Hoosiers pick up nullification hammer

By Connie Kovas Moreno

It's about time. Last week Indiana State House Rep. Tim Harman submitted an honest to God real nullification bill, which was funneled into the House Ways and Means Committee. A nullification bill, as in "null and void." A nullification bill that dismantles Obamacare within our state borders.

Remember when President Obama insisted each state set up an "Exchange"? Remember when Indiana's common-sense governor, Mike Pence, refused? I suspect the governor knew then that the Affordable Care Act authorizes subsidies only through state-established Exchanges. Got that? Only through state-established Exchanges, not through Exchanges created by the federal government or those created in partnership. It's a tricky little gotcha.

Do you know what that means? It means that because Indiana never set up an Exchange, Hoosiers are exempt from paying the penalties and taxes triggered by the subsidy. Thank you, Gov. Pence. But try to convince your accountant, your dentist, or your next door neighbor they're exempt, and see what happens. They'll call you crazy because they're scared and uninformed. Nobody wants to tangle with the IRS or dance with the Department of Justice. Compliance is what Obama's gambling on, and that's exactly why House Bill 1406, which seeks "to ban the state from enforcing or assisting in the enforcement of the Affordable Care Act," is so necessary and so powerful. It provides cover.

House Bill 1406 stands on solid legal footing under a principle called "anti-commandeering." In layman's terms, it means "you can't make me," or more succinctly, Washington cannot require a state to help them enforce one of their schemes if the state refuses to cooperate. For over 150 years – in 1842 Prigg, in 1992 New York, in 1997 Printz and in 2012 Sebelius – the Supreme Court has upheld this anti-commandeering doctrine. My sources claim that anti-commandeering is virtually undisputed by legal experts on both the left and right.

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James Madison said, "… when powers are assumed which have not been delegated, a nullification act is the natural right, which all admit to be a remedy against insupportable oppression." Madison understood tyranny rolls individuals, but when we as individuals stand together as citizens of a sovereign state and refuse to cooperate with unconstitutional acts, we cannot be moved. With the protection of House Bill 1406, we can stand united and tell the feds to go pound sand. The implications of a multi-state, multi-issue nullification revolt are huge and exactly what the founders intended.

If you think nullification is radical and you let House Bill 1406 fade away, please consider the following. Let's assume the Marriage Amendment is adopted into the Indiana Constitution, but then a short time later, a federal ruling legalizes same-sex marriage. Your cries of protest will fall on deaf ears. You'll not have a legal leg to stand on; neither with marriage, nor health care, nor privacy, nor gun laws nor anything else because you let Washington usurp your state's rights consistently in the past. You caved and conformed to a tyranny that disregarded your basic freedoms, that changed the rules on a whim, that threatened to act with a pen and a phone. And now you're stuck.

So are you still wondering if nullification is too radical? If Indianans let this short session end March 14 without passing HB 1406, our opportunity to assert our state's rights may be gone.

Is this nullification debate peculiar to Indiana? No. As the administration bullies and attempts to micromanage every aspect of our lives, so too the battle cry for nullification through states' rights increases exponentially. As the president grows bolder, more flagrant in his control, the push back from citizens grows stronger, spreading from state to state. On Facebook and Twitter, in countless emails and text messages, in millions of coffee shop discussions, not unlike those 250 years ago, the battle cry for liberty grows louder each day.

Will our representatives come to our defense and protect us from federal acts that are beyond the specifically enumerated powers? Do they remember that the states existed before the federal government? That the states formed the compact that created the federal government? That according to contract law, the states are the final arbiter of whether the federal government is acting constitutionally? The "tail does not wag the dog."

These questions loom large this season. Are the legislators, men and women who pledged to support the Constitution of their state and the Constitution of the United States, listening?

Connie Kovas Moreno is a broadcaster, educator, writer and conservative activist.