None Dare Call It Nullification

February 20, 2010
By John

The Wall Street Journal reports this morning that at least 30 states are working to pass legislation or launch ballot initiatives that would throw down a gauntlet before the Administration and Congress on ObamaCare.  The proposals vary a bit from state to state, but are generally called something like The Healthcare Freedom Act.  At the same time, Reuters confirms what we’ve been hearing for days – that the President and Congressional leadership are going to try to impose a revised but still wildly unpopular ObamaCare bill using legislative chicanery.  And we are about to become witness to a federal-state-public confrontation that will doubtless reshape the Republic for generations.

ObamaCare a Ticket to Trouble

ObamaCare is rooted in the notion that the state has a moral and/or legal obligation to provide equal and adequate medical care to every citizen.   It is not about efficiency, cost containment, or improving care (although inevitably it will be about rationing – because there are only so many dollars available, and because government-empowered monopsonists have no practical ability to perform bona fide price/cost discovery that would drive efficiency gains)

Striking a Deal for Your Life

Practically, however, ObamaCare is a rash attempt to reshape one-sixth of the US economy into a rules-based, top-down nanny care system run along the same lines as SSI and the DMV.  It will require our submission to federal scrutiny of the most personal details of our lives, and to accept controls imposed and managed through the largesse of the IRS and a national health board.   Its underlying premise is that the government is best able to determine the allocation of health resources, and that it may do so based on the utility of the individual to society (this is the practical implication of rationing under a rules-based-care system).  It turns the premise of Medicare on its head, and refocuses health priorities into a political meat grinder that will be managed from the floor of the House and Senate in Washington, DC.

ObamaCare isn’t just intrusive.  It will be a disaster.  It will be launched with a cobbled together mishmash of mandates designed by lobbying interests purchased by big business, big labor and a platoon of statist stooges who know better than we do.  It will stumble, it will be revised piecemeal, and it will drive insurers into becoming state-run utilities and ultimately into state agents.  Its leaders will be the same people who brought you the stimulus program (remember all the monies that were sent to non-existent Congressional districts and zip codes?), the vagaries of the Tort Bar, voting rights for dead people, $600 toilet seats and imagined WMD in Iraq.   And they want to impose themselves into decisions about whether and what type of antibiotic you should be allowed to take for that nasty sinus infection you picked up on the flight home from New York last week.  Sounds like a plan we can all support, doesn’t it?

Oh, and it doesn’t apply to Congress.  Do they know something we don’t?

A Constitutional Question Turning into a State-Federal Confrontation

What Happens When Authoritarians Run Health Care?

So where exactly does the Constitution confer on the Federal Government the right to seize and use your health records (effectively ending HIPPA privacy protections)?  To force you to buy health insurance of any kind?  To mandate the type and extent of coverage you might get?  To legislate the type of care doctors are allowed to provide?  To ration and redirect doctors and medical resources in a private market?  To dictate the pace of adoption of innovation in treatment and service delivery?  To force private insurers to include/exclude specific terms or conditions of coverage?  To force insurers to accept new policyholders while they’re in the ambulance on the way to the ER?

Proponents claim it’s in found in the Commerce Clause of the Constitution.  Unless they scoff at the idea that they need any Constitutional authority at all (try asking Nancy Pelosi – her answer was “Are you serious?”).   I encourage you to read this clause of our founding document, and then do a little homework.  Ignore the Progressive lawyer nonsense – they can rationalize any taking or preemption of liberty.  But here’s what the Constitution – our governing Law – says -  Congress shall have the power:

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” – Article I, Section 8, US Constitution

These few words are among the most controversial in the Constitution, as they have come to define the boundary between state and federal authority in the regulation of all industry (that and the vague authority to issue regulations necessary to enforce  such regulatory activity).  It was rarely invoked for the first half of our history – but a long line of progressive Democrats and Republicans have stretched its meaning to expand their own power during their DC tenures, to a point where it now seems almost meaningless to reserve any regulatory powers to the States.

Well, that is until now.

ObamaCare a Bridge Too Far?

State governments have largely been slumbering since the Civil War period.  With a few exceptions along the way, State capitals have ceded their authority as the parents, masters and/or peers of federal authorities to become mere vassals of the federal monster.  Today, the states (too) often look to the Feds for funding, for mandates, for direction and control.  And elected state representatives often see themselves as part of a Great Federal Farm System – wherein they are training in the minors and hoping for promotion to the Congressional Big Leagues.

