by Michael Boldin

EDITOR’S NOTE: The following is Michael Boldin’s “Tenther Rant” at the end of Episode 22 of TRX: Tenther Radio, which airs live online every Wednesday at 5pm Pacific Time here.
Find the show on iTunes at this link.

The White House is excited to hear that Obamacare – the Patient Protection and Affordable Care Act – is going to be heard by the Supreme Court.  In a statement, a spokesman said – “We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree.” The sad fact of the matter is this – any president could sign virtually any law and make pretty much the same statement because the Supreme Court almost never strikes down anything as unconstitutional. And, I might be making an understatement, because from 1937 to 1995, the Supremes didn’t strike down a single federal law as unconstitutional.  Not one in nearly sixty years.

There have been a few since then, but they’re very few and quite far between.

Bottom line? When it comes to limiting federal power, the Supreme Court is NOT to be trusted.  Not only have they utterly failed to uphold the constitution, it’s not really in their interest either.

Thomas Jefferson and James Madison both warned us that if the federal government – which includes the federal courts – ever became the sole and exclusive arbiter of the extent of their own powers, those powers would always grow, regardless of protests, elections, and even lawsuits.

So while I’m happy to hear that the Supreme Court is now going to hear the health care case – primarily because we’ll finally see this courtroom drama over with – I have absolutely no expectations that the unelected, unaccountable, politically-connected lawyers that make up the court will side with the Constitution over federal power.

I don’t buy lottery tickets either – because I know I’m not going to win and buying them just supports a monopoly on power that shouldn’t exist.  But, that’ another discussion altogether!


Last week, we celebrated the anniversary of the adoption of the Kentucky Resolutions of 1798.  In these resolutions, Thomas Jefferson laid the groundwork for the principle nullification, which we define as any act or set of acts which ends up rendering a particular federal law null and void, or unenforceable within that state.

The short of the Jeffersonian view is this – the federal government cannot be trusted to limit its own power, so the people and the states, having created that federal government in the first place, not only have an interest and a role in limiting federal power, but it’s their duty.

James Madison and even Daniel Webster were on board with the idea of nullification too – or as they called it, interposition.  Madison told us in the Virginia Resolutions of 1798 that in the case of a dangerous exercise of unconstitutional powers, “the states are 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.”

And Webster, often cast as a great opponent to nullification, said this in his famous speech opposing military conscription:

“The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist”

Jefferson, Madison, Webster – and many others. I’m sold on the idea.  Hope you are too.  And better yet, these actions work. Twenty-five states refused to comply with the Real ID Act of 2005, and while it sits on the books as “law” in Congress and has never been challenged in court, it remains null and void in most of the country. Fifteen states have rejected the notion that the federal government can ban a plant grown and sold within their own state – and while the feds still try to assert their supremacy from time to time, the long-term result is that they’re losing big time.


Last year, in preparation for the Supreme Court eventually holding up Obamacare as “constitutional,” the Tenth Amendment Center drafted state-level legislation to reject the notion of not just health insurance mandates from the federal government, but the very core idea that the federal government is authorized to be in the health care industry at all.

The TAC’s Federal Health Care Nullification Act declares that, “the federal law known as the Patient Protection and Affordable Care Act, signed by President Barack Obama on March 23, 2010, is not authorized by the Constitution of the United States and violates its true meaning and intent as given by the Founders and Ratifiers, and is hereby declared to be invalid, shall not be recognized, is specifically rejected, and shall be considered null and void and of no effect.”

As both Madison and Webster told us, when the feds exercise unconstitutional and dangerous powers, it’s the state’s duty to step in and stop it. And, our Nullification Act has language to do just that:

“Any official, agent, or employee of the United States government or any employee of a corporation providing services to the United States government that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this act shall be guilty of a felony and upon conviction must be punished by a fine not exceeding five thousand dollars ($5,000.00), or a term of imprisonment not exceeding five (5) years, or both.”

South Dakota already passed a version of this bill in the 2011 legislative session, but as can be evidenced by what happened down in Arizona recently, when a state stands alone, the federal government can throw its weight around and make states back off.  On the other hand, when Maine, New Hampshire, Utah and other states started passing resolutions and laws to ban participation in the Real ID act, it was the strength of multiple states acting in unison that resulted in the federal government backing off – like the house of cards that it is.


Getting new ideas, new bills and new action items to move forward takes time, effort and due diligence. State-level responses to Real ID didn’t even start until two years after the law was passed. But, in response to the passing of Obamacare, eleven states already stepped up to consider a nullification of the act within the first year.  Your action is needed right now to make it all effective.

Sitting around and waiting, hoping, or begging the federal courts to limit federal power – is not the game plan of a patriot. Taking action to stand up and say no right now certainly is.  So today, I strongly urge you to personally email AND call your state senators and representatives and demand that they introduce the federal health care nullification act in your state.  Even if you think it can never happen or succeed in your area, we know from history and modern times that small steps towards liberty can lead to great things.

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The time to act is now.  Not after the elections and not after the Supreme Court rules. Not next year and not after the holiday. Not next month or next week. Today, not tomorrow. Now.

For when enough good people rise up and say no to tyranny – and enough states introduce and pass laws backing them up – there’s not much that the feds can do to force their unconstitutional acts, regulations…and mandates down our throats.

And one day, when we start taking this same set of actions for not just Obamacare, but every single unconstitutional act from Washington DC, one day – instead of saying NO to tyranny, we can start saying YES to liberty.

UPDATE 11-17-11: It was North Dakota, not South Dakota, that passed a version of the Health Care Nullification Act earlier this year. Track the legislation online at this link

Michael Boldin

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