Health Care’s New Nullifiers (Guest Voice)
Mar 25th, 2010 | 22 responses
WASHINGTON — Virginia Attorney General Ken Cuccinelli seems determined to use an attack on health care reform to bring us back to the 1830s.
Cuccinelli, to cheers from the Tea Party crowd, went to court this week to overturn the new law, which he says conflicts with a Virginia statute “protecting its citizens from a government-imposed mandate to buy health insurance.”
“Normally, such conflicts are decided in favor of the federal government,” he said, “but because we believe the federal law is unconstitutional, Virginia’s law should prevail.”
The Republican attorney general’s move reveals how far into the past America’s New Nullifiers want to push the nation.
They don’t just want to abandon a more than seven-decade-long understanding of the Constitution’s interstate commerce clause that has allowed the federal government to regulate a modern, national economy. They also want to resurrect states’ rights doctrines discredited by President Andrew Jackson during the nullification crisis of the 1830s and buried by the Civil War.
There are two issues here. One is whether the federal government can require individuals to buy health insurance. The other is the states’ rights question. In a suit separate from Cuccinelli’s, 13 state attorneys general — 12 Republicans and a conservative Democrat from Louisiana — also challenged the mandate. But their main argument is that the federal government cannot force states to pay for an expanded Medicaid program and take other steps the law requires.
It would take a rashly activist court to find the individual mandate unconstitutional because it is structured as a tax. No one will go to jail for not buying insurance. Starting in 2014, people who refuse will have to pay a penalty to the federal government, administered by the IRS. There are subsidies for those who cannot afford coverage on their own, as well as hardship exemptions.
The idea is simple: Most people without insurance currently receive at least some medical help, and the mandate is designed to get everyone paying into the system. One of the best defenses of a health insurance mandate came in a Wall Street Journal op-ed piece published in April 2006.
“By law, emergency care cannot be withheld,” this commentator wrote. “Why pay for something you can get free? Of course, while it may be free for them, everyone else ends up paying the bill, either in higher insurance premiums or taxes.”
He concluded: “Some of my libertarian friends balk at what looks like an individual mandate. But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on government is not libertarian.”
That would be Mitt Romney. The former Massachusetts governor is now trying to insist that the health plan with a mandate that he championed in his state — with the support of a legislator named Scott Brown — is oh-so-different from the bill President Obama signed this week. But Romney can’t take back his own words.
Still, at least the quarrel over the mandate is about something relatively new. The old states’ rights argument, if successful, could upend years of federal legislation. Will we have a system where states can pick and choose among federal laws? We want our elderly to get Medicare, and give us more highway money, but forget this health care expansion.
That sounds like the logic of the nullifiers of the 1830s, fighting to resist a federal tariff they thought was too high. Gov. Robert Y. Hayne of South Carolina, their leader, sounded rather like today’s Tea Partiers. His state, he declared in 1832, was “inflexibly determined never to surrender her reserved rights, nor to suffer the constitutional compact to be converted into an instrument for the oppression of her citizens.”
Andrew Jackson’s response to the nullifiers is classic. He denounced “the strange position that any one State may not only declare an act of Congress void, but prohibit its execution.” He also wondered how a state could “retain its place in the Union, and yet be bound by no other of its laws than those it may choose to consider as constitutional.”
OK, at least today the attorneys general are going to court before taking further action. But in the case of Cuccinelli, the very law he is relying on to justify his suit was passed by Virginia’s Legislature in direct defiance of a federal bill they knew might be coming. Call it Nullification Light. It’s no way to run a serious country, and it’s a reckless approach to politics.
This copyrighted column is licensed to run on TMV in full. (c) 2010, Washington Post Writers Group
22 Responses to “Health Care’s New Nullifiers (Guest Voice)”
Well, at least idiot Dionne didn't parrot the liars after the 1994 elections: “threatening to take us back to the Articles of Confederation.”
If he had any brains, he would (ignoring Dem attorneys general) say this is more Republican opposition.
Lawsuit filed by 13 attorneys – General claim healthcare overhaul bill is unconstitutional
Florida, South Carolina, Texas, Alabama and Louisiana… And once more we have the South being reactionary, when will they secede?
No nullification, no interposition, no secession that we know of yet, Don.
From California:
Sacramento, California – Thirteen attorneys general, all but one are Republican, are rushing to kill the federal healthcare bill by filing lawsuits alleging that the bill violates states' rights. Here in California, a handful of Republican leaders have followed suit and are asking that I join in. Accordingly, I've instructed deputies in my office to carefully review these claims in light of applicable constitutional principles. Health care is not the place, with people's lives at stake, to engage in poisonous partisanship. At this critical time in our nation's history, we need to come together to forge a common purpose.
Can someone tell me why Social Security, that has a federal government “imposed mandate” to, in essence, force citizens to buy Social Security benefits through FICA taxes has not been ruled unconstitutional? (Please keep it simple, short and without insults, DLS, if you decide to explain. Thank you).
