By Alan Caruba
The resistance to Obamacare is writing a new chapter in U.S. history. It may well become the most unpopular law since Prohibition became an Amendment to the Constitution in 1919. By 1933, another Amendment repealed it.
Obamacare passed by a straight Democratic party vote on Christmas Eve in 2009. No Republican voted for it and, as one poll recently revealed, a third of Americans are still unaware it is the law of the land. A divided Supreme Court gave it a pass, calling it a tax, but it is a profoundly unconstitutional law insofar as the federal government may not pass a law that requires Americans to purchase something and to fine them if they do not. It is also playing havoc with the economy, delaying recovery as it deters hiring and encourages firing.
Nonetheless, a number of states have gone on record seeking to nullify its enforcement and some are doing the same as regards gun control. Arizona became famous when it passed its own immigration law in response to the federal government’s failure to protect its border with Mexico. The proposed “Gang of Eight” immigration law is facing stiff opposition for its various provisions, most of which do not address the central issue of security on the southern border.
How out of touch is the President? He went to Mexico and blamed the violence arising from its drug cartels on America, saying “Most of the guns used here to commit violence came from America.” He made no mention of the scandalous “Fast and Furious” scheme in which the ATF actually ran guns into Mexico, claiming they would track them. It took an executive order to throw a blanket of silence over it and a compliant media to ignore that scandal.
It is, however, Obamacare that poses the greatest threat to the nation, intruding on the patient-doctor relationship, robbing billions from Medicare to pay for it, requiring states to fund more Medicaid when many are strapped to meet other needs, and putting 16% of the nation’s economy under federal control.
A total of twenty-seven states have filed suit against Obamacare. Two federal judges have upheld its individual mandate to purchase health insurance and two others have ruled that it is unconstitutional.
Twelve states have introduced versions of the Federal Health Care Nullification Act that was drafted by the Tenth Amendment Center. They include Texas, Montana, Wyoming, Oregon, Alabama, and Maine. All declare that Obamacare is “hereby declared to be invalid, shall not be recognized, is specifically rejected, and shall be considered null and void and of no effect.”
In South Carolina, on May 1st, the state House passed a bill that declares the bill null and void and goes a step further, criminalizing its implementation. Earlier Governor Nikki Haley, in her state of the state address, said that South Carolina does not want and cannot afford Obamacare, saying of the President’s namesake, “not now, not ever.”
The following day, Kansas Governor Sam Brownback sent a letter in response to Attorney General Eric Holder’s opposition to its Second Amendment Protection Act, declaring it unconstitutional; essentially tell him to piss off. “The people of Kansas,” said the Governor, “have clearly expressed their sovereign will.” The same day, Missouri passed a comparable law protecting the Second Amendment.
Not since the years leading up to the Civil War was kicked off on December 20, 1860 when South Carolina voted for secession, has there been such open resistance to the mandates of the federal government by the states on a range of issues. Earlier, in 1832, President Andrew Jackson had threatened to send troops to South Carolina to enforce federal laws.
Nullification, however, will not succeed as a means to rid the nation of Obamacare. To Obama’s dismay, his gun control law failed in Congress when even members of his party joined in voting against it. The fate of immigration reform remains unknown but it will come to a vote soon enough.
The reason why nullification will fail is embedded in the Constitution. The Supremacy Clause states “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 found thereby, any Thing in the Constitution or Laws of any State to the Contrary, notwithstanding.”
That has not discouraged the legislatures of many states from expressing their opposition to Obamacare, intrusions on the Second Amendment right of citizens to bear arms, and to demand the federal government enforce the laws regarding its borders.
There isn’t a constitutional scholar that does not support the Supremacy Clause. The Heritage Foundation has a policy paper on the subject of nullification that says “there is no clause or implied power in either the national or the various state constitutions that enables states to veto federal laws unilaterally.”
The states, though, can express their displeasure and their opposition to federal laws and that is what lies at the heart of the spate of nullification laws that have been passed. As sovereign republics, the states can and do express themselves and, through their elected Senators and Representatives, have the power in concert to repeal obnoxious and injurious federal laws.
That will be the fate of Obamacare.
© Alan Caruba, 2013
Posted by William Kennedy
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, anything in the Constitution or laws of any State to the contrary notwithstanding. Article VI, US Constitution
Timothy Bloodworth in the State Ratifying Convention of North Carolina stated the consensus of those that opposed the Supremacy Clause when he stated, “It appears to me to sweep off all the Constitutions of the states. It is a total repeal of every act and Constitution of the states. The Judges are sworn to uphold it. It will produce an abolition of the state governments. Its sovereignty absolutely annihilates them.”
So, was Timothy Bloodworth and others who opposed the Constitution and the Supremacy Clause right or were the Federalists?
The major architects of the Constitution and those that led the fight for its adoption laid down what the Supremacy Clause meant in reality at the Ratifying Conventions, by doing so they defended State Sovereignty, and set the stage for the negation of unconstitutional actions.
