickly.

“Like a lot of you, I thought that we were going to be here talking about redistricting. But yet here we are now with a complete assault on our business industry, and our businesses and state of South Carolina,” Ott said.

Ott highlighted the COVID-19 liability protection act passed by the legislature to protect business owners from being sued in the event someone contracted COVID-19. But this bill, he said, would open them up to liability lawsuits.

Major business groups such as the SC Chamber of Commerce, SC Manufacturers Alliance, SC Retail Association as well as regional groups such as the Greenville Chamber of Commerce, OneSpartanburg, Anderson Area Chamber of Commerce have urged the lawmakers to reject the bill for businesses to work “without government overreach” and leave employment decisions up to businesses.

“We ask the General Assembly to support free enterprise and reject this unprecedented step against the internal operations of our state’s job creators,” a letter by the group said.

The SC Trucking Association, in a separate statement, said while the association recognized this to be a result of conflict between federal vaccine mandates and state jurisdiction, this bill created a “no-win” situation for all businesses.

“We oppose the federal mandate, but are not anti-vaccine,” the SCTA’s press statement said. “Our organization generally opposes government mandates. This amended legislation is a mandate of sorts; it’s a mandated prohibition on the rights of free enterprise”

“When it comes to vaccination policies: Some do, some don’t. Some will, some won’t,” the statement continued. “We assert that businesses should be able to keep the right to set their own conditions for employment, and people can choose what’s in their own best interest.”

Ott and Justin Bamberg, D-Bamberg, further questioned the fiscal impact of this bill, though they said it was early to tell just how wide the impact would be.

Right before the end of a six-hour long debate, amendments by Majority Leader Gary Simrill, R-York, Ways and Means Chair Murrell Smith, R-Sumter and David Hiott, R-Pickens struck down the provision related to private employers and refashioned the final language of the bill.

The bill will next go to the Senate, which will reconvene in January when the legislative session begins.

On the House floor, the major opposition to the bill was mounted by House Democrats who said that this was a move by Republican lawmakers to pacify constituents and leverage the issue ahead of next year’s elections.

The legislature had already set aside a special order session to discuss and pass the redistricting bill that would decide South Carolina’s voting districts, a federal requirement enshrined in the U.S. Constitution.

Already, voting rights advocates and a few House Democrats from minority communities were concerned the new voting lines diluted minority votes by creating artificial lines that shuttered competitiveness and protected incumbents.

But ever since the redistricting vote began, the push for bills to block the federal vaccine mandate has continued to overshadow the redistricting process, even as federal courts in Georgia, Missouri and Louisiana blocked the vaccine mandate on health care workers and businesses.

Devyani Chhetri is the state government watchdog reporter. You can reach her at dchhetri@gannett.com or @ChhetriDevyani on Twitter.

315 State Reps. Call For End To COVID-19 Vaccine Mandate

From the Daily Caller:

MICHAEL GINSBERG
CONGRESSIONAL REPORTER
December 09, 2021

More than 300 members of state legislatures around the country have signed onto a letter calling for President Joe Biden to end his COVID-19 vaccine mandate.

The letter, first circulated by South Carolina State Rep. Stewart Jones to other members of the South Carolina Republican Party, has been signed by elected officials representing 42 states. It will be submitted to the White House on Thursday, Jones told the Daily Caller in an interview.

“I’ve been writing these letters for various issues, and it’s incredible to see the impact,” Jones said. He noted a previous campaign culminating in the South Carolina School Board Association leaving the National School Board Association (NSBA) over a letter calling on the Biden administration to consider terrorism charges against individuals participating in local school board meetings. (RELATED: Majority Of School Board Associations Have Distanced Themselves From National Organization)

“Last month, I got the state out of the NSBA with a letter, and this month we’ve been sending Biden this letter, and it’s grown. We passed it around to a couple states, and they sent it to some other members,” he explained.

Jones did not intend to seek signatures on a national level, he said, but a Kansas lawmaker saw the letter and circulated it to representatives in other states. He suspects that a broad interest in American constitutional principles made the letter more appealing to other representatives.

