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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.
13 replies on “Repeal vs Lawsuit vs Nullification”
You might reconsider supporting nullification. Nullification is only legal theory and has never actually been used as more than a message law by the passing state legislature, much as a message bill. Even the nullification resolutions that were submitted by Virginia and Kentucky were just that-resolutions with a message that never obtained the weight of law. Even after the resolutions were written by Jefferson and Madison, they both became moot when Jefferson was elected to the Presidency in 1800 and reversed the laws in question with Congress’ help. So they never gained any kind of legal precedent other than as a form of protest legislation.
Later, during Andrew Jackson’s administration, South Carolina tried nullification again when complaining about the costs of goods manufactured in the north or abroad as a result of tariffs against foreign goods levied to protect northern manufactures. John C. Calhoun, then VP under Jackson, promoted nullification as a way to avoid S. Carolina’s succession from the Union over the tariffs. President Jackson, a southerner himself, declared the use of nullification to be treasonous, Calhoun resigned and become a Congressman, and a compromise tariff bill proposed by Senator Henry Clay averted the conflict in the short term. Ultimately, it was resolved by the civil war.
So nullification has never been used effectively or stood up against judicial review. Alexander Hamilton and John Adams both viewed it as contrary to the federal republic system of government that the Constitution established. Madison himself recognized that it was a questionable practice and only assisted at Jefferson’s insistence. Historian Ron Chernow has noted that it is a complete about face from Madison’s own professed description of the supremacy of the federal government in the Constitutional convention and the Federalist Papers. The only party left, then, as a supporting party, is Jefferson, who was neither in the Constitutional Convention (but in France at the time), nor a supporting member of the government until 1800 (as Secretary of State under Washington and VP under Adams, he acted more as the head of the opposition, albeit in the background, than as a member of the Administration). And Jefferson expanded and retained all Federalist actions, with the exception of the Alien and Sedition Acts, even expanding the federal government’s implied powers with the purchase of the Louisiana Purchase from France, something arguably beyond the scope of the Constitution.
So…long story short: nullification is less likely to be found Constitutional than the lawsuit before the SCOTUS is likely to succeed. This, I believe, is the reason there is little “appetite within the legislature to nullify the health care bill.” In addition to being a questionably legitimate option, it has no successful precedent.
The theory behind it, that the states are sovereign, misses the point of our form of government. We are a federal republic, not a confederation of states. A federal republic allows the existence of several levels of polity within the same nation, and the constitution thereof defines each polity’s scope and powers.
Further, there is not a direct basis for stating that it is the governments of the states themselves to comprise the country. The constitution was ratified by conventions held within each state of electors chosen specifically for that purpose, not by the state legislatures. Hamilton and Madison, as well as others, devised this to ensure that the federal government derived its powers directly from the people, not at the wim and will of the state legislatures and governors (and much against the wishes of such luminaries as Patrick Henry and George Clinton). For this reason, it should appropriately be understood that not only does the federal government derive from the people, not the states, but when coupled with the Supremacy Clause of the federal constitution, cannot have an act overturned or nullified by a state’s legislature.
Further, there is a long and full history of precedents indicating that state laws are subsidiary to the federal law when acting within the enumerated powers granted by the constitution (including treaties, federal regulation, etc).
Whether or not the enumerated powers allow for the HCR to have been passed in the first place is the purpose of the states’ lawsuit. And that, I believe, is where the next battle of the conflict will be fought.
It’s true that nullification is no more than a message bill. Even if all 50 states passed such a bill it would not alter the fact that Congress had passed the health care bill. On the other hand, as message bills go, nullification sends a very strong message. Unlike myriad message bills that get passed and ignored annually, nullification bills have never been ignored. One way to read history is that they have never amounted to anything but another way to read history is that they have never been ignored. In every case the issue was addressed.
I am not opposed to the lawsuit approach. In fact I agree with you that the lawsuit is where the nettle will be caught next. On the other hand, I think a two pronged approach, with Attorneys General filing suit and state legislatures passing message bills opposing this takeover, would be more effective than an either/or approach.
I agree that federal laws are, and ought to be, supreme in all matters under the enumerated powers. The current lawsuit will test whether the courts believe that this falls under those powers or not but the reason the federal government has been able to expand it’s powers so far beyond their originally understood limitations is because states have not peeped as the federal scope has crept upon what was previously their jurisdiction. Nullification is a very loud message that “this is too far.”
By the way, I did not intend to say or suggest that the state governments created the federal government. What I meant to say was that they were explicitly granted broad sovereignty by the Constitution to operate without federal interference in matters outside the enumerated powers of the federal government. In the early years of our nation they recognized that but the understanding of state governments now seems to be that states are allowed autonomy unless Congress decides to act on an issue. I believe this is a result of living so long with the federal government directly taxing people and then providing, through a federal filter, the bulk of the money that state governments spend. The states became accustomed to federal oversight as they spent federally provided money. The result is that they have become weak administrative subdivisions of the federal government on a whole range of issues where they were supposed to have been sovereign and independent.
