by Michael Boldin
Right on the heels of a successful state-by-state nullification of the 2005 Real ID act, the State of Arizona is out in the forefront of a growing resistance to proposed federal health care legislation.
This past Monday, the Arizona State Senate voted 18-11 to concur with the House and approve the Health Care Freedom Act (HCR2014). This will put a proposal on the 2010 ballot which would constitutionally override any law, rule or regulation that requires individuals or employers to participate in any particular health care system.
HCR2014, if approved by voters next year, also would prohibit any fine or penalty on anyone or any company for deciding to purchase health care directly. Doctors and health care providers would remain free to accept those funds and provide those services.
Finally, it would overrule anything that prohibits the sale of private health insurance in Arizona.
Five other states — Indiana, Minnesota, New Mexico, North Dakota and Wyoming — are considering similar initiatives for their 2010 ballots.
Real ID as the Blueprint?
While some constitutional experts are skeptical of the effect that such legislation could have, supporters can point to the successful campaign to oppose the Real ID Act.
In early 2007, Maine and then Utah passed resolutions refusing to implement the federal Real ID act on grounds that the law was unconstitutional. Well-over a dozen more states followed suit in passing legislation opposing Real ID.
Instead of attempting to force the law to implementation, the federal government delayed implementation not once, but twice, and additional states got on board with legally-binding legislation refusing Real ID implementation.
Earlier this month, the Obama administration, recognizing the insurmountable task of enforcing a law in the face of such broad resistance, announced that it was looking to “repeal and replace” the controversial law.
Nullification
When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective’, within the boundaries of that state; or, in other words, not a law as far as the state is concerned.
Nullification has a long and interesting history in American politics, and originates in the Virginia and Kentucky Resolutions of 1798. These resolutions, secretly authored by Thomas Jefferson and James Madison, asserted that states, as sovereign entities, could judge for themselves whether the federal government had overstepped its constitutional bounds, to the point of ignoring federal laws.
Virginia and Kentucky passed the resolutions in response to the federal Alien and Sedition Acts, which provided, in part, for the prosecution of anyone who criticized Congress or the President of the United States.
Historian Thomas E. Woods looks at nullification as a constitutional “check,” and a way to prevent one government from having the power to rule on the limits of its own authority:
“The main point that nullification aims to address is that a government allowed to determine the scope of its own powers cannot remain limited for long. This is a lesson we should have learned by now. Moreover, since piecemeal solutions to reducing federal power have accomplished nothing, we can hardly afford to dismiss out of hand the idea of nullification, a remedy that is at once creative and intelligent, and recommended by some of the greatest political thinkers in American history.”
Resistance Left, Right and Center?
Groups across the political spectrum have focused their efforts on this same principle - calling on state governments to not just say no to the federal government, but to actively resist federal laws and actions.
- Firearms Freedom Acts have passed in both Montana and Tennessee, and under the force of law, call on those governments to refuse federal regulation of firearms made and kept in those respective states.
- Bring the Guard Home is a campaign of mostly antiwar activists that are calling on governors to assert constitutional authority over their state’s guard - and refuse to deploy troops for any reason other than authorized by the constitution
- Medical Marijuana Laws - have passed in multiple states around the country and are directly opposed to federal drug laws that see marijuana as illegal under all circumstances.
- Real ID legislation has passed in approximately 2 dozen states requiring state governments to refuse implementation of the 2005 law.
- Health Care Freedom Acts are being actively pursued in six states (including Arizona), and would resist proposed national health care legislation on a number of levels.
June 26th, 2009 at 4:58 pm
I like the idea of state nullification of offensive federal laws and wish all states would get involved in this way. It's a logical and legitimate exercise of state sovereignty. Without it, sovereignty is nothing more than a word in the dictionary. Since our federal government seems intent on ignoring its constitutional limits and pays little heed to a majority of the American people, states have to start standing in the gap if individual liberty and freedom are to have any chance of surviving. We truly need a second American Revolution; though hopefully a non-violent one. It's sad that we've come to this point.
June 26th, 2009 at 5:31 pm
Terry, I think this is really starting to show signs of a larger trend - we can see people on the left, the right and the center looking to the principles of decentralization that the 10th amendment stands for to push for what they believe in.
