States Launching 'Civil Disobedience' to National Health Care

Lawmakers opposed to President Barack Obama's plan for national health care reform are hoping to spur a nationwide "civil disobedience" that can derail Obamacare.

State Rep. Brian Calley, R-Portland; State Rep. Justin Amash, R-Kentwood; and State Sen. Wayne Kuipers, R-Holland, have each introduced similar constitutional amendments that seek to trump the national health care bills.

For example, Sen. Kuipers' bill would prohibit a federal law from compelling any person, employer or health care provider to participate in any health care system. It also prevents anyone from being penalized for ignoring the federal law.

"Where this is going, I don't know," Kuipers said this week. "You don't know until the states try to do it."

According to a 10th Amendment think tank, 26 states have attempted their own versions of Kuipers' bill. Arizona has had its version passed by both houses of Congress, and it will be voted on by residents in November. Virginia also had both houses of Congress pass a similar bill, and it is awaiting the governor's signature.

Constitutional law experts say state law does not take precedence over federal law.

"This would violate the U.S. Constitution if challenged," Frank Ravitch, a professor of law at Michigan State University College of Law, wrote in an e-mail.

Kermit Roosevelt, a professor at the University of Penn Law School, wrote in an e-mail that the Supremacy Clause in Article VI of the Constitution gives federal law power over state law.

"States cannot say no to a federal mandate," Roosevelt wrote. "Any state law or constitutional provision that conflicts with a federal law is void."

Michael Boldin, founder of the 10th Amendment Center — a public policy think tank in Los Angeles — said there are cases where state resistance has stymied federal law.

The REAL ID Act of 2005 is a U.S. federal law that was to impose new security standards for a state's driver's licenses. Many states opposed it with their own state laws, and the act has not been implemented, Boldin said.

"Basically a bunch of people all across the country are saying, 'No. We aren't going to go along with it,' and getting state government to back them," Boldin said. "They (federal government) didn't threaten to take away funding. They didn't send in armed guards. They just repeatedly delayed implementation. In fact, it (REAL ID) is null and void.

"The real success in these actions is 'we the people' saying we are in charge and the federal government is not going to force things down our throat."

Boldin said medical marijuana could also be a route that the states go in their battle against Obama's health care plan.

In California and Michigan, the state law is in conflict with the national law on marijuana. In both states, the federal government can prosecute for medicinal marijuana use even though the state allows it.

"You can have a situation where federal law prohibits something that states permit," Roosevelt said. "That means that the state won't arrest or prosecute you for it, but the federal government still might. State law can't protect you from federal law. But enforcement of marijuana laws is a low priority for the federal government, so effectively you might be safe — I think the Obama administration actually had a policy statement about how they weren't going to devote resources to this in California."

Boldin said that is why it is important for as many states as possible to join the other states if they want to make Obamacare realistically unenforceable.

That is a really interesting issue. The Migratory Bird Treaty was the first treaty used in combination with the Interstate Commerce clause to give the federal government the power to regulate private natural resource use. This expanded into the federal Endangered Species Act.

There is an excellent Australian synopsis about the issues of treaty making and federalism: http://www.aph.gov.au/Senate/committee/legcon_ctte/completed_inquiries/pre1996/treaty/report/ (Chapters 3 and 10) It explains how the International Community dislikes the problems that our federal form poses in approving and implementing treaties. The Vienna Convention on the Law of Treaties assumes that there is a sovereign at the top that has the capacity to enter into a treaty. In our system, the People are sovereign and power is fractionalized among layers and branches of government. With treaties that reach into domestic matters, that poses a real problem.

It also explains that International Law can apply to a country that has not even signed a treaty. You can see where this would be a problem when Supreme Court Judges believe that International Law should be taken into consideration.

Some older treaties include a federal clause, but other governments don’t like this as they are bound and we are not. Sometimes we use a reservation. An example is the following federal clause from article 34 of the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage:

“The following provisions shall apply to those State Parties to this Convention which have a federal or non-unitary constitutional system:

“(a) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of the federal or central government shall be the same as for those States Parties which are not federal States;”

“(b) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of individual constituent States, countries, provinces or cantons that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States, countries, provinces, or cantons of the said provisions, with its recommendation for their adoption.”

Generally, treaties made pursuant to the Constitution are the supreme law of the land on an equal footing with federal legislation. However, both implementing legislation and treaty provisons may be superceded by subsequent modifying or annulling federal legislation. The duty of the Courts “is to construe and give effect to the latest expression of the sovereign will.”

Supposedly, treaties should not give the federal government authority that has not been delegated to it in the Constitution. In implementing a treaty, Congress cannot abrogate the structural separation of authority under constitutional principles of dual sovereignty and assume either reserved State powers or powers reserved to the people. Under the principles of dual sovereignty, Congress may not impose legislation upon the States, although it may recommend implementing legislation to the States. Federal legislation must act directly upon individuals. The Courts will nullify State legislation that is contrary to “self-executing” treaty provisions or construe such legislation in harmony with a treaty.

In my (non-exhaustive) research, I came upon the following relevant cases that examined the treaty powers:

Justice Field’s opinion in De Geofroy v. Riggs, 133 U.S. 258 (1890):

“...That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations is clear. It is also clear that the protection which should be afforded to the citizens of one country owning property in another, and the manner in which that property may be transferred, devised, or inherited, are fitting subjects for such negotiation, and of regulation by mutual stipulations between the two countries. As commercial intercourse increases between different countries, the residence of citizens of one country within the territory of the other naturally follows; and the removal of their disability from alienage to hold, transfer, and inherit property, in such cases, tends to promote amicable relations. Such removal has been, within the present century, the frequent subject of treaty arrangement. The treaty power, as expressed in the constitution, is in terms unlimited, except by those restraints which are found in that instrument against the action of the government, or of its departments, and those arising from the nature of the government itself, and of that of the states. It would not be contended that it extends so far as to authorize what the constitution forbids, or a change in the character of the government, or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent. Railroad Co. v. Lowe, 114 U.S. 525, 541, 5 S. Sup. Ct. Rep. 995. But, with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 100 J.S. 483; 8 Ops. Atty. Gen. 417; People v. Gerke, 5 Cal. 381.

Justice Sutherland in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) (This is a good case to read):

“It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differences are fundamental, may not be doubted.”

In 1956, the U.S. Supreme Court in Reid v. Covert observed that the Court has “regularly and uniformly recognized the supremacy of the Constitution [U.S.] over a treaty.”

As I recall, Larry Beecraft did some good research on treaties and municipal powers: http://home.hiwaay.net/~becraft/TREATIES.html

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.