By Dr. Harold W. Pease
On February 16, 2011, the Idaho State Legislature passed a bill by an overwhelming 49-20 vote nullifying, in its state, the Patient Protection and Affordable Care Act popularly referred to as “Obamacare.” Is it Constitutional to say no to the Federal Government when a state believes a Federal Mandate to be unconstitutional? Eleven other states appear prone to do the same thing. The Tea Party movement largely supports the nullification doctrine. Twenty-eight states have sued the federal government for having exceeded its Constitutional power, but Idaho is the first state to say, “no will do.” Can they do so?
Such has never been presented to the Supreme Court but the issue has two historical precedents. Thomas Jefferson in 1798 attempted to nullify The Alien and Sedition Acts created by his Federalist Party predecessors. These raised residency requirements for citizenship from 5 years to 14. Moreover, the law allowed the president to deport “dangerous” foreigners during times of peace and imprison them during times of hostilities. Anyone defaming or impeding government officials, including the president, was subject to heavy fines and/or imprisonment. Jeffersonians objected on the basis of the unreasonable empowerment of the president and the attack on the First Amendment, particularly freedoms of speech and press. They too said, “no will do.” 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 remained unresolved.
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. President Andrew Jackson prepared to invade the state. A compromise Tariff of 1833 gradually lowered the tariff to acceptable levels and the issue faded away; again with no Supreme Court ruling.
When the Founding Fathers created the Constitution they recognized two co-existing governments known as Federalism: one, the federal government, to function primarily externally, the other, the states, to manage internal functions. Like a marriage they functioned—neither being master nor slave. Of the two only the federal government was restricted in its functions by a list of 17 specific powers found in Article I, Section 8. The Founders knew that all national governments like to grow. The states were left unrestricted. To make doubly sure that this limitation on the federal government was permanent the States insisted on having a Bill of Rights included in the Constitution as a condition of their acceptance of it. Amendment 10 reads, “The powers not delegated to the United States by the Constitution…are reserved to the states respectively, or to the people.”
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 it is devoid of Constitutional authority. If we are to follow the Constitution as intended, and not make a mockery of it, health related question 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. Idaho has every right to say, “no will do” and more states should do the same.
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.