Green Room

Idaho, 6 Other States, to “Nullify” ObamaCare

posted at 1:04 pm on January 21, 2011 by

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

Related Articles

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.

Recently in the Green Room:

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

I don’t care what law the states find to kill bhocare, just DO it! That goes for dc also. I am really waiting for the judge in FL to make his ruling on bhocare. I hope he finds it unconstitutional.
L

letget on January 21, 2011 at 1:18 PM

As a legal theory, nullification

is a nullity.

audiculous on January 21, 2011 at 1:18 PM

I’d love to see the feds try to march in and enforce. Operative words is, “try.”

gryphon202 on January 21, 2011 at 1:36 PM

Dear Lord of heaven…did we not go through this exact same nonsense in the 1800′s? And was the answer written in the blood of our fellow Americans not given once and for all?

I don’t even think I can follow this story; I have a sick feeling I know just where it will lead.

Dark-Star on January 21, 2011 at 2:08 PM

If this works I am glad I will be living in Texas. Also, I think the founders forsaw this difficulty and that is why they insisted that taxes be uniform among the states, which is another reason I think ObamaCare is unconstitutional. Otherwise, States would have always been nullifying taxes that were to their detriment vs. another state.

txmomof6 on January 21, 2011 at 2:19 PM

Howard;

Two sites that may be of interest that relate to this topic are The Tenth
Amendment Center @ https://www.tenthamendmentcenter.com/
and the Cuccinelli Compass (Ken Cuccinelli is the A/G of Virginia. He his aggressively fighting ObamaCare through the courts) which can be viewed @ http://www.Cuccinelli.com

oldleprechaun on January 21, 2011 at 2:28 PM

I think the point is that this law (Obamacare)is so bad that it has created and will continue to create a constitutional crisis until we are finally rid of it.

VBMax on January 21, 2011 at 2:54 PM

audiculous on January 21, 2011 at 1:18 PM

The will of resistance is finding too many expressions for this bill to survive. The question is how it dies, cleanly or bloodily and with collateral damage. 27 states already fighting, and the list growing. The “bill” (can we, in all respect to our legislasive processes and the dignity of law itself, even accord it this title?) is a farrago of falsehoods and wishful, half-ass projections of social engineering, delayed-fuse fiscal and bureacratic bombs, and naked power grabs. As Krauthammer says, “flimflammery.” Obamacare will become the shaming exemplar of collosal and arrogant government overreach.

rrpjr on January 21, 2011 at 3:29 PM

I think the point is that this law (Obamacare)is so bad that it has created and will continue to create a constitutional crisis until we are finally rid of it.

VBMax

either that or the hysterical gits go grow tired and the dead-enders will find some other outrageous outrage about which they can be outraged and encourage the gits to again throw hysterics.

This stuff is just more bad regulation that is a first (and failed) attempt to reform the patchworked failure that’s our current “system’ for financing health care.

audiculous on January 21, 2011 at 3:29 PM

This stuff is just more bad regulation that is a first (and failed) attempt

audiculous on January 21, 2011 at 3:29 PM

Beg pardon…but this isn’t the first attempt, nor the first failed attempt. The previous ones just never got this far.

Dark-Star on January 21, 2011 at 3:37 PM

Beg pardon…but this isn’t the first attempt, nor the first failed attempt. The previous ones just never got this far.

Dark-Star

It got as far as it needed to go. It’s law.

It’s going to be reformed many times and needs to be.

The fight to get it enacted was a stupid, bloody mess and that’s reflected in the final product.

After the hysteria dies, the reworking should start.

audiculous on January 21, 2011 at 4:19 PM

This post has been promoted to HotAir.com.

Comments have been closed on this post but the discussion continues here.

Ed Morrissey on January 22, 2011 at 5:49 PM

audiculous,
Sorry to go off-topic, but I was wondering if the leash hurts your neck or have you grown calluses? Apparently, you have no problem being led by it.

Wino on January 23, 2011 at 8:49 AM