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Red States' Legally Dubious Strategy to Destroy Obamacare

Nullification by any other name...


A piece of news that would delight John C. Calhoun: In the coming weeks the South Carolina Senate will consider legislation that is purported to nullify the implementation of Obamacare. H. 3101, known as the Freedom of Health Care Protection Act, would ban state agencies from helping people sign up on the state insurance exchange and offer a tax deduction to counteract any federal financial penalties imposed for failure to comply with the law’s individual mandate to obtain insurance. Since its easy passage in the state’s House of Representatives last summer, the bill has attracted support from some conservatives, but also incited protests among those disturbed by the implications of a state initiative to negate federal law.

Such legally dubious proposals have grown in number as conservative states seek to insulate themselves from progressive change imposed by Washington. Last year, when political support for gun control was at its highest, Kansas passed a law declaring any federal regulations on firearms “null, void, and unenforceable” within the state and stipulating criminal prosecution against federal employees attempting to enforce such regulations (the law prompted a written warning from the Justice Department). The Missouri Senate held hearings on similar legislation last week, and the Democratic governor of Montana vetoed another nullification measure last March.

Health care reform has provoked an even stronger response nationally, with more than 20 legislatures debating bills to invalidate Obamacare within their states. As the National Conference of State Legislatures has demonstrated, none of these proposed bills have become law. This is because they would almost certainly be overturned by the courts if they ever took effect. The Constitution states, and the Supreme Court has unambiguously affirmed, that federal statutes and treaties make up “the supreme law of the land,” and the states hold no power to overrule them. Even representatives from the conservative Heritage Foundation and Cato Institute have cautioned activists to abandon nullification as a pointless and destructive tactic.

The bill under consideration in South Carolina is one of several new attempts to circumvent judicial challenges by narrowing the aims of nullification. It does not formally declare Obamacare void or attempt to impede federal employees from carrying it out. “It’s not really a nullification bill,” said Derek Black, a law professor at the University of South Carolina, in a phone interview. “If you look at the bill closely, what it does is say, ‘We’re not going to help citizens get healthcare and comply with the Affordable Care Act.’ That does not fit into the category of express nullification. It’s just contrary, I suppose.” 

Constitutional scholars concede any state’s right to pick and choose which federal law to enforce. “The federal government can pass legislation in an area, and people who are citizens of the states have to obey that legislation,” said UCLA law professor and noted author Adam Winkler. But, he continued, drawing on the example of Washington and Colorado’s move to legalize marijuana, federal authorities “cannot require state officials to enforce federal law.”

Even so, Winkler said, elements of H. 3101 still rest on weak legal ground. “Generally, the Supreme Court says that when the federal government legislates in an area, states are not allowed to enact laws that are fundamentally inconsistent with that federal goal. And so that tax deduction seems quite clearly inconsistent.”

Analogous efforts in other states have already been shown to be untenable. In October, a district judge issued a temporary restraining order against the government of Tennessee, preventing it from issuing fines to churches and labor unions that assisted the uninsured in registering with the state exchange. A similar ruling was made recently in Missouri. Even the advocates of South Carolina’s law seem to be cautiously retreating from the fiercest rhetoric surrounding the bill. Republican state Senator Tom Davis, who plans to introduce an amendment to strip the bill of its tax deduction, wants nothing to do with talk of dismissing federal law. “Everybody talks about nullification,” he remarked after a recent hearing. “This isn’t nullification. We can’t nullify.”

It’s perhaps wise for Republicans to eschew that word, both as a cultural and a legal strategy. In South Carolina, the term isn’t merely an abstraction of Constitutional theory; it is a long-cherished recourse against government overreach, and comes with a tortured history. As any AP U.S. History student can dutifully report, the Nullification Crisis of the early 1830s—in which South Carolina politicians, led by the arch-conservative Calhoun, declared two recently passed tariffs unconstitutional and mobilized troops to ward off federal intervention—was a crucial milestone on the road to the Civil War. Over a century later, in the wake of the Supreme Court’s ruling in Brown vs. Board of Education against the segregation of schools, the state adopted a resolution of “interposition and nullification,” seeking to reverse the historic development.

“Any time there’s major change in the state-federal relationship, South Carolina—either by legislation or by lawsuit—is always first in line to claim unconstitutionality,” said Black, the USC law professor. “It’s partly the idea of South Carolina culture—protecting what they believe to be the core historical South Carolina culture against outside forces trying to interfere with it.”

Regardless of the notions of federalism which fuel the effort, one thing is certain: The bill, if it becomes law, will further hamper the U.S. government’s ability to reach its most disadvantaged citizens. “We’re in a state with a high proportion of people living in poverty and with low income—certainly a large proportion of folks living under 400 percent of federal poverty line, who could potentially benefit from the exchanges,” said Christina Andrews, an assistant professor at USC’s College of Social Work. “It’s frustrating that a state with one of the highest rates of poverty in the country, which ranks near the bottom in terms of health outcomes, is spending this kind of time and energy on something like this.”