Health Care Nullification on Governor’s Desk in North Dakota

The 10th Amendment Center
Michael Boldin
April, 22nd 2011

Nullification in North Dakota? That’s just what could be coming if Governor Jack Dalrymple signs Senate Bill 2309 (SB2309). This week, the bill passed the senate by a vote of 32-15 and the house by a vote of 69-24.

The bill, just one page of legislative language, states:

1. The legislative assembly declares that the federal laws known as the Patient Protection and Affordable Care Act [Pub. L. 111 - 148] and the Health Care and Education Reconciliation Act of 2010 [Pub. L. 111 - 152] likely are not authorized by the United States Constitution and may violate its true meaning and intent as given by the founders and ratifiers.

2. The legislative assembly shall consider enacting any measure necessary to prevent the enforcement of the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 within this state.

3. No provision of the Patient Protection and Affordable Care Act or the Health Care and Education Reconciliation Act of 2010 may interfere with an individual’s choice of a medical or insurance provider except as otherwise provided by the laws of this state.

This is a modification of the Tenth Amendment Center’s Federal Health Care Nullification Act – introduced in more than ten states this legislative session. Click here to track progress.


NULLIFIED!

Nullification – any act or series of acts which results in a particular federal law being rendered null and void, or unenforceable, within a state, is what Thomas Jefferson referred to as “the rightful remedy” to unconstitutional acts by the federal government.

Implied in any nullification legislation is enforcement of the state law. In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Interposition is explicitly stated in SB2309 through its requirement that the legislature to consider measures preventing the Affordable Care Act from being enforced within the state.

SUPREMACY

Opponents, however, claim that the law is “meaningless because state law can’t override federal law.” But, constitutionally-speaking, such a statement is dubious, at best.

All the founders agreed that the federal government would only be able to exercise those powers delegated to it in the constitution. It was clearly represented to the Constitution’s ratifiers that laws made outside those powers were not really laws at all – they were usurpations.

And, more importantly, such a statement is a direct reference to Article VI, the “supremacy clause” of the constitution. But, claiming that state laws cannot override federal law as a blanket statement is flat out wrong. Here’s the full text of the clause:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. [emphasis added]

The key points:

1. For a federal law to be supreme, it must be made in pursuance of a power delegated to the federal government in the constitution. If not, it’s no law at all, and state law is supreme.

2. There is no number two, it’s that straightforward.

Read the rest of Michael Boldin's article with the 10th Amendment Center here.

Confederates in the Attic - Really?

Reason's Crier
by Topher Morrison

Visit msnbc.com for breaking news, world news, and news about the economy

Unlike many people I harbor a guilty pleasure while watching the Rachel Maddow show.  I enjoy the occasional cocktail she concocts if only because I wish I had a show in which I had an excuse to drink and drink well for that matter.  I find extraordinary eloquence in her perlocution, I enjoy her enthusiastic sarcasm and subsequent pause as if she's waiting for a laugh track that never comes.  She has a wonderful knack for talking right passed the debate by supplying her own self-contained argument albeit through abandoning the basic tenants of the opposition, but it is this frequently employed stratagem which allows Maddow to frame such an advantageous position.  There are rarely concessions in her take-no-prisoners approach to any exchange, therefore I find her to be a deft political pundit.

However, once her arguments are integrated with the facts  her self aggrandizing tirades are instantly dealt with as any pathogen would be within a body of truth.  


In Maddow's world:

- Nullification was used to support slavery and thereby claims only a nefarious history e.g. espoused by the likes of John C. Calhoun, vice-president of the Confederacy.


- The "nullification cause inspired a lot of anti-US militancy" ostensibly leading the South to war against the North.


- Nullification advocates "downplay" the Civil War being about slavery.


- "Confederate politics" are in fashion again 150 years after it lost on those ideas. 


- [Melissa Harris-Perry] Submits that confederate ideas moved out of the South during reconstruction and only thereafter the Civil War did it become a part of the national fabric.


- [Melissa Harris-Perry] In regards to the resurgence of these principles we would be "foolish to imagine this is uncorrelated with having an African-American president."


- [Melissa Harris-Perry] Having an African-American president brings up unresolved political baggage i.e. nullification, currencies based on gold/silver, etc. derived from the "confederate mindset."


- Derided are states who are "flexing their tenth amendment muscles, flexing their state sovereignty muscles, flirting with secession..." 


-  [Melissa Harris-Perry] posits that opposition to the recent Health Care Reform is based on an "others" i.e. latino immigrants, African-Americans, etc. anxiety where [white] people are made to believe they are going to be taken advantage of by minorities. 


- Almost out of nowhere Maddow concludes with: "There has never been a moment in US history where we would not have been better off with a bigger vocabulary for talking about class."


In the real world:


- The battle of Fort Sumter, which officially kicked off the Civil War is merely one event in a long chain of crises and confrontations between the North and South of which many rarely centered around the issue of slavery. 


- Abraham Lincoln heralded as the "Great Emancipator" used nullification to justify not returning slaves to the South after escaping to the North.


- Nullification has been used to extricate our states from the costly and futile drug war, however, Maddow's overtly Liberal audience wouldn't see too much red meat in the phrase “These neo-confederates are trying to destroy the union by refusing to comply with the drug war! Beware!!” 


- Nullification has also been used by half the states in the Union and is championed by the ACLU to reject Bush’s 2005 Real ID act.  Again no red meat there.


- While she did mention nullification of new "Food Safety" laws (as if simply pronouncing the contrived title forestalls the debate over its substance) she conveniently omits the fact that the recent "Food Safety and Modernization Act" passed by Congress creates yet another branch of government called the Food Safety Administration (FSA).  Isn't the FDA and USDA charged with the safety of our food and drugs?  Apparently more government is needed. 


- Maddow also avoids the fact that the 10th Amendment Center also advocates nullification of TSA pat downs and body scans which is definitely a sore subject for most Americans.  Maddow served herself well by avoiding that prickly issue, claiming that "Nullifiers want to inhibit the government from sticking their hands down your kids pants and radiating you with unknown amounts of radiation."  Wouldn't garner a whole lot of sympathy for her derisive argument. 


- In a classic Straw Man approach Maddow and Harris-Perry obfuscate the fact that principles of state sovriegnty, sound money, small central government (versus nationalist government), nullification of law, and secession from tyranny are part of our national tradition since the Revolution not merely that of the Confederacy which only thereafter bled into the national fabric.  


- Nullification is just one more weapon in the arsenal of freedom and something which our own jury system is charged with exercising if they deem state or federal laws to be unconstitutional.  Repeated repudiation of a given law by juries nullifies that law - this is constitutional. 


- The slave trade and its institutionalization in the South was deplorable, but to say the Civil War was predominantly focused on this issue is false.  The emancipation proclamation was delivered only well into the civil war, it had a strategic purpose for the North and is evidenced in the fact that over 1/2 a million slaves in Northern border states were not freed because of it until those states passed legislation to that effect.  The civil war was about the enlarging role of central government at the detriment of state government (this included the slave issue adding to the complexity of the debate), tariffs were an issue (what a surprise Americans fighting over taxes), a central banking system, standing armies, etc.  A significant shift from traditional mores was occurring in the 1860s some positive, but most negative in directions thereby leading to the Civil War.


It is in our best interest to emancipate ourselves from our oversimplified vision of American history and reclaim the truth about the Civil War and its legacy in American politics. 


For a southern libertarian view on the South and its secessionists tendencies here is the Southern Avenger.