ConfusionObamacare is the “law of the land,” except where it’s not.  The states have historically been unable to resist the federal government, except when they did.  The Supreme Court says that states can’t nullify federal laws, but they do it anyway.

These are the confused conclusions of a recent piece on state resistance to Obamacare by Stateline staff writer, Michael Ollove.  It’s hard to determine if the article is a criticism of the principle of nullification or not, because of the conflicting messages it contains.  As best I can tell, Ollove’s analysis boils down to three points.  First, Obamacare is the law of the land.  Second, it would be unwise and unlikely for states to resist the federal money that comes with Obamacare.  And third, the fact that nullification has been successful throughout history is negated by the Supreme Court’s rulings against it.

Let’s address each of these points in order.

First, is Obamacare really the “law of the land”?  I suppose you could make that case if you buy the modern interpretation of the Supremacy Clause in which any legislation that is passed by Congress, signed by the president and upheld by the Supreme Court is law.  Fortunately, Americans’ slavish devotion to this principle is entirely self-imposed and can be remedied by even the most cursory reading of the Constitution.

The Supremacy Clause reads, “This constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…”  The clause itself lends no constitutionality to any law.  It only states that if a law is passed which is in compliance with the Constitution, then it is the law of the land.  Since the Constitution grants no power to the federal government to regulate health care, this power is retained by the states.  Therefore no federal law to that effect is Constitutional.  In short, Obamacare is unconstitutional and thus it is clearly not the law of the land.

But, is it really wise for the states to resist Obamacare at the cost of losing the federal funds that come with it?  Ollove’s perspective is that, “the 27 states resisting Medicaid expansion under Obamacare eventually will come around, because they will be unable to forgo the federal dollars that come with it.”  He quotes the alliterative Professor Paul Posner as saying, “The fiscal incentive is…overwhelming” and that it is surprising that states “would leave that kind of money on the floor.”  Similarly, author Andrew Koppelman stated, “I think turning down this money is nutty…”

In a world of gumdrops and lollipops, maybe this would be true, but we live in the real world where money has to come from somewhere.  The federal government simply cannot give money to the states that it has not already in some way confiscated from the people of the states,  What is implied by the statements above is that it would wise for states to auction off their sovereignty in exchange for money that was just taken from their own pockets.  The fact that state politicians have historically been willing to do this to further their own careers doesn’t prove the existence of some over-arching wisdom in this strategy.

Not only is it unwise to accept federal funds and their attached strings, it’s also entirely unbefitting a free people. Early Americans would have recoiled at the very suggestion that they should sell their rights to a government.  It’s hard to tell if modern-day proponents of this behavior are incapable of understanding the basic principle of cause and effect or are just willing to use weak logic in order to support their own policy preferences.

Finally, is nullification invalid because the Supreme Court has ruled against it?  First, it should be understood that different Courts throughout history have ruled differently on nullification.  Sure, there are instances of the Court ruling against states’ rights, but there are also examples where it has said the states can resist.  Examples include the 1992 case of New York v. United States, the 1997 case of Printz v. United States and the 2012 case of National Federation of Independent Business v. Sebelius.

However, a more pointed question is whether or not the Supreme Court, an agent of the federal government, has the authority to tell the states what is and is not constitutional.  Thomas Jefferson clearly didn’t think so, saying that the federal government “was not made the…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.”  If our constitutionally protected rights are to remain intact, the federal government cannot have the authority to define its own limits.

Ollove’s article is not all wrong.  He correctly points out that the states have successfully ignored the federal government in general and the Supreme Court in particular throughout history.  And although he repeats the mainstream’s favorite story of nullification’s overblown relationship with racism, he also has the integrity to point out how it was also used by northern states to fight the Fugitive Slave Act.

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However, Ollove is wrong in saying that Jefferson and Madison’s belief “that states not only had the right but the duty to prevent implementation of (unconstitutional) federal laws…didn’t catch hold with other states.”  This position is fundamental to the American union and nearly all states have appealed to it at one point or another.

Unconstitutional laws are not the “law of the land.”  The states can and should resist them and the temptation to sell their independence to the federal government, the opinions of nine black robes notwithstanding.  These are truly American ideals, based on the guiding principle of the American Revolution, the right of self-government.  This light of the Revolution no longer shines in Washington D.C., but rather in the states who are bold enough to stand the same principled ground as our founders.

Ben Lewis
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