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Nullification Now an Issue with Obamacare

Dennis Byrne 29 March 2010 26 Comments

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).


  • Adam said:

    What you neglect to consider is the fact that leaving 32 million Americans uninsured means we will be picking up the bill for caring for them in the long run, when something preventable becomes a life-threatening problem. Having health coverage means people can finally see a doctor for preventive care, instead of rushing to the E.R when a preventable issue becomes serious, and much more expensive. I guess you prefer to have people go bankrupt instead. I guess you would prefer your fellow americans die for lack of health care instead. It used to be with you people that greed was a sin, now the right-wing touts it as a virtue. How anti-american can you get?

    Just proves there’s no such thing as a compassionate conservative.

    More to the point, when you spin the healthcare reform as unpopular, that is basically a lie. While around 45% of the misinformed people think it’s a bad idea, the remaining populace of our great country either like it or simply think it does not go far enough. When people are told specifically what the reform bill does for them, such as removing pre-exisiting condition clauses, they like it. Only when the right-wing pundits spin it is when they think it’s unacceptable.

  • Gregg said:

    Adam’s objectification of people who value personal freedom (viz. “teabaggers”) notwithstanding, his post bears a hallmark of progressives: empirical irresponsibility. The truth is patient and will become apparent.

    From the New England Journal of Medicine:


    “Our findings suggest that the broad generalizations made by many presidential candidates can be misleading. These statements convey the message that substantial resources can be saved through prevention. Although some preventive measures do save money, the vast majority reviewed in the health economics literature do not. Careful analysis of the costs and benefits of specific interventions, rather than broad generalizations, is critical. Such analysis could identify not only cost-saving preventive measures but also preventive measures that deliver substantial health benefits relative to their net costs; this analysis could also identify treatments that are cost-saving or highly efficient (i.e., cost-effective).”

    Good luck with the Feds being careful with your money.

  • Drug Residue In Water Could Make Bathing Risky | Best acne treatments and reviews (author) said:

    […] Nullification Now an Issue with Obamacare | Chicago Daily Observer […]

  • Pat Hickey said:

    “While around 45% of the misinformed tea baggers think it’s a bad idea” Adam, a sound ass-kicking would have done you a world of good, but there is still time.

    Gosh Adam, you sweehearts are so damned civil I could pee me a river and cry me a liver.

    Nevertheless, opponents of Obama Care are not one jot happy with this boondoggle. That said, it will be more than difficult to Repeal the damned thing.

    Studies show that 100% of the opponents to ObamaCare think its a bad idea.

  • Richard Channing said:

    Adam is basically dense.

    Having health coverage means people can finally see a doctor for preventive care

    They still have to pay for these policies they are required to purchase. That hasn’t changed. Now they’ll get fined when they fail to purchase them.

    I guess you prefer to have people go bankrupt instead.

    We’d rather not have people forced to purchase something they can’t afford or opt not to purchase.

    I guess you would prefer your fellow americans die for lack of health care instead.

    We’d prefer they are free to make their own choices instead of being forced to fork over their earnings to the insurance companies.

    It used to be with you people that greed was a sin, now the right-wing touts it as a virtue.

    How is forced purchase of an insurance policy not greed?

    You are a truly, truly stupid man.

  • Pat Hickey said:

    “Adam is basically dense.”

    Yes, and also a sock puppet. No doubt the dimwit who ran Illinois Reason and barks for Rich Miller – The Parks and Rec deep thinker.

  • d.d. said:

    Some of you have an excellent grasp of economic rhetoric, but apparently little understanding of how “health care” in America actually works and is financed, TODAY.

    (I’ve worked in health care reimbursement and policy for 25 years.)

    If YOU have insurance TODAY, and/or you pay federal/state taxes TODAY … then YOU (or whoever is actually paying for that insurance) are PAYING THE BILLS FOR ALL PEOPLE WHO DON’T HAVE INSURANCE.

    By LAW, people cannot be denied health care (for inability to pay) if they are in an emergency situation. If it’s not an emergency, then you probably won’t find too many doctors or hospitals willing to help you (or your kids) unless you can pay. (It’s called the market system, perhaps you’ve heard of it.) But if you wait until things deteriorate to an emergency condition, then if you go to an E.D., they’re going to have to treat you, by law, and try to get you to pay something later.

