Health Care Not First Law to Face Nullification
- 14 February 2011 by Author 0 Comments
Health Care Not First Law to Face Nullification
By Richard Larsen
Published – Idaho State Journal, 02/13/11
For some, the mere utterance of the word “nullification” conjures up images of voodoo incantations to exorcize evil spirits, or of “Gomers running around the block yelling ‘Citizen’s arrest.’” For some inexplicable reason, such images were never invoked when California, and 13 other states, through nullification, established their own marijuana laws to override federal laws, or when 25 states, through nullification, invalidated the Real ID Act just three years ago. Apparently the concept of nullification is just fine when it suits their ideological purposes, but heaven forbid when it doesn’t!
There are now 27 states, including Idaho, challenging Obamacare, 12 of which are pursuing the nullification route. Nullification is a doctrine that states can invalidate federal laws deemed unconstitutional.
There are several components to nullification that are critical to understand. The first is to understand the Supremacy Clause in the Constitution. Article VI Clause 2 asserts that treaties and laws established by congress are the “Supreme Law of the Land.” The pertinent portion of the clause reads, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof… and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” There is a critical qualifier in that statement, “in pursuance thereof.” This qualifier makes clear that such laws passed by Congress are only the supreme law of the land if they are in accordance with the enumerated powers granted Congress by the Constitution. In other words, federal law is supreme over conflicting state statutes only insofar as congressional actions are constitutional.
Taking this one step further, as Thomas E. Woods in his book “Nullification” explains, “Nullification begins with the axiomatic point that a federal law that violates the Constitution is no law at all. It is void and of no effect. Nullification simply pushes this uncontroversial point a step further: if a law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the federal compact, to declare it so and thus refuse to enforce it…Nullification provides a shield between the people of a state and an unconstitutional law from the federal government.“
The states, as parties to the “federal compact” have the authority to invalidate federal mandates as granted by the Tenth Amendment, part of the Bill of Rights. “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.” Since the powers granted the federal government are specified in the Constitution, hence qualifying them as “enumerated powers,” all other rights are held by the states or the people.
Courts can declare laws unconstitutional, but the states can too. It’s illogical to presume that the federal judiciary, which obviously is a component of the federal government, is the sole and ultimate arbiter of what is constitutionally allowable by the federal government. Nullification in essence is the states’ refusal to enforce and implement unconstitutional laws.
As Woods explains,” Since the federal courts are themselves a branch of the federal government, how can the people be expected to consider them impartial arbiters?..So in a dispute between the states and the federal government, the resolution is to come from …the federal government?”
Thomas Jefferson understood this dilemma, which is why he said, “every state can of its own authority nullify within its territory ‘all assumptions of power by others’—i.e., all perceived violations of the Constitution by the federal government.” Although most such disputes wend their way to the Supreme Court, states have not abrogated their authority to resist federal mandates, and last I checked, the Bill of Rights, including the 10th Amendment, has not been repealed.
California has done this very thing in regard to the growth, sale, distribution, and use of marijuana for “medicinal” purposes. In direct violation of federal law, California has rejected federal mandates on the subject and flaunts their independence by ensuring the feds can’t invoke interstate commerce restrictions.
In 2005 congress passed the Real ID Act, which was intended as a security and identification measure. The law has been denounced by 25 states, refusing to implement it because of concerns over privacy and funding. The “law” is still on the books of the Federal Registry, yet implementation has been postponed numerous times because of the significant state resistance. In essence, the law is “null and void” due to state refusal to implement it.
To allow the federal government complete autonomy in implementation of any legislation according to their whims, regardless of constitutional authority, is to acquiesce to unmitigated tyranny. Federal mandates must be kept in check by the states, per their constitutional authority, and the “consent of the governed,” us!
AP award winning columnist Richard Larsen is President of Larsen Financial, a brokerage and financial planning firm in Pocatello, and is a graduate of Idaho State University with a BA in Political Science and History and former member of the Idaho State Journal Editorial Board. He can be reached at email@example.com.