Tuesday, January 25, 2011

Nullification: Sorry, This Is Not Going To Fly

Some members of the Idaho legislature (and in other states as well) are talking about bills to "nullify" Obamacare.  As much as my sympathies are with them on this, this is not going to fly.  There are legitimate criticisms of the constitutionality of parts of Obamacare, and legitimate criticisms of the sensibility of other parts of it, but the notion that states get to ignore federal laws that they don't like just because they don't like them is not going to fly. 

The lawsuits challenging the constitutionality of parts of Obamacare are the way to go on this.  There are parts of this steaming pile that are likely to be constitutional.  Not everything stupid, corrupt, and foolish is unconstitutional.  At some point, we have to actually get the people to show up to the polls in enough numbers to change the composition of the Congress and the White House.  In a society as depraved and corrupt as America, good luck!  We need to start working a bit harder on persuading the masses that right and wrong still mean something.

8 comments:

Bubblehead said...

Concur completely. I'm impressed.

patrokov said...

I disagree, although as you point out, it can't be done whimsically. It is supposed to be used only in areas where the Federal government is encroaching upon the 10th Amendment.How can the Federal government possibly be an objective judge in disputes involving itself?

All nullification does is protect its citizens from enforcement of the federal law.

It has historical precedent:
-Kentucky and Virgina Resolutions of 1798
-South Carolina and the Tariff of Abominations
-Northern states that refused to enforce fugitive slave laws
-Not a legislative action, but their was the sheriff of Jefferson Parish ordered his deputies to shoot any federal agents who interfered with their communications after FEMA cut off their communications.
-RealID Act (although you might call that pocket nullification)
-Whether you agree with it or not, it's currently being practiced by states that are legalizing marijuana.

While, I agree that pursuing decisions of the courts is important, we would be a whole lot better off if we simply opened our eyes and collectively admitted, that historically, many of the major decisions have been off their rocker crazy and should be outright repudiated. Of course that would violate the pretense of precedent.

When a judge says that the sky is green, fetuses aren't babies, the Civil Rights Act that specifically forbids quotas requires quotas, that 2+2=3, we have a moral duty to ignore or renounce that judge's decision. Otherwise we are no worse than the crowd admiring the Emperor's New Clothes.

And finally, I have always been astounded at how the left can completely ignore judicial decisions that they find inconvenient while the right pretends that they are Jephthath bound by oath to sacrifice their own daughter to stupid decisions.

Clayton said...

There are plenty of examples of state and local officials choosing to ignore federal law, no question, and as you point out, not always on the "wrong side of history," as liberals like to pretend.

But in answer to the question about how the federal courts could ever be impartial on the Tenth Amendment: see New York v. U.S. (1992) and Printz v. U.S. (1997). Both struck down parts of federal laws for violating the Tenth Amendment.

I agree that it takes honest judges, and we have not had enough of those over the years. But that doesn't preclude the possibility of winning in court. Nullification, unless you are prepared to have your state officials start shooting at federal officials, is not a legal argument with any strength.

patrokov said...

>>But in answer to the question about how the federal courts could ever be impartial on the Tenth Amendment: see New York v. U.S. (1992) and Printz v. U.S. (1997). Both struck down parts of federal laws for violating the Tenth Amendment.

Granted it does happen, but systematically where does it fall? Congress makes laws that violate the Constitution. It's the law until someone runs afoul of it and appeals up the stream until the Supreme Court declines to hear the case, and it doesn't even have to decide against the government. Meanwhile the Federal Register is 80,000+ pages and growing.

After Roosevelt threatened to pack the Supreme Court, it seems that the court lost much of its zeal for overruling other branches.

>>Nullification, unless you are prepared to have your state officials start shooting at federal officials, is not a legal argument with any strength.

When push comes to shove, isn't that what government is always about? I'd prefer that my state officials shoot federal officials to protect my freedoms than for them to join together to abuse them. (I find the cold reception that the OathKeeper's movement has received truly ominous.)

But of course, it usually doesn't come to that. Often, the federal government has eventually backed down because it can't afford to enforce every law on its own in keeping with Grotius' consent of the governed insight.

The Federal government needs the consent of the states as much as it needs the consent of the people.

