Nullification Now an Issue with Obamacare
At least 13 states are filing lawsuits challenging the constitutionality of the federal heath care act, but not Illinois Attorney General Lisa Madigan.
“We are not commencing litigation to challenge federal health care reform,” Madigan’s office responded to my e-mail query. No surprise there. If Madigan joined the others, it would be the first blue state to argue that the act is in violation of the Tenth Amendment, which says: “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.”
Actually, it’s not necessarily a purely partisan issue. Some 30 states are contemplating some kind of response to protect themselves and their citizens from this far-reaching and costly federal intrusion, according to news reports.
The Virginia House, for example, has passed tough legislation that “provides that all goods manufactured or made in Virginia and all services performed in Virginia, when such goods or services are held, maintained, or retained in Virginia, shall not be subject to the authority of the Congress of the United States under its constitutional power to regulate commerce.”
It’s more than a theoretical fight. A Florida lawsuit states that the state’s Agency for Health Care Administration sets the fiscal impact at $149 million in 2014 and more than $1 billion in 2019.
Each state faces similar outrageous costs—something that apparently is to be ignored by the politicians and the media in broke Illinois. But elsewhere, the billions of dollars costing states struggling with crushing debts has rekindled serious talk about “nullification.” The legal theory asserts that a state can invalidate federal law that the state deems unconstitutional. The popular belief is that the nullification issue was settled for good with the Civil War, but the concept actually has a long history of use to fight against fugitive slave laws and for free speech. An example of advocacy for this principle is the Tenth Amendment Center.
Could we be heading for a constitutional showdown of the first order? The very idea of a successful challenge to unpopular ObamaDemCare kindles ridicule and anger. (See, for example, “Jack’s” response to my earlier thoughts on the subject on my blog.) The Supreme Court has settled the issue, and that’s that, I’m told, ignoring the history of high court reversals in, for example, matters of racial segregation.
The federal powers issue has been debated all the way back to the Federalist Papers that argued in 1787 and 1788 for the ratification of the Constitution. Federalist 45, authored by James Madison, widely considered the Father of the Constitution, put it this way:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
That language is clear. The Constitution does not specifically give Congress the power to impose requirements on (1) Americans to purchase health insurance and (2) the states to shoulder a huge health care burden. (It’s a classic Catch 22. States can “opt out” of the plan, but then they must set up their own health care system that meets the coverage requirements set by the feds.)
This massive intrusion is rationalized by the argument that the Constitution specifically gives Congress the job of regulating “interstate commerce,” and that the two healthcare requirements involve interstate commerce. That assertion is based on court decisions that concluded, for example, that a farmer raising feed for his own livestock or a pothead growing medicinal marijuana for his own use is engaging in interstate commerce.
Such judicial interpretations of the Constitution have extended the reach of the interstate commerce clause so far that it’s difficult to imagine a single act, service or product that Congress cannot regard as some form of interstate commerce. It reminds me of the adage, “If a butterfly flaps its wings in Brazil, will it set off a tornado in Texas?” The court, it seems, would hold that a butterfly flapping its wings in Chicago could be subject to congressional regulation and taxation.
ObamaDemCare defenders make the same argument. Fundamentally, it is bizarre. Consider: Not buying health insurance is a non-act. But how can doing nothing be said to be engaging in commerce, interstate or otherwise? Here’s the twist: if you do nothing, you can’t be subject to regulation under the interstate commerce clause. But the act requires you to buy insurance, and having bought insurance, you now are subject to regulation under the interstate commerce clause.
The Mad Hatter is making our laws.
For further reading on the reach of the commerce clause, I’d suggest, “The Original Meaning of the Commerce Clause,” by Randy E. Barnett in the University of Chicago Law Review, Winter, 2001 (68 U. Chi. L. Rev. 101).