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.
Previous articles:
- Rep Michele Bachman wants 'House call' from ordinary citizens
- 'House call' draws big crowd on short notice
- Health care reform still might not pass the Senate
- Epic healthcare reform battle in Senate
- Two recent polls spell trouble for Obama health care reforms
- Democrats struggle for 60 votes as Senate healthcare debate begins
- Public option continues to divide Senate Democrats
- Abortion, public option, price might stop healthcare reform
- Public option might be replaced
- CMS actuary warns Senate bill will cost more
- Senator Lieberman not satisfied with Democratic compromise
- White House allegedly orders Reid to deal with Lieberman
- Health care reform coalition might be unraveling
- Nelson accepts provisions--and deal--but Stupak not satisfied
- Senate musters 60 votes for health care bill
- Healthcare reform opponents prepare constitutional challenges
- CBO suggests Democrats are double-counting Medicare savings
- Ten attorneys general may sue over Nebraska HCR deal
- HCR battle shifts to three new fronts
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Comments
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The Right won't be satisfied until our children are working 20 hour days in dirty factories and our elderly are dragging their half-dead starving carcasses to the soup kitchens for a shot at some bone soup. Then they'll tell us what they tell us now which is that "no one is starving in America." They'd love to see us clawing each others eyes out, licking our chops just for the chance to work for their rotten scraps. The corporate Right-wing doesn't think you're worth spending money on. They don't think we're worth the cost of health-care or education or civilization. They don't think we're worth giving a s#*t about. You like that? The proponents of social Darwinism will never give up until they've made their sick capitalist utopia a reality. Therefore we, the People, can never give up. Get off the couch and fight against them today or be prepared to fight for your very life come 20 years from now.
@Hillary --- The fight is about liberty and the freedom to choose your own health care. Those against the health care bill do not want to see our children as future servants to an all powerful government. Once health care is manage by our federal government, then there will be two options 1) bankrupt our country with excessive plans or 2) rationing... there is no other logical conclusion to this.
BTW, Hillary, do you think it is ok to steal money from one person to provide a good (health care) for another? It boils down to that no matter how you cut it. And don't give me this "its ok to steal from corporations" crap... because its not and honestly, this bill is stealing from every person in the this country... most of us by stealing cash, all of us by stealing freedom.
Nullify the damn bill!
Hillary,
The only Utopia I see in play at the moment is the 1984, Big Brother, coercive hell that The Obama and his Star Chamber of social/fascist revolutionary Czars are implementing. You make no mention of Law, the Constitution, natural rights, or liberty. Many of us consider that important to civic order.
I fail to understand why, when 75% of the citizens are satisfied with their current health care system it is considered a danger of epic proportions and must immediate be destroyed and rebuilt.
Basically my dear, your entire post is simply a hateful, intolerant, nonfactual, imaginary rant. It is pitiful you seem to believe our fellow citizens are so stupid as to be convinced by such rubbish.
Hillary says: "Get off the couch and fight against them today or be prepared to fight for your very life come 20 years from now. "
I'd suggest that Hillary should get off the couch and get a job so she can earn her own health care like the rest of us. Hillary, i don't want to be forced to pay for you or anyone else with my hard earned money.
Hillary says: "Get off the couch and fight against them today or be prepared to fight for your very life come 20 years from now. "
I'd suggest that Hillary should get off the couch and get a job so she can earn her own health care like the rest of us. Hillary, i don't want to be forced to pay for you or anyone else with my hard earned money.
I HOPE AND PRAY THOSE INVOLVED RE THINKING AMERICAN AND AMERICA. OTHERWISE A LOT OF DAMAGE COULD BE DONE WITH THEIR VOTES? SO ALL FOR THE TIME BEING E REAL AMERICANS CAN DO IS HOPE? IF IT PASSES THEN AMERICANS WILL HAVE TO FIGURE FROM THERE NOW.A BIRTH CERTIFICATE CARRYING LEGAL AMERICAN CITIZEN>>THINK ABOUT IT>>>
The Democratic Socialists in Congress are ruining this country. Remember this when you go to the voting booth in November 2010.
Republicans are useless a--holes that continue to allow the borders to stay open, allow Wall Street Criminals to be bailed out, and are no different from the useless liberal/leftist, communist democrats.
Anyone that thinks Sarah Palin is somehow going to save this nation is also deluded. I can tell, just by the answers she gave on illegal immigration that she will be useless of this issue and no different from open borders democrats. It's just amazing how many chimeras our traitorous political leaders throw at us and expect us to fall for--AND AMAZINGLY, WE USUALLY DO!!
The voting booth was tried in the past and it never worked so, why do you think it will work now? The globalists had shipped all the industry jobs overseas, gave us a Nazi government (National Socialist), corruption, deaf ears in Washington, bailouts, and many other nice things which are turning us into slaves. Yep it is 1860 all over again. "What once was will be again in another form or time" A Druid Saying.
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