Indiana considers bill to nullify Obamacare and all unconstitutional federal actions

| January 8 2013
Christopher Cook

During the ratification period of our fledgling Constitution, the states were concerned about federal overreach. To convince them that this was not a threat, James Madison wrote in Federalist 45 . . .

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.

Madison was not trying to snow them. He truly believed that is what he and the Framers were setting up, and for a long time, it did work that way. The federal government stuck to its enumerated powers and its role as the entity whose primary task was to focus on “external objects” that concerned the whole union (national defense, treaties, foreign trade, etc.). The states played a much greater role in domestic affairs and had a plenary latitude that the federal government did not.

The first major change occurred with the centralizing effect of end of the Civil War. But the process of genuine centralization and arrogation of power by the federal government picked up real steam at the start of the 20th century. It was then that statism was coming into vogue in the United States and across the western world. People wanted modern governments to do more, and governments were only too happy to oblige.

The statists have now been at work for a century to turn us into a fully centralized, far more collectivist nation. And, needless to say, that project gained a fair amount more steam with the election and reelection of Barack Obama.

But, as history has shown time and time again, it is possible for a government to go too far. All humans have an innate understanding of their rights. Americans have an even stronger understanding than most, undergirded by our Constitution, our Declaration of Independence, our Bill of Rights, and the cultural ethos bequeathed to us by the Founders. It is definitely possible to push Americans too far.

Yesterday, in discussing the now well-known Corporal Joshua Boston and an interview he did with CNN on Feinstein’s “assault weapons” ban, I wrote the following:

At the end of this typical interview with a hoplophobic media talking head, Cpl Boston says something that—in spite of the early hour—caused me to smash my desk and shout in agreement.

“Unconstitutional laws aren’t laws.”

That is absolutely right. If a law violates the Constitution, it is not legitimate.

But the matter goes even further than that. If one of man’s laws violates the fundamental and broadly accepted principles of Natural Law, it too is illegitimate, even if the Constitution is silent on the subject. Of course, the Constitution isn’t silent—this is part of the purpose of the 9th and 10th amendments, whose point is to say, “Hey, we’re not listing every single right here, but we are letting you know that the ones we’re not listing still belong to the people.” A government must not make laws that disparage natural rights. A government or party that does so begins to relinquish legitimacy.

If Obama and the Democrats push too hard on the gun issue, it may be their Waterloo.

When considering what can happen when the federal government pushes past the point that the letter or the spirit of the Constitution allows, or pushes to the point where it is encroaching on preexistent natural rights, one thinks of numerous potential checks.

The first, of course, is federal elections. Lately, however, that does not seem to be working well. A century in which the Democrats have been constructing a massive statist edifice and an immovable bureaucracy, and during the majority of which they have held power, has left little room for the Republicans to turn the ship of state around. And many Republicans, even when in power, have not made much of an attempt to do so.

The courts are also an unreliable check. Since the 1960s especially, the courts have, more often than not, served as another quasi-legislative arm of the statist operation.

The people themselves are obviously a check, as shown by the revolutionary example of the Founders. That, needless to say, sounds like a rather extreme thing to say. But walk into any gun store, gunsmith’s shop, or shooting range in America right now and I guarantee you people will be discussing this as one of the potential options. The 2nd Amendment is rightly seen by many as the “amendment that guarantees all the others” and encroachment upon it is looked upon as an existential threat.

But there is another check: the states themselves. Though federalism has been on the ropes of late, and though the states appear to be increasingly forced into a position of vassalage under the boot of an expansive federal government, this is still a federal system. The structure is there. The ethos, though waning, is there. If the federal government goes too far, the states can work to assert their sovereignty, take a stand, and turn back the encroachment.

Obamacare is the most salient example of federal overreach, prompting states to sue the federal government numerous times over the past few years. But there is another option. The states can simply say . . .

NO.

States can pass laws that refuse to accept federal overreach, and that nullify it when it exceeds the limits established by the Constitution as it was intended. And it looks like Indiana is considering just such an action.

Here is the synopsis of INDIANA SENATE BILL No. 230, with the points bulleted for easier reading:

Applicability of federal law in Indiana.

  • Provides that any federal act, order, law, rule, regulation, or statute found by the general assembly to be inconsistent with the power granted to the federal government in the Constitution of the United States is void in Indiana.
  • Provides that a resident of Indiana has a cause of action to enjoin the enforcement or implementation or the attempted enforcement or implementation of a federal act, order, law, rule, regulation, or statute declared void by the general assembly.
  • Provides that a plaintiff who prevails in such an action is entitled to reasonable attorney’s fees and costs.
  • Provides that a person who knowingly or intentionally implements or enforces, or attempts to implement or enforce, a federal law that is declared void by the general assembly commits a Class D felony.
  • Finds that the federal Patient Protection and Affordable Care Act and the federal Health Care and Education Reconciliation Act of 2010 are inconsistent with the power granted to the federal government in the Constitution of the United States.

As we have learned from events such as the Nullification Crisis of 1832-33, this is not an easy road for states to take. But if many states take this road, and if the people generally support it, there will be little the federal government can do. The tide of public opinion, when sufficiently focused on one object, tends to overwhelm all resistance.

