Posted on 12/27/2009 4:23:49 AM PST by Jim Robinson
As previously reported, the Republican Senate caucus and at least ten attorneys general are preparing political, procedural, and legal challenges to the health-care reform legislation proposed by President Barack Obama, House Speaker Nancy Pelosi (D-CA-8), and Senate Majority Leader Harry Reid (D-NV). But freedom activists are trying to encourage State legislatures in as many States as possible to present another challenge: nullification.
Nullification is any action taken by a particular government that makes the laws passed and enacted by a higher-level government null and void within the lower-level government's jurisdiction, or at least causes enforcement of the higher-level law to be ineffective. The relevant context is a State action to nullify a federal law.
The authority that makes nullification possible is the US Constitution's Tenth Amendment, which reads:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The "delegated powers" are listed in Article 1, Section 8. The key power that federal authorities cite in saying that their proposed health-care reform is constitutionally authorized is clause 3, which reads:
The Congress shall have power...to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
This "interstate commerce clause" has been the source of expansion of federal power since the administration of Franklin Delano Roosevelt, according to FreeRepublic.com.
Nullification has a long and rich history, beginning in 1798 with resolutions in Virginia and Kentucky passed to protest the original Alien and Sedition Acts, according to the Tenth Amendment Center. Arguably, States have taken effective nullification action as recently as this decade, when multiple States passed their own legislation expressly forbidding their respective Divisions of Motor Vehicles (DMV) to upgrade drivers' licenses in accordance with the REAL-ID Act of 2005. In response, the Obama administration recently announced that it would quietly drop the Act. In addition, thirteen States have passed legislation allowing State residents to use marijuana (Cannabis sativa) for medicinal purposes.
(Tetrahydrocannabinol, the active ingredient in marijuana, is a powerful antiemetic that, some say, can greatly alleviate the nausea that plagues patients who undergo chemotherapy in the treatment of cancer.)
This year, the States of Montana and Tennessee have passed laws stating that firearms manufactured within their borders, for sale to State residents, are not subject to regulation by federal authorities. No binding court precedent exists to resolve the issue.
Nullification has never resulted in armed conflict, though several pre-War-Between-the-States nullification initiatives came close. (Technically, the War Between the States began with secession, not nullification.) Usually, one side or the other has backed down. In the REAL-ID case, perhaps federal authorities backed down for one reason only: a change in administration, to one that probably regards such stringent identification procedures as discriminatory against the most likely perceived targets, which are Arab citizens and lawful residents.
However, the backdown in the REAL-ID case has emboldened libertarian activists who see this as a precedent for effective nullification action against federal health-care reform, if any health-care form bill actually becomes law.
In June of this year, the Arizona Senate gave its approval to HCR 2014, a concurrent resolution to amend the State constitution to prohibit the enforcement of any law that requires individuals to purchase health-care insurance, or that forbids them to buy such insurance directly rather than through any federal exchange. That proposed amendment will appear on the ballot in November of 2010. At that time, five other States were considering similar measures.
More recently, according to the Tenth Amendment Center, Missouri is now considering similar legislation. RedState.com expects at least twenty States to consider nullification legislation in 2010. In fact, Arizona is the only State that has placed nullification on the ballot; it has been introduced in Florida, Michigan, Missouri, Ohio, Pennsylvania, and Virginia. It has failed in Indiana, Minnesota, New Mexico, North Dakota, and West Virginia.
Health-care reform nullification is only one issue that the Tenth Amendment Center is tracking. Many States are considering generic Tenth Amendment resolutions. (New Jersey is one.) In addition to the issues previously mentioned, the Center is also tracking movements to allow State governors to recall their National Guard contingents from overseas and to enable States to make gold or silver legal tender within their borders.
The Lectric Law Center contains multiple case-law citations bearing on the Tenth Amendment and the viability of any Tenth-Amendment-based challenge to federal power. More broadly, the Tenth Amendment Movement as such has drawn mixed reaction from commentators that might be sympathetic to the basic premise. Larry Elder suggested, in April 17, 2009, that such efforts were "a day late and a dollar short," saying that health-care reform is only one of many federal programs that, he says, activists should have challenged long before this.
Matt Ross at The Conservative Hideout cited several pitfalls, such as cutoffs of highway and other funds, but suggests that States could and should cope with such cutoffs by learning how to run their States without such funds.
Other activists, like the Populist Party, insist that nullification is a necessary step toward restoring to the American federal system the relationship between federal and State governments that the framers of the Constitution originally intended, and one that conforms to the strict definition of a republic, in which governments at various levels have their own areas of responsibility, with which the higher-level governments are not supposed to interfere.
This is a great article Jim, thanks for posting it!
The question that arises is, IF there appears to be a groundswell of public opposition to HCR which results in the kind of legislation in Montana and Tennessee (regarding firearms), what can (or would) the Feds do to either coerce compliance or retaliate with punitive actions?
Withhold federal funds for non-HCR related programs? Federalize the hospitals? Considering the fascist nature of the 0bamunist regime we’re dealing with, I believe ANYthing is possible on the part of those thugs.
Hope your Christmas was great, and the New Year greater!
We the People, clearly have a right to not accept this so called 'reform'.
They'll need to dig up Sherman and jumpstart him.
bump and mark
Good to see this getting some traction. My servants will be hearing from me on Monday. (They already have e-mails from the Mrs)
This movement by the states has the potential to nullify other unconstitutional acts by Congress in the past thereby reverting us back to the intentions of the founding fathers when they wrote the Constitution.
Bfl.
Absolutely, states’ rights is the way to go.
You know I was just thinking about Steele. It’s hard for us to like Steele as we feel that the GOP has let us down so badly, and as long as there hasn’t been obvious transformational change, we know they will just do it again.
But Steele has at least been on-message with health care, without any particular side-swipes at conservatives that I’ve noticed.
One important message we need to get out is how utterly racist the Left is, carefully splitting America into racial groups to divide & conquer. That’s a message Steele could deliver pretty well. I wish he’d do that.
This must not become law. All of the Obama care scare must be nullified as it is not about health care, it is about power over all health care issues NOT about improving medical help/care.
New York could get interesting as Governor Paterson has had no choice but to take a fiscally conservative line. Fiscally conservative for New York. He owes nothing to the Obama administration or the national Dems and he can’t afford the increase in Medicaid expenses that come with the health care bill.
Paterson needn’t go whole hog for nullification to make trouble for the national Dems. Having New York defect from the Pelosi-Reid Axis would be enough.
Schumer and Gillibrand are national Dems, at odds with the needs of their home state.
Interesting.
If a state nullifies the “Obamacare”, do they also get to exempt residents from the higher taxes?
The Health Care Bill implements huge Federal taxes that will eventually be removed as a withholding from a person's paycheck. If we find a way to keep companies from withholding the taxes the Federal Government has basically taken over most of the financial institutions and will just start raiding everyones bank accounts.
If a state opts out the citizens will still pay but not get any of the “benefits” which will actually help keep the costs down. The Dims would love this scenario as they could contain costs and just not give services to the opt out states while confiscating every person's bank accounts via electronic transfers.
Since almost every financial institution has gone along with the Feds it would be quite hard to convince them to side with citizens and their states. It is not within their interest to side with freedom since they can make more money by going along with the corrupt Federal Government.
Flip the feds the bird bump.
/mark
Am I the only person who wonders if sometimes both parties pass something they know won’t pass legal muster that will look good to their constituents and when the court denies it they can blame the courts?
Don't get my hopes up like that!
I thought the title said:
"Nullification of HRC sought in several States"
Cheers!
...and Merry Christmas!
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