Time To Pull Out Those 19th Century Constitutional Law Books

I may just be showing how ignorant I am on the subject, but my sense has always been that state nullification of federal laws is a tool not much tried or used since the first half of the 19th century.  While a number of our Founders, particularly Jefferson, saw state nullification (not the Supreme Court) as the key check on arbitrary or unconstitutional Federal legislation, the whole subject sort of gained a taint, along with states rights, by its association with the South's defense of slavery.

Anyway, state opposition to the Real ID law has been an pretty interesting and frankly, for this libertarian, exciting re-invigoration of this potential check on Federal power.  We have also seen efforts in states like California and Colorado to effectively nullify certain Federal drug laws.  Now Arizona, among other states, is seeking to nullify bits of the proposed Federal health care legislation:

Right on the heels of a successful state-by-state nullification of the 2005 Real ID act, the State of Arizona is out in the forefront of a growing resistance to proposed federal health care legislation.

This past Monday, the Arizona State Senate voted 18-11 to concur with the House and approve the Health Care Freedom Act (HCR2014).  This will put a proposal on the 2010 ballot which would constitutionally override any law, rule or regulation that requires individuals or employers to participate in any particular health care system.

HCR2014, if approved by voters next year, also would prohibit any fine or penalty on anyone or any company for deciding to purchase health care directly. Doctors and health care providers would remain free to accept those funds and provide those services.

Finally, it would overrule anything that prohibits the sale of private health insurance in Arizona.

Five other states "” Indiana, Minnesota, New Mexico, North Dakota and Wyoming "” are considering similar initiatives for their 2010 ballots.

I have zero idea if this is legal or possible, but I am all for trying.   And I say this knowing that as an employer, the legal mess it may create for me could be awful.  I could easily see a situation where it is required under Federal law that we enroll employees but illegal to do so under state law.  I can easily see a situation developing similar to what medical marijuana growers face in California, pulled back and forth between state and federal law.


  1. artemis:

    This was actually the first "shot" fired in the Civil War. Ten years before it started, before everyone had a chance to write in slavery as "the cause", the state of South Carolina enacted a law voiding a Northern protectionist tariff on goods that were critical to southern agriculture, but produced in New England. Things ramped up with the Feds deploying federal agents to collect the tariffs and South Carolina deploying the state militia to enforce their laws concerning it being illegal to collect the tariff. South Carolina threatened to secede, but back down and the secession issue settle down for a while until Lincoln was elected. Even though Lincoln promised not to force the end slavery, he supported the protectionist policies of the North, designed to protect their birthing industrial economy.

  2. James:

    Legal or not, it's not really all that important. Big Fed can always say "No healthcare reform? Fine, no money for (highways, whatever)."

  3. Mox:

    It actually started with the VA and KY resolutions. South Carolina got in on nullification in 1828 with the South Carolina Exposition and Protest. see http://en.wikipedia.org/wiki/South_Carolina_Exposition_and_Protest

  4. thebastidge:

    Really, it comes down to the consent of the governed. When enough people (or in this case, States) ignore and defy the law, it is nullified, it just takes time to clean up the books afterward.

    It seems likely to be a messy power struggle for a while, but witness the assisted suicide law kerfuffle in Oregon. No matter what the Feds said about regulating drugs and punishing doctors by taking away their license to practice, it is still going on in Oregon, because enough people believe that one has the right to get enough pain medication to deal with their pain the way they wish. Even if that means a lethal dosage. People in California are still growing, buying, and using marijuana for ostensibly meidcal purposes despite the Feds' disapproval. Same in Oregon.

  5. Angus S-F:

    This is going to be very interesting ... lots of discussion out there whether Obamacare is even constitutional at all!!


  6. thebastidge:

    And @ James:

    I could only hope the Feds started trying to strongarm the States with more withholding of funds. There was a LOT of resentment over that on the drinking age, even when a lot of people supported the drinking age being raised.

    Start trying to do that with less popular issues and see how it works out for them. Best case scenario, the States start withholding money from the Feds. After all, it has to come through the States before it gets to the Feds, and only a crazy patchwork of lies and ignorance allows people to believe that the USG is giving "Federal" money to anybody.

    It would be awesome to watch a State make it illegal for a company in their jurisdiction to collect federal income tax in a payroll operation.

