Ever since the passage of that rancid piece of legislative sausage labeled health care reform Republicans have been talking about repealing the bill. Some even talk about “repeal and replace” as their goal. Alongside that rhetoric (and that’s pretty much all it is at this point) there has been the action taken by the Attorneys General of many states to file suit against the constitutionality of the bill. My purpose here is not to discuss the issue of health care reform; rather, it is to talk about the differences between these two legal paths out of this reform as well as another path which is fundamentally different—nullification—which thus far has not been actively pursued by most opponents of the bill.
While the battle cry “Repeal it!” is very memorable and effective at rallying the emotions of voters who are willing to admit that this bill simply does not pass the smell test, critics of this approach point out that the chances of repealing this bill are virtually nonexistent. To repeal it while Obama is in office would require 2/3 majorities in both houses of Congress to override his certain veto of any bill to repeal. To wait until after he leaves office, even if he only serves one term assures that passion and energy will almost certainly have cooled enough that Congress would no longer consider a bill to repeal it. Remember, there is nothing so permanent as a temporary government program and by 2012 all the bureacracy related to this “reform” will be entrenched.
The lawsuit from many states over this bill has a higher chance of success because even proponents of the bill recognize that the constitutionality of an individual mandate is highly suspect. Actually, the only way to argue that it is constitutional is to argue that the Constitution itself has no force of law beyond establishing the structure of our multi-level government. While this should be a slam dunk in any court that respects the Constitution as the supreme law of the land, I would not trust our Supreme Court to overturn Congress on a piece of legislation that is this emotionally charged unless the legislation were banning abortion or gay marriage. The fact is that the majority of our Supreme Court justices see the Supreme Court as the supreme law of the land rather than the Constitution.
While repeal and filing suit each presume that the federal government is ultimately sovereign, nullification assumes that ultimately the states are sovereign in our republic. Nullification has been used before, mostly during the first century of our nation’s history while the state governments really remembered that they had a sovereign power within the nation as a whole.
I wrote to my state senator and representative asking about nullification and the response I got was:
I don’t know if there is much appetite within the legislature to nullify the health care bill.
That sounds accurate to me but I think we are cutting off the real power of our system of federalism by ignoring such an opportunity to remind Congress by nullifying this lousy bill that the states remain sovereign on most issues according to the Constitution and that we as states have not forgotten that. Instead we crawl back to the federal government and ask if they might please modify or remove the legislation themselves as if we needed permission to act within the sphere of our established rights as a state.
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