cross-posted from the Florida Tenth Amendment Center

In Fridays July 15th,2011 St.Pete Times, the PolitiFact Florida Truth- O- Meter takes issue with a tweet from Florida Senate President Mike Haridopolis. The tweet reads:Florida’s proposed Health Care Freedom Act “will allow Floridians to opt out of Obama’s govt. takeover of healthcare!”

You can read the original article at:

Florida Tenth Amendment Center has another take on both the Haridopolis tweet and Florida Truth-O-Meter’s story. Both are truth-challenged on the meter measure.

In this case, the good folks at Truth-O-Meter get it half right. The tweet certainly proves false. But the lie-detecting journalists at the St. Petersburg Times totally miss the reason for the falsehood, and completely mangle the Constitution in the process.

There is no truth in the Haridopolis tweet. When questioned by Truth-O-Meter reporters, ALEC, (American Legislative Exchange Council) the inspirational source of Florida’s Health Care Freedom Act, Truth-O-Meter says: “But the organization says that the state laws and constitutional amendments have no immediate impact on implementation of the federal Affordable Care Act. They only pave the way for a court battle, should the law ultimately be ruled constitutional by the U.S. Supreme Court.”  Truth-o-Meter continues: “Does it allow Floridians to opt out if it’s successful? Yes,” said Christie Herrara, director of ALEC’s health task force. “A lawsuit would have to be filed.”
“In other words, the “opt out,” would come as the result of a legal challenge by states that would argue their constitutions prohibit the implementation of the federal health care law.”

The reality? Florida Health Care Freedom Act appears to us to be little more than a political ploy for the 2012 elections. This bill was the first bill passed in the Senate during the last legislative session. Senator Haridopolis promised passage as fast as possible, and in a break with a tradition for Senate Presidents, Haridopolis even co-sponsored the bill. Passage proved quick, as promised. The set up here appears to be to portray Haridopolis as the “Anti- Obamacare, Anti Obama” U.S. Senate candidate. The “anti” label, we suspect, is designed to resonate with the base and set Haridopolis apart from the rest of the bland GOP field.

The trouble with the Florida Health Care Freedom Act does not lie in the Supremacy Clause. It is the fact that the bill,even if it becomes an amendment to Florida’s constitution, still recognizes the legitimacy of national health care and provides no practical mechanism for opting out, or any protection for citizens who actually attempt to opt out. Since the IRS currently holds the power of implementing punishment to non-joining scofflaws, the opted out citizen stands on their own under the Florida Health Care Freedom Act. In short, the Act lacks substance, is misleading and appears to us to be little more than a device to magnify a candidate’s credentials.

Truth-O-Meter’s argument fall apart with these words:

“Lawyers and legal scholars say the states’ challenge would be tossed aside because of Article VI of the U.S. Constitution, and a paragraph known as the supremacy clause.

Specifically, the clause states that the U.S. Constitution, and federal treaties and laws are the “supreme Law of the Land.” It requires state judges to follow federal law in any conflict with state laws or constitutions.

In this situation, the federal law requires that people have health insurance, a provision commonly called the “individual mandate.”

Haridopolos’ amendment to the Florida Constitution would prohibit laws that compel people to have health care coverage.

“This is precisely what the supremacy clause was meant to deal with, when you have the federal government saying one thing and the state saying something else,” said Mike Allen, a constitutional law professor at Stetson University in Gulfport.

It would be impossible to comply with both laws at once, he said. And in such instances, he said, the federal law almost always wins.

That’s necessary, says Steve Valdeck, a law professor at American University, to preserve the structure of the U.S. government.

“I think we have settled the question that the Constitution makes the federal government supreme over the states. If one state could decide on its own they want to withdraw from a federal law, there’s nothing to stop other states from doing it,” Valdeck said. “Pretty soon you’ve destroyed the central premise on which our country is founded, which is a central federal government.”

Let’s look at the “Supremacy Clause” in its entirety. Reporters love to quote this out of context to make their point. “Scholars” such as Steve Valdeck also cling to the big government version of Constitutional history. His statement that the federal government is “supreme over the states” is historically incorrect. That this is the case today is the result of case law created out of thin air by the Supreme Court, clearly not the original intent of the Framers and Ratifiers.

“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”

Federal law only supersedes State law when that law is  pursuant to the constitution. There is nothing in the constitution of the Framers and Ratifiers (the latter being those at the state conventions as well) authorizing the general government to provide, indeed mandate, national health care.

Brion McClanahan, PhD in American history at the University of North Carolina explains the history and essence of the Supremacy clause quite clearly: “By the time the Constitution was debated in the several State ratifying conventions in 1787 and 1788, the “supremacy clause” galvanized opponents of the document. The Constitution, they said, would destroy the States and render them impotent in their internal affairs. The response from proponents of ratification illuminates the true intent of the clause. William Davie, a delegate to the Constitutional Convention from North Carolina and proponent of the Constitution, responded to attacks levied on the “supremacy clause” by stating that:

This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations [emphasis added].

Davie wasn’t alone in this opinion. Future Supreme Court justice James Iredell of North Carolina argued that, “This clause [the supremacy clause] is supposed to give too much power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles….If Congress, under pretence of executing one power, should, in fact, usurp another, they will violate the Constitution” [emphasis added…….Ultimately, the three most powerful States in the Union, New York, Massachusetts, and Virginia, demanded that a bill of rights be immediately added to the Constitution; near the top of those recommended amendments on every list, a State sovereignty resolution. These ultimately became the Tenth Amendment to the Constitution, which reads, “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.”Brion McClanahan from “Who’s Supreme,The Supremacy Clause Smackdown” at:

Does this mean that if SCOTUS incorrectly determines “Obamacare” to be constitutional, that Florida is without recourse? No. In fact, we should be prepared for SCOTUS to uphold national health care. Expecting SCOTUS to uphold original intent is akin to expecting a fair divorce hearing when your soon to be ex’s mother is serving as hearing officer!  Both Thomas Jefferson and James Madison gave us the rightful remedy to unconstitutional usurpation of power by the general government.

Jefferson, in the Kentucky Resolution of 1798 says: “1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

Madison in the Virginia Resolution of 1798  refers to this rightful remedy as “arresting the progress of the evil (referring to general government usurpation.) “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

If  Mr. Haridopolis, the Governor, or any member of the Florida legislature, were truly serious about protecting Floridians from general government usurpation, they would legislate such a plan to be null, void and of no force inside our state.  A legislative template for this very purpose can be found at:

Contrary to Mr. Valdeck’s statement that: “If one state could decide on its own they want to withdraw from a federal law, there’s nothing to stop other states from doing it,” states do have the power to decide what constitutes unlawful general government legislation. This is being done every day with REAL ID and medical marijuana laws among others.

Truth-O-Meter gets it right regarding Senator Haridopolis but as for the rest of their article: Ennnnnntttt. False!

andrew nappi

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