“There’s really something there, taking back the idea of federalism, like the Founders intended,” Jones said. “A lot of it goes back to precedence in the courts. 1905, Jacobson v. Massachusetts went to the Supreme Court, and that was about the policing powers of the states. This is a state issue, and I think the majority of states would strike a mandate down.”

The letter notes that courts at the federal level have already begun to strike down the mandates. The Fifth Circuit Court of Appeals upheld a District Court block of the mandate targeting private businesses in November, while a District Court judge on Tuesday blocked a mandate targeting federal contractors.

South Carolina is currently considering a bill that would ban private, as well as public, vaccine mandates.

COLUMBIA, SC – JUNE 24: A sculpture of George Washington stands infront of the State Capitol Building before South Carolina Gov. Mark Sanford held a press conference at the State Capitol June 24, 2009 in Columbia, South Carolina. (Photo by Davis Turner/Getty Images)

The Senate also passed a bill Wednesday night as part of the Congressional Review Act that would overturn the mandate, but it is unlikely to become law. Democrats Joe Manchin of West Virginia and Jon Tester of Montana voted with all 50 Republicans in support of the bill.

Jones said that he has heard from some Democrats, in addition to Republicans, who support his efforts.

“People are very supportive for the most part,” he explained. “Back in May, I was able to put a lot of amendments in our state budget, banning masks in K-12, masks in colleges. I’ve been fighting against COVID tyranny since March 2020.”

“It’s primarily been Republicans, but there are a lot of Democrats out there that have come up to me and said they support what I’m doing 100%. They really think they should have the ability to choose.”

Read article here:  https://dailycaller.com/2021/12/09/stewart-jones-state-representatives-south-carolina-vaccine-mandate-joe-biden/

SC School Board Association leaves national group after pressure from parents, lawmakers

From the Greenville News:

https://www.greenvilleonline.com/story/news/local/south-carolina/2021/11/08/south-carolina-school-board-association-leaves-national-group-backlash/6346769001/

Devyani Chhetri

Greenville News
Protesters gathered outside of the Greenville County Schools office Thursday morning as the school board met to to receive legal advice after a federal judge said on Tuesday that South Carolina cannot ban school districts from requiring masks in schools.

The South Carolina School Board Association has severed ties with the National School Board Association after pressure from state lawmakers and parents.

In a message sent to members Monday, the state school board association said that the national group had not done enough to mitigate the “negative impact” of a letter to the Biden administration, where NSBA had claimed that school boards around the country were being intimidated and threatened against COVID-19 safety measures.

The NSBA letter asked for federal intervention to protect educators and schools.

“We started hearing from local school boards that people in the community had concerns about the NSBA letter,” said Executive Director Scott Price when asked the specifics of the “negative impacts.”

“We just felt that in order to go ahead and hopefully keep that from continuing to grow and manifesting itself at the local level, it was in our best interest to take the steps that we took,” he said.

But what recourse did other educators and parents have who felt intimidated or threatened?

To that, Price said “especially now we’ve seen through the pandemic, they [school boards] do have meetings where people are vocal and are addressing concerns. But if the opportunity presents itself school boards can handle that either themselves or they can involve local law enforcement, if necessary.”

However, a federal intervention went against the values of South Carolina, which were centered around local decision making, he said.

To the question of whether the state association was responding to pressure, Price said that there was always pressure. “The pressure here was related to our membership,” he said.

In September, with debates of mask mandates and social distancing dominating meetings, the NSBA wrote a letter seeking “federal assistance to stop threats and acts of violence against public school-children, public school board members, and other public school district officials and educators.”

“As the threats grow and news of extremist hate organizations showing up at school board meetings is being reported, this is a critical time for a proactive approach to deal with this difficult issue,” the NSBA letter said.

Protesters gathered outside of the Greenville County Schools office Thursday morning as the school board met to to receive legal advice after a federal judge said on Tuesday that South Carolina cannot ban school districts from requiring masks in schools.

