Nullification: a bad idea

January 22, 2011

There’s an interesting post over at Hot Air by Howard Portnoy about the efforts of Idaho and a few other states to pass resolutions of nullification against ObamaCare. In other words, their state legislatures would pass resolutions declaring the “The Patient Protection and Affordable Care Act” unconstitutional and thus null and void in their states:

The doctrine, known as nullification, has its roots in the brand of governance practiced by the nation’s founding fathers. It was used as early as 1799 by then-law professor Thomas Jefferson, who wrote in a response to federal laws passed amid an undeclared naval war against France that

  • “nullification, by those sovereignties, of all unauthorized acts … is the rightful remedy.”

As a legal theory, nullification is grounded in the assumption that states, and not the U.S. Supreme Court, are the ultimate arbiter in cases where Congress and the president have “run amok.”

In Idaho, use of the doctrine to invalidate the health care reform bill is being championed by both state Sen. Monty Pearce and Gov. C.L. “Butch” Otter speech, who recently told Idaho residents, “we are actively exploring all our options — including nullification.” Pearce plans to introduce a nullification bill in the state legislature early next week.

Constitutional theory fascinates me and, while I make no claim to be the intellectual equal of Thomas Jefferson (or James Madison, who also played a role in this), I couldn’t  resist leaving a comment explaining why I think they were wrong and why nullification is just flat-out a bad idea:

  • “The doctrine, known as nullification, has its roots in the brand of governance practiced by the nation’s founding fathers.”

Not all of them. While Jefferson and Madison were the authors of the Kentucky and Virginia Resolves in 1798 in response to the Alien and Sedition Acts. Not a single other state backed them. Beyond that, many states condemned them. For example, Rhode Island, which was suspicious of the new government under the Constitution and one of the last to ratify it, declared the resolves to be a danger and that only the federal courts could decide the constitutionality of a law. Almost literally, Virginia and Kentucky’s positions on interposition and nullification represented “extremist” constitutional theory.

To amplify this a bit, bear in mind that there were 16 states in the Union at that time. Fourteen of them refused to endorse the K-V Resolves. Every state from Maryland, north, condemned them. The people of that time were members of the founding generation. They may not have attended the Constitutional Convention itself, but many, many of them closely followed and participated in the post-convention debates over ratification through their local newspapers and in the Federalist and Anti-Federalist Papers. And 88% of them, through their state legislatures, refused to endorse interposition and nullification. Those people were all “present at the creation;” shouldn’t their refusal to go along tell us something?

To continue:

Beyond any argument about the history of nullification, the idea itself is hare-brained. To allow it would create a crazy-quilt of federal law that would turn the concept of national government and nationwide rule-of-law a joke.

And I’m not being facetious here. Creating an “opt-out provision” whereby some states can say the equivalent of “nuh-uh” is a recipe for chaos. One just has to look at the history of the enforcement of fugitive slave laws to see what mischief this would work. (And, no, I’m not endorsing those laws. But the refusal of some states to enforce them did contribute to the deteriorating political climate that preceded the Civil War.) Or, for a modern example, look at the controversies over the raft of exemptions to ObamaCare being granted to companies. Imagine if whole states could chuck whatever section of the United States Code annoyed them.


We all agree that ObamaCare is bad medicine, but the proper way to deal with it it what’s being done right now: defeating its supporters in elections, dismantling it in Congress, and fighting it in federal court. And, if need be, calling an Article V amendments convention. But for Idaho and other states to revive the so-called “Principles of Ninety-eight” is a distraction and a dead-end, and downright harmful to the cause by making our side look unserious.

This, I feel, is key: we already have the remedies to the problem available to us and we are using them. In fact, we scored a great victory last November and we’ve had our first real victory in court. The House has passed a repeal bill, and a vote can be forced in the Senate. Obama can certainly veto a repeal measure, but 2012 isn’t that far away. And there’s a growing movement in favor of the passage of a Repeal Amendment, which would be the right way to handle anything resembling nullification, since the law would still apply to all states equally.

