Idaho, 6 Other States, to “Nullify” ObamaCare

posted at 3:30 pm on January 22, 2011 by Howard Portnoy

Idaho, the first state to sue the federal government over the health care overhaul, has announced plans to resort to an obscure 18th century legal remedy that recognizes a state’s right to nullify any federal law that the state has deemed unconstitutional.

The doctrine, known as nullification, has its roots in the brand of governance practiced by the nation’s founding fathers. It was used as early as 1799 by then-law professor Thomas Jefferson, who wrote in a response to federal laws passed amid an undeclared naval war against France that

nullification, by those sovereignties, of all unauthorized acts … is the rightful remedy.

As a legal theory, nullification is grounded in the assumption that states, and not the U.S. Supreme Court, are the ultimate arbiter in cases where Congress and the president have “run amok.”

In Idaho, use of the doctrine to invalidate the health care reform bill is being championed by both state Sen. Monty Pearce and Gov. C.L. “Butch” Otter speech, who recently told Idaho residents, “we are actively exploring all our options — including nullification.” Pearce plans to introduce a nullification bill in the state legislature early next week.

Idaho is not the only state considering nullification as a remedy. Six others, including Maine, Montana, Oregon, Nebraska, Texas and Wyoming, are also considering bills that would in essence nullify the president’s signature on the reform law.

Pearce, who has expressed optimism that the law will pass, becoming the law of the land in Idaho, is quoted by FOX as having saud:

There are now 27 states that are in on the lawsuit against Obamacare. What if those 27 states do the same thing we do with nullification? It’s a killer.

One potential fly in the ointment for Idaho and other states considering nullification is the 1958 U.S. Supreme Court decision reaffirming that federal laws “shall be the supreme law of the land.” If nothing else, these moves will result in some interesting legal battles

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Cross-posted at the Examiner. Follow me on Twitter or join me at Facebook. You can reach me at howard.portnoy@gmail.com or by posting a comment below.

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“ The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ”

audiculous on January 23, 2011 at 12:40 AM

The entire constitution was created by the states to limit the federal government….therefore any limiting of state power was granted to the federal government by the states. In order to make the federal government viable. In other words, there cannot be two masters of the same power.

The federal government was created to serve the states. Period.

csdeven on January 23, 2011 at 7:31 AM

Your ability to recognize the good from the bad will have much to do with your success in life.
Keemo on January 23, 2011 at 7:15 AM

+1

Your mother is a brilliant woman and clearly a saint.

csdeven on January 23, 2011 at 7:36 AM

Your mother is a brilliant woman and clearly a saint.

csdeven on January 23, 2011 at 7:36 AM

Thank you so much for that. Soon my wife and I will have the great honor/pleasure to have my parents (late 80′s) living with us. These two people ran their own stores well into their 80′s, and have been a living example of Conservative principles and values my entire lifetime.

Keemo on January 23, 2011 at 7:43 AM

Mizflam98, I think that I fixed that for you :)

rgranger on January 22, 2011 at 7:57 PM

I guess the other 4 are accountable to Soros, eh?

mizflame98 on January 22, 2011 at 8:13 PM


No, it only takes five to take away or enforce our rights, FIVE not NINE, FIFE. Have you been keeping up?

rgranger on January 23, 2011 at 9:41 AM

And I claim, “sleepy fingers!” “five”

rgranger on January 23, 2011 at 9:42 AM

The majority of those new congress critters were elected on the promise to repeal obamacare, much like our new governor was. So, if they can’t do it one way they had sure better try anyway possible or they’ll join the ranks of unemployed politicians that seem to be in abundance now.

DanaSmiles on January 23, 2011 at 9:44 AM

“ The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ”

audiculous on January 23, 2011 at 12:40 AM
The entire constitution was created by the states to limit the federal government….therefore any limiting of state power was granted to the federal government by the states. In order to make the federal government viable. In other words, there cannot be two masters of the same power.

The federal government was created to serve the states. Period.

csdeven on January 23, 2011 at 7:31 AM

The States surrendered the power they felt was necessary to form a more perfect union than that which they had under the Articles of Confederation, which did not work out so well. At the time they only surrendered that which they felt was necessary, over time they have surrendered more power to the national government and now find themselves wishing they had not. Hence this nullification discussion. The question is will they recognize what power they still have and draw a meaningful line in the sand over which the federal government dare not reach? I suspect if they look to their ultimate purpose as defenders of the individual’s rights in their person and property they will have better success.

txmomof6 on January 23, 2011 at 9:46 AM

I’d like to further add that the results of the November elections in the States was by far the most encouraging sign to me that things are headed in the right direction. Here at home they were arguing very strongly over the Speaker of the House position and whether the Republican was conservative enough. It was such a change of focus and the fact that it even occured was amazing.

txmomof6 on January 23, 2011 at 9:54 AM

Here at home they were arguing very strongly over the Speaker of the House position and whether the Republican was conservative enough. It was such a change of focus and the fact that it even occured was amazing.

txmomof6 on January 23, 2011 at 9:54 AM

It would be nice if we could reframe conservatism as simply adherence to our founding principles because once we do that everything else falls in place. In reality, that’s all conservatism is.