The individual mandate was purposely written as a amendment to the IRS tax code, this was done so that if it was struck down that it would not effect the rest of the bill.
Their are several parts of the bill which where written in a compartmentalized fashion to avoid the whole bill getting struck down.
Now Nullification is interesting and no State will risk it because many bits of the health care bill where written as amendments to other laws, the Medicaid expansion changes the medicare law, so if they nullify that they lose all medicaid funding. In most States this would cause a collapse of their hospital system in very short order.
Now they could nullify the parts of the bill that are not amendments, the insurance exchanges, guaranty issue/renew regulations, community rating rules that only applies to the exchanges, etc. The subsides are safe from this as they are provided via IRS tax code amendments and served directly at the federal level.
The lawsuits might kill the individual mandate, Their are only a few centrist dems(poor ole Joe Liberman) that would be upset by this. But other then that I really think the bill is pretty safe.
David, I wasn’t suggesting that you thought the states had created the federal government. I was responding to how the nullification theory is formulated: that state governments can nullify federal actions because the states have sovereign rights superior to federal law. In essence, I was saying that, no, they don’t, in areas where the Supremacy Clause applies. So, I wasn’t responding to you so much as to nullification theory.
I also want to note that I had a thought about your suggestion of message bills by state legislatures. I think the best thing states can do, something they’ve been unable to resist doing to date, is refuse to accept federal monies. States do not have to take the money, and to the extent that the state does not, they limit federal power. Remember NCLB? If Utah refused federal money, there would be no question about compliance with federal standards. The real issue comes back to taxation and redistribution of wealth. So, yes, message bills are nice, but if the legislatures would just deny the governor any federal funds, they’d do a bigger service to us than wasting time on message bills (which as you can tell I have a very low regard for…as Rep. Flake once said, “he who wastes time writing and passing pointless resolutions does not have time to read the healthcare bill.” Or something like that…)
Ronald: you sound like you are talking politics more than constitutionality, so I’ll just say: Yep.
I was talking the method of implementation of the health care law, which greatly effects how health care can be attacked. Laying out how the law is implemented is very important to understanding what those who don’t like the law can do about it if anything.
Most people are unaware that many of the laws provisions are executed via amending existing laws, A State can nullify the medicaid extension only by nullifying the 1964 Medicare law(good luck on that one).
The individual Mandate works the same way, you would have to nullify the IRS tax code in your State, Tho this method of attack likely wouldn’t pass muster in the supreme court due to supremacy clause.
I really hope that the Supreme Court rules that the individual mandate is unconstitutional but if they don’t that just adds one more reason the rewrite our horrendously complex and intrusive tax code.
I am pretty sure the Individual mandate can be attacked on its own without States having to try and nullify the IRS tax code. I bet their is enough Democrats who don’t like that provision that it would be eventually repealed either way, I really get the impression that many dems gave up on dumping that because senator Joe Liberman and his caucus of sellouts wouldn’t budge without it.
Let’s hope so.
Very true. and that is why Biden so eloquently demonstrated how big a deal it was to get passed in the first place, not to mention how hard it would be to reverse.
I Think its important to talk about the outcome of some of these different methods of attacking the law as well,
Steve Urquhart Medicaid cost blog post, Steve talks about the medicaid expansion costs to the State of Utah, but in this case look at the amount of money it brings into the state from the Federal government, Almost $2.1 Billion dollars by 2020 by my numbers. In other words Nullification of the Medicare law as a means of attack on the wider health care bill has a very expensive price tag on it, And of course it will still be paid through increases in insurance premiums to those who can still afford health insurance in the state. I can image that increases in uncompensated care from this approach could bankrupt hospitals through out the state as well.
I know this may sound like an attack on those attacking the bill, its not meant that way. I believe cause and effect is an important part of the argument for anyone who is either for or against anything really.
Ron, I don’t see the logic in what you are saying. How does Urquhart’s post have anything to do with nullification, or the costs to repealing it? The cost of repealing it is the savings we retain by not paying out more. And if we lose the $2.1B, that money is taxes not raised. People keep that money in their pockets.
I don’t think I understand what you are saying….
Their is a law that States Emergency rooms must take in any that comes and stabilize them, So their is a lot of care that is provided one way or the other, Without Medicaid that means the hospitals will directly eat those costs, They will recover those costs by charging higher rates on other services they provide, that means your insurance rates will go up to make up for that difference. Currently for Hospitals 15-20% of their business is uncompensated care, without Medicaid that will increase to 30-40% of their business. Really when it comes down to it Medicaid is what prevents cost shifting from uncompensated care from destroying the American health care system.
http://en.wikipedia.org/wiki/Emergency_Medical_Treatment_and_Active_Labor_Act
Steve’s blog post was referenced solely for the numbers.
The problem with nullification is that it is such a slippery slope. If one state can nullify one law, why couldn’t another state nullify a different law? Utah could nullify the health care deform act and New York could nullify the “Defense of Marriage” act, and Vermont might nullify the Patriot Act and New Hampshire might nullify the IRS. It just isn’t practical.
We had this kind of buffet-style government under the Articles of Confederation and it didn’t work.