With all due respect to people intrigued by the idea of nullification, to engage in an act of political necromancy in order to revive a bad doctrine that should stay forever in a sealed tomb is the height of folly. It is political chest-thumping designed to make one feel good — all show and no substance.

ObamaCare, on the other hand, is wholly substantial and a very real threat to our economic health and individual liberties. The effort to undo it will require all our focus and effort, and we should resist any temptation to be sidetracked and dissipate our energies by tilting at constitutional windmills.

UPDATE: A related article at the Washington Post.

(Crossposted at Sister Toldjah)

State legislatures revolt against ObamaCare mandates

February 2, 2010


Although President Barack Obama’s push for a health care overhaul has stalled, conservative lawmakers in more than two-thirds of the states are forging ahead with constitutional amendments to ban government health insurance mandates.

The proposals would assert a state-based right for people to pay medical bills from their own pocketbooks and prohibit penalties against those who refuse to carry health insurance.

In many states, the proposals began as a backlash to Democratic health care plans pending in Congress. But instead of backing away after a Massachusetts election gave Senate Republicans the filibuster power to halt the health care legislation, many state lawmakers are ramping up their efforts with new enthusiasm.

The moves reflect the continued political potency of the issue for conservatives, who have used it extensively for fundraising and attracting new supporters. The legal impact of any state measures may be questionable because courts generally have held that federal laws trump those in states.

Lawmakers in 35 states have filed or proposed amendments to their state constitutions or statutes rejecting health insurance mandates, according to the American Legislative Exchange Council, a nonprofit group that promotes limited government that is helping coordinate the efforts. Many of those proposals are targeted for the November ballot, assuring that health care remains a hot topic as hundreds of federal and state lawmakers face re-election.

Legislative committees in Idaho and Virginia endorsed their measures this past week. Supporters held a rally at the Pennsylvania Capitol. And hearings on the proposed constitutional amendments were held in Georgia and Missouri. The Missouri hearing drew overflow crowds the day after Obama urged federal lawmakers during his State of the Union address to keep pressing to pass a health care bill. The Nebraska Legislature plans a hearing on a measure this coming week.

Supporters of the state measures portray them as a way of defending individual rights and state sovereignty, asserting that the federal government has no authority to tell states and their citizens to buy health insurance.

There’s an argument to be made that requiring private citizens to buy a product as a matter of law violates both the Ninth and Tenth Amendments of the Bill of Rights. The Ninth protects “unenumerated rights,” that is, those not specifically mentioned in the Constitution but still derived from natural law, while the Tenth specifies that powers not explicitly granted to the Federal government under the Constitution are retained by the states and the people. The argument over how to interpret these amendments and the proper balance of the roles of the federal and state governments is one of the oldest in American political history, going back to the Constitutional Convention itself.

I’m not an expert, but my guess is that an argument under the Ninth would be that the freedom to decide which products to purchase, if any, falls under the right of the individual to be sovereign over his property, including his money and his own person. Under the Tenth, it could be argued that, since the commerce in health insurance does not cross state borders*, Congress has no power under the Constitution to regulate it, and that state laws barring an individual mandate are therefore valid. Also, since no power to command the purchases of the people was granted, Congress has no authority.

*(I wonder if the Right is opening a can of worms by calling for interstate commerce in health insurance, since then Congress could regulate it under the Commerce Clause…)

I think an argument under the Tenth is probably correct; I have no idea about the Ninth, which, as I understand it, is rarely invoked in US law. Regardless, since I vehemently oppose socialized medicine and, in particular, ObamaCare, I hope these acts by state legislatures withstand constitutional scrutiny.

On the other hand, they do remind me uncomfortably of the Nullification Crisis

RELATED: A very good book on the Bill of Rights, with a chapter on the Ninth amendment.

UPDATE: I should point out that the Virginia Senate, which is dominated by Democrats, is one of the bodies voting to tell the Fed to stuff it.