Soon after, U.S. Attorney General Merrick Garland issued a memo authorizing the FBI to investigate threats against school board members.

The language of NSBA’s letter did not sit well with several lawmakers and parents across the country. Multiple petitions demanding that state school board associations leave the national group came from several states.

In South Carolina, 36 GOP lawmakers signed a letter criticizing the NSBA and said that the threats of intimidation and harassment in schools were false. The lawmakers asked the state organization to withdraw its membership from the national group.

The state school board association called for a special meeting on Nov. 5 to discuss the timeline of events. “This decision [of leaving the national association] was not made lightly,” said SCBA’s letter to the national organization.

Rep. Stewart Jones, R-Laurens, who led a petition demanding the state association’s withdrawal said that he was thrilled by the news. “We’re defending the rights of parents to have that greater choice and education and I think this is a great sign,” he said.

Devyani Chhetri is the state government watchdog reporter. You can reach her at dchhetri@gannett.com or @ChhetriDevyani on Twitter.

South Carolina House Republicans make plans to Oppose Biden’s Vaccine Mandate

“The same day, Rep. Stewart Jones, R-Laurens, who had had introduced the state budget proviso banning state funds from requiring masks in schools, called for an emergency session to block the vaccine mandate.”

“Jones said that it has to be a personal decision for each person and their doctor. Not the government.”

See entire story here: Greenville News

 

Budget Amendments Could Strip Schools Funding if they require masks, covid testing, or vaccines

Updated: Jun. 10, 2021 at 1:44 PM EDT

CHARLESTON, S.C. (WCSC) – Three amendments to the House’s version of the South Carolina budget could strip state funding from public schools if they enforce mask mandates or require COVID-19 testing or COVID vaccines after July 1.

“This is a big concern to many parents. It’s caused a lot of confusion, a lot of frustration,” Representative Stewart Jones said. “It’s gotten to a level that’s just unbelievable.”

The provisos were approved Wednesday by the House of Representatives as a part of their version of the state’s budget.

“They withhold funding from those schools in the event they try to force someone to wear a mask or to get a vaccine in order to attend,” Jones explained. “We live in the greatest country in the world. I believe we are free people, and everybody should have the ability to decide if they want to do these things or not.”

With the State of Emergency lifted, Jones said one amendment would make mask-wearing voluntary for students and employees within K-12 public schools in South Carolina.

A second amendment makes masks and COVID-19 vaccines voluntary in state funded colleges in order to attend.

“A public institution of higher learning, including a technical college, may not use any funds appropriated or authorized pursuant to this act to require that its students have received the COVID-19 vaccination in order to be present at the institution’s facilities without being required to wear a facemask,” the proviso stated.

The third amendment makes COVID-19 testing voluntary in state funded colleges.

“Such public institutions may not use any funds to require or administer mandatory COVID-19 testing of its students,” the proviso stated. “Further, no agency or entity may use any funds appropriated or authorized in this act to assist a public institution of higher learning with such mandatory COVID-19 testing.”

“This became a really important step right now because the Governor has lifted the state of emergency,” Jones said. “After July 1, going into the next school year, it would allow people to have the flexibility to know that they have the freedom to do these things or not. And it doesn’t stop anyone from doing them. If someone wants to take the vaccine or wear a mask or take as many COVID tests as they want, then they have the freedom to do that. But what it does do is, it would stop state funding from going to K-12 schools or higher ed or colleges that try to force someone to wear a mask or take a vaccine.”

The amendments would cut off all state appropriations to an institution that violates the terms, however, there’s still some work to be done.

“We do need long-term solutions. This is just temporary,” Jones said. “This is kind of the next step in the process I think.”

Next week, some assigned lawmakers will review the House and Senate versions of the state budget. Then the entire general assembly will reconvene the following week to vote on the final version, which will need to be passed by June 30.