19 comments
Guest
Guest

Actually, no they can't. Seditious conspiracy: "If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or destroy by force the government ..., or by force to prevent, hinder, or delay the execution of any law of the United States, ..., they shall each be fined or imprisoned not more than 20 years, or both." The lawmakers in Indiana are walking a very fine line.

 

If they don't like Obamacare, they are within their rights to find a legitimate legal challenge. Until such time, they are duty bound to implement and uphold laws of the land.

dleeper47
dleeper47 moderator

A bold move by Indiana.  Most of America still doesn't like Obamacare, and that number will only grow as the bumbling, Obamacare leviathan "kicks in".   Nationalized health care is arguably just as important as the tariff issues that prompted the Nullification Crisis of 1832-33.  

How might Obama respond?  Federal troops opposing state national guards over health care?  Doubtful.

Massive civil disobedience, on a state-by-state basis, a la the Civil Rights movement of the 1960's, might just slay the Obamacare monster.

phoenixlaw
phoenixlaw

This all sounds well and good, but several questions arise.  Just who is this "general assembly" that is going to decide which laws are Constitutional and which are not?  How is the power of this "general assembly' going to override MARBURY v. MADISON, decided in 1803, which defines the power of the Supreme Court for judicial review and has been accepted in the American legal community since then?  In other words, the power to decide which laws are Constitutional and which are not has been vested in the Supreme Court for more than 200 years.  Is a law passed in Indiana really going to over ride that, and if so, how?

WesternFreePress
WesternFreePress moderator

@ Guest @AmericaDuped @dleeper47 @phoenixlaw At this juncture, we need to look at more than just what the laws, the Constitution, and Supreme Court precedent all say. We also need to consider what is right. We need to consider Natural Law, human rights, individual and state sovereignty, and other similar issues. The Supreme Court said that Korematsu, Dred Scott, and Plessy were all just ducky, but were they? If a law is passed that violates a pre-existent human right, it is not legitimate even if it technically has the force of the state behind it. At some point, the federal government goes too far and must be stopped. If such an act (by, say, Indiana) is truly justified morally and in terms of the correct outlook on what governments should and should not do, then if it has to be done via nullification, so be it. The Supremacy Clause and Supreme Court precedent and all the kings horses and all the kings men can stand in the way of it, but if it is right, in the broadest deontological sense, then it is right.

dleeper47
dleeper47 moderator

So. because it would be 'legal' to do so, do you believe Obama should and would arrest and imprison the Indiana state legislature for 20 years?   And if a dozen states were to follow Indiana's lead, all the legislatures should and would be arrested and imprisoned for 20 years? And if Congressional reps passed legislation in support of the states' rights to ignore Obamacare, would they too go to prison for joining in?  

Wow.  What a can of worms to open.  And all over Obamacare ... who'd 'a thunk it?

dancerboots
dancerboots

@dleeper47 There will be no civil disobedience to slay Obamacare..

While the country had been brainwashed to dislike The AHCA...when informed of the provisions in it....the majority like them. I doubt the number of disgruntled citizens will grow. In fact the opposite. 

Interestingly, the Medicare Part D Prescription Drug Act was passed in 2003  and implemented in 2005. All Medicare recipients are mandated to purchase a drug plan through a health insurance company upon becoming eligible for Medicare or face a late enrollment fee (unless they have already have comparable drug insurance). The late fee is a permanent 1% increase in their premium for each month they opt out of purchasing a drug plan. Not one Democrat voted for this Act because there was no provision for bidding on lower drug prices and it prevented a U.S. citizen from buying their medication outside the U.S. (though no penalty or fine would be imposed). It was not paid for to the tune of $800 billion over a ten years period. While the Democrats disliked the Act, they did not attempt to repeal it forty times, wasting tax payers money of $55 million. Democrats did not sue their own body of government for passing the act just because they did not get their way. Who knows how much that cost was ..paid for by our taxes. No rants of a socialist program or government taking over our health care (and not even close). One would think the Tea Party/Republicans would relish a capitalist program using private health insurance companies and managed by the states.

The last time I checked..and Boehner as well...when he ask the CBO to project how the effect of repealing the AHCA would have on the budget...was told it would add to the deficit/debt another $109 billion over a ten year period.

Guest
Guest

 @WesternFreePress   For better or worse, Indiana is bound to Supreme Court precedent until it changes (as it has many times throughout history - see the cases you listed for examples). They can kick and scream, they can bellyache about how terrible the law is, but they cannot refuse to implement it...

 

UNLESS they secede. If they want to be so vehemently ideologically opposed to Obamamcare, let them actually follow through. They will, of course, need to relinquish or buy any federal land, surrender any National Guard and other Armed Forces resources, and find a way to provide for their residents without federal subsidies of any kind. I also hope they are able to rapidly develop and pay for a postal service, otherwise residents of the new country of Indiana will go without mail delivery for awhile. Lastly, they had better be prepared to swiftly pass laws to cover holes left when they are no longer under federal jurisdiction.