Alexander Hamilton promised during the New York Ratifying Convention that the, “supreme Legislature has only general powers and the civil and domestic concerns of the people are regulated by the laws of the several States. … If the State governments were to be abolished, the question would wear a different face; but this idea is inadmissible. They are absolutely necessary to the system. Their existence must form a leading principle in the most perfect Constitution we could form.” And later he said, ““I maintain that the word supreme imports no more than this — that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding”. And again In Federalist #33: “It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution….” (Emphasis Added)
Or this from Thomas McKean, at the Pennsylvania Ratifying Convention: “The meaning [of the Supremacy Clause] which appears to be plain and well expressed is simply this, that Congress have the power of making laws upon any subject over which the proposed plan gives them a jurisdiction, and that those laws, thus made in pursuance of the Constitution, shall be binding upon the states”. (Emphasis added)
And from the First North Carolina Ratifying Convention where James Iredell said, “When Congress passes a law consistent with the Constitution; it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.” (Emphasis added)
James Madison further defended the Supremacy Clause in Federalist #45 by stating, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” (Emphasis added)
Then we have Noah Webster writing as “America” also explaining the Supremacy Clause when he stated, “you know that the powers of the Congress are defined, to extend only to those matters which are in their nature and effects, general. You know, the Congress cannot meddle with the internals police of any State, or abridge its Sovereignty. And you know, at the same time, that in all general concerns, the laws of Congress must be supreme, or they must be nothing.” (Emphasis added)
Repeatedly the Federalist indorsed arguments establishing federal supremacy in the areas that were laid out in the enumerated powers of the Constitution but in doing so, they recognized that in ALL other areas the states were supreme. This is what has come to be known as “dual federalism” or “dual sovereignty” and this is the common thread put forth in defense of the Supremacy Clause. They clearly intended that the states be a check on the general government exceeding its authority.
Thus by their very defense the proponents of the Supremacy Clause they established the concept of Nullification if not the word, that came later with Thomas Jefferson. Because as they the writers and ratifiers repeatedly stated that unconstitutional laws were “no longer supreme or binding” and “Congress cannot meddle with the internal police of any state, or abridge its Sovereignty”, they clearly intended for the states to be a “check” on the general government.
So, if the states where to be a check on the unconstitutional actions how where they to do so?
Well Thomas Jefferson said when writing in the Kentucky Resolves opposing the Alien and Sedition and Acts; “Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government … whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
And, …”that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers…
That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour (sic) of that instrument, is the rightful remedy.” (Emphasis added)
And what did Madison say when writing the Virginia Act opposing the same Alien and Sedition Acts?
“That this Assembly (Virginia) doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid than they are authorized by the grants enumerated in that compact; and that in case of deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. (Emphasis added)
“…That government was an agent. It could not be the judge of its own powers. To allow it to be so would mean nothing less than a government of unlimited power, a tyranny. The partners to the Constitution, the sovereign peoples of the States, were the final judges of what they had intended the Constitution to mean. When the general government exceeded its power it was the right and duty of the State to interpose its authority and defend its people from federal acts of tyranny – yes, to render a federal law inoperative in the State’s jurisdiction…” (Emphasis added)
Clearly, our Founders “are not united on the principle of unlimited submission to their general government”, they established the means for the states to defend themselves and their citizens from a general government that exceeding its authority and that power is NULLIFICATION.
I think the best description of what NULLIFICATION is and is not is found in Nullification: It’s Officialby Derek Sheriff.
“Nullification is not secession or insurrection, but neither is it unconditional or unlimited submission. Nullification is not something that requires any decision, statement or action from any branch of the federal government. Nullification is not the result of obtaining a favorable court ruling. Nullification is not the petitioning of the federal government to start doing or to stop doing anything. Nullification doesn’t depend on any federal law being repealed. Nullification does not require permission from any person or institution outside of one’s own state.
So just what IS “official” nullification you might be asking?
Nullification begins with a decision made in your state legislature to resist a federal law deemed to be unconstitutional. It usually involves a bill, which is passed by both houses and is signed by your governor. In some cases, it might be approved by the voters of your state directly, in a referendum. It may change your state’s statutory law or it might even amend your state constitution. It is a refusal on the part of your state government to cooperate with, or enforce any federal law it deems to be unconstitutional.
Nullification carries with it the force of state law. It cannot be legally repealed by Congress without amending the US Constitution. It cannot be lawfully abolished by an executive order. It cannot be overruled by the Supreme Court. It is the people of a state asserting their constitutional rights by acting as a political society in their highest sovereign capacity. It is the moderate, middle way that wisely avoids harsh remedies like secession on the one hand and slavish, unlimited submission on the other. It is the constitutional remedy for unconstitutional federal laws.”
William Kennedy [send him email] is the State Director for the North Carolina Tenth Amendment Center. A strong supporter of the Constitution, Declaration of Independence and the Bill of Rights with special emphasis on State Sovereignty protected by the Tenth Amendment.
