12 States to Vote on Health Care Nullification

It's not every day that politicians and professors fight over the legacy of John C. Calhoun. But as Republican lawmakers in 12 states introduce protest bills to nullify the federal health care law, the 200-year-old theories fueling their efforts are being called into question, and the ideas of the man who some view as the spiritual godfather of state secession are having an unlikely re-emergence in American politics.

The concept behind nullification -- that states can claim legal supremacy over the federal government -- dates to the nation's founding. But successive attempts to invoke state sovereignty have been consistently shot down, denied or overturned by generations of presidents and Supreme Court decisions.

Today, as state legislators from Maine to Oregon to the the Dakotas study nullification's arcane and juicy history -- George Washington called the concept "preposterous and anarchic" -- judicial efforts to overturn the Patient Protection and Affordable Care Act (PPACA) are already well under way. In Idaho, the overlap even led to infighting between the Republican attorney general and conservative lawmakers determined to fight Washington their way.

"There is no right to pick and choose which federal laws a state will follow," wrote Idaho's assistant chief deputy attorney general, Brian Kane, in a strongly worded disavowal of nullification. But the bill's co-authors, freshman Rep. Vito Barbieri and veteran state Sen. Monty Pearce, are undeterred.

"After 20 years practicing law ... I disagree with the attorney general's perspective," Barbieri told Politics Daily. The bill is scheduled to go before the full house this week, and he is confident that his 57-member Republican majority will pass it and that "other states will follow our lead."

Despite the widespread resistance to what many call "Obamacare," not all states' rights advocates are hopeful that legislative fixes will succeed.

"I don't think these acts have a snowball's chance in hell of surviving a Supreme Court decision," said Michael Boldin, director of the Tenth Amendment Center, a Los Angeles-based organization that provides language for states' rights legislation.

Barbieri is equally fatalistic. "If the Supreme Court rules on the side of an increasingly intrusive federal government, that wouldn't be a surprise because they are an arm of the federal government," Barbieri said.

Even if the Supreme Court is the place where righteous intentions go to die, both men hold that there is value even in a symbolic fight. "We must follow our conscience," Barbieri said. "Whether or not 200 years of precedent has been established against the states, we will stand up and say no, this far and no further."

Boldin agreed. "What's most important is that we have the discussion of what level of government should be responsible for certain things," he said.

Idaho's nullificationists are being outdone by their counterparts in Montana, where conservatives have proposed several bills targeting everything from the Endangered Species Act to food safety laws. According to the Missoulian, Rep. Tom Burnett has sponsored a bill that would exempt any food grown, processed and sold within Montana from future federal food safety laws. It's an idea that could gain traction not just from conservatives, but from small organic farmers as well.

If nullification succeeds in any of the dozen statehouses, questions will immediately surround the laws' practical implementation -- will states be forced to return federal money already granted through the PPACA? -- and their durability should the Supreme Court uphold the federal health care law.

If such a scenario unfolds, Barbieri and Pearce see starkly different outcomes.

"The fact is, the Idaho state government will stand down and do what they are told," Barbieri said. "Idaho is going to capitulate."

Pearce will not lay down so easy. "The founders did not believe in the absolute supremacy of the Supreme Court," he said. "You can't tell me they were that dumb." And while he conceded that the court has a role, he said that "they are out of their role. The people and the states are the final decider."

However, it's hard to find a constitutional scholar who agrees with him.

"There is nothing in the 10th Amendment that could be asserted to nullify federal laws," said David Adler, founding director of the McClure Center for Public Policy Research at the University of Idaho. And since the states have a decent shot at succeeding in the courts (the same courts that have for 200 years denied nullification), the viability of these bills is a forgone conclusion, Adler said, echoing the sentiments of the state's attorney general.

"I think they have to recognize that this is an exercise in symbolic politics, but they also have an agenda," Adler said. "By embracing this extreme and discredited nullification concept, they are making a statement. The question is, where do you get off the path if you're traveling this road?"

Pearce has questioned the constitutional scholar Adler not only on substance, but on motive as well. "Mr. Adler is a nationalist," Pearce said. "He is pushing for the absolute power of the Supreme Court, and maybe he's doing it because one day he wants to argue before them. That's a big feather in those boys' hats."

In public hearings on his bill, Pearce has cited John Calhoun and his 150-year-old writings on state authority. Calhoun "understood that with the Constitution, [the founders] built a cage around this monster they were creating," Pearce said.

To Adler, Calhoun is a bizarre choice for a role model.

"You can pick a lot of heroes in life, but would you really want to pick the one who offered the theory that justified state secession and plunged the nation into the tragedy of the Civil War?"

The Idaho House of Representatives will vote on House Bill 117 this week, and Pearce is confident that when it passes there, he can get it through the state Senate next. After that, he sees power in numbers.

"Let's say six, eight, 10 states join up with us right away," he said. "Then will you think we're credible?"