Nullification is the talk of the day, especially as it regards the federal health care law. Many states’ legislatures are offering and passing legislation and resolutions to nullify the health care law on the basis it exceeds the authority of Congress. This is a step in the right direction. However, unless specific provisions are in place to guide and protect the citizen, nullification might prove pointless.
Unless a citizen produces proof of coverage under the federal mandate, he or she will be taxed as a penalty for failure to buy a federally-approved insurance policy. In states where nullification efforts have passed, most instances will leave the citizen in a state of conflict.
If I am penalized by the federal government, should I pay the penalty? While my state has indicated the penalty is Unconstitutional, there is still the Internal Revenue Service with which I will have to deal. It will assess further penalties against me. It will assess interest against me. It will come for my bank accounts. It will levy my property. It will come for my home. It might even prosecute me and put me in jail.
Against all this, my state’s legislature has simply said, “They can’t do that.” This is little reassurance. Nullification is more than a mere declarative statement. What good is nullification if it leaves the citizen in fear to the degree that he feels he is “on his own?” Many citizens, if not the vast majority, will likely reluctantly succumb and comply with the Unconstitutional mandate or pay the penalty. Of course, this is not the intent of nullification, and such a result will render nullification ineffective.
If state legislatures intend to serve their citizens through this conflict, they will need to do better than say, “The federal government can’t do that.” They will need to be specific. They will need to provide proof that every arm of state government is there to back the citizen.
Here are some loosely paraphrased examples of what states need to do to give their nullification efforts a reasonable chance of success (there can be many more):
(1) No court of this state shall relinquish jurisdiction over any citizen of this state or the subject matter of federal health care legislation to any federal court in this state.
(2) No judge in this state shall issue orders to levy or execute on the property of any citizen of this state to collect any amounts assessed against the citizen for failure to comply with any provision of federal health care legislation. Any person who violates this provision shall be subject to any disciplinary sanction available by the state bar, including suspension and/or disbarment.
(3) Any federal judge in this state shall be subject to sua sponte and citizen-initiated grievance procedures before the state bar for exercising jurisdiction over any citizen of this state in cases involving federal health care legislation. Any person who violates this provision may be subject to any disciplinary sanction available by the state bar, including suspension and/or disbarment.
(4) No federal or state officer in this state shall levy or execute on the property of any citizen of this state to collect any amounts assessed against the citizen for failure to comply with any provision of federal health care legislation. Any person who violates this provision shall be subject to€¦.
(5) No bank, credit union, trustee, investment broker or other depository in this state shall be authorized to pay over to any federal authority any sums claimed due under any writ of garnishment, if such writ is for purposes of collecting any amounts assessed against a citizen of this state for failure to comply with any provision of federal health care legislation. Any person who violates this provision shall be subject to€¦.
The foregoing are just a few examples. Provisions such as these must be implemented in order to convince citizens that their state government is fully in support of their rights. It is one thing to express merely one’s political will by nullifying, and it is another to effectively nullify. To effectively nullify, citizens will have to be convinced that civil disobedience against Unconstitutional laws will be fully-protected. Without widespread civil disobedience, nullification might go nowhere.
Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.
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