Legislation would prevent implementation, sue to protect state residents
Dec 11, 2013 by Bob Unruh
South Carolina lawmakers have a proposal in their legislative pipeline that would nullify the federal Obamacare law.
Observers say the state likely will be the first in the nation to exempt citizens and businesses from participation in Obama’s Affordable Care Act.
Critics already have declared the bill is racist and argue that federal law trumps state law. They charged that state lawmakers can’t opt out of the law because they don’t like President Obama.
The South Carolina bill prohibits state agencies and officers from implementing any portion of the federal mandate, outlaws state insurance exchanges and directs the state attorney general to sue over selective enforcement of the Affordable Health Care Act.
Supporters of the bill contend it aligns with a Founding Father’s solution for states confronted by an unwarranted federal law.
From James Madison come the instructions:
“Should an unwarrantable measure of the federal government be unpopular in particular states, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the union; the frowns of the executive magistracy of the state; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any state, difficulties not to be despised; would form, in a large state, very serious impediments; and where the sentiments of several adjoining states happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.”
House Bill 3101, called the South Carolina Freedom of Health Care Protection Act, already has passed the House 65-34 and soon heads to the Senate.
The bill’s chief sponsor, state Sen. Tom Davis, said there are several components which “in my judgment are legal, effective and within the state’s power to do.”
First, it prohibits agencies, officers and employees of the state from incorporating Obamacare requirements. Only federal officials could implement each of the myriad functions of the program in the state.
Davis explained that case law establishes Washington cannot force states to enforce federal laws. Administration officials, he pointed out, acknowledged that limitation when they set up a federal exchange because so many states refused to establish their own.
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Other provisions outlaw state exchanges, issue tax deductions for those penalized and direct the attorney general to pursue certain lawsuits.
The South Carolina Senate has a GOP majority so the plan is expected to pass and then be signed by Republican Gov. Nikki Haley, who opposes Obamacare.
Michael Maharrey, a spokesman for the Tenth Amendment Center, which advocates for states rights, told WND there’s a similar plan under development already in Oklahoma.
The center’s analysis of Madison’s writing outlines what it believes is the proper course for states.
The organization points out that “unwarrantable” literally means “unjustifiable.”
“Madison was clearly talking about federal acts with no constitutional justification. … But notice something interesting, Madison implies that state governments can even resist a ‘warrantable’ or justifiable federal act. So what does Madison suggest states do when the feds overstep their authority? Oppose it!”
The nullification idea already has been applied to issues ranging from gun regulation, driver’s license requirements and most recently, marijuana laws. The federal government folded when Colorado and Washington state made marijuana legal, despite a ban by the federal government.
The center’s model legislation for accomplishing nullification includes a rejection of the federal law, a specific act implementing the nullification and legal challenges as needed.
The idea had been promoted in a movie, “Nullification: The Rightful Remedy,” which notes Thomas Jefferson was among the early Americans who acknowledged the strategy.
“His draft of the Kentucky Resolutions of 1798 first introduced the word ‘nullification’ into American political life, and follow-up resolutions in 1799 employed Jefferson’s formulation that ‘nullification … is the rightful remedy’ when the federal government reaches beyond its constitutional powers,” it explains. “In the Virginia Resolutions of 1798, James Madison said the states were ‘duty bound to resist’ when the federal government violated the Constitution.”
The foundation for the idea is that states predate the union, and the Declaration of Independence speaks of “free and independent states” with “power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.”
Thus, the union does not own the states but represents and protects them and their actions.
WND has reported previously on nullification, including when a poll said 29 percent of registered voters believe an “armed revolution” may be needed in America to restore liberties. A second poll said Americans already have figured out a solution – reject federal laws that are unconstitutional.
A Washington Times editorial at the time said supporters of nullification “see it as a necessary and effective tool to protect states and citizens from the every-growing power of the federal government.”
Even in left-leaning California, the state Senate has joined dozens of other states in approving legislation designed to prevent the president from executing the indefinite detention provisions of the National Defense Authorization Act.
Fox News reported that in Missouri, a proposal declares all federal gun regulations unenforceable.
Missouri state Rep. Doug Funderburk said: “We have the authority to enforce these laws. We are trying to position us so that we in this state can have safer neighborhoods.”
A commentary by the non-profit tea party group FreedomWorks noted the federal government “only has about 30 enumerated powers delegated to it in the Constitution.”
According to the Tenth Amendment, any issue not found in the U.S. Constitution should be left up to individual states to decide.
Now, FreedomWorks said, the United States has “gone grossly astray,” with the federal government “involved in nearly every aspect of our daily lives from what foods we put into our bodies to what we’re allowed to watch on television.”
FreedomWorks said the attitude was expressed by Rep. Pete Stark, D-Calif., when he said, “The federal government can do most anything in this country.”
The earlier poll on armed revolution was by Fairleigh Dickinson University. It said that among Republicans, 44 percent think armed revolution soon might be needed.
On the general question of “nullification,” 44 percent believe states should have the right to block any federal laws they disagree with on legal grounds. Thirty-six percent disagree and 20 percent are undecided, the pollsters said.
Weighing in on the subject, WND columnist Walter Williams argued that “moral people” can’t rely only on courts to determine what is right and wrong.
“Suppose Congress enacted a law – and the Supreme Court ruled it constitutional – requiring American families to attend church services at least three times a month,” he wrote. “Should we obey such a law? Suppose Congress, acting under the Constitution’s commerce clause, enacted a law requiring motorists to get eight hours of sleep before driving on interstate highways. Its justification might be that drowsy motorists risk highway accidents, and accidents affect interstate commerce. Suppose you were a jury member during the 1850s and a free person were on trial for assisting a runaway slave, in clear violation of the Fugitive Slave Act. Would you vote to convict and punish?
“A moral person would find each one of those laws either morally repugnant or to be a clear violation of our Constitution. You say, ‘Williams, you’re wrong this time. In 1859, in Ableman v. Booth, the U.S. Supreme Court ruled the Fugitive Slave Act of 1850 constitutional.’ That court decision, as well as some others in our past, makes my case. Moral people can’t rely solely on the courts to establish what’s right or wrong. Slavery is immoral; therefore, any laws that support slavery are also immoral. In the words of Thomas Jefferson, ‘to consider the judges as the ultimate arbiters of all constitutional questions (is) a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.’”