“As a parent of two young children who are in our public schools, I have seen and experienced first-hand a lot of the concerns over the whole pandemic. So, I stand with all these parents 100 percent and I understand their frustration,” Jones said. “This has been building. As we were going back to school, we started encountering a lot of these problems, and it was amazing how quickly a lot of it escalated. I think a lot of has to do with the fear…I think this will be a problem for a long time. Some people have this fear of COVID that has just paralyzed them, but we’ve got to come out of this…I believe people have a natural God-given right to freedom, to be free, to make their own decisions.”

In a statement, the South Carolina Department of Health and Environmental Control says they are waiting on guidance from the CDC before developing the state’s guidance for the 2022 academic year.

“DHEC recently made several updates to current guidance for schools and childcare for the remainder of the 2021 academic year,” DHEC said. “We anticipate CDC will publish updated school operations guidance for the 2022 academic year within the next few weeks. DHEC will review CDC’s updated school operations guidance once it is released in order to develop guidance for South Carolina schools. We plan to provide this as quickly as possible to allow districts and schools the time they need to plan for the upcoming year.”

Originally appeared on Live 5 News

South Carolina Bills Would Take on Federal Gun Control

By: TJ Martinell|Published on: Jan 26, 2021|Categories: Right to Keep and Bear ArmsState Bills|

COLUMBIA, S.C. (Jan. 26, 2021) – Two bills filed in the South Carolina House would set the foundation to end enforcement of federal gun control. Passage into law would represent a major step toward ending federal acts that infringe on the right to keep and bear arms within the state.

Rep Stewart Jones (R- Laurens) filed House Bill 3042 (H3042) on Dec. 9. The bill would prohibit enforcement of future federal gun control by banning any “personnel or property of this State, or any political subdivision of this State” from enforcing any “federal, state, or local act, law, order, rule, ordinance or regulation which restricts an individual’s constitutional right to keep and bear arms” enacted after January 2021.

State public funds would also be prohibited from use in enforcing such federal gun regulations.

Rep. Doug Gilliam (R- Buffalo) also filed House Bill 3119 (H3119) on Dec 9. It would prohibit the enforcement of “illegal gun laws” by state officials, which it defines to be “any federal, state, or local act, law, order, rule, ordinance or regulation” which restricts an individual’s right to keep and bear arms. The bill includes a list of specific actions that would count as a restriction, including the following:

  1. a tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services on the purchase or ownership of those items by citizens;
  2. a registration or tracking of firearms, firearm accessories, or ammunition;
  3. a registration or tracking of the owners of firearms, firearm accessories, or ammunition;
  4. an act forbidding the possession, ownership, use, or transfer of any type of firearm, firearm accessory, or ammunition by citizens of the legal age of eighteen and over, other than pursuant to federal law background check requirements for transfers or purchases through federal firearms license dealers;
  5. an act ordering the confiscation of firearms, firearm accessories, or ammunition from citizens;
  6.  a prohibition, regulation, or use restriction related to the ownership or the constitutionality guaranteed lawful use or carry of nonfully automatic firearms; and
  7. a prohibition, regulation, or use restriction limiting hand grips, stocks, flash suppressors, bayonet mounts, magazine capacity, bump stocks, suppressors, or types of ammunition available for sale, possession, or use by citizens.

Under H3119, infringement on the right to keep and bear arms should include the National Firearms Act of 1934, the Gun Control Act of 1968. Pres. Trump’s bump-stock ban, proposed federal “red-flag laws,” and any future gun control schemes implemented by the federal government.

The legislation includes a provision that would allow anybody who violates the law and knowingly deprives somebody of their right to keep and bear arms as defined by the law to be sued for damages in civil court for up to two thousand dollars:

“Sovereign, official, and qualified immunity are not affirmative defenses in cases pursuant to this section.”

EFFECTIVE

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from state and local governments.

Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.

“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in federal gun control, states and even local governments can help bring these unconstitutional acts to their much-needed end.”

LEGAL BASIS

The state of South Carolina can legally bar state agents from enforcing federal gun control. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.

Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”

WHAT’S NEXT

Both bills were referred to the House Committee on Judiciary where they must pass by a majority vote before moving forward in the legislative process.

Originally appeared in Tenth Amendment Center.

Lakelands Lawmakers Pre-file Legislation for 2021

One Lakelands lawmaker has pre-filed nearly 20 pieces of proposed legislation ahead of next year’s session in the Statehouse.

State Rep. Stewart Jones, who represents parts of Greenwood and Laurens counties, filed 19 bills during the December pre-filing period.

“There is a lot of ideas,” Jones said. “Trying to get the ball rolling.”

While many bills have been filed to adjust the income tax, Jones pre-filed a bill that would fix the state income tax once and for all.

“It eliminates the income tax,” Jones said of the bill.

Jones also pre-filed a bill that would prevent the state from accepting any funds related to enforcing a federal mask mandate or a federal vaccine mandate.

“I’m not telling people to not wear a mask or get the vaccine,” Jones said.

Jones explained that the legislation would prevent the government from mandating the wearing of masks or forcing people to be vaccinated. He said he believes such decisions are ones people should make for themselves.

Another bill he sponsored would prevent the state from using any resource to enforce any federal regulation or executive order that would infringe on the protections of the 2nd Amendment to the U.S. Constitution. Jones said he filed a similar bill last year in response to red flag laws.

“Our state is not going to take that funding,” Jones said.

He also filed three bills related to the removal of monuments or names of historical figures from public buildings.

“Does it really help anything to remove that?” he asked.

Jones said he is an eighth generation South Carolinian who wants to defend the heritage of the state.

“I think we need to stand up right now,” Jones said.

One of the bills would remove all general fund appropriations for any institution of higher learning that removes the name of a historical figure from a college or building. Another bill would require the state treasurer to withhold any disbursement from the local government fund to any county or municipality that removes a monument or memorial of a historical figure.

One bill even would make voting for the removal of a monument by a local government official guilty of a misdemeanor, accompanied by a $25 million fine.

“I want to make it extremely clear, we need to be protecting history,” Jones said.

Jones also pre-filed several bills related to blockchain technology.

“I’m a technology guy,” Jones said.

One of his bills would create a committee to study using blockchain technology for state voters to verify their votes.

“I’ve been looking at ways to make voting more reliable,” he said.

The way the technology works is a voter would have a blockchain key the voter could use to securely login and see their selections on their ballot, Jones said. It would also allow the state to count the number of votes.

“The idea is to see the total amount of votes,” Jones said.

Jones filed two other bills related to this technology. He said blockchain technology could bring more business to the state.

As for the upcoming session, Jones said two things will most likely dominate legislators’ time.

“The way it looks right now, we will have some tax reforms,” Jones said.

He also said reapportionment will take up a lot of time as legislators look at redrawing political lines after the 2020 census data comes in.

While Jones filed many bills, some legislators filed none. Rep. Craig Gagnon, an Abbeville Republican, and Rep. Anne Parks, a Democrat who represents parts of Greenwood and McCormick counties, had no pre-filed legislation. However, Parks said she was most interested in hate crimes legislation introduced by Rep. Wendell Gilliard, a Charleston Democrat. Parks signed on as a co-sponsor of the legislation.

As previously reported, Greenwood Rep. John McCravy pre-filed the “SC Stands for Life Act,” an omnibus bill that incorporates the S.C. Fetal Heartbeat bill, the dismemberment bill and other elements into one comprehensive legislative bill. He also pre-filed a bill that would make state income tax levels the same for a married couple filing jointly as it does two single individuals.

Sen. Billy Garrett, a newly elected Republican who represents parts of Greenwood, Abbeville, McCormick and Saluda counties, also pre-filed both bills in the state Senate.

McCravy pre-filed legislation to create a “Fallen First Responder Survivor Advocate” to help the families of fallen first responders after their relative dies.