    We’re not talking “preventative medicine” here as considered in the NEJM article mentioned earlier. (I read it, when it came out.) We’re talking “couldn’t afford to buy 2 quarts of transmission fluid when the shifting symptoms first appeared, and now the entire transmission needs to be replaced” kinds of things … only on people, not cars. Real simple, blatantly obvious, medically inevitable “pay me now or pay me later” Fram-type trade-offs, where YOUR INSURANCE … RIGHT NOW … is subsidizing the cost of 5, 10, 30 day stays in hospitals, admissions that could easily have been prevented by a timely visit to a family practitioner, or a refill of blood pressure medicine, etc.

    The question is NOT: Should some people be forced to buy insurance they’d rather not?

    The REAL question is: Should YOU be forced to CONTINUE PAYING for the extreme costs of late medical inventions for people who don’t have insurance for whatever reasons? Or should THEY have to bear as much of that cost as they legitimately can?

  • Paul McGrath said:

    If indeed the attorneys general are deemed to have standing, which wouldn’t be until at least 2014, the case will eventually be defended and won by The United States of America which will say that it has the right to impose a health tax offset by an exemption for those who have insurance.

  • Paul McGrath said:

    Since 85 percent of the people have health insurance and are happy with it, what’s the beef? They will get a tax exemption.

  • Mike F said:

    d.d. thinks we’re already socialized, so the only cure is socialism.

    It’s true that you and I are already paying for unreimbursed care. This is more a symptom than the problem itself. People are uninsured because premiums are high. Premiums are high because care is expensive.

    Health care reform doesn’t address why care is expensive. Health care reform only punishes insurance carriers.

  • d.d. said:

    Health care reform doesn’t address why care is expensive.

    It helps with SOME of the reasons. There are certainly some very significant major cost drivers yet to be addressed.

    Health care in America is an exceedingly complex problem. There is no quick fix, no easy Gordian Knot solution. Gotta start somewhere.

    Health care reform only punishes insurance carriers.

    I don’t see how it does that. There’s no “punishment” involved. Single-payor would, by carving for-profit insurance companies entirely out of the game. This is like saying to like saying to Las Vegas “the house payout has to average 97 cents on the dollar” …. while requiring every American to spend a week in Vegas every year. Some of the more egregious and socially harmful practices of insurance companies will be prohibited, but that’s across-the-board, so the only insurance companies who will be (competitively) “harmed” will be those who were especially good at abusive practices.

  • John Powers said:

    The term “tea bagger” is moronic. It will be removed. If you continue to post it, your post will be removed and you will be blocked from CDOBs


  • John Powers said:


    Your certainty on case outcome is almost Eric Holder-like (as Holder has guaranteed us that terrorists will be put to death upon completion of their trials).

    Why would we even have trials and litigation when we have expert commenters who deem judgment without so much as hearing a case? Why would we even have trials and litigation when our attorney general and our President have guaranteed an outcome?


  • d.d. said:

    John Powers wrote:

    The term “t** b*****” is moronic. It will be removed. If you continue to post it, your post will be removed and you will be blocked from CDOBs

    Sorry, newcomer here. Thanks for editing my post. I thought that when Adam used the term, and then Gregg repeated it, and then Pat Hickey reposted a quote with it, that it would be okay for me to use it too.

    But just to clarify the ground-rules, it is okay to say that Adam is “basically dense,” “a truly, truly stupid man”, “also a sock puppet”, and “a dimwit” … none of that violates the “Be nice” standard.

    Got it, I’m on-board now.

  • Pat Hickey said:

    That a boy! Now, you got it . . .Adam d.d. & etc.

    Act like a gentleman and get treated in kind. Most civility is learned.
    Always glad to have Progressive in the small desks.

  • John Powers said:

    Yes d.d. that is correct. This is not the Topix board on the Tribune. Entries are edited.