  7. morganovich:

    it strikes me that there may be a substantial cost to this plan.

    assume that the federal government levies an income tax increase. this tax is to be used to fund government run healthcare, but has not actual direct link requiring that it does so.

    if you opt out of the program, aren't you just subsidizing those who participate?

    i would not find it at all surprising for the federal government to participation in health programs statewide if the state refuses to obey the strictures it lays out.

  8. Scott Wiggins:

    Precient governors and state legislatures take note: The federal government is out of control and headed for a trainwreck...There is no way the Feds can pay for all the checks they are writing. And, since they lack the political will to seriously curtail spending their only option will be to inflate their way out of tens of trillions in bad debt. They are, in fact, bankrupting the future of the dollar and the buying power of those who use dollars. States need to begin preparing for life without Washington. Nullification is an eighteenth century concept first proposed by Andrew Jackson's VP John C. Calhoun...It's probably time to dust off the concept of nullification and revisit states rights or one day the drowning man which is Washington will drag the rest of the United States down as well.

  9. Rick C:

    IIRC, the Fed _has_ backed down on "do it or we'll withhold highway funds" when the states said "fine, we'll withhold taxes."

    They probably don't have the capability to force (as in use physical force, i.e., the army) against several states simultaneously.

  10. me:

    The constitutionality of federal intervention into what are asserted to be state powers is a really interesting topic. I used to love the idea that states in the US were very independent and could choose whatever solution they deemed appropriate to anything but a few narrowly defined federal powers. As always, living with the reality differs from the ideal. Apparently the reasons why state powers have been limited more and more by federal encroachment are that "the [Supreme] Court said that if certain states are worried about the extent of federal authority over a particular local matter, the residents of such states should contact their senators and representatives who are constitutionally authorized to narrow federal regulatory power through appropriate legislation. Judicial Review of federal regulations under the Tenth Amendment, the Supreme Court suggested, is not the proper vehicle to achieve this end." Ouch. That's a brutal slap in the face of (a) the constituation and (b) any oppressed minority. The idea that someone who's suffering from infringement of their rights ought to just go and ask the infringing party nicely to, you know, maybe stop a little pretty much invalidates the idea of the rights being, well, rights in the first place, doesn't it?

  11. JV:

    If Coyote was being prosecuted by the Feds for non compliance(Healthcare), will the State arrest those responsible? The State law would have to criminalize those who would attempt to force others to break the State law. Would State police arrest the Federal judges, prosecutors, and law enforcement agents for breaking the State law? This would put the issue front and center.

    If California was really serious about the marijuana issue, it(the State of California) would prosecute the Federal Officials detain/arrest/harrass its residents for legal activities under California law.

  12. tomw:

    Seems I read lately that the IRS has only enough people to prosecute something like 1000 cases of tax fraud annually. If 150,000,000 people and 50 states decided that they were just no going to pay their income taxes, FICA taxes, fuel taxes, and excise taxes, there would be an immediate screech to a halt of the Fed Gov. They don't have the people to enforce the will of Congress. It is only by the willing consent of the individual taxpayer that taxes are collected.
    We the people are governed by our own consent. When that government oversteps our consent, it can and should be replaced.


  13. Alan Crowe:

    The Seventeenth Amendment is the key to this.

    The original design of the constitution has the states directly appointing senators. Article One, Section Three: The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof. Meanwhile, under Article 2 section 2, the President is appointing Judges of the supreme Court with the advice and consent of the Senate. So there is a balance, with the President trying to appoint justices who will expand federal power and the states legislatures sending senators to Washington to oppose him.

    Today senators are directly elected are thus federal politicians. Naturally they join with the President in appointing judges to the supreme Court who will elevate federal legislation above state legislation.

    With a sufficient severe crisis driving events could the XVIIth amendment be repealed? I doubt it, but perhaps a further amendment could transfer the Senates power over judicial appointment to the governors of the states. That would alter the dynamic and in the long lead to a court that had some skepticism towards federal power.

  14. sclemens:

    As an Officer in the United States Navy, I swore an oath to defend the constitution against all enemies, foreign and domestic. In all seriousness, what does a constitutional domestic enemy look like?

    Who is it that declared them to be an enemy?