Nullification in North Dakota? That’s just what could be coming if Governor Jack Dalrymple signs Senate Bill 2309 (SB2309). This week, the bill passed the senate by a vote of 32-15 and the house by a vote of 69-24.
The bill, just one page of legislative language, states:
1. The legislative assembly declares that the federal laws known as the Patient Protection and Affordable Care Act [Pub. L. 111 – 148] and the Health Care and Education Reconciliation Act of 2010 [Pub. L. 111 – 152] likely are not authorized by the United States Constitution and may violate its true meaning and intent as given by the founders and ratifiers.
2. The legislative assembly shall consider enacting any measure necessary to prevent the enforcement of the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 within this state.
3. No provision of the Patient Protection and Affordable Care Act or the Health Care and Education Reconciliation Act of 2010 may interfere with an individual’s choice of a medical or insurance provider except as otherwise provided by the laws of this state.
Nullification – any act or series of acts which results in a particular federal law being rendered null and void, or unenforceable, within a state, is what Thomas Jefferson referred to as “the rightful remedy” to unconstitutional acts by the federal government.
Implied in any nullification legislation is enforcement of the state law. In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:
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.
Interposition is explicitly stated in SB2309 through its requirement that the legislature to consider measures preventing the Affordable Care Act from being enforced within the state.
Opponents, however, claim that the law is “meaningless because state law can’t override federal law.” But, constitutionally-speaking, such a statement is dubious, at best.
All the founders agreed that the federal government would only be able to exercise those powers delegated to it in the constitution. It was clearly represented to the Constitution’s ratifiers that laws made outside those powers were not really laws at all – they were usurpations.
And, more importantly, such a statement is a direct reference to Article VI, the “supremacy clause” of the constitution. But, claiming that state laws cannot override federal law as a blanket statement is flat out wrong. Here’s the full text of the clause:
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, anything in the constitution or laws of any state to the contrary notwithstanding. [emphasis added]
The key points:
1. For a federal law to be supreme, it must be made in pursuance of a power delegated to the federal government in the constitution. If not, it’s no law at all, and state law is supreme.
2. There is no number two, it’s that straightforward.
Seven states have passed Health Care Freedom Acts to block health care mandates from being enforced. Eight states have passed Firearms Freedom Acts. Fifteen states â€“ most recently Arizona â€“ are using the principles of the 10th Amendment to actively defy federal laws (and a supreme court ruling, too!) on marijuana. Massive state resistance to the 2005 Real ID Act has rendered the law virtually null and void. And, five states, led by Texas HB1938, are now considering measures to nullify TSA violations of the Constitution through bans on groping or bans on body scanners altogether.
While some advocates concede that a federal court battle has a slim chance of success, they point to the successful nullification of the Real ID Act as a blueprint to resist various federal laws that they see as outside the scope of the Constitution. No court battle has been waged, no federal law has been repealed. Yet, the 2005 Act sits virtually null and void due to state-level resistance.
Some say that each successful rejection of federal acts will only embolden others to try the same â€“ resulting in an eventual shift of power from the federal government to the States and the People themselves.
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