To see the reaction in some states to the just-passed health care reform bill, you might think you were back in the 1950s. Today, as more than a half century ago, some states are looking for ways to defy federal law – including reviving the pre-Civil War doctrine of “nullification,” claiming that a single state can block federal law.
And, once again, Virginia is leading the way, similar to its 1950s “massive resistance” campaign against federal orders to end racially segregated schools. Virginia’s governor signed laws last week that attempt to make elements of the new health care law illegal in Virginia. Utah and Idaho have passed similar laws.
In California, state Sen. Tony Strickland, R-Moorpark, has introduced his own version of nullification. A proposed constitutional amendment would “prohibit the effectiveness or enforcement” of requirements that insurance companies provide coverage to all applicants regardless of pre-existing conditions and that individuals have health insurance coverage – unless California voters go to the ballot and approve them.
Such single-state nullification won’t pass legal muster. Article VI of the U.S. Constitution – the Supremacy Clause – says that federal laws take precedence over state law. The Civil War was fought over this issue – and decided in favor of national union.
States can, of course, legally challenge the constitutionality of federal laws in court. But here, too, they need to use some sense – not simply engage in frivolous lawsuits that are more about policy differences or symbolic gestures than constitutionality.
The new health law is a case in point. On the day President Barack Obama signed the health care bill into law, Republican attorneys general in Alabama, Colorado, Florida, Idaho, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington, and the Democratic attorney general in Louisiana, filed a lawsuit challenging it.
The lawsuit focuses on the new law’s “individual responsibility” provision that requires people to have health insurance or pay a tax penalty. Legal scholar Jack Balkin explains that provision this way: “If they stay out of the risk pool, they effectively raise other people’s insurance costs, and Congress taxes them to recoup some of the costs. If they join the risk pool, they do not have to pay the tax. A good analogy would be a tax on polluters who fail to install pollution-control equipment: They can pay the tax or install the equipment.”
Recall that this provision originally was championed across the Republican spectrum – from Newt Gingrich to Arnold Schwarzenegger. It was signed into law in Massachusetts in 2006 by then-Gov. Mitt Romney, later a Republican presidential candidate. The recent Republican reversal on this issue signals that opposition is more about political theater than constitutionality.
The three Republican candidates for California attorney general – Steve Cooley, John Eastman and Tom Harman – say they would join the 13-state lawsuit, calling the new law an intrusive expansion of federal power at the expense of states’ rights. The seven Democratic candidates – Rocky Delgadillo, Kamala Harris, Chris Kelly, Ted Lieu, Pedro Nava, Mike Schmier and Alberto Torrico – would not join the lawsuit, considering it a partisan maneuver.
The bottom line: Rather than skirmishing about the new law in the courts, proponents and opponents would do better to settle this policy issue through a “keep it” or “repeal it” debate in the normal election process. This may sound quaint, but why not fight it out in the political arena using facts and persuasion?