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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