Got no problem with nullification. Its a valid approach for States in the United States of America, just not liked by the fans of the United State of America.
As John C. Calhoun pointed out in that great American document the South Carolina Exposition and Protest:
“If it be conceded, as it must be by every one who is the least conversant with our institutions, that the sovereign powers delegated are divided between the General and State Governments, and that the latter bold their portion by the same tenure as the former, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself, and being reduced to a subordinate corporate condition. In fact, to divide power, and to give to one of the parties the exclusive right of judging of the portion allotted to each, is, in reality, not to divide it at all; and to reserve such exclusive right to the General Government (it matters not by what department to be exercised, is to convert it, in fact, into a great consolidated government, with unlimited powers, and to divest the States, in reality, of all their rights, It is impossible to understand the force of terms, and to deny so plain a conclusion.”
I think the answer hinges on something of a technicality, DdW- that there is no 'purchase' involved in SS. It's not a transaction like that because you don't own your SS benefits. You are compelled to pay in as a form of taxation, and there's an implied promise of benefits proportional to that but it's not as though we actually purchase insurance or a personal account for savings/investment.
Sure, the lack of Strict Constructionist on the SCOTUS. We have had mostly judicial activist appointed by Presidents with more interests in their political parties interests than putting judges in office who will actually uphold the Constitution as written without bias. It started with John Marshall and the power grab where his court unilaterally declared itself the determiner of Constitutionality without a Constitutional mandate to do so. This just reinforces the case for Nullification as the best approach, its long overdue that State assert their protected Constitutional rights.
Thanks, CStanley.
I can see some logic in your explanation, but now that you have aroused my curiosity in this matter I'll try to research if further.
Let me also thank Leonidas for his comment in reply to my question. Thanks for the effort, I must be very dense, however, because I see no connection between the “judicial activist(s) appointed by presidents, etc., etc.” and why Social Security is constitutional but HCR not.
Unless you are implying that SS should have been nullified too?
Thanks, though
I am eagerly waiting for Mississippi & Georgia to join the lawsuits… It will confirm my opinion of States Bordering the Gulf of Mexico. (Yes I know Georgia/South Carolina don't have any coast lines on the Gulf of Mexico)
Have faith, The wackjobs down South having had their brains cooked in the sun, will attempt to secede, it's only a matter of time, unless they manage to so throughly piss off the North-East or the West Coast that they will secede…
At least someone else knows who Calhoun is. Beat me to mentioning him, too. (I was waiting to see if Don Q was going to say more about Sectionalism.)
You have no reason for being uptight like that.
There's no need for a Social Security analogy here. (If you're curious, Social Security isn't “insurance,” either.)
The state auto analogy is applicable here, and so is the ability of the federal government to do a lot to as well as for its citizens, including conscript them and levy taxes. Involving a private party, as with the health insurers, isn't any kind of constitutional disqualification insofar as I am concerned, because it's no different, as I've said before, than paying for ordinary government services that are privatized, or the case we've all paid for and experienced under Bush with the Iraq occupation, Blackwater, and Halliburton.
It's not a “purchase” but taxation — indeed.
“you don't own your SS benefits”
There is no “account” with Jane Q. Citizen's name on it in West Virginia. Jane's taxes go right to Joe the Retiree. It's pay-as-you-go.
Absolutely right about judicial activism. (It didn't start with the Warren Court.)
State sovereignty and more so, constitutional federalism are disparaged (or worse) by too many people today; they can't even handle these as the mainly intellectual topics to which they have been relegated. That is a shame.
The states are not subordinate provinces, or mere administrative districts, or identity-less zones.
“I am eagerly waiting for Mississippi & Georgia to join the lawsuits”
I wonder: Do they have Republican attorneys general?
So far, no sentiment to start raising the Confederate battle flag, either, Don.
Citizens aren't “buying” anything with Social Security; they are paying taxes.
People don't as a rule provide any good argument for the constitutionality of Social Security (or of Medicare), but these have such strong support over the decades that few who have questions about it bother because they know the programs aren't going away. Are these constitutional? Probably, as we are citizens of the federal government, and while that is not an unlimited grant of power or general grant of power, certainly there is a lot that our federal government may do to and for its citizens (often leaving us to wonder which word to use).
Dorian, keep apprised (as it happens) of the Chicago gun control ruling. It may clarify federal versus state and local government relations.
No anthrax, pipe bomb, or shooter at Fort Sumter, either. Not yet.
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Didn't mean to imply that at all, meant to say it directly, forgive me if I didn't.
I'm a believer that the job of the Supreme court is to judge according to the laws as written and not interpret. If they had done so social security would never have withstood its scrutiny IMHO.
Got it. (Social Security is unconstitutional)
Thanks
I wonder if AZ and/or WI will be flying the Confederate flag.
Good thing that justice isn't being politicized- there was so much of that during the Bush administration but fortunately state AGs would never be subject to political pressures. /sarcasm.