State's rights redux
A history lesson for the health reform naysayers
State's rights redux
Dick Polman, Inquirer National Political Columnist
Let's skip the latest byzantine congressional maneuverings over health care reform and cross the river into Virginia, where willful historical ignorance and constitutional cluelessness apparently run rampant.
Two days ago, the Republican-dominated state assembly thumbed its nose at Washington by passing a bill that supposedly gives Virginians the right to opt out of national health care reform. The bill, which the new Republican governor reportedly intends to sign, would supposedly block the federal government from requiring that all Virginians purchase health insurance.
This requirement is a core feature of the federal reform effort - expanding the pool of insured, premium-paying Americans would offset the increased costs of insuring the sick and those with preexisting conditions - but Virginia seems to think that it has the right to simply say No. As one conservative Virginia blogger rejoiced yesterday, "Virginian's (sic) will make their own decisions about health care."
Some politicians in 34 other states - working with legislative language crafted by the American Legislative Exchange Council, an organization bankrolled by conservative foundations and backed by some major players in the insurance industry - are hoping to follow Virginia's lead. They too seem to believe that states have the right to opt out of health care reform, to choose which federal laws they wish to obey or defy.
What I'm wondering is, did these politicians ever crack a book in history class?
The cause they appear to be championing was once known as "nullification." The cause peaked somewhere around 1832, when South Carolina declared that it would not comply with federal tariff laws. President Andrew Jackson threatened to send federal troops in order to enforce compliance, and he said: "I consider the power to annul a law of the United States, assumed by one state, (to be) incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." South Carolina backed down. End of crisis.
Jackson's remark about "the letter of the Constitution" was a clear reference to the Supremacy Clause in Article VI, Paragraph 2, which decrees that "This Constitution, and the Laws of the United States...under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
In fact, James Madison, a founding father and prime architect of the Constitution, specifically rejected the nullification argument, and defended the intent of Article VI, in a letter he wrote for publication in 1830: "(G)iving such a power to a minority over such a majority would overturn the first principle of free Govt. and in practice necessarily overturn the Govt. itself."
And lest we forget, more than 600,000 Americans died in a civil war that was fought to settle the issue over whether federal or state law was supreme. Care to remember which side settled the issue?
The nullification cause - also known as "state's rights" - has flared periodically ever since 1865, of course. Virginia's attempt this week to defy any federal mandate on health insurance is eerily reminiscent of Virginia's ill-fated attempt, more than 50 years ago, to defy the federal mandate on school desegregation. Virginia and other southern states passed laws to thwart the feds; Arkansas even amended its state constitution to separate the schoolkids by race. But the U.S. Supreme Court unanimously nixed those nullification efforts in 1958, ruling that the federal desegregation mandate had a "binding effect" on the states, and that "no state legislator...can war against the Constitution without violating his undertaking to support it." And in 1982, while dealing with a commerce issue, the high court again nixed nullification, declaring that "a state statute is void to the extent that it actually conflicts with a valid federal statute."
State law can't trump federal law, end of story. But this new nullification effort is not about legal scholarship, it's about political theater. It's about ginning up grassroots opposition and flipping off Washington. It's about scaring the Democrats during the run up to the November elections; indeed, 21 Democrats in the Virginia assembly voted for the nullification bill this week.
The long-term scenario may well benefit the Democrats - if federal reform passes, chances are that Virginians 10 years from now will be screaming, "Keep your government hands off my mandated health care!" - but right now we're still stuck in the short-term messaging phase. May the most effective messengers win. It's just a pity that these new nullifiers care so little about the historical tenets of the nation they purport to represent.
Dick, what recourse do the people have when the federal government and one political party is wiling to break the law and circumvent the legislative process to impose on the people a "law" they do not want and that cannot pass in the normal legislative process? What rights do the people have? Whose country is this?— CD75- And Dick, you and Obama and your minions forget that a democrat-dominated state (Massachusetts) sent a republican to the Senante to replace a seat held for 40 years by a dem over this issue. If Massachusetts does not want it, then nobody does. Are you that blind or just stupid?— CD75
- Don't tread on me!!!!— Grazman
- I wonder where you draw your numbers cd ??? Americans by and large do want health care minus the insurance company coddling the GOP seems to love !!! The evidence seems to indicate that the GOP never intended to be a part of the process instead wanting to engender fear in the American public over President Obama as evidenced by the powerpoint presentation left behind by a probably inebriated GOPer at the conference down south. SOmething has to be done to slow the growth of healtcare costs as a percentage of GDP. We have a plan that is rated as lowering the deficit by the CBO proposed by the Democrats. We have NOTHING from the party of NO.— FormerGOPer
- And to the Right Wing - Why not reconciliation ???— FormerGOPer
Comment removed.- What is illegal about reconciliation, CD? If it is, lets prosecute everyone who voted for reconciliation during the last president's term. States' rights disputes are the reason the federal government can still prosecute medical marijuana cases, which isn't just. I think Virginia should be able to opt out with the way this country is set up now. I'm a big fan of a strong central government, but that isn't the current political climate.— HandNik
- FormerGOPer, where do you get your numbers? You criticize CD75 for not backing up his statement, then you proceed to do the exact same thing. I did a cursory search on poll numbers for the health care bill, and I could not find one that said the majority of people are in favor of the bill. And there is plenty from the so called party of NO. Contrary to your less than intelligent assertion, there is no evidence to indicate otherwise. They just do not want a huge overreaching bureaucracy which is all that this bill is. They have made many legitimate suggestions, all of which Obama has said he would look into, and has completely ignored.— pete317
I just knew this had to have its roots in South Carolina. Is treason still a crime?— potus- DP - Is right that states can't trump a constitutional federal law such as a tariff. But they can trump a unconstitutional one such as mandating people to buy insurance.— Mike Welbourn
- CD, Massachusetts doesn't want it because they already have it (are you that blind or just stupid?)— potus
- Sadly JWAD what are our choices ???? As I said before - we have a bill that is rated to pay down the deficit by the democrats and NOTHING from the party of NO. What is our choice ???— FormerGOPer
- HandNik, reconciliation is not meant to be used to create a brand new bureaucracy, especially not one as large as this. The Byrd rule specifically prohibits using reconciliation for that purpose, and strictly following the Byrd rule while using it in this case would cut a ton out of the existing bill. So if congress manages to use reconciliation to create this new bureaucracy, this will not only be the first time reconciliation has been used to do so, they would probably have to find ways to get around the Byrd rule. This type of rule is set up so that you need a large majority to pass huge legislation, rather than just a simple majority. Consider it a fail safe to prevent simple majorities from implementing huge, expensive bureaucracies that most of the citizens of the country don't want...like this health care bill.— pete317
- SPIN BORO MIKE: Slime time? You say you're a Libertarian and I've respected that, but it's a shame you don't return the favor to others who tell you what they are. I'm a Mod Dem who might go Indy before long. ............... TOM: Conse 'Pubs feel that procedure to stop health care is their right, but when Dems use procedure it's breaking the rules. I know but, but, but. If it wasn't this, it would be some other trumped-up reason.— Talvenada
- Comment removed.
Cited by the Columbia Journalism Review as one of the nation's top political reporters, and lauded by the ABC News political website as "one of the finest political journalists of his generation," Dick Polman is a national political columnist at the Philadelphia Inquirer. He is on the full-time faculty at the University of Pennsylvania, as "writer in residence." Dick has been a frequent guest on C-Span, MSNBC, CNN, NPR and the BBC. He covered the 1992, 1996, 2000, and 2004 presidential campaigns.
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