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12 States to Vote on Health Care Nullification

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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?"

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123 Comments

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boogiewiz

I think ALL politicans should be on the same policy as they want us U.S citizens to be on.... same with social security and medicare.. No more free rides for politicans.. no more full pay retirement,,

February 28 2011 at 7:53 PM Report abuse +1 rate up rate down Reply
Steve Silva

Americans will receive health care regardless. Either through covered care, or through the back door of a hospital, commonly called the emergency room. These attempts to derail health care reform are purely political. They are efforts by the GOP to derail Obama and the Democrats, and not, designed to improve America's health care system at all.

February 27 2011 at 5:29 AM Report abuse -4 rate up rate down Reply
Eva

It will be most interesting to see how this all shakes out. Indeed, the people
and the states will most definitely be the ultimate decision makers...

February 15 2011 at 1:08 PM Report abuse +5 rate up rate down Reply
Janice

First of all, I don't want to take from those who"have". I want a JOB. How about the "haves" spend the money they received from tax funded bailouts (BTW,pd.for by the"have nots")and create jobs here instead of other countries. Then maybe the "have nots" will have a chance to EARN a living wage and not be "have not" any longer. This whole system we have now needs FIXED. So, Republicans,do what you said you could and would do: CREATE JOBS

February 14 2011 at 7:35 PM Report abuse -2 rate up rate down Reply
1 reply to Janice's comment
passin' through

Janice, the tarp bailouts have been paid back. you didn't pay a cent.

February 14 2011 at 10:59 PM Report abuse rate up rate down Reply
ajcook111

Apparently these states would rather have hundreds of thousands of citizens without health insurance due to preexisting conditions or lack of financial means.

February 14 2011 at 7:06 PM Report abuse -11 rate up rate down Reply
2 replies to ajcook111's comment
Cora

You willing to pay for all those people? GO for it

February 14 2011 at 8:47 PM Report abuse +5 rate up rate down Reply
monorprise

As a matter of basic policy the more people paying for their healthcare out of pocket the more price control is re-instituted into the healthcare market.

Simply put the fewer people with health insurance the better for the entire healthcare market(includes those without health insurance).

This is a fact i find strangely absence from the dialog just like I never hear about them talking about all the Federal and State regulations on the healthcare market to the effect of removing every form of price control from price selection, to market competition.

I mean how is it that healthcare costs are supposed to go down when nobody can build new hospital without the permission of its would be competitors?(such as is the case in many states)
http://biggovernment.com/ngillespie/2010/02/25/reason-tv-treat-me-like-a-dog-what-human-health-care-can-learn-from-pet-care/

Or how is it that healthcare costs are supposed to go down when everyone keeps buying the most expensive care options in total disregard of the price(cause health insurance pays it)?
Or for that matter how Is the total cost of health care supposed to go down when people keep living like slobs in total disregard of the financial consequences of their lifestyles? I mean look at how many of us don’t eat right or get good exercise or really do anything healthy?
Doctors say this leads to health problems and we just keep on doing it, might the reason in part be that we won’t personally have to pay for them consequences?(Again Health insurance cost/consequence socialization)

Simply put the very nature of Health insurance removes an individual from the individual consequences of their individual choices. That is never a good thing, and the reason should be obvious to everyone.
But that is why the fewer people who have health insurance the better.

February 15 2011 at 6:26 AM Report abuse +1 rate up rate down Reply
sysaphus71

What are the Feds going to do....send in the military to force you to buy a health care policy?.....This is where liberals belief in social engineering hits a brick wall.

February 14 2011 at 6:04 PM Report abuse +8 rate up rate down Reply
1 reply to sysaphus71's comment
namingway2

Well since you asked, they can levy fines, withhold income tax returns, garnish wages, damage your credit rating, withhold federal fund for state projects, send in investigators and set up grand juries... and if all that fails then they can dissolve the state government and run it as the new "Montana Territory" until such time as the state can reissue a constitution that can be ratified via the state admission process. This is why federal law gets addressed on the federal level, not the state level.

February 14 2011 at 6:54 PM Report abuse -4 rate up rate down Reply
revblueroof

What a collosal waste of time and money, but then what do we expect from the republicans. This so called constitutional challenge in favor of "states rights" flys in the face of settled law. Not once, but several times nullification has been ruled unconstitutional. Now the republicans want to waste more time and money, not for priciple, but to score political points. How about they get to work on the real problems of the country, like creating jobs.

February 14 2011 at 5:18 PM Report abuse -18 rate up rate down Reply
lucy

For this? Read it first!Care Bill HB3200 (a few) highlites. Page 50/sec.152 The bill will provide insurance to all non-US residents, even if they are here illegally...Page 58 and 59, The Government will have real time access to an individuals bank account, and will have the authority to make electronic fund transfers from those accounts...PG.241 and 253 Doctors will all be paid the same regardless of speciality, and the Government will set all doctors fees...PG.272 sec. 1145 Cancer hospitals will ration care according to patients age..PG.425 lines 4-12 The government mandates advance care planning consultations, those on social security will be required to attend an "end-of-life planning" seminar every five years. (Death Counseling!!!)..PG>429 line 13-25 The Government will specify which doctors can write an end-of-life order........STILL WANT THIS???

February 14 2011 at 5:03 PM Report abuse +9 rate up rate down Reply
5 replies to lucy's comment
allisonisa39e

In Egypt our Politicians have said that the Government there should follow the will of the people, the same for Iran. In the United States the Politicians said "We know best- The Country should have Obama care whether the people are in favor of it or not". Then they slid it through a Lame Duck Session, with a "We have to pass it to find out what is in it".
Obviously those who wrote this thousands of pages document knew what was in it but they gave no one else a chance to study it.
If it is so good; Why are half the States opposed to it? Is it because they are stupid hillbilly persons and not as bright as the Liberals on the left ? Or is it because they do not want every aspect of our lives controlled by Big Brother ?
As in Egypt and Iran should the Government dictate or should the will of the People be followed ?

February 14 2011 at 4:20 PM Report abuse +10 rate up rate down Reply
jerry zamos

One can only wonder how the Republican party of Abraham Lincoln now seeks to cast itself as the champion of the constitutional princiles advanced by Jefferson Davis !!!

February 14 2011 at 4:08 PM Report abuse +3 rate up rate down Reply
1 reply to jerry zamos's comment
namingway2

I'd have been a republican too in 1860. The left and right swapped sides around the 1920's. Democrats advocated big government. Republicans big business. And shockingly enough we haven't exploded yet. I do think that ANY president would be shocked that the level of rancor that's developed.

February 14 2011 at 6:57 PM Report abuse rate up rate down Reply

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