Friday, December 7, 2012

Four States Consider Nullification of Obamacare

The Tenth Amendment Center states that four states are planning to vote on bills that would nullify Obamacare, making the law null and void and unenforceable in those states.  Another ten or so states are mulling over the creation of similar bills.  Nullification, an old American strategy, may yet be the best way to end the so-called Patient Protection and Affordable Care Act.

The principle of nullification is not new, and is described in Thomas E. Wood's book 33 Questions About American History You're Not Supposed to Ask.  The Virginia Resolutions of 1798 concluded that if the federal government should encroach upon the powers reserved to the states, the states have a right to nullify the offending law and refuse to enforce it—after all, a law that violates the Constitution is no law at all. Taken together, these ideas became known as the “Principles of ’98."

It doesn't matter if a federal court, including the Supreme Court, decides differently.  Ultimately, it is the right of the individual states to determine the constitutionality of any federal laws and choose to obey them or not.

This principle has precedent in American history.  Of course, there is the well-known "Nullification Crisis" of 1833, when South Carolina passed an ordinance of nullification against the 1828 federal Tariff of Abominations that would have greatly increased the tax on imported goods from Britain, resulting in a significant lowering of British demand for Southern cotton.  President Andrew Jackson was prepared to send federal troops to South Carolina to enforce the tariff, but a compromise ended the crisis.

However, that nullification crisis of 1833 wasn't the first time individual states have nullified federal laws.  The first was by Massachusetts, reacting to federal government's Embargo of 1807.  This embargo was designed to punish Britain and France for depredations of American neutrality rights on the seas, and prohibited any American trade with foreign nations whatsoever.  The U.S. Navy was to enforce the embargo by stopping and searching merchant ships -- a clear violation of the 4th Amendment's prohibition of unreasonable searches and seizures.  Further, the embargo badly damaged the New England economy.

A federal district court ruled the embargo constitutional, but Massachusetts did not agree, and passed state laws to nullify the federal embargo.  The nullification held.  The important thing to note is that the federal court's decision was not the last word on the matter.   The Massachusetts House explained:
“Were it true, that the measures of government once passed into an act, the constitutionality of that act is stamped with the deal of infallibility, and is no longer a subject for the deliberation or remonstrance of the citizen, to what monstrous lengths might not an arbitrary and tyrannical administration carry its power…. Were such doctrine sound, what species of oppression might not be inflicted on the prostrate liberties of our country? If such a doctrine were true, our Constitution would be nothing but a name—nay, worse, a fatal instrument to sanctify oppression, and legalize the tyranny which inflicts it.”  (Thomas E. Woods, 33 Questions About American History You're Not Supposed to Ask.)
The Governor of Connecticut, John Trumbull, agreed with the Massachusetts legislature, stating:
“Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task—it is their right—it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.”  (See Woods Jr., Thomas E. (2007-07-10). 33 Questions About American History You're Not Supposed to Ask (p. 30). Random House, Inc.. Kindle Edition.) 
Conclusions:  Nullification of the Patient Protection and Affordable Care Act, also known as Obamacare, is both legal and constitutional, and is undoubtedly the most expedient way to dispose of this unconstitutional and oppressive federal law.  However, each state will have to pass its own separate nullification laws.  Which state will be the first to do so?  Once one does, others will quickly follow.

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