Whether I like all the goals or not is far less relevant than my desire to see the most important issues decided by people close to home…in a way they see best. I'll trust choices to people in their own communities before I trust them to far off, self-interested politicians.
June 26th, 2009 at 5:34 pm
Good article. And nice to see that Arizona is taking a lead in such matters. As you know, one of my areas of interest is the immigration issue. The state of Arizona took the lead on that as well, but the then governor of the state (Janet Napolitano) allowed the bill to sit on her desk for three years before she was finally dragged kicking and screaming to the signing table. And now we have her heading the "homeland security" dept. If it weren't such a serious matter, her appointment to the post would be utterly laughable.
June 26th, 2009 at 5:39 pm
Amen to that brother!
Y'know, if people in Chaboygan want to provide every resident of the city with a bass-boat, a .308 and a four-wheeler, it's none of my concern. As long as they pay for it themselves…
June 26th, 2009 at 8:20 pm
That's just the kind of government that Jefferson wanted, and most of the rest of the founders. Even Hamliton, the evil centralizer, would've been resisting such national power!
June 26th, 2009 at 9:52 pm
This is a great step by Arizona. I hope to see other state begin this with the cap and trade insanity.
June 26th, 2009 at 9:52 pm
This is a great step by Arizona. I hope to see other states begin this with the cap and trade insanity.
June 27th, 2009 at 6:09 am
There's certainly a precedent set by Real ID resistance that this kind of activism works. Whether it's health care or cap and trade or drug laws or virtually anything, I believe people should be focusing their efforts locally rather than on the federal government.
June 27th, 2009 at 8:17 am
Finally I found a website dedicated to Union State sovereignty. Almost all federal law finds it’s conduit to existence via Article 1, Section 8, Clause 17. Check out the article “Dual Sovereignty” at poorcludesalmanac.info for a complete treatise on the power and application of federal legislation within the territory of the 50 Union States. I use the term “Union States” to delineate them from “federal states” which is the method Congress uses to refer to political subdivisions and territories existing within the territory over which Congress was given the exclusive power to legislate. By redefining the term “State” to refer only to only those said political subdivisions and territories, Congress confined the jurisdiction of its Article I, Section 8, Clause 17 power to strictly federal territory. While in a great many of the cases, the redefinition of the term “State” is a “little” obfuscated, it effectively washed its hands of any deliberate attempt to have its legislation enforced in any of the territory within the 50 Union States. However, there is no guarantee that the reader of the federal laws could intellectually substitute the concept of the redefined term “State” for the one commonly known to exist in the federal Constitution. Thus, the basis for my use of the term “Union State” when addressing any one of the 50 States of the Union. Stay tuned for a discourse on why the Union States are subjects not sovereigns with respect to the federal government and what they each must do to regain their sovereignty.
June 27th, 2009 at 8:48 am
Ken, interesting perspective. Looking forward to seeing more of your feedback here in the near future.
June 27th, 2009 at 11:05 am
I think this is a shame, that the Arizona Senate, and House, do not feel that they have the political (responsibility) to legislate upon these matters, without firstly, and instantaneously referring this authority, to the will of the populous, to present themselves before the people, as if to say, we ourselves are powerless.
June 27th, 2009 at 11:12 am
A shame? How can that be? Well, if you think that government is the source of authority, then yes.
But, if you understand, as made so clear by the 9th and 10th amendments, that it is the people who are the sovereign - and it’s the people who created not only the federal government, but also the state governments to be their agents for certain enumerated purposes and nothing more - then you can appreciate this as a victory.
It’s government asking the people - who are the only rightful source of power - what to do, and not ramming something down their throats like governments everywhere do. I say kudos to Arizona!
And even if the people of Arizona make what I would consider a bad choice by not approving this in 2010, I see it as a great precedent - a path for people in other states to try. It worked quite well in CA for a few things - nullification of federal marijuana laws is a great example.
It’s always going to be easier to convince regular people to do right and wrong rather than politicians.
June 27th, 2009 at 1:17 pm
Actually, no, Mr. Michael Boldin, I do not believe that government is the source of authority, However, I do believe in my right to have representatives listen to my point of view, without them responding to me, that I am unwittingly petitioning the wrong authority, or that it has now become my responsibility to write up a petition, so glandules, that it might itself cause the entire population of my State to consider reforming their Constitution.