Instead of asking if someone conservative enough, just ask do they believe in the ideas and principles that founded this country and will they adhere to them.

darwin on January 23, 2011 at 10:05 AM

Since I don’t care to read all the comments and even though I’m sure this has been mentioned, even if a few states (hey, make it a majority of them) nullify and Obamacare is not repealed and goes forward it will still bankrupt the entire country, including those states. And the residents of the nullifying states will still bear the federal tax burden. Nullify and Repeal.

Hucklebuck on January 23, 2011 at 10:07 AM

Question; since the power the government has (after the original constitution, was granted to it by the states (10th amendment thingy)is there anything to prevent the states from taking it back? Show me, please…. Isn’t the power to give also the power to take?

Don L on January 23, 2011 at 10:09 AM

Oh, it surely happened, spich.

Strom Thurmond was a notable example of a very large shift that happened in response to the civil rights stance of Kennedy and Johnson.

There was a bunch of stuff written about it at the time and even afterward.

You could look it up.

audiculous on January 22, 2011 at 11:57 PM

One guy is an example of a very large shift? Surely you’d have to do better than that. We can find more Dixicrats that stayed with the Democrat party instead of turning Republican.

mizflame98 on January 23, 2011 at 10:15 AM

Nullify and Repeal.

Hucklebuck on January 23, 2011 at 10:07 AM

I’m skeptical of the early celebrators, but there might be a slim chance of both happening.

Dark-Star on January 23, 2011 at 10:15 AM

No, it only takes five to take away or enforce our rights, FIVE not NINE, FIFE. Have you been keeping up?

rgranger on January 23, 2011 at 9:41 AM

Of course. I’m so on the ball that I even know the difference between a five and a fife.

mizflame98 on January 23, 2011 at 10:20 AM

And I claim, “sleepy fingers!” “five”

rgranger on January 23, 2011 at 9:42 AM

If you’re going to snark, it’s best to be on your game.

mizflame98 on January 23, 2011 at 10:21 AM

The entire constitution was created by the states to limit the federal government

The federal government was created to serve the states. Period.

csdeven

more drivelous nonsense.

audiculous on January 23, 2011 at 11:45 AM

more drivelous nonsense.

audiculous on January 23, 2011 at 11:45 AM

Spoken like a true socialist.

gryphon202 on January 23, 2011 at 12:42 PM

The entire constitution was created by the states to limit the federal government….therefore any limiting of state power was granted to the federal government by the states. In order to make the federal government viable. In other words, there cannot be two masters of the same power.

The federal government was created to serve the states. Period.

csdeven on January 23, 2011 at 7:31 AM

27 states is well on the way to 34 states. 34 can call a constitutional convention. Call one, use it to put an end to the mischief caused by the abuse of the Commerce and General Welfare clauses.

Not only will Obummercare go away, so will most of our budget problems.

trigon on January 23, 2011 at 12:46 PM

Spoken like a true socialist.

gryphon202

typed.

1) the Constitution wasn’t created by the states, but by some folks who wrote one up, despite the convention not being charged with that task.

2) the Constitution’s first three words tell you who it serves.

audiculous on January 23, 2011 at 12:48 PM

audiculous on January 23, 2011 at 12:48 PM

I have no idea how you launched yourself into deep, stellar space … but NASA would probably love to hear it.

darwin on January 23, 2011 at 12:56 PM

The nullification issue was decided, for better or worse, by the Civil War. Nullification lost.

wbcoleman on January 23, 2011 at 12:58 PM

The States can always regain power from the federal government in an orderly way via Constitutional Convention. With 27 states attempting to work through the system (unlikely, since SCOTUS is part of the problem) and these states experimenting with nullification, a Constitutional Convention may not be that far away.

I suspect that in order to prevent a CC, the feds may well seriously consider the Repeal Amendment (http://www.repealamendment.org/). It doesn’t go far enough, particularly with regard to the abuse of the Commerce Clause, but it is (as they say of thousands of lawyers on the bottom of the oceean) a good start.

iconoclast on January 23, 2011 at 1:12 PM

The nullification issue was decided, for better or worse, by the Civil War. Nullification lost.
wbcoleman on January 23, 2011 at 12:58 PM

Nullification did indeed lose.

It was decided for the better of the individual and for the worse of the states.

rukiddingme on January 23, 2011 at 1:30 PM

more drivelous nonsense.

audiculous on January 23, 2011 at 11:45 AM

Bwahahahaha!!