  • Paul McGrath said:

    I got a hunch that if Cheney said what Holder said it would be considered patriotic. My analysis of the suit against The United States of America remains unrebutted.

  • Paul McGrath said:

    I guess the 14 attorneys general would rather have law made by unelected judges rather than elected representatives.

  • John Powers said:

    Paul, we’ll never know, because Cheney never said anything that stupid.

    I’ll take Jefferson and Madison over Harry Reid and Nancy Pelosi.

  • Paul McGrath said:

    If we can’t say t** b****** what is the politically correct term?

  • Pat Hickey said:

    Paul, I believe that it might be Tea Party folks – opposition to Obama Care.

  • Richard P. Caro said:

    As for the 10th Amendment issue, the States that have filed suit, and those contemplating doing so, have one major hurdle to overcome: a State’s participation in Medicaid is voluntary. If the costs of implementing the changes the new health reform law require the State to extend free or subsidized health benefits to 32 million more people is unacceptable to the State, or otherwise fiscally not doable, then it needs to drop out of the program. Indeed, States may be obligated to do so to protect its own fiscal solvency and the general good. The Governor and his opponents need to answer that question. Illinois already has a deficit of about $14-15 billion and an unfunded pension debt of $90 billion. The Governor has proposed raising taxes by a third to meet the education needs of the State’s children. This proposal was made without taking into account these new health reform obligations. If the State is unable to meet its pre March 23 financial obligations now, how can it stay in Medicaid in light of the new financial demands of the “reform” and remain protective of the State’s public interest and good? It has to find a better way of helping the poor receive basic health care.

  • Richard Channing said:

    I guess the 14 attorneys general would rather have law made by unelected judges rather than elected representatives.

    That would be incorrect since good judges wouldn’t be writing law. Good judges would simply be judging the constituionality of a law written by elected representatives and if laws they write are unconstitutional they should be struck down.

    This is not that difficult to understand.

    Since 85 percent of the people have health insurance and are happy with it, what’s the beef?

    Just as the Big Pharmaceutical companies were beneficiaries of President Bush’s Medicare prescription coverage bill, now the Big Insurance companies can thank Barack Obama for the biggest corporate welfare plan in history.

    Those who don’t currently have health insurance because they can’t afford it will be eligible for tax credits to make their mandatory insurance more affordable. Those tax credits will be nonrefundable so if they owe little or nothing in taxes the credits won’t do them any good. They still won’t be able to afford health insurance, but now they will be forced to pay a fine (a minimum of $95 or one percent of their income, whichever is higher, in the first year, ratcheting up to a minimum of $695 or two percent of their income by 2014).

    Most of this – removal of the lifetime limit on benefits, no pre-existiong exclusions, “children” remaining until age 26, lower Medicare/Medicaid reimbursements, bringing the currently uninsured into the systen as consumers – seems designed to raise premiums even faster.

    You failed to mention the 16,000 plus IRS Agents created who will enforce the insurance requirements, meaning the US will be using the IRS to collect money for the insurance companies. This is the marriage of state and corporate power. What did Mussolini call that again?

  • Richard Channing said:

    If we can’t say t** b****** what is the politically correct term?

    I doubt Paul is genuinely wondering and am pretty sure he’s aware that anybody would consider the word “teabaggers” an especially obnoxious example of immature name calling. If he is genuine, then he sounds like a Special Olympics volunteer who doesn’t understand why his “Go retards!” chant isn’t catching on.

  • d.d. said:

    pat Hickey wrote:

    Always glad to have Progressive in the small desks.

    You talking about ME? I think you were, but it didn’t click immediately. My bad, I wasn’t paying full attention.

    Just FYI, I
    * have been a registered Republican since 1977 ;
    * got fed up with my local govt in 2006, which I did not think was doing right by the people, and instead of just whining, I ran for office to make a change ;
    * won that election and have been re-elected twice since ;
    * am not sucking on the public teat since I don’t get paid for that 2nd job, it’s public service in it’s purest form ; and
    * I believe my town has the lowest tax rate of any in the nearest five counties.

    If that’s progressive, so be it.


  • Pat Hickey said:

    F.Y. I. – I’m a Democrat. My Bad.

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