Sen. Mike Gambrell, a Republican representing parts of Anderson, Abbeville and Greenwood counties, pre-filed two bills. One bill would create a civil penalty for the owner of a motor vehicle who is caught by photograph or video unlawfully passing a school bus.

Gambrell’s second bill would amend the code of laws regulating the licensure of physical therapists to require a criminal background check be completed prior to the department issuing a license.

The General Assembly will convene Jan. 12.

Originally appeared in the Index Journal

South Carolina Bill Would Set Foundation to Block Unconstitutional National Guard Deployments

COLUMBIA, S.C. (Dec. 22, 2020) – A bill prefiled in the South Carolina House would prohibit unconstitutional foreign deployments of the state’s National Guard troops. Passage into law would take a step toward restoring the founders’ constitutional framework for a state-federal balance regarding the state militia.

Rep. Stewart Jones (R-Laurens) filed House Bill 3528 (H3528) on Dec. 16. The legislation would prohibit placing South Carolina National Guard troops under federal control unless the governor determines they are being deployed in a manner consistent with the U.S. Constitution. The proposed law would require the governor to “examine, consider, and review” every federal order, including all existing orders, that call, transfer, or place the South Carolina National Guard on federal active duty.

Notwithstanding another provision of law, upon completion of the legal review required pursuant to this article, the Governor immediately shall withhold, withdraw, or revoke, or cause to be withheld, withdrawn, or revoked all state approvals, authorizations, or orders relating to the call, transfer, or placement of the South Carolina National Guard, or any of its subordinate commands, units, or personnel on federal active duty or under federal control in the absence of:

(1)    a military invasion of the United States;

(2)    an insurrection; or

(3)    a calling forth of the South Carolina National Guard by the federal government in a manner provided for by the U.S. Congress to execute the laws of the United States, provided that these laws were made pursuant to powers delegated to the United States by the U.S. Constitution.

IN PRACTICE

National Guard troops have played significant roles in all modern overseas conflicts, with over 650,000 deployed since 2001. Military.com reports that “Guard and Reserve units made up about 45 percent of the total force sent to Iraq and Afghanistan, and received about 18.4 percent of the casualties.” More specifically, South Carolina National Guard troops have participated in missions in Iraq, Afghanistan, Syria, Kuwait, Kosovo and elsewhere.

Since none of these missions fall under the three criteria constitutionally necessary to call up the militia, the South Carolina Defend the Guard Act would have prohibited those deployments.

BACKGROUND

Article I, Section 8, Clauses 15 and 16 make up the “militia clauses” of the Constitution. Clause 16 authorizes Congress to “provide for organizing, arming, and disciplining, the Militia.” Through the Dick Act of 1903, Congress organized the militia into today’s National Guard, limiting the part of the militia that could be called into federal service rather than the “entire body of people,” which makes up the totality of the “militia.” Thus, today’s National Guard is governed by the “militia clauses” of the Constitution, and this view is confirmed by the National Guard itself.

Clause 15 delegates to the Congress the power to provide for “calling forth the militia” in three situations only: 1) to execute the laws of the union, 2) to suppress insurrections, and 3) to repel invasions.

During state ratifying conventions, proponents of the Constitution, including James Madison and Edmund Randolph, repeatedly assured the people that this power to call forth the militia into federal service would be limited to those very specific situations, and not for general purposes, like helping victims of a disease outbreak or engaging in “kinetic military actions.”

RETURNING TO THE CONSTITUTION

The founding generation was careful to ensure the president wouldn’t have the power to drag the United States into endless wars. James Madison made this clear in a letter to Thomas Jefferson.

The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.

Congress has abrogated its responsibility and allowed the president to exercise almost complete discretion when it comes to war. Passage of Defend the Guard legislation would pressure Congress to do its constitutional duty.

West Virginia Rep. Pat McGeehan served as an Air Force intelligence officer in Afghanistan and has sponsored similar legislation in his state.