Argument by assertion was, I believe something you were accused of. You’re doing it again you 5 year old baby.

csdeven on January 23, 2011 at 2:05 PM

Argument by assertion was, I believe something you were accused of. You’re doing it again you 5 year old baby.

csdeven

Have you read the tenth amendment yet? I printed it out for you earlier.

Until you have, and maybe thought about it, then written something that shows that you now comprehend that the Constitution expressly limits the powers of the states, I’m not arguing. I’m simply describing your assertions for what they are, babe.

audiculous on January 23, 2011 at 3:38 PM

typed.

1) the Constitution wasn’t created by the states, but by some folks who wrote one up, despite the convention not being charged with that task.

But the states, not the people, had the job of ratifying it.

2) the Constitution’s first three words tell you who it serves.

audiculous on January 23, 2011 at 12:48 PM

See above.

gryphon202 on January 23, 2011 at 4:02 PM

But the states, not the people, had the job of ratifying it.

and because the people’s representatives in each state decided whether to form a new national government, we now have one with authority that is binding upon every state.

audiculous on January 23, 2011 at 4:12 PM

One potential fly in the ointment for Idaho and other states considering nullification is the 1958 U.S. Supreme Court decision reaffirming that federal laws “shall be the supreme law of the land.”

If this was the status quo until a judge said it wasn’t, I think the judge was just whistling Dixie and shoulda been treated as such.

Akzed on January 23, 2011 at 4:41 PM

“Idaho, 6 Other States, to “Nullify” ObamaCare”

Just because Jefferson talked about it, doesn’t make it law. Can each state then go on to nullify any of the Bill of Rights that they don’t like?

elfman on January 23, 2011 at 6:26 PM

If you’re going to snark, it’s best to be on your game.

mizflame98 on January 23, 2011 at 10:21 AM

I think that I am being quite literal in my statement, you should probably go read that Constitution thing! it only takes a majority for the SCOTUS to render a decision, even bad ones such as Kelo which was 5/4. I was only pointing out what seemed to be a misstatement that it took nine judges, it doesn’t so don’t feel safe in the power of nine was all I meant. Marbury v. Madison was decided by 4 justices, feel better now? Wouldn’t you ranter learn something than be a jerk?

rgranger on January 23, 2011 at 6:29 PM

If states can nullify any law they wish, I wish to “nullify” last month’s traffic ticket and next month’s mortgage payment.

elfman on January 23, 2011 at 6:35 PM

If states can nullify any law they wish, I wish to “nullify” last month’s traffic ticket and next month’s mortgage payment.

elfman

what kind of state are you in ?

audiculous on January 23, 2011 at 6:38 PM

what kind of state are you in ?

audiculous on January 23, 2011 at 6:38 PM

I’m in the sovereign state of Elfman. Both our legislature and supreme court (elected with 100% of the popular vote) have ruled that federal measures denying our sovereignty are unconstitutional. Similarly, we nullify ObamaCare.

elfman on January 23, 2011 at 7:01 PM

Hail Hail Elfmania!

audiculous on January 23, 2011 at 7:13 PM

For Mr Portnoy….. May your Steelers prevail tonight against your second favorite Jets.

audiculous on January 23, 2011 at 7:17 PM

and because the people’s representatives in each state decided whether to form a new national government, we now have one with authority that is binding upon every state.

audiculous on January 23, 2011 at 4:12 PM

Yes. The constitution is binding. The federal government’s authority is not binding when it is not in accordance with the constitution.

You are starting from the assumption that Obamacare is constitutional. I am telling you that I am certain it is not. Thanks for playing, and enjoy your consolation prizes.

gryphon202 on January 23, 2011 at 10:23 PM

Yes. The constitution is binding. The federal government’s authority is not binding when it is not in accordance with the constitution.

You are starting from the assumption that Obamacare is constitutional.
gryph

nah. I’m starting from the assumption that the states have every right to go to federal court and challenge the law.
I think that there’s a fair chance that it may not all stand.

But I’m also starting by thinking that nullification is absurd and that anyone serious about it is playing with half a deck.

audiculous on January 23, 2011 at 10:55 PM

But to any liberal, it was all about those racist Southerners jumping ship to the Republicans so they could keep the schools segregated.

There Goes The Neighborhood on January 23, 2011 at 1:26 AM

Well yeah. That’s pretty much what happened.

crr6 on January 23, 2011 at 2:53 AM

I suppose I should thank you for proving my point for me while I was off sleeping.

There Goes The Neighborhood on January 24, 2011 at 1:59 AM

But I’m also starting by thinking that nullification is absurd and that anyone serious about it is playing with half a deck and playing with matches in a room full of TNT.

audiculous on January 23, 2011 at 10:55 PM

Mild ftfy. The nullifiers seem to have very little idea of just what they could start, or have some deluded notion that it can only steamroll into something they’ll like.

Dark-Star on January 24, 2011 at 1:59 PM

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