by Lesley Swann, Tennessee Tenth Amendment Center

Pushing back against the unconstitutional overreach of the federal health care legislation is priority number one for many liberty and tea party groups in the Great State of Tennessee.  Many ideas have been floated by various groups throughout the country as to the best means of revoking the federal health care legislation.  Several interesting ideas have been proposed, among them are federal lawsuits, interstate compacts, and state nullification. 

When one takes a critical look at these options, it becomes clear that all three of these options boil down to a simple question.  Do we ask permission from the federal government to undo Obamacare or simply undo it?

Federal Lawsuits: Asking Permission from the Federal Courts to Exercise Our Constitutional Rights

A point to be made with regards to lawsuits is that they will be pursued in FEDERAL courts.  We will be asking the federal government to police itself, which it is most likely unwilling and, quite frankly, unfit to do.  The judges in these courts are appointed by and employed by the federal government, draw a federal paycheck, and will most likely be unwilling to “bite the hand that feeds them” as it were.  The federal court system has proven time and again that it most likely will rule on the side of expanding the role of the federal government, as it is a part of the vast federal bureaucracy whose primary concern is perpetuating itself.

Further, as Thomas Jefferson wrote, the federal government, via the courts or any other system it devised, does not have the exclusive right to judge what it can and cannot do.  In his words from the Kentucky Resolution of 1798:

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.

It is clear from Jefferson’s statement that the federal court system, as part of the federal government, does not have the exclusive authority to judge what is and is not constitutional.  The state governments have equal authority to the federal government in judging the constitutionality of any federal legislation.  For the states to go and ask the federal government for permission to judge the constitutionality of the federal health care law is ridiculous and counterproductive – the states already have this power and do not need the federal court system’s permission to exercise it.

Interstate Compacts:  Asking Permission from the U.S. Congress to Exercise Our Constitutional Rights

While Interstate Compacts are an interesting idea in theory to challenge Obamacare, ultimately they do have to be ratified by all participating states and then by the U.S. Congress per Article I, Section 10 of the Constitution.   Again, this puts the states in the role of asking the federal government for permission to exercise the powers already guaranteed to them in the Constitution.  While such a compact might make it through the incoming House of Representatives, it is hard to believe that with the Senate still controlled by the majority who passed the federal health care legislation would approve an interstate compact that would reject the very legislation that they consider one of their greatest accomplishments. This leaves the states in the position of waiting years for a sympathetic House and Senate, if one ever comes into power, and by then the federal health care legislation would already be fully implemented.

The states don’t need to ask for further permission from the federal government through Congress to exercise the powers already granted to them by the Constitution, they already have these powers.  The states just need to use their existing powers to reject Obamacare!

State Nullification:  Exercising Our Constitutional Rights Whether the Federal Government Gives Us Permission or Not

We as Tennesseans must exercise our constitutionally guaranteed rights, whether or not the federal government wants to give us permission to do so.  Tennessee does not need permission from federal courts or any other federal agency to exercise the powers guaranteed to it under the Constitution and the Tenth Amendment. Our best hope is nullification, and encouraging our legislators and governor to have the courage and conviction to tell the federal government that the federal health care law is null and void within the boundaries of the state of Tennessee, and further enforce boldly penalties for any agents of the government who try to enforce these provisions of federal law.

Nullification requires that the state government PROTECT the people of Tennessee from the encroachment of the federal government on their liberties, not just pass non-binding resolutions stating “we don’t like this.”  By joining with other states that have already passed or soon will pass legislation to nullify Obamacare, Tennessee has the power to thwart the federal government’s ability to implement the unconstitutional health care legislation.

Nullification is the solution to federal overreach, such as Obamacare, proposed by Thomas Jefferson and James Madison in 1798 with the Kentucky and Virginia Resolutions, legislation that those states used to nullify the unconstitutional Alien and Sedition Acts in 1798.

James Madison declared in the Virginia Resolution that it is the duty of the State government to protect its citizens from the “evil” of federal overreach:

…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.

Considering these opinions came from the Father of the Constitution and his mentor (and writer of the Declaration of Independence), I will take their opinions on nullification and constitutional law any day over those of any federal judge or congressional approval/disapproval of an interstate compact.

Nullification requires active and engaged citizens, legislators, and governors who are willing to stand up and fight for what is right and what is constitutional.  There is no easy option, but nullification will by far be the most effective, if we are willing to do the work required to see it through.  The bottom line is this – are we willing to exercise our constitutional rights whether the federal government gives us permission or not?

To download a copy of the Tenth Amendment Center’s model Federal Health Care Nullification Actclick here.  Please share a copy of this legislation with your state legislators.

Lesley Swann [send her email] is the state chapter coordinator for the Tennessee Tenth Amendment Center and founder of the East Tennessee 10th Amendment Group. She is a native of Anderson County, Tennessee.

Copyright © 2011 by Permission to reprint in whole or in part is gladly granted, provided full credit is given.

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