But the public they serve doesn’t quite see it that way.  The public actually expects state and local governments to matter.  They expect schools to educate, buses to run, police to keep them safe, and fire departments to save them when calamity occurs.  With the possible exception of the highly urbanized poor, most of the public expects to be governed by their local representatives on these issues, not the diktats of some faceless and unaccountable bureaucracy created in the DC Echo Chamber.  And the public expects these local representatives to monitor their interests and keep unwanted intruders out – including those pesky Federal interlopers.  This is what the Tea Party is really about, and is the foundation of modern conservatism (not Mr. Bush’s Compassionate Conservative statism; rather it is about the Buckley-Goldwater-Reagan vision of a restored federal system).

And Congressional threats to impose ObamaCare – irrespective of the public’s total disdain for it – have at last identified a fault line where the public seems ready to say ‘No Mas’.   And so the States have been awakened.   Finally, their representatives are (meekly) asking themselves a simple question: ‘Can we object?’

Surely most of their lawyers (educated in the great Progressive Law School mills) caution they cannot, that they have limited ability to argue, that a ‘Rational Basis Review’ would strike down their objections.  But they’re finally asking hard questions, like ‘Weren’t we elected, too?  And “don’t we have some form of Rational Basis Review authority, too”?  And of course there’s the big kahuna – “Isn’t the Federal government a creation of the States, and therefore in some sense accountable to us?”

And we’re all asking ourselves, whatever happened to the 10th Amendment of the Constitution – the one that says “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.”  If the Commerce Clause is expansive as the Progressives claim, isn’t the 10th Amendment meaningless?  How can that be?

New Rules Under ObamaCare: Bureaucrats Will Decide Your Fate

The answer to all of this is that we are witnessing the final stages of the Great Federal Power Grab.  It has been a hundred-plus years in the making, and there hasn’t been much of an objection since the Four Horsemen court of Charles Evans Hughes in the 1930’s.  The states have been quiescent in surrendering their Constitutional powers, and the public has often been supportive (or simply unaware) of federal expansion beyond its charter – think about how we have come to accept Social Security, Medicare and various types of health, environmental and safety regulation.   Although this support was conditional – and the public showed preference for a prudent, incremental approach – it encouraged the statists to keep pushing, and push they did.

But ObamaCare is too much, and certainly too fast.  It threatens our economy with even larger mountains debt, our liberties with a massive intrusion into our homes and lives, and our health with yet more bureaucratic intervention.  And so the public has awakened from its slumber.   ObamaCare has become a metaphor for what we fear and despise about government.   It was born in a back room, shaped by powerful forces out of our view, and (if passed) will create and unyielding wall of politics and bureaucracy around medical practice and personal health.

Nullification Lite – a First Step to Restoration

The 30 or more states that are working on a version of the Healthcare Freedom Act are in the early stages of a showdown over the future shape of the nation.  And the first weapon they are wielding in this multi-act play is a modest form of nullification.  Jury nullification is something the left has advocated for years as a legitimate means of objecting to oppressive laws and undesirable social behavior (notably around race and gender issues).  But the same leftists reject it as a means to check governmental power.  The agenda of the left is to complete the disembowelment of state and local authority – and to push all decisions through a one-size-fits all “fair and equal” model shaped by Congress.   They are wrong on this latter point, and we are now seeing nullification’s renewed application as we seek to rebalance state and federal authority.

State legislators are a fearful bunch – and are couching their words while they assess whether the public will really support this kind of objection.  And many are denying that this is indeed a light form of nullification – likely for fear of federal retribution or compromising their own ascension to DC.  But if 30 states do pass some form of ObamaCare nullification, it will be a new ‘shot heard round the world’.   It will constitute a wall of “NO!” that stretches across the nation, and will invite even more States to push-back on other issues.  And the statists know it – so they will fight ruthlessly to stop it now.  The Feds have been allowed to expand their authority because the States did not object, or if they did it was individually (and therefore had no lasting heft).

But three dozen states are a quorum – and could even call for a new convention to change the Constitution.  And a credible threat to choke off federal authority should be enough to put the genie back in the bottle – for a while, at least.  Because should the several States recognize that by banding together they have the final say, the Federal system the Founders intended can be restored.

It’s darn well about time.

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2 Responses to “ None Dare Call It Nullification ”

  1. JoJoTo4 on February 22, 2010 at 7:36 am

    My cowboy hats off to President Obama, because he is the only one that can truly ride a dead horse!
    I guess if you are willing to put up with the smell you can ride anything! Again keep up the great work!!

  2. momof3 on February 23, 2010 at 11:21 am

    What is truly interesting is that some of the local elected folks are looking forward to the next election cycle and have figured out that if they don’t object to the Fed’s, they will be out of office! It does not matter which side you are on (Republican/Democrat/Independent). The people are getting ready for a mass revolt of who is in office and ObamaCare is the nexus! Could this be a way for the locals & state elected to save themselves? Could be… But then again, they will just try to get moved up into the major league. This will be very interesting to watch as it unfolds.

    Well done John! Keep up the good work!

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