If I was to disagree with any decision of my government, there would always be this, never before rejected American possibility, that with enough support from my fellow citizens, this to may be changed, (or even elaborated upon,) without effectively changing the Constitution of this State.
Warning … I will not allow anything that I have said here, to be contrived, as if I myself, do not understand, that this is imperatively a sovereign republic.
June 27th, 2009 at 3:18 pm
I say good on Arizona’s leaders for standing against yet another piece of legislation that is designed to erode the sovereignty of States. Lets hope the People of Arizona seize the opportunity.
June 27th, 2009 at 7:42 pm
Good start. Now let’s see Arizona on the other lists - Firearms Freedoms, Bring the Guard Home, Medical Marijuana (actually, outright legalization of marijuana - prosecuting and incarcerating thousands for this victimless ‘crime’ is needlessly costing our counties and state millions). And where is the ‘freedoms act’ against federal mandating of deadly vaccines?
For more information on freedom, see whatreallyhappened.com.
June 28th, 2009 at 12:47 am
This is really good now people don’t have to enroll them self in health care system .
June 28th, 2009 at 9:36 am
Arizona - It sure is good, but that doesn’t mean that people can opt out…yet. It’s going to be put to the voters of AZ in 2010. Hopefully more states will get on board with this soon too.
June 28th, 2009 at 9:42 am
jmb - thanks for the follow up! Not really following what you’re saying, but glad we agree that the people are the sovereign. With that in mind, I never, ever have an issue with the sovereign being the final decision-maker…and I will always trust regular people like you and I before I trust politicians. I have a funny feeling that the people of AZ will make the right choice for themselves there….
June 28th, 2009 at 10:11 am
I’ll give you a good case in point: The elitists in Arizona attempted to back door an overthrow of the Peoples’ will with a ballot proposition that would have overturned what the People, through their legislature, had already done. Namely their newly passed immigration law. But the good people of Arizona caught onto this scheme and summarily struck it down. Notwithstanding that, even if the people of a given state do make the wrong decision on a given issue or question, as long as they are the ones that have to deal with its consequences, they’ll generally eventually come to their senses. Albeit begrudgingly sometimes, but nonetheless.
June 28th, 2009 at 11:30 am
Mike,
I’m sorry. There’s is only one way to understand the issue and that requires a lot of reading if you really want to understand the problem and solution. While the grass roots folks know something’s wrong, most of their time is spent demonstrating, complaining, and otherwise waiting for their Knight on a Shinning horse. Observe that everyone alive today went through the public education system and came out with a mind full of mush. If we want our Country back we are going to have to individually put some legitimate cause and effect knowledge in our heads or we’ll become as dangerous as Bob Schultz, who, if we don’t get on a proper course will end up being a true Pied Piper. Most of the grass roots members still think our rights come from the bill of rights, that the Federal Government, through the supremacy clause has supreme power over the Union States and the citizens thereof, that all federal laws apply to persons living in the Union states, and the 10th amendment will somehow return our Union States to sovereign status. None of this is true, but saying it doesn’t teach it. One has to understand the why or one will not be able to help with the restoration. Semantics and the concepts conveyed by them are paramount to any understanding of the complex system of checks and balances our founders endowed us with. For example we constantly talk about legalizing drugs. The issue is remove the prohibition and the agents associated thereto and leave the people alone! If someone wants to commit suicide, that’s none of my business, unless it’s a family member. We are currently faced with the same observation that Pogo made: “We have met the enemy, and he is us.” While the 10th Amendment gives us a yardstick to measure the Union States (and our) scope of power, it does nothing to guide us to a solution when that scope has gone awry. The Union States have allowed themselves to be taxed by the federal government. That act alone is a declaration of servitude. The solution , believe it or not, sits right there in the federal code, but we’re not going to be able to learn it and teach it if we’re too busy to read the research. Cheers, Ken
June 28th, 2009 at 1:33 pm
Mr. Boldin - I have no doubt that your commitment to a sustainable, and free republic, is as resolved as mine.
It is my understanding that many States do not have Constitutional ballot voting, and that there are, on both sides of this issue, many good reasons, for, and against.
One danger that I believe to be considerable, is that if we to often amend State Constitutions in reaction to Federal wrongs.
We may very well end up with Constitutions, that are far to long, and complicated to sustain even their original purposes.