In a Dec. 18 op-ed piece published in the Idaho Statesman, the editorial board asserts that the Idaho legislature should not pursue nullification of the Patient Protection and Affordable Care Act during the 2012 legislative session, calling the principle “tiresome and pointless.”

The board channels Idaho Attorney General Lawrence Wasden, a vocal opponent of nullification, to make its case.

“It’s worth repeating that the nullification concept has been rejected by federal courts since the Civil War era. In the 1950s, in deciding on a public school desegregation, the U.S. Supreme Court said, all but verbatim, that states cannot nullify federal law.”

This sounds emphatic and indisputable. But a moment to consider the logic reveals the absurdity of the argument.

In essence, Wasden reasons that in a dispute between the federal government and a state, the federal government gets the final say. Why? Because the federal government says so.

Contrast Wasden’s brilliance with that of Thomas Jefferson.

“The several States composing, the United States of America, are not united on the principle of unlimited submission to their general government…whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force…the government created by this compact (the Constitution) 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.”

The principle of nullification rests on the premise that one party cannot serve as the final judge in a dispute between two parties with no common arbiter. Wasden argues that the Supreme Court, itself a branch of the federal government, gets the final say, which seems a lot like arguing the legal branch of your bank should decide a dispute between you and the bank over your mortgage.

How do you think that would work out for ya?

It hasn’t worked out much better for the states or the people. Between 1937 and 1995, the U.S. Supreme Court never once ruled a congressional statute unconstitutional. Not one. Zero. Zilch. Nada.

So now, Wasden and the Idaho Statesman editorial board expects the people of Idaho to rely on a lawsuit filed by 27 states to settle the matter. The Supreme Court will likely rule on the health care act this summer.

Here is an important concept to grasp. As historian and constitutional scholar Kevin Gutzman points out,  the Supreme Court of the United States won’t decide the constitutionality of the federal health care act. It will only decide its own position on the constitutionality of the federal health care act. It is unconstitutional, regardless of what the SCOTUS says.

Nowhere within the enumerated powers granted to Congress exists the authority to create a national health care system. It certainly doesn’t fall within the understanding of commerce clearly articulated by the framers and ratifiers of the Constitution. So if the Court rules the health care act constitutional, what recourse do the states and the people possess? In the world inhabited by Wasden and members of the Idaho Statesman editorial board – none. The pronouncement of five robed demi-Gods makes it so, regardless of the meaning and intent of the Constitution.

At this point, nullification opponents will point to the supremacy clause, ignoring the fact that only laws made “in pursuance of” the Constitution stand as the supreme law of the land.

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As Jefferson said, the states were never united on the principle of complete submission to the federal government. The people, through the states, created the federal government for limited purposes, granting it specific, clearly articulated powers, leaving all other authority to the states and the people. In fact, the federal government serves as an agent of the states and the people, not their master.

Nullification provides a powerful check on federal power. Without it, the states and American citizens must simply bow down and meekly accept any edict passed down from Washington D.C., making the federal government all-powerful – precisely the kind of government our forefathers fought a bloody war to escape.

Mike Maharrey

The 10th Amendment

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