Can Obamacare Be Nullified?

The “memory hole” to which George Orwell wrote about the dystopian 1984 was a furnace which government officials dump politically inconvenient documents into in order to vanquish them from the public’s mind.  Its purpose was to get rid of documentation of government promises that were eventually broken.

In today’s political age of bailouts, opportunism, and the insider revolving door between Washington and lucrative business, there is hardly a need for the memory hole.  The ability to break promises is now minimum requirement for any candidate seeking public office.  Many of the principles enshrined in the founding documents of America have long since been forgotten.  Respect for the right of privacy and due process were just another casualty in the ongoing War on Terror.  With the Supreme Court’s recent upholding of the Affordable Care Act, every American can now look forward to being forced to purchase a product simply because they reside in the United States.

Needless to say, the American founding fathers who took influence from Thomas Jefferson and Thomas Paine would be appalled at the extent of Washington’s trampling of basic human rights.  Not only would they be shocked at the hubris demonstrated by the President, Congress, and the towering regulatory complex in their joint efforts to curb freedom, but also the complete lack of significant protest on the part of the people to stop it.  As Jefferson famously wrote in a letter to his close friend and architect of the Constitution James Madison,

I hold it, that a little rebellion, now and then, is a good thing, and as necessary in the political world as storms in the physical. Unsuccessful rebellions, indeed, generally establish the encroachments on the rights of the people which have produced them.

One of the avenues through which both Jefferson and Madison endorsed as a means to curtail an overreaching Washington was the state governments’ use of “nullification.”  Nullification finds itself in the greater “states’-rights” movement and stipulates that a state government has the ability to refuse to recognize or enforce an unconstitutional act of Congress.  It follows that because the union was formed voluntarily by the independent states, then each state has the authority to declare federal law notwithstanding.  Nullification itself was termed by Thomas Jefferson writing in the famed Kentucky Resolution which was composed as a protest to the anti-free speech portions of the Alien and Sedition Acts.  On the topic of nullification, Jefferson writes,

…but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact…to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited

In the Virginia Report of 1800, James Madison also makes the case for nullification as a legitimate strategy by the state governments to put a check on unconstitutional laws.

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature.

Madison also argued in the Virginia Resolutions of 1798 that the states were “duty bound to resist” whenever the federal government enacted laws in violation of the Constitution.  Rather than a radicalized objection to Washington supremacy, nullification was supported by the two men whose writings were quintessential in establishing the American republic.  Because of its wrongful association with the Civil War, the term nullification has been slandered as a cloak for neo-confederates wishing for the reinstitution of slavery.  In reality, as economic historian and author of Nullification: How to Resist Federal Tyranny in the 21st Century Tom Woods notes, the concept of nullification was

…resorted to more often by northern states than by southern, and from 1798 through the second half of the nineteenth century were used in support of free speech and free trade, and against the fugitive-slave laws, unconstitutional searches and seizures, and the prospect of military conscription, among other examples. And nullification was employed not in support of slavery but against it.

That fact hasn’t stopped smear campaign, which continues today, from pushing the notion of nullification away from public consideration.  But with Obamacare given the green light by the Supreme Court, nullification is slowly reentering the political scene after its nearly one and a half century long absence.  State Representative Mike Ritze of Oklahoma has introduced a bill to nullify the Affordable Care Act in his state.  Louisiana Governor Bobby Jindal is so far refusing to comply with the law and set up the mandated insurance exchanges.  Texas Governor Rick Perry and South Carolina Governor Nikki Haley are joining him.  And come November, residents of the state of Missouri will be able to vote symbolically on a proposition to encourage Governor Jay Nixon from establishing the exchanges.

With all these efforts underway, will any state be successful in nullifying the Affordable Care Act?  The answer appears to be no.  If states refuse to set up insurance exchanges, the federal government will step in to do the job for them.  Voting to nullify the law outright will in all likelihood have little affect on its implementation.

In other words, the federal government will see to it that the people are once again reminded that they have no say in what is forced upon them.

But is nullification then a fruitless endeavor?  I would argue on the contrary and that having two levels of the state clashing with one another is a healthy development in their otherwise tyrannical daily operations.

When two forms of government fight amongst each other, it leaves less time and energy for politicians to devote to coming up with new schemes of societal planning.  It’s as if two crime families were to come to blows on who is the most deserving of violently stripping you of your hard-earned dollars first.  If their guns are pointed at each other, at least they aren’t facing you for the time being.

It is never a bad thing to remind the political establishment of once dearly held principles since it runs counter to their agenda of increasing the scope of government.  And while the quasi- nullification being carried out by some Republican governors nationwide won’t stop Obamacare from being executed, it still makes for good political theater.

The art of nullification really boils down to one tactic: using the egotistical nature of politicians against each other.  When the state faces internal conflict, society is always a winner.

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One Response to “Can Obamacare Be Nullified?”

  1. Elliot says:

    My thoughts on the encroaching communist menace that is Nobamacare:

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