Nullification Act

[stebo0728]

Ok, so the notion of a Nullification Act is starting to stir up in a few different states now. Basically, a Nullification Act would be passed by a State Legislature, and would state that the State in question considers a Federal Bill or set of Federal Bills "null and void" based on that State's assessment of constitutionality of said bill(s). This is catching wind as a response to the Obama Care bill, and its perceived usurpation of the States powers. Im not necessarily weighing in yet as to whether I support this action, but Im interested in the idea of it, and its implications. The idea is that the Supreme Court, being at the Federal level, is somehow, at least in some regard, in cahoots with the Legislative and Executive branches at the same level, to systematically relieve the State's of their powers by usurping them one at a time, unchallenged, then having the SCOTUS proclaim said usurpation "constitutional". In the event that this is true, and I'm not claiming it is necessarily, but in the event it is, then what recourse do the States have? It certainly doesnt help that their Federal legislative representation has been stripped away. But lets discuss both whether a Nullification Act is good or bad, and also what the possible resulting course of actions would be on both sides. Lets say 10, 15 or so States pass a Nullification Act, deeming that they just simply will not accommodate Obama Care, and the Feds can go pound sand. What next? Would Obama then roll the National Guard up in there and attempt to force compliance? Could this be a path to another "civil unrest"?

[IBCoupe]

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, 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, anything in the constitution or laws of any state to the contrary notwithstanding.

States can't nullify Federal law. It's unconstitutional. And the reason it's unconstitutional is because we tried the Articles of Confederation already, and that made the Federal Government the UN before there was a UN. It doesn't work.

[stebo0728]

anything in the constitution or laws of any state to the contrary notwithstanding.

So what does that last part mean exactly? Does it mean that if a state constitution carries something to the contrary, it trumps Federal law?

Nevermind, I was confused about "notwithstanding" Im good now.

So, what if they do it anyway?

[IBCoupe]

It means that State laws and State constitutions cannot trump the Federal Constitution or federal laws made in pursuance thereof.

If a State doesn't want to follow a Federal law, its recourse is to challenge the Constitutionality. You only pass a "nullification act" if you're dead set in demonstrating the necessity of better high school civics classes.

[Cold_Zero]

IB, I thought that Article 6 only applied to where the Federal Government had Supremacy in its enumerated powers? Can you clarify?

[IBCoupe]

Congress is presumed to only be able to pass a law that is necessary and proper to the pursuit of an enumerated power. So any law Congress passes that is Constitutional displaces conflicting State laws/constitutions.

Now, some of those enumerated powers are interpreted broadly, as is the phrase "necessary and proper," this is means a lot more than a strict literalist perspective would say it does.

[stebo0728]

Still, you've not addressed my last question. You say the States CANT nullify Federal Law.

So what if they do anyway?

[IBCoupe]

The Federal Government hauls them into Court and imprisons a governor that refuses to follow a court order. Or throws the National Guard at them, a la integration, and makes the State comply.

That's assuming they actually attempt to act on the "nullification." If a State passes a stupid, unconstitutional law like that, and then does absolutely nothing about it, there's no issue.

[stebo0728]

Ok, thats pretty much what I thought, and yes Integration came to mind. But Integration really only faced opposition by one state, at least to the point of playing the National Guard card. Suppose 10 to 15 states simultaneously refuse to impose ObamaCare legislation? I know I know this is all conjecture, I'm just curious as to whether this could play out in a serious way, or if its just "scuttlebutt".

[IBCoupe]

As interesting as a thought that is, I don't want to speculate 'til we establish this fundamental assumption: there's a provision that the States will not enforce that they will be required to? What do you speculate that it would be?

[stebo0728]

The mandate, above all else, thats really the meat and potatoes of the opposition, is that the mandate oversteps the bounds of the enumerated powers of the Federal government. State opposition would most likely position to refuse enforcing the mandate.

[IBCoupe]

How would the State be required to enforce the mandate? I'm not saying you're wrong, I'm just trying to work out a scenario in my head where a State's actually in a position to stop the mandate from happening.

EDIT:
Setting aside the consideration that it's already in an enumerated power (interstate commerce), riddle me this: How is the mandate enforced? If it actually comes to it, is it imposed through federal taxes, like Massachusetts does to enforce its mandate? And if that's the case, haven't we just wandered into the realm of an enumerated power?

[stebo0728]

Well to be honest, Im a tad unclear on that myself. All I know is that the nullification talk I've been hearing, is State legislation that would consider the ObamaCare bill null and void, based on the inclusion of the mandate. I will see if I can dig up some more on it that might clarify things a bit.

[IBCoupe]

The only requirements on the States I see are that it requires States to expand Medicare coverage and to set up a health insurance exchange. Nothing about the mandate.

I'm going to go look over some notes and then maybe we can work with a hypo based on the exchanges.

[IBCoupe]

Okay, so there's the Anti-Commandeering doctrine, which says that, while the Federal Government can act directly upon the citizens, it can't tell a State to act directly upon its citizens on its behalf. The Federal Government can regulate how a State acts upon its citizens in the event that it does, but it can't compel the State to do so. I don't think the Federal Government could force the States to expand Medicare or institute the health insurance exchanges.

BUT

That's not normally how it works. Federal Government wants Montana to have highway speed limits no higher than 75mph. Montana wants 90mph. Federal Government says, "Okay, but no more federal highway funds for you." Montana goes, "Courts, they're trying to force us!" Courts say, "No, they're trying to encourage you. That's perfectly legal."

I would be surprised if there wasn't a similar scheme with these Federal "requirements" for the States.

[heliochrome85]

Ok, thats pretty much what I thought, and yes Integration came to mind. But Integration really only faced opposition by one state, at least to the point of playing the National Guard card. Suppose 10 to 15 states simultaneously refuse to impose ObamaCare legislation? I know I know this is all conjecture, I'm just curious as to whether this could play out in a serious way, or if its just "scuttlebutt".

what if 10-15 states simulatenously refuse to abandon slavery?

[IBCoupe]

The slaves can sue in Federal Court. Hooray, lawyers!

[heliochrome85]

The slaves can sue in Federal Court. Hooray, lawyers!

i was drawing a parallel. thanks guy!

[IBCoupe]

Sorry I broked'd your parallel. How's that Carlisle schedule coming.

[heliochrome85]

Sorry I broked'd your parallel. How's that Carlisle schedule coming.

i wont know til at least next week. but like i said, technically, im on call that entire weekend. if i can switch with someone and take their overnight call during the week, id be free to come.

[IBCoupe]

Dooo it!

Also, back on topic, I just got confirmation from my Conlaw Prof that I'm doing it right. This is what I sent to him:

So our conversation turned to portions of the law that do purport to place duties upon the States, and a cursory Google search suggests that there are two:

1. A requirement that States expand their Medicaid coverage
2. A requirement that States establish "insurance exchanges."

And in talking over the issue, I wanted to confirm that I'm understanding the Anti-Commandeering Doctrine correctly.

For the first, I believe the Congress can place requirements upon the States as to the manner in which they run their Medicaid programs. This seems to me to be more regulatory of State programs than an attempt to use Stares as implements of Federal will.

For the second, I believe that a bald requirement that States set up an exchange would be violative of the Anti-Commandeering Doctrine, but that the Congress could get around it by turning it into a suggestion with strong incentives attached (as they may have actually done).

Do I have that right?

He said "yes." So that's where it stands, Stebo.