 

Civil disobedience is powerful, and residents/lawmakers in Indiana should feel empowered to practice it in this instance. Unfortunately, throwing employees in jail because they fail to join you in your civil disobedience is not allowed if you wish to remain part of the United States. At that point, you have crossed a line and are utilizing the power of the state to trample the rights of others. Sound familiar?

Guest
Guest

 @dleeper47 He would be within his rights to do so, and I certainly wouldn't feel any sort of sympathy for those who end up in prison. Keep in mind, it's Indiana lawmakers who are opening the can of worms.

WesternFreePress
WesternFreePress moderator

I understand your concerns about the felony provision. That part is the most divisive.

 

That being said, so long as there is a penalty "tax," we are not truly free to refuse Obamacare.

Guest
Guest

 @dleeper47 I understand the logic, but think the bill smacks of a major misunderstanding of how civil disobedience and the government work. You can't use the power of the state to charge people with felonies just because they wouldn't join you in your sedition (which is, technically, what civil disobedience is).

Guest
Guest

@WesternFreePress

You are free to refuse to buy in to Obamacare. Your next-door neighbor is free to refuse to buy in to Obamacare. Lawmakers, in their personal lives, are free to refuse to buy in to Obamacare. We're not talking about individuals here, though. We're talking about a law that is seeking to make it a felony for public employees to do their job properly.

 

For a state government, unfortunately, acquiescence or secession are the only legitimate options with teeth. Indiana can feel free to pass the same bill they are proposing without the felony provision, but then it would have no teeth.

 

Dred Scott was a decision that many disagreed with, that many protested, and that many went to prison or were injured/killed over. That doesn't change the fact that, until the precedent was later ignored, it was the law of the land. I don't care what you personally think of Obamacare or what noble stand you're willing to take to voice your opposition. I care when you start telling someone who is a public employee that they must commit sedition alongside you or face a potentially crippling stain on their criminal record.

WesternFreePress
WesternFreePress moderator

 @dleeper47 @ Guest

 

So our only choices are acquiescence or moving? The Dred Scott decision was the law of the land. The Intolerable Acts were the law of the land. We all know what followed, in short order, these "laws." I am not calling for civil war or revolution, but I am saying it is wholly incorrect to assert that we must accept wrong decisions simply because they are "legal." Heck, even Wikipedia helps out on the subject, in its entry on Dred Scott v. Sandford:

 

"At the same time, Democrats characterized Republicans as lawless rebels, provoking disunion by their unwillingness to accept the Supreme Court's decision as the law of the land."

 

I would refuse too. That might put me on the wrong side of malum prohibitum, but it would have me on the right side vis-a-vis malum in se.

dleeper47
dleeper47 moderator

Good reply.  "Citizens are bound to respect [SCOTUS] or move outside SCOTUS' jursdiction."  I agree.

 

Indiana is evidently considering the latter after following the usual, legitimate path to SCOTUS that you advocate.  They got a 5-4 decision on Obamacare that (per Justice Kennedy) was more a re-writing of the law than an intepretation of it.  Under those circumstances, I can understand their logic for considering a nullification bill.  Can you?

Guest
Guest

 @dleeper47 We can all come up with what-ifs, but that seems like a lot of wasted emotional energy. I said of course without listing examples because the laws necessary to cause me to consider nullification would be so egregious as to not have any chance of actually happening. You yourself have listed one impossible possibility. There is no reason to believe private religious worship would ever be curtailed or outlawed.

 

The answer to your second question is that, in many ways, SCOTUS is the last word. There are ways around it - constitutional amendments, executive orders, etc - but I acknowledge that in the government we have established, it is often the last word on the legality of questionable laws. Is that power set in stone? It seems like it, but perhaps it should be debated. Until that power is changed, citizens are bound to respect it or move outside SCOTUS' jurisdiction.

 

This isn't a partisan issue. Whether you approve or not in any given partisan instance, the above is true at all times.

 

To the final question, yes I would consider that petty and juvenile. We're not all hypocrites.

dleeper47
dleeper47 moderator

"Of course I can"?? So what's the example?  Maybe outlawing the practice of certain designated religions?  If, after challenge, SCOTUS somehow declared that law to be constitutional, would you then support to nullification?  Or is SCOTUS the last word in all cases? 

And for an example of "petty and juvenile" legislator behavior would you include the Democrat walkout at the Wisconsin state legislature?

Guest
Guest

 @dleeper47 Of course I can. I also know that I'm mature enough to go through the proper channels to try and have a law declared unconstitutional. When a law has reached the highest echelons of the legal system and been declared constitutional, moves like the ones by the Indiana legislature just look petty and juvenile. In a republic, not everyone will get everything they want. They are free to attack Obamacare legally based on some other provision, or to secede (talk about a can of worms with that one), but they're trying to eat their cake and have it too - a rather immature response.

dleeper47
dleeper47 moderator

Really?  No sympathy at all?  Can you imagine any issue at all over which you'd fight this way for nullification?  Can you give at least one example where you would advocate attempting nullification?  None at all?