A group of Americans who believe the federal government overstepped its constitutional bounds in passing the recent health-care legislation is rallying allies to a bold and controversial initiative: state nullification of the federal law.
“Now that health-care reform has been signed into law, the question people ask most is, ‘What do we do about it?’” said Michael Boldin, founder of the Tenth Amendment Center, in a statement. “The status-quo response includes lobbying Congress, marching on D.C., ‘voting the bums out,’ suing in federal court and more. But the last 100 years have proven that none of these really work, and government continues to grow year in and year out.”
Instead, the Center is reaching back into the history books to suggest states take up “nullification,” a controversial measure that would essentially involve states saying to the federal government, “Not in our borders, you don’t. That law has no effect here.”
The Center is partnering with WeRefuse.com to announce release of model nullification legislation for states, called the Federal Health Care Nullification Act, and a call for 100,000 Americans to join a state-by-state petition to prompt legislators into action.
“Nullification will allow Americans to stop the overreaching federal government now, not years from now,” said Trevor Lyman of WeRefuse.com in a statement. “We can make our biggest waves in local politics. Our state governments understand the impact of a vocal and irate minority, and they simply need to hear from us.
“WeRefuse.com and the Tenth Amendment Center’s Federal Health Care Nullification Act give our state legislators their marching orders,” he continued.
The question of whether nullification is a legal and permissible step, however, has been battled over since the ink was still wet on the U.S. Constitution.
The controversy stems largely from Article VI of the U.S. Constitution, which reads in part: “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.”
Many scholars today point to the Article VI “Supremacy Clause” as evidence that federal laws (such as the health-care legislation) override state laws (such as any proposed nullification act).
But not so fast, say nullification advocates, pointing to a different interpretation offered by some of America’s Founding Fathers, based on the phrase in Article VI that suggests only federal laws made “in pursuance” of the Constitution are supreme.
In 1788, Alexander Hamilton wrote to the people of the state of New York in Federalist No. 33, arguing that the yet unratified Constitution limited the Supremacy Clause to only constitutional acts, and that federal laws that strayed outside those bounds deserved to be treated by “the smaller societies,” meaning states, as “usurpation.”
“It will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land,” he wrote (all italics in the original). “These will be merely acts of usurpation, and will deserve to be treated as such. … It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution.”
Ten years later, when faced with the unpopular Alien and Sedition Acts of 1798, Thomas Jefferson and James Madison penned the Kentucky and Virginia Resolutions, respectively, which asserted that the Acts had infringed on powers reserved “solely and exclusively to the respective states” and were therefore “altogether void and of no force.”
In 1822, the Massachusetts Legislature, known as the General Court, blasted a federal embargo as “usurpation” and “oppression.”
“We tremble for the liberties of our country! We think it the duty of the present generation, to stand between the next and despotism,” reads a committee report voted on and adopted by the wider Court. “The Committee are of opinion that the late act laying an embargo is unconstitutional, and void in divers of its provisions; not upon the narrow ground that the Constitution has expressly prohibited such acts, but upon the more broad and liberal ground that the People never gave a power to Congress to enact them.”
The Court’s solution was nullification, writing, “Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor its victim.”
All the talk of nullification, however, came to a head in 1832, when South Carolina passed the Ordinance of Nullification, declaring a pair of federal tariffs unconstitutional and void within the sovereign boundaries of South Carolina. The Ordinance, in turn, prompted Congress to pass a bill permitting the president to use military force if necessary against the state, a showdown that nearly began the Civil War decades early.
President Andrew Jackson then became one of history’s loudest voices against nullification, arguing that it was “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.”
Congress changed its tariff laws in 1832, and South Carolina, in turn, backed off its nullification, thus averting the crisis.
Over the past five years, dozens of states have taken up laws or resolutions to reassert states’ rights against an ever-expanding federal government. And while none of these has been so bold as to use the word “nullification,” several measures, in effect, look much the same.
Maine, for example, led the nation in 2005 by passing a resolution in opposition to the Bush-era law establishing a REAL ID system. But in 2007, Maine also passed L.D. 1138, the Act to Prohibit Maine from Participating in a National Identification Card, an act that essentially nullifies the federal law.
According to the Tenth Amendment Center, 24 other states have since passed similar resolutions and laws resisting the REAL ID Act of 2005. Should the Act – enforcement of which has been delayed incessantly and resisted at the federal level – be put into full effect, America may have to resolve the controversy that has been brewing since at least 1788.
As WND has reported, six states now have taken a similar stand on gun laws. Earlier this month, Arizona declared that guns made and kept inside its borders essentially are free from federal application, registration and ownership regulations.
Arizona Gov. Jan Brewer issued a statement that her state’s new law is intended to give Washington the message that they should not try to “get between Arizonans and their constitutional rights.”
WND also reported earlier when Wyoming joined the states with self-declared exemptions from federal gun regulation, officials there taking the unusual step of actually including penalties for any agent of the U.S. who “enforces or attempts to enforce” federal gun rules on a “personal firearm.”
The costs could be up to two years in prison and $2,000 in fines for an offender.
As WND reported, the action was filed by the Second Amendment Foundation and the Montana Shooting Sports Association in U.S. District Court in Missoula, Mont., to validate the principles and terms of the Montana Firearms Freedom Act, which took effect Oct. 3, 2009.
Gary Marbut of the Montana Shooting Sports Association argues that the federal government was created by the states to serve the states and the people, and it is time for the states to begin drawing boundaries for the federal government and its agencies.
In demanding the dismissal of the case, the government claimed the authority to regulate even “intrastate” commerce if it chooses.
In an analysis by the Tenth Amendment Center, the gun laws were described as a nullification.
“Laws of the federal government are to be supreme in all matters pursuant to the delegated powers of U.S. Constitution. When D.C. enacts laws outside those powers, state laws trump. And, as Thomas Jefferson would say, when the federal government assumes powers not delegated to it, those acts are ‘unauthoritative, void, and of no force’ from the outset,” said the analysis.
Now, however, the Center is calling Americans to start calling a spade a spade and insist on nullification of the Patient Protection and Affordable Care Act.
“It’s time to remind the federal government that We the People are in charge and not the other way around,” said Boldin. “Following the Constitution every issue, every time, without exceptions or excuses requires us to resist federal overreach and keeping our health-care decisions where the Founders assured us that they’d be and where they belong – close to home.”