In an opinion released today on the Tennessee Health Care Freedom Act (HFA), State Attorney General Robert Cooper informs us that the Act is unconstitutional (and in essence, shouldn’t be passed by the legislature).
Here’s his argument, in short (read the full opinion here):
Congressional power to preempt state law arises from the Supremacy Clause of the United States Constitution. The Supremacy Clause provides that the laws of the United States “shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding,” U.S. Const. art. 6, cl. 2.
The Supremacy Clause results in federal preemption of state law when: (1) Congress expressly preempts state law; (2) Congress has completely supplanted state law in that field; (3) adherence to both federal and state law is impossible; or (4) the state law impedes the achievements of the objectives of Congress.
My first question to the AG is this – why did you leave the most important part of the “Supremacy Clause” out of your opinion….was it because you’re unaware of it, or were you intentionally trying to obfuscate and keep it out of the public discussion?
Reading the full clause should make clear to the reader why I ask this question:
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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [emphasis added]
Interesting how Mr. Cooper didn’t include the absolute fact that for a federal law to be supreme, it must be a law made IN PURSUANCE of the Constitution….the very limited powers delegated to the federal government by the Constitution, that is.
HFA 1, Cooper 0
Also in Cooper’s “Federal Law is Supreme” rant, the AG seriously takes the position that Federal Law is supreme, as he alluded, pretty much as long as Congress decides to be supreme. In essence, he’s claiming that Congress has a VETO power over state laws that conflict with it.
This is verification, to me, that the AG either is lying about his constitutional knowledge, or is simply unaware of the history of the Constitution’s ratification.
The REAL history of federal power is this – during the Constitutional Convention, members proposed what became known as the “Virginia Plan.” This, if it were approved, would have given Congress the power to veto state laws as it saw fit – and as the AG has claimed as well.
The problem though, for lovers of federal power (like the Attorney General of Tennessee) is this – the constitutional convention considered this plan, and rejected it.
HFA 2, Cooper 0
So what the AG is arguing for is something that the Founders said NO to. Instead, they created the Supremacy Clause, which made clear that federal law is supreme only when in line with the enumerated powers in the Constitution – not whenver they want, which is what he is, in essence, claiming.
Bottom line? Either he’s unaware of this plain and simple historical fact (as most State Attorney Generals are), or he’s obfuscating in order to stop this essential measure from being passed.
My guess on this would be…
Here’s the reality of the situation – the Constitution means what the Founders and Ratifiers told us it means, not what the Attorney General of Tennessee hopes it means.
HFA 3, Cooper 0
It’s my hope that the legislature of Tennessee will continue to show the courage they’ve been showing in recent history – with passage of the state sovereignty resolution and the Firearms Freedom act – and defy these blatant falsehoods from both Cooper and the Federal Government.
CLICK HERE – for Professor Brion McClanahan’s essay on the Supremacy Clause
CLICK HERE – for the Tenth Amendment Center’s Federal Health Care Nullification Act