"Not-Law" is our shorthand for unconstitutional federal laws, regulations, Executive Orders — any enactment of FedGov that is not authorized by the Constitution — the source of all FedGov power.
Unconstitutional laws are not laws at all. They are "Not-Laws."
The reasoning here is simple.
Unconstitutional laws are Not Laws at all! But don't take our word for it. In Marbury v. Madison, the Supreme Court itself declared that "an act of the legislature, repugnant to the constitution, is void."
In theory, an unconstitutional law or unconstitutional regulation or Executive Order is not a law at all. In practice, one of these "Not-Laws" is as good as a ratified Constitutional amendment! Whoops, that can't be right!
In theory, you can't "break" a Not-Law. In practice, you'll go to jail if you do. In theory, unconstitutional laws are "void." In practice, a void law is enforced unless and until someone successfully challenges it through the federal courts — a process made extremely difficult and unlikely by FedGov's Judiciary. Even if successful, it can take decades! Most Constitutional challenges never even reach the Supreme Court, having been stopped in the lower, federal courts. Of those that manage to get to the Supreme Court, only some are actually given their day in court and heard.
What is needed is a way to move from our current legal system into one where theory and practice can meet, where Not-Laws can be identified and negated without having to get arrested and take a challenge case all the way to the Supreme Court. What is needed is the Consent Of the Governed Act — COGA.
COGA treats suspected unconstitutional laws as if they were unratified Constitutional amendments. No state is bound to respect unratified Constitutional amendments; no state should permit enforcement of suspected unconstitutional laws.
Let's consider three different ways of enacting a FedGov Not-Law:
Granted, the example above would be an egregious power grab, even by FedGov standards, and would doubtless attract much press coverage leading to a quick ruling of unconstitutionality. Unfortunately, less egregious usurpations of power take longer to be appealed and overturned (if ever) while minor violations never find a champion at all or attempts to overturn them fail due to the bias of the federal courts toward finding FedGov actions constitutional by default.
The point is, the current paradigm errs in assuming that every federal enactment, law, regulation and action is constitutional until someone proves, in FedGov's own courts, that it is not. Better, we believe, to err on the side of protecting the Constitution and the rights of citizens. Better to not enforce laws of suspect constitutionality. To do otherwise is an affront to the Constitution. "First, Do No Harm" seems like a good policy for government, doesn't it?
It can take many years, decades sometimes, for a constitutional challenge to be brought and wend its way through the courts. During this time, unconstitutional laws continue to be enforced. That's wrong and violates citizens' rights. COGA would allow the people — the bosses of FedGov — to effect a timely remedy when FedGov oversteps its Constitutional limits.
Let us not forget too that judicial proceedings are adversarial in nature. It is not fair to permit one adversary, FedGov, to decide the outcome of the contest! COGA puts the power in the hands of the states and the people where it belongs.
COGA changes the way we decide if a law is constitutional or not.
"If you are not angry about what your government has done to you, if you aren't hot under the collar over what your government has done to others, if you're not outraged at the things your government has done in your name, if your blood doesn't boil when you contemplate what your government has in store for you, why then, you haven't been paying attention."
Warren "Mickey" Michelsen
"Every decent man is ashamed of the government he lives under."
"I's had all I can stands and I can't stands no more."
"We're mad as hell and we're not going to take it any more!"
Peter Finch (as newsman Howard Beale) in the movie Network (1976)
"All that is necessary for the triumph of evil is that good men do nothing."