Nullification Confusion

Obamacare is the “law of the land,” except where it’s not. The states have historically been unable to resist the federal government, except when they did. The Supreme Court says that states can’t nullify federal laws, but they do it anyway.

These are the confused conclusions of a recent piece on state resistance to Obamacare by Stateline staff writer, Michael Ollove. It’s hard to determine if the article is a criticism of the principle of nullification or not, because of the conflicting messages it contains. As best I can tell, Ollove’s analysis boils down to three points. First, Obamacare is the law of the land. Second, it would be unwise and unlikely for states to resist the federal money that comes with Obamacare. And third, the fact that nullification has been successful throughout history is negated by the Supreme Court’s rulings against it.

Let’s address each of these points in order. First, is Obamacare really the “law of the land”? I suppose you could make that case if you buy the modern interpretation of the Supremacy Clause in which any legislation that is passed by Congress, signed by the president and upheld by the Supreme Court is law. Fortunately, Americans’ slavish devotion to this principle is entirely self-imposed and can be remedied by even the most cursory reading of the Constitution.

The Supremacy Clause reads, “This constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…” The clause itself lends no constitutionality to any law. It only states that if a law is passed which is in compliance with the Constitution, then it is the law of the land. Since the Constitution grants no power to the federal government to regulate health care, this power is retained by

Boy, I like what I’m seeing in this article. The summary of what I’ve gleaned…

Ollove: First, Obamacare is the law of the land.
Lewis: Since the Constitution grants no power to the federal government to regulate health care, this power is retained by the states…Obamacare is unconstitutional and thus it is clearly not the law of the land.

Ollove: Second, it would be unwise and unlikely for states to resist the federal money that comes with Obamacare.
Lewis: Not only is it unwise to accept federal funds and their attached strings, it’s also entirely unbefitting a free people.
Me: I think states would be better off abandoning federal funds and the bankrupting Socialist strings attached and shift into a robust free-market, low-tax economy. If little natural-resource-poor Hong Kong can do it, any state can do it.

Ollove: And third, the fact that nullification has been successful throughout history is negated by the Supreme Court’s rulings against it.
Lewis: Thomas Jefferson clearly didn’t think so, saying that the federal government “was not made the…final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.” If our constitutionally protected rights are to remain intact, the federal government cannot have the authority to define its own limits.

Lewis’ conclusion: Unconstitutional laws are not the “law of the land.” The states can and should resist them and the temptation to sell their independence to the federal government, the opinions of nine black robes notwithstanding. These are truly American ideals, based on the guiding principle of the American Revolution, the right of self-government. This light of the Revolution no longer shines in Washington D.C., but rather in the states who are bold enough to stand the same principled ground as our founders.

There’s a critical dividing line that few are aware of.

In past, the SCOTUS has ruled that congress is superior to state legislatures, *and* that federal judges are superior to state judges. But it has *never* ruled that the US president is superior to state governors.

This is critical in US history, because whenever a POTUS and a state governor are at loggerheads, the *only* way the POTUS can enforce his will is with the US Army.

The best example of this was when Andrew Jackson was POTUS, and South Carolina attempted to nullify what it called unconstitutional tariffs that Jackson had instituted. This resulted in the “Nullification Crisis” of 1832.

http://en.wikipedia.org/wiki/Nullification_crisis

Jackson won only by threatening to send in the military to arrest and hang every legislator who had voted for it.

The second example was far more recent, when the governor of Arkansas, Orval Faubus, Bill Clinton’s mentor, tried to block integration of Little Rock high school, and Eisenhower sent in the 101st Airborne Division.

http://en.wikipedia.org/wiki/Little_Rock_Integration_Crisis

However, it took a long time for these issues to come to a head. The most recent example of a president *not* trying to force a governor to act was when George W. Bush offered aid to Louisiana during hurricane Katrina, and the governor of Louisiana dithered, refusing to act, but by doing so also prevented the federal government from acting.

Bush refused to overrule the governor in that case by declaring a federal martial law over the area.

There is, however, waiting in the wings, something that progressives have been wanting to do since FDR, which is in effect to erase state governments entirely, replacing them with regional authorities.

This was about half the intent of the original Tennessee Valley Authority scheme. But it went nowhere, because nobody else wanted it.

In any event, there is a practical side to nullification that is also seldom mentioned. That enforcement of federal law is to a great extent up to the states, and if they refuse to enforce federal law, there is instantly an impasse.

Medical marijuana is a huge example of this. It is a federal crime, but in many states it is only prosecuted by federal authorities. The states and local authorities ignore the federal law, and are under no obligation to enforce it.

It is “de facto” (in fact) nullification; even if it is not “de jure” (in the law) nullification. To date, this is the most effective form of nullification.

O please give me a break...

Jackson won only by threatening to send in the military to arrest and hang every legislator who had voted for it. bs/

Washington (Jackson) saw it a different way when confronted with...this.

“In Charleston Governor Robert Y. Hayne ... tried to form an army which could hope to challenge the forces of ‘Old Hickory.’ Hayne recruited a brigade of mounted minutemen, 2,000 strong, which could swoop down on Charleston the moment fighting broke out, and a volunteer army of 25,000 men which could march on foot to save the beleaguered city. In the North Governor Hayne’s agents bought over $100,000 worth of arms; in Charleston Hamilton readied his volunteers for an assault on the federal forts.”

this and this only brought them to the table and an agreement..for all to stand down.

Jackson knew his brother and sister South Carolinians would fight him to the last drop of blood from the Scot-Irishman.

http://www.digitalhistory.uh.edu/disp_textbook.cfm?smtID=3&psid=371

“In the proclamation that follows, Jackson declared nullification illegal and became the first President to declare the Union indissoluble. He then asked Congress to empower him to use force to execute federal law; Congress promptly enacted a Force Act. Privately, Jackson threatened to “hang every leader...of that infatuated people, sir, by martial law, irrespective of his name, or political or social position.” He also dispatched a fleet of eight ships and a shipment of 5000 muskets to a federal installation in Charleston harbor.”

Again, Privately we (South Carolina) threatened to kick his a$% if he tried. Jackson, is from the up state of South Carolina. We knew his thinking.
Calhoun and his family lived a few miles down the road from me. We know all the stories very well down here.

This my friend is what lead to the big war. The war of Northern Aggression.
We by god did something instead of sitting around talking about it.
You, as we say, are fixing to see what we can do again real soon.

The South Carolina State house has passed it and the Senate is looking to pass the bill that would make it the first state in the country to nullify the Affordable Care Act.

end of story. Nothing left to do but wait on the Government threats, just like Jacksons sent.
Guess what we are going to tell the Government.....again.

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