Using the revolt against Real ID as a model, can states rights activists stop Obamacare?

In response to what some opponents see as a Congress that doesn't represent their interests, State Legislators are looking to the nearly forgotten American political tradition of nullification as a way to reject any potential national health care program that may be coming from Washington.

In 2010, residents of Arizona will be voting on a State Constitutional Amend... that would let them effectively opt out of any proposed national health care plan. Legislatures in Florida, Michigan, Ohio and Pennsylvania are also considering similar State Constitutional Amendments.

And now, Missouri is joining them. According to a report in The Missourian, "Rep. Cynthia Davis, R-O'Fallon, pre-filed a bill Dec. 1 that, if approved by voters, would effectively put a halt on any national health care legislation. Davis said her intent was to give voters a way to protect themselves."

FREEDOM TO PARTICIPATE

The bill, HJR48, "Proposes a constitutional amendment which would prohibit compelling a person to participate in any health care system."

It states:
"To preserve the freedom of citizens of this state to provide for their health care, no law or rule shall compel, directly or indirectly or through penalties or fines, any person, employer, or health care provider to participate in any health care system. A person or employer may pay directly for lawful health care services and shall not be required to pay penalties or fines for paying directly for lawful health care services. A health care provider may accept direct payment for lawful health care services and shall not be required to pay penalties or fines for accepting direct payment from a person or employer for lawful health care services. Subject to reasonable and necessary rules that do not substantially limit a person's options, the purchase or sale of health insurance in private health care systems shall not be prohibited by law or rule."

NULLIFICATION: A HISTORY LESSON

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state "nullifies" a federal law, it is proclaiming that the law in question is void and inoperative, or "non-effective," within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

Early nullification movements began with the Virginia and Kentucky Resolutions of 1798. These resolutions, secretly authored by Thomas Jefferson and James Madison, asserted that the people of the states, as sovereign entities, could judge for themselves whether the federal government had overstepped its constitutional bounds -- to the point of ignoring federal laws.

Virginia and Kentucky passed the resolutions in response to the federal Alien and Sedition Acts, which provided, in part, for the prosecution of anyone who criticized Congress or the President of the United States. Nullification was regularly called upon by states all over the country in response to everything from higher taxes to the fugitive slave law of 1850.

A MODERN NULLIFICATION MOVEMENT

Besides the Health Care legislation in Arizona, activists and state-legislators are pushing forward with nullification efforts all across the country -- and it spans the political spectrum. Thirteen states now have some form of medical marijuana laws -- in direct contravention to federal laws which state that the plant is illegal in all circumstances. Massive state nullification of the 2005 Real ID Act has rendered the law nearly void. And, two states, Montana and Tennessee, have already passed laws nullifying federal gun laws and regulations within their states.

HOWEVER WE CHOOSE

"We (Missourians) don't like it when people try to take away our freedom," Davis told The Missoulian. "We will maintain the right to purchase health care however we chose. This national health care debate is not about health care as much as it is about redistribution of the wealth. This resolution allows voters to say don't redistribute our wealth here in Missouri."

George Senate Majority Leader Chip Rogers, in an interview with the Atlanta Business Chronicle said, "Proposals to deny or limit access to the purchase of private health care are simply unacceptable. Our basic freedoms are at risk with the government-run health care proposals coming out of Washington." Legislators from Georgia recently announced that they would be introducing a similar resolution in 2010.

REAL ID AS THE BLUEPRINT?

Supporters of modern nullification efforts look to the successful rebellion by states against the Bush-era Real ID Act.

In early 2007, Maine and then Utah passed resolutions refusing to implement the federal Real ID act on grounds that the law was unconstitutional. Well-over a dozen other states followed suit in passing legislation opposing Real ID.

Instead of attempting to force the law to implementation, the federal government delayed implementation not once, but twice. And in June of this year, the Obama administration, recognizing the insurmountable task of enforcing a law in the face of such broad resistance, announced that it was looking to "repeal and replace" the controversial law.

Supporters see this as a blueprint to resist various federal laws that they see as outside the scope of the Constitution. Some say that each successful state-level resistance to federal programs will only embolden others to try the same -- resulting in an eventual shift of power from the federal government to the States and the People themselves.

By: Michael Boldin | 12/10/09

Michael Boldin [send him email] is the founder of the Tenth Amendment Center.

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