Six and Counting. States Seek to Bypass DC, Nullify National Health Care

While Congress wrangles over repealing the Patient Protection and Affordable Care Act of 2010, lawmakers in six states have taken steps to bypass Washington D.C. completely and take matters into their own hands.

State legislators in Maine, Montana, Oregon, Texas and Wyoming have already introduced bills into their state assemblies that would declare the health care bill unconstitutional, therefore null, void and unenforceable in their states. Today, Nebraska joined them.

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NEWS: Will Indiana Nullify Federal Gun Laws?

Indiana state senators Tomes, Kruse, Nugent, Smith, Schneider, Banks and Waltz have co-sponsored the “Firearms Freedom Act” (SB0291) – for the 2011 legislative session. The bill provides that

“a firearm, a firearm accessory, or ammunition that: (1) is manufactured commercially or privately in Indiana from basic materials; (2) can be manufactured without the inclusion of any significant parts imported from another state; and (3) remains within the borders of Indiana; is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce.”

While the bill’s title focuses solely federal gun regulations, it has far more to do with the 10th Amendment’s mandate that powers not delegated to the federal government are “reserved to the states, respectively, or to the people.”

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in Pursuance thereof

Several states have filled bills opposing the Patient Protection and Affordable Care Act, and a few like Wyoming and Maine have included penalties for Federal Agents who attempt to enforce a law the state claims is unconstitutional.  It should not be surprising that there are those who oppose these ideas.  The Tenth Amendment has become interesting, and the debate will be fierce.  It is incumbent on those of us who favor checks and balances as a safeguard to essential liberty as cumbersome as it may be over the expediency of a totalitarian system to be able to articulate the message, and calmly refute all the screams of the ‘status quo’ who are shocked and angry that this debate has been opened up again.

NPR posted on its website an editorial by Christopher Weaver against these proposed laws.  The opinion piece really had no substance and is not really even worth checking out which is why I am not providing a link, but Christopher introduces an argument that I feel will be a keynote argument against these types of legislation: The Supremacy Clause.   Mr. Weaver cites an e-mail he received from Timothy Jost, a Washington and Lee University law professor; “This is blatantly, flagrantly unconstitutional. Federal law is supreme to state law and states cannot punish its enforcement.”  as his proof that any such law is unfounded.

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Two Short Conversations

In this video from last spring, Dr. Thomas E. Woods, Jr. debates Professor Neil Siegel about nullification.  Siegel takes the position against nullification.

However, at about 11:13 in the video, Professor Siegel says,

“…you might have arguments that the federal law itself is not valid and therefore not supreme under the supremacy clause…”

And at about 23:38, talking about the health care law, he says,

“…no justice is going to say that states can opt out of otherwise valid federal law.  No one is going to make that argument.  The question is, ‘is this valid federal law?’…”

So we see that the disagreement really isn’t about whether nullification is legal.  Even the opponent of nullification agrees that nobody has to follow an invalid federal law.  The debate is really about who determines that a federal law is valid or invalid?  Do the states and the people have that power, or does the supreme court dictate to us whether something is “a valid federal law”?  Let’s look at two simple conversations addressing this question.

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