The debate over nullification rages on, with the Idaho House having passed a nullification resolution (HB 59), despite the statement of Idaho Attorney General Lawrence Wasden’s office that the “Patient Protection and Affordable Care Act” is constitutionally legal, and thus cannot be nullified. Mr. Wasden is our state’s chief lawyer after all, and in holding that office I would hope he’s properly qualified even if I do completely disagree with his legal opinion. However, as I understand the Constitution, the US Congress does not have the authority to order state legislatures to do its bidding, but they can compel the states to do as they are told, in that Congress can place conditions on any federal funding it offers the state. For example, in the 1980s, all states had to raise their drinking age to 21 or the federal government would hold back 5% of the dissenting state's highway funds. In a similar manner, all states must follow federal education guidelines, or risk loosing their federal educational funding. This sorry situation has developed over the last seventy-five years, beginning with FDR’s New Deal and the dispersal of federal funding in response to the great depression. Since that time, the several states have become more or less dependant on federal largess to keep their assorted “entitlement” programs alive, and a lot of politicians in office.
A Federal Union is a good way to do business, as long as the member states willingly retain their membership. When however, they are forced to remain part of the union against their will, or to “do things” that the citizenry opposes, it becomes a repressive political system. (This observation also applies to just about every field of human endeavor, from sports teams to marriage to political relationships.) Objecting to federal force, the effort by Idaho lawmakers (sponsored by Representatives Vito Barbieri and Judy Boyle, along with Senators Monty Pearce, Steve Vick and Sheryl Nuxoll) to nullify Obamacare suffered some temporary setbacks, but was passed and declares the ‘Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010’ (Obamacare) to be "not authorized by the Constitution of the United States," and therefore is, "null, void and of no effect regarding any Idaho citizen." Cheers to the Idaho House for at least trying, and jeers to the Senate for letting the bill die. (Or, as County Commissioner Skip Brandt said: “There’s to many lawyers in the Senate”.) The loony left, the mainstream media, and of course the Feds all object to nullification, claiming that the individual states do not have the authority to nullify anything, citing the “Supremacy Clause” of the Constitution. However, one should never assume that a politician at the national level would support the idea of nullification, as one seldom mentioned function of government (and any bureaucracy) is to keep itself in power, while expanding that power by any means possible.
The supremacy clause can be found in Article VI, Clause 2 of the Constitution, stating: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land.” Does this mean that any and every law passed by Congress and signed by the President becomes the "supreme law of the land," even if it violates expressed provisions of the Constitution itself? Apparently so according to many judges, members of Congress, and "legal scholars" who hold such a view of federal absolutism. And that’s the position taken by Rep. Fortney "Pete" Stark (D-Calif.) at a town hall meeting last year. Responding to a question about Obamacare, Rep. Stark replied that the rulers in Washington "can do most anything in this country," followed by "I think that there are very few constitutional limits that would prevent the federal government from [making] rules that could affect your private life." The questioner then asked: "If they can do this, what can't they do?" Rep. Stark replied "The federal government, yes, can do most anything in this country...." So far, the Supreme Court seems to take a similar view, and would make nullification unconstitutional. Today’s politicians have no difficulty in finding those legal scholars who will support that interpretation, although personally I’d rather take the word of the folks who wrote the constitution. Since the start of the administrative state with FDR’s new deal, there have been plenty of folks in the federal courts and academia pushing for unlimited federal power.
Now, I’ll ask a question: Are civil laws meant for citizens but not the police? Are moral laws meant for laymen but not clergy? Are constitutional limitations meant for states but not the feds? (It’s certainly looking that way in Sodom-on-the-Potomac!) Our federal government has a long history of violating Constitutional limits, but several of these recently passed laws may well be the straw that breaks the camel’s back, as pointed out by lawmakers in nearly a dozen states who have been talking quite seriously about nullification… of Obamacare, the Environmental Protection Act, the Endangered Species Act, and gun control. The Loony Left of course has been weeping and wailing about the potential loss of their pet programs, and of late have begun telling us that such action might start another Civil War… despite the fact that the American people don’t have a history of throwing a rebellion every time they get mad at the folks on Capitol Hill. And quite unlike some of our more excitable neighbors around the world, Americans do have a habit of voting with a ballot rather than a bullet.