- The Supremacy Clause (veteran-patriot.com)
- Nullification and Obamacare: rejection of the rule of law (inpropriapersona.com)
- Defending the Supremacy Clause via State Nullification (tenthamendmentcenter.com)
- Refuting Historical Ignorance On Secession & Nullification! (politicalvelcraft.org)
Could the recent Supreme Court ruling on the federal health care act bring conservative Republicans back to their state-sovereignty, nullification roots?
It just might.
Last week, two major conservative publications — National Review and The American Spectator — featured stories flirting with nullification. On top of that, millions of conservative Republicans got a nullification lesson on Thursday when Walter Williams guest-hosted “The Rush Limbaugh Show.”
Many Americans associate nullification with racism, because they think Southern states used the principle to protect slavery. In fact, northern abolitionists advanced nullification and appealed to “states’ rights” in their battle against fugitive slave laws. And while modern Republicans generally respond tepidly to the idea of nullification, their party was born out of a nullification fight in Wisconsin, a historical fact that long ago fell down an Orwellian memory hole.
Historically speaking, the Republican Party is the party of nullification.
In March of 1854, Benammi Stone Garland, two federal marshals and several others broke into the home of Joshua Glover. They clubbed him over the head, dragged him bleeding from his shanty and locked him up in the Milwaukee jail. Glover was an escaped slave, and Garland his “owner.” Legally, Garland had every right to take his “property” into custody and drag Glover back to Missouri. The Constitution provided for the return of escaped slaves. The Fugitive Slave Act of 1850 created the mechanism. The act denied due process to anyone accused of escaping slavery. Federal courts authorized the capture of fugitive slaves simply on the word of their “owners.” The accused weren’t even allowed to testify in their own defense. The Fugitive Slave Act was wildly unpopular and actively resisted in every northern state.
Wisconsinites quickly acted. Led by Sherman Booth, an abolitionist newspaper editor, several thousand people gathered on the steps of the Milwaukee courthouse. When a federal judge refused to release Glover on a writ of habeas corpus, the throng broke him out of jail and ushered him onto the famed Underground Railroad. Glover ultimately escaped to freedom in Canada.
The events of that spring day sparked a five-year battle between Wisconsin and the federal government. The feds charged Booth for violating the Fugitive Slave Act, but the Wisconsin Supreme Court freed him on a writ of habeas corpus, declaring the Fugitive Slave Act unconstitutional. Justice Abram Smith wrote, “Every jot and tittle of power delegated to the Federal Government will be acquiesced in, but every jot and tittle of power reserved to the States will be rigidly asserted.”
The aftermath of Glover’s escape led directly to the formation of the Republican Party. Anti-slavery meetings in the spring of 1854 spurred by the fight between Wisconsin and the federal government led to a statewide convention in July. The attendees formed a party and nominated candidates for the November elections. They called their new party “the Republican Party.” It flexed its muscle that fall, winning two of three congressional races and taking control of the Wisconsin legislature.
Republicans lost ground in 1855 when the party added temperance to its platform. But with the battle over slavery turning bloody in Kansas, Wisconsin Republicans turned things around in the 1856 elections. The fledgling party, promoting free soil and state sovereignty, took all three congressional seats, and grabbed firm control of the state assembly and senate. The Republican-controlled state legislature passed a resolution supporting the Wisconsin Supreme Court in nullifying the Fugitive Slave Act and interposing for Booth. It also defied federal law by passing a Personal Liberty Act. Among other things, the law gave county courts the power to issue writs of habeas corpus to fugitive slaves, made it the duty of district attorneys to seek their discharge and established fines of $1,000 for kidnapping free blacks.
The selection of Wisconsin’s next U.S. senator reveals the Republican Party’s deep state-sovereignty roots. The caucus put two resolutions to the candidates. The first endorsed Jeffersonian constitutionalism as expressed in the Kentucky Resolutions of 1798, which nullified the Alien and Sedition Acts. The second asserted that Republicans had a duty to stand by the state Supreme Court to “pronounce final judgment” in all matters regarding the reserved powers of the states and to shield residents from unconstitutional federal acts. Early front-runner Timothy Howe heartily endorsed the first resolution but equivocated on the second. He ultimately lost to James Doolittle, who pledged his full support for both resolutions.
The Republican Party grew from the soil of state sovereignty and nullification. Now is the time for Republicans to rediscover those roots and support state nullification of the federal health care act.
Mike Maharrey serves as the national communications director for the Tenth Amendment Center, a think tank promoting constitutional fidelity and working to restore a proper balance of power between the state and federal governments. You may contact Mike at: firstname.lastname@example.org.
- Nullification …. The Roots of the Republican Party (youviewedblog.wordpress.com)
- Republicans repealed the Fugitive Slave Act (grandoldpartisan.typepad.com)
- Stopping NDAA (personalliberty.com)
- Oklahoma Seeks Nullification of ObamaCare, Power To Arrest Federal Agents (libertycrier.com)
- Oklahoma State Rep. to Propose ObamaCare Nullification Bill (libertycrier.com)
- Should We Obey All Laws? (johnmalcolm.me)