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Is it time States use a little known, but previously used, Constitutional Check to stop Obamacare?

By Dr. Harold Pease

Presently 17 states have chosen not to setup insurance exchanges with respect to the Patient Protection and Affordable Care Law, commonly cited as Obamacare, primarily because they fear that doing so would bankrupt their state and they remain convinced that it is a serious intrusion on their constitutional jurisdiction—even freedom. Some were among the 26 states that suede the Federal Government for exceeding its constitutional authority. They may not know that they have one constitutional check left to exercise if they but have the will.

Those who spend any time with the Constitution know that the federal government is limited to a list of specific areas wherein Congress can legislate (Art. I, Sec. 8) and if a desired power is not on that list, or not added thereto by way of an amendment to the Constitution, they are prohibited from legislating therein. All other powers not provided in that document are left to the states and to the people as per Amendment 10 of the Bill of Rights. Checks and balances were created in an effort to keep the federal government from creating its own authority and taking over everything. The Founding Fathers saw going off the list and thus doing something not authorized as tyranny.

Senators were especially charged to protect state sovereignty, the list, and the 10th Amendment, but Progressives in the early 20th Century weakened that protection by ratifying the 17th Amendment, which favored a popular vote for this office rather than, as it was before, having Senators selected by state legislatures who were purposely far more state sovereignty centered. State power was thereafter left unprotected and measures clearly of state jurisdiction and unlisted, such as health care, got through the badly damaged shield and became law.

The Supreme Court was also one of those checks and balances, but it too has become damaged when previous small perversions of the Constitution become leverage for yet other larger perversions, and original intent the intended interpretation, was replaced by past practice, a philosophy also accentuated by the Progressives Movement. What do we do when the Court too is compromised as in Obamacare?

The Supreme Court also has one other problem. Think of our government, as the founders did in the Constitution, as two parts, with power divided between two government teams—the federal and the state. The Supreme Court can never be the final arbitrator between these two teams as it is a valued player on the federal team, and thus not neutral. It will always tend to favor the federal team. What can the states do to stop federal intrusion into their arena even when such intrusion is blatantly clear to anyone reading the Constitution? Nullification.

The Founders left us with one final check on tyranny, but it is not well known and is little used. If the 26 suing states, or even the 17 who have rejected creating the insurance exchanges, instead just said “No! “The law is clearly unconstitutional and will not be implemented, in part or whole, in this state without a constitutional amendment so authorizing. If this law, which virtually destroys the 10th Amendment to the Constitution, is allowed to stand the states have no protected jurisdictions from the federal government and are merely appendages to it.” If enough understood that this law is the death of the philosophy of shared power, or federalism, they would oppose it. If even a minority of states stood together on this point it would stop this federal takeover of one-seventh of the economy in its tracks. State legislators, you are the last constitutional check. Are you listening?

Nullification has two historical precedents. Thomas Jefferson (principle author of the Declaration of Independence) and James Madison (referred to as the father of the Constitution) attempted to nullify The Alien and Sedition Acts in 1798 created by their Federalist Party predecessors. These authors penned the Virginia and Kentucky Resolves objecting on the basis of the unreasonable empowerment of the president and the attack on the First Amendment, particularly freedoms of speech and press. The Supreme Court never took the case, largely because the bill was design to last only until 1801, (Federalists did not want it used against them should they lose the next election) thus the issue died naturally undoubtedly assisted by resistance of these states.

Next to use the Nullification Doctrine was South Carolina with respect to the 1828 “Tariff of Abominations,” believed by them and neighboring states to be unconstitutional. Opponents to it declared it to be “null and void” within their border and threatened to take South Carolina out of the Union if Washington attempted to collect custom duties by force. Andrew Jackson prepared to invade the state. A compromise Tariff of 1833 gradually lowered the tariff to acceptable levels and the issue faded away. States standing firm brought compromise.

Unfortunately for power-hungry federal politicians, the word health is not in Section 8, nor has it been added to the Constitution by way of amendment through Article V, which is the process for “change that you can believe in,” and thus our Founders would have considered it devoid of constitutional authority. If we are to follow the Constitution as intended, and not make a mockery of it, health related concerns are state functions at best and cannot be moved to a federal jurisdiction without a 3/4th affirmative vote of the states as per Article V of the U.S. Constitution. The last acceptable constitutional check to federal tyranny is the state legislatures. Will states stand with the Constitution and its authors or be bullied into submission?

Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.