But, like the patience of the American people, the authority of Congress to impose conditions upon the states is not limitless, and the states do have a few teeth of their own.
The Jeffersonian doctrine that recognizes states’ right to reject unconstitutional federal law is not a new concept, and has been used of late. In 2008, our state lawmakers rejected the federal government’s REAL ID Act, which would have required everyone to carry a national ID card. At the time, the Legislature declared the federal law to be “a violation of the principles of federalism contained in the 10th amendment to the Constitution of the United States”, decreeing that “the state of Idaho shall not participate in the implementation of the REAL ID Act of 2005.” As I remember things, this didn’t cause the state to secede from the national government, nor were we invaded by federal forces. In fact, the bill was passed unanimously, signed by the governor here (and similarly in 21 other states), and today we don’t carry a national ID card. When California voters approved Proposition 215 to allow the use of medical marijuana, the word "nullification" was brought up. Opponents of the proposition cited the supremacy clause as usual, claiming the state had no authority to violate federal marijuana laws. But millions of Californians voted to violate those laws anyway. And, when the Supreme Court ruled that state-level medical marijuana laws were illegal, the dispensaries didn't start closing up shop. By 2005, nine other states that had joined California in passing those medical marijuana laws. After the Supremes told the nine states that such laws were a no-no, how many of them were repealed? None, and since that time yet another five states have joined up. Think about it, there are now 15 states actively defying Congress and the Supreme Court on that one issue, and they’re getting away with it. That, more than anything else, is what nullification is all about… state action which results in ill considered federal laws being rendered unenforceable. The idea is popping up in legislatures all across the nation, as irate conservative citizens push their anti-spending, anti-imperial government agenda.
Let all your state and federal representatives know your opinion about these onerous laws they’ve been cramming down our throats, and remind them that if they’d like to keep their cushy jobs, they might want to remember that you do vote.
Saturday, April 23, 2011
Nullification again
As I’ve previously commented, Nullification is the legal argument that the Sovereign States have the right to invalidate (nullify) any federal law which the state has deemed unconstitutional. This is based on the fact that that the sovereign states created the Union, after they formed the Continental Congress and fought (and won) a revolution, after they tried the unwieldy Articles of Confederation, and after they wrote and adopted the compact called the Constitution of the United States. As such, the separate states are the ultimate authority on deciding the limits of federal power. Nowhere in the Constitution do I find anything that says the states ever surrendered that authority! Thomas Jefferson and James Madison, both authors of our Constitution, argued that the states are the ultimate interpreters of the Constitution and can "interpose" to protect state citizens from the operation of unconstitutional national laws. Under this legal concept, the States and not the Federal Bench, are the ultimate interpreters of the extent of the national Government's power. A somewhat more extreme step towards enforcing state sovereignty is the related action of secession, by which a state ends its affiliation with the Union.
In a unanimous 1958 ruling, the Supreme Court wrote that states were bound by the Constitution's Article VI, mandating that U.S. laws, when vetted by justices, "shall be the supreme law of the land." While I’m certainly not a legal authority, I seriously question the right of the Federal Bench to proclaim their authority over an inferred right of the soverign states! While the concept of nulification is a little used tool in our nations legal system, it has, over the last couple of centuries, been brought to the forefront in various legal arguments, most notably in 1828 by John C. Calhoun, then vice-President of the United States, in arguing against the tarriff bill of that year. Calhoun argued that the individual states had retained the right to veto any act of the federal government that violated the Constitution. Jefferson and Madison argued that if the federal government had the right to judge the extent of its powers it will continue to grow, regardless of elections, the separation of powers, and other limits on government power. In an effort to retain their power, the Supreme Court rejected the idea of nullification, determining that state governments had no power to nullify federal law, either openly by state legislators, state executive, or judicial officers, nor can federal law be nullified indirectly by them through evasive schemes.
