Nullification Goes Mainstream; States Defy Washington on Drugs and Health Care

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Published : November 13th, 2012
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As the federal government gradually assimilates the rest of the country, a few states have begun to fight back. From the Kansas City Star:

No state-run health insurance exchanges in Missouri or Kansas

Missouri will be unable to implement a key provision of federal health care law, Gov.Jay Nixon announced Thursday.

Meantime, Kansas Gov. Sam Brownbacksays he won't support an application from Insurance Commissioner Sandy Praeger to establish a state-federal health insurance marketplace.

That means it will be up to the federal government to establish health insurance exchanges in Missouri and Kansas. The exchanges are designed to be online marketplaces where individuals and small businesses can compare and buy private insurance plans.

As part of the Affordable Care Act, or Obamacare, the states face a Nov. 16 deadline to notify the federal government if they want to run their own insurance exchange. They must be open for business by 2014. When states do not open their own, the federal government will step in and set up an exchange.

"Obamacare," Brownback said in a news release, "is an overreach by Washington and (Kansans) have rejected the state's participation.... We will not benefit from it and implementing it could cost Kansas taxpayers millions of dollars."

This kind of rebellion has deep historical roots. From the American Thinker blog:

The Nullification Movement

One thing overlooked in the uproar surrounding the election is the nullification of federal narcotics law in Washington state and Colorado. If these laws are allowed to stand without challenge from Eric Holder's Justice Department, then the green light is on for nullifying any federal law -- including ObamaCare.

Nullification is based upon the principle that is best described in the words of Thomas Jefferson in the Declaration of Independence:

"Governments are instituted among Men, deriving their just powers from the consent of the governed..."

This simple statement asserts that no government may impose its will upon the people without their consent and that