“For decades, the power of war has long been abused by this supreme executive, and unfortunately our men and women in uniform have been sent off into harm’s way over and over,” he said. “If the U.S. Congress is unwilling to reclaim its constitutional obligation, then the states themselves must act to correct the erosion of constitutional law.”

Passage of Defend the Guard would also force the federal government to only use the Guard for the three expressly-delegated purposes in the Constitution, and at other times to remain where the Guard belongs, at home, supporting and protecting their home state.

While getting this bill passed won’t be easy and will face fierce opposition from the establishment, it certainly is, as Daniel Webster once noted, “one of the reasons state governments even exist.”

Webster made this observation in an 1814 speech on the floor of Congress where he urged actions similar to the Oklahoma Defend the Guard Act. He said, “The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist.”

WHAT’S NEXT

H3528 will be officially introduced and referred to the House Judiciary Committee when the regular session convenes on Jan. 12, 2021.

South Carolina Bills Would Set the Foundation to Nullify Federal Mask or Vaccine Mandates

COLUMBIA, S.C. (Dec. 16, 2020) – Two bills introduced in the South Carolina House would ban the enforcement of any federal mask mandate and prohibit the state from taking any federal funding connected to a federal mask or vaccine mandate. Passage of these bills would set the stage to nullify any federal maks or vaccine mandates in practice and effect.

Rep. Stewart Jones (R-Laurens) filed House Bill 3126 (H3126) on Dec. 9. The legislation would ban the state or any of its political subdivisions from accepting federal funds “to enforce an unlawful federal mask mandate or unlawful federal vaccine mandate.” The bill includes a detailed definition of “unlawful” mandates that covers virtually any law, rule, regulation, or executive order from any agency or branch of the federal government.

Jones, along with Rep. Bill Chumley (R-Spartanburg) and Rep. Mike Burns (R-Greenville) introduced House Bill 3218 (H3218) the same day. The legislation would prohibit state and local officials in South Carolina from participating in the enforcement of “any unlawful federal mask mandate that violates the Tenth Amendment of the United States Constitution.” “Unlawful federal mask mandate” is defined as “any federal law, order, rule, regulation, plan of action, or otherwise which requires a resident of the State of South Carolina to wear a face mask or other face-covering to minimize the spread of COVID-19 or any other infectious disease.” Any state or local official violating the law would be subject to a $2,000 fine.

EFFECTIVE

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. A mask or vaccine mandate would be no different. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” is an extremely effective method to effectively nullify any future federal mask or vaccine mandate because most enforcement actions rely on help, support and leadership from state and local governments. Without state and local enforcement action, the ban would quickly fall apart in South Carolina.

Prohibiting the state from accepting funding related to masks or vaccine mandates is important because that is the most likely pathway the Biden administration would take to try to implement a federal mask or vaccine program. Even the mainstream concedes that a national mask mandate would be unconstitutional and impossible to enforce. Lawrence Gostin, director of Georgetown University’s O’Neill Institute for National and Global Health Law admitted as much to USA Today.

“A national mandate is not possible because public health powers belong to the states, not the federal government. The federal government couldn’t implement its own mask mandates, nor could it force the states to do it.”

Instead, Biden has floated the idea of “appealing to governors and local officials.” Funding would almost certainly be used as a carrot or a stick. USA Today reported, “Biden also could require states to follow Centers for Disease Control and Prevention guidance to qualify for certain federal funds.”

A legislative prohibition on accepting such funding would tie the hands of the South Carolina governor and all local officials. With state agencies unable to accept funding and prohibited from enforcing the policies, these two bills together would effectively nullify any federal mask mandate in practice and effect.

LEGAL BASIS

The state of South Carolina can legally bar state agents from enforcing federal mask or vaccine mandates. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.

Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”

WHAT’S NEXT

Both bills will be officially introduced when the South Carolina legislature convenes on Jan. 12. H3126 will be referred to the House Committee on Ways and Means and H3218 will be referred to the House Committee on Judiciary. Both will have to pass their respective committees by a majority vote before moving forward in the legislative session.

Originally appeared in Tenth Amendment Center.