Chris said...

Nullification, unless you are prepared to have your state officials start shooting at federal officials, is not a legal argument with any strength.

That's exactly the point, though. Some of these nullification laws have "teeth" in that they impose criminal penalties on individuals trying to enforce the federal law. I.E. the state troopers -- wtih guns -- come and arrest federal officials.

I also don't think it will fly. If the states play that game, they will lose -- the president always has the trump card of federalizing their national guard forces and and mandating compliance with even more force. But while Americans tolerated -- even encouraged -- integration in the racist south at the literal point of a gun when Eisenhower sent in the Guard and Airborne, do you think that Democrats want Obamacare to be ushered in with that sort of media image?

I think it far more likely that the feds would retaliate by suspending federal payments from the magic Federal money machine to the states. Which is probably why places like Texas are also talking about ways to wean themselves off of medicare, and why up in Alaska we're talking about ways to get more control over our natural resources. The states which are in the black will have much more maneuvering room than those which are sniffing for a federal bailout.

And ultimately, what does it cost to pursue multiple tracks at once? The Federal Judiciary can check the Executive, but in theory, the states can also check the Federal. It is just like the Firearms Freedom Acts: while unlikely to stand up, they force political opponents to expend limited resources in hostile territory. I don't think that it costs the local/state officials of many of the states that are going the nullification route much political capital to do this, after all. But it will cost the Dems at the federal level capital to ram it down everyone's throats.

Cheers,
Chris from AK

Billy Oblivion said...

* One of the salient "features" of being conservative is obedience to laws that are not actively evil until one has no more recourse. We might (these days) march in the streets, we might (these days) wander up to D.C. and be counted (badly) on the Mall, but we do not burn things, we do not riot, we do not destroy. Hell, we even litter less. And if the day ever comes when both the soap box and the ballot box are closed to us, we will use the cartridge box with much more focus and precision, because we of who we are. To stand up and stamp our feet and pout is frankly childish.

* That said, as I understand it there are certain requirements that the Feds make on the states. For a state legislature to pass a law saying "No state taxes will be used to fulfill unfunded federal requirements in this area" is simply forcing the Federal Government to be honest in it's accounting. It may not be constitutional, and I'll have to bounce around whether I think it's right (moral) or not.

Bubblehead said...

Re: South Carolinia and Tariff Nullification, please see President Jackson's response: The Force Act. South Carolina was forced to back down. And I notice you didn't include Arkansas' attempt to nullify federal anti-school segregation laws. President Eisenhower kinda put a stop to that.

patrokov said...

>>Chris,
>>the president always has the trump card of federalizing their national guard forces and and mandating compliance with even more force.

It always goes back to moral authority. The president can order anything he likes, but if the governor countermands the order, individual guardsmen will have to decide for themselves which is the legal order.

>>I think it far more likely that the feds would retaliate by suspending federal payments from the magic Federal money machine to the states.

And states can stop collecting taxes for the federal government, like gas taxes. In the end, it's a game of chicken...someone turns or someone gets hurt.

>>One of the salient "features" of being conservative is obedience to laws that are not actively evil until one has no more recourse.

Only legitimate laws (and even then, I think you're wrong about that statement). And nowhere in the constitution does it grant the Supreme Court final say over constitutionality. The Supreme Court has usurped this authority over the years. The Constitution is written in plain English on purpose, so that all can understand it.

What would happen if Congress voted against a bill, and the president signed it into law anyway and started enforcing it? Would you obey it? I might because I feared repercussions for not, but I would not obey because, "It's the law."

And please tell me that you always obeyed the 55 mph speed limit.

>>Billy Oblivion
>>To stand up and stamp our feet and pout is frankly childish.

Psychological fallacy. Nullification is hardly stamping one's feet.

>>Bubblehead
>>South Carolina was forced to back down

Not exactly. South Carolina agreed to collect the tariff in exchange for a much lower rate. I'd call that winning.

>>And I notice you didn't include Arkansas' attempt to nullify federal anti-school segregation laws. President Eisenhower kinda put a stop to that.

Yes, and Lincoln put a stop to the South's secession. Are you suggesting that we decide moral and legal authority based on trial of arms?