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.
Janet should be the first hung for treason.
Cheers!
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bump for publicity
Fact is, even if patriots stood aside, implementation of this nightmare, should it pass, is already bound to be a civilizational cluster-you-know-what of monumental proportions.
What is it? A hundred and fifty new agencies and offices to be set up either immediately or within a couple years? Whole new layers of bureaucracy, and multiple levels of coordination with state agencies, all based on often ambiguous legislation written in backrooms on the fly, much of it never even submitted to committee review, some of it never even printed up before votes were held?
Were it not going to destroy millions of jobs, tens of millions of lives, and cost trillions of dollars, all not only for no benefit, but rather for degradation in health services, it would almost be funny to watch Obama's Keystone Kops try to pull this off.
Reform: We’re being *chloro*formed.
Maybe this is what we need to overturn automatic withholding, the law/regulation I would most like to see repealed. If everyone had to actually write that check to the government every payday, there wouldn't be a Tea Party, there'd be a Tea Riot.
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