Nullification Not the Answer to Health Care Bill

The next big debate on health care is likely to be about “nullification” and the supremacy of federal law over state law.  Some forty states have expressed their intent to resist various provisions of the Health Care bill passed by Congress.  Some have instructed their Attorneys General to file suit in federal court challenging the Constitutionality of the mandate for individuals to purchase health insurance.  Others have passed or proposed resolutions contesting Congress’ constitutional authority regarding other provisions.  Several have simply passed laws or resolutions stating that certain provisions in the new law would not be enforced in their states.  This practice is known as “nullification”.

Most of the self-anointed “constitutional scholars” of academia have opined that the supremacy clause in the Constitution would trump any laws passed by the states.  The supremacy clause is found in Article VI, Clause 2 and says,

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding“.

The controversy over nullification goes back to the founding of our country. The first attempt at nullification was in the Kentucky and Virginia Resolutions of 1796 opposing the “Sedition Act” passed by John Adams.  The Kentucky Resolution, secretly written by Thomas Jefferson contained this assertion:

“…therefore this commonwealth is determined, as it doubts not it’s co-states are, to submit to undelegated & consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government being chosen by the people, a change by the people would be the constitutional remedy; but where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every state has a natural right in cases not within the compact ( casus non foederis) to nullify of their own authority, all assumptions of power by others within their limits, that without this right they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them:…” (Emphasis added)

When President Jefferson took office in 1801 he pardoned everyone convicted under the Sedition Act. Since the Act was scheduled to expire at the end of Adam’s term in office the need for nullification died with it and a Constitutional crisis was avoided.

Chief Justice John Marshall, in the landmark case “Marbury vs. Madison (1803) ruled that “a law repugnant to the Constitution is void”.  This was the first Act of Congress declared to be unconstitutional by the Supreme Court and established the doctrine of “judicial review”.  While the Marshall Court claimed the power to render judgment on the constitutionality of laws passed by Congress it did not deal with the right of states to do the same.

The next major confrontation between Congress and the States came in 1832 and led to the “Nullification Proclamation” by Andrew Jackson.  The State of South Carolina, in opposition to the tariff acts of 1828 and 1832 passed a proclamation stating that the tariff acts “are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State.”  After Jackson issued his Proclamation against South Carolina, Congress passed the “Force Act” authorizing the use of military force against any state resisting the tariff acts.  Both South Carolina and Jackson prepared for military conflict over the issue, however, a compromise was reached in 1833 that defused the situation and avoided an actual confrontation.

The most serious confrontation between the federal government and states was the Civil War. It is generally thought that the Civil War established the supremacy of federal law over state law for all time. The real lesson to be drawn from these historical instances of states resisting the authority of the federal government, whether constitutional or unconstitutional, is that the federal government cannot “back down” once it has established a course.  With Obama in the Oval Office and a progressive Congress, it is not likely that it will back down in the case of health care.

Even a casual reading of the “Supremacy Clause” limits it to laws made “pursuant” to the Constitution and, while the separation of powers in the Constitution and the Tenth Amendment, the Supreme Court ruling in Marbury vs. Madison, and the assertion that the powers of government ultimately come from the people as expressed in the Declaration of Independence, all support the right of the people and the states to nullify unconstitutional acts of Congress, it is the federal government that has the superior power of force. For that reason, nullification is not the real answer to Obama and Congress’ usurpation of power with the health care act and the other unconstitutional acts of this Congress.

As the Kentucky Resolution acknowledges, “a change [of Congress] by the people would be the constitutional remedy”.  It is also the only remedy available at the present time short of the use of force.  It is important that as many progressives (American Socialists) as possible, in both parties, be tossed out in the next election. Those that are not fired in 2010 have to be gotten rid of in 2012.  That is the only way we can preserve our republic and avoid a progressive oligarchy.

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