We commonly speak of keeping our federal government strictly limited. To that end, the United States has a written Constitution which specifies the rather short list of those powers entrusted to the federal government. Additionally the Tenth Amendment makes it quite clear that any power not specifically granted to the federal government resides in the states, period, end of sentence. That is all well and good, but how do we restrain a government that is (following what seems to be a law of nature) always trying to expand its powers? The framers of the Constitution were well aware of the tendency for power to concentrate and expand, leaving Jefferson to often speak of the calamity that would result if all power were vested in the federal government.
The Constitution is a barrier to such tendencies, but no constitution can enforce itself. Checks and balances also provide little guarantee of limited government, since the three federal branches can simply unite against the independence of the separate states and the rights of the people, which is precisely what Jefferson warned was already happening in 1825: “[I]t is but too evident, that the three ruling branches of [the Federal government] are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.”
Therefore we need a mechanism to keep the federal government limited and unconstitutional measures out of the law books, and that is the constitutional remedy known as nullification.
Examples of direct nullification attempts are rare, with one being the recent Virginia Health Care Freedom Act to prevent the federal government from requiring mandatory insurance coverage. In 2009, a state sovereignty resolution passed both chambers of the Tennessee legislature, and while relatively toothless, it was the first time such a resolution had been signed by a state governor. Since then, Alaska, North Dakota, South Dakota, Idaho, and Oklahoma have passed similar resolutions, and several other states are taking a long look at the possibility. I, like many others, have high hopes for nullification, but remember, its one thing to pass a symbolic resolution, but it’s going to be quite another to make it stick.
In a unanimous 1958 ruling, the Supreme Court wrote that states were bound by the Constitution's Article VI, mandating that U.S. laws, when vetted by justices, "shall be the supreme law of the land." While I’m certainly not a legal authority, I seriously question the right of the Federal Bench to proclaim their authority over an inferred right of the soverign states! While the concept of nulification is a little used tool in our nations legal system, it has, over the last couple of centuries, been brought to the forefront in various legal arguments, most notably in 1828 by John C. Calhoun, then vice-President of the United States, in arguing against the tarriff bill of that year. Calhoun argued that the individual states had retained the right to veto any act of the federal government that violated the Constitution. Jefferson and Madison argued that if the federal government had the right to judge the extent of its powers it will continue to grow, regardless of elections, the separation of powers, and other limits on government power. In an effort to retain their power, the Supreme Court rejected the idea of nullification, determining that state governments had no power to nullify federal law, either openly by state legislators, state executive, or judicial officers, nor can federal law be nullified indirectly by them through evasive schemes.
We commonly speak of keeping our federal government strictly limited. To that end, the United States has a written Constitution which specifies the rather short list of those powers entrusted to the federal government. Additionally the Tenth Amendment makes it quite clear that any power not specifically granted to the federal government resides in the states, period, end of sentence. That is all well and good, but how do we restrain a government that is (following what seems to be a law of nature) always trying to expand its powers? The framers of the Constitution were well aware of the tendency for power to concentrate and expand, leaving Jefferson to often speak of the calamity that would result if all power were vested in the federal government.
The Constitution is a barrier to such tendencies, but no constitution can enforce itself. Checks and balances also provide little guarantee of limited government, since the three federal branches can simply unite against the independence of the separate states and the rights of the people, which is precisely what Jefferson warned was already happening in 1825: “[I]t is but too evident, that the three ruling branches of [the Federal government] are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.”
Therefore we need a mechanism to keep the federal government limited and unconstitutional measures out of the law books, and that is the constitutional remedy known as nullification.
Examples of direct nullification attempts are rare, with one being the recent Virginia Health Care Freedom Act to prevent the federal government from requiring mandatory insurance coverage. In 2009, a state sovereignty resolution passed both chambers of the Tennessee legislature, and while relatively toothless, it was the first time such a resolution had been signed by a state governor. Since then, Alaska, North Dakota, South Dakota, Idaho, and Oklahoma have passed similar resolutions, and several other states are taking a long look at the possibility. I, like many others, have high hopes for nullification, but remember, its one thing to pass a symbolic resolution, but it’s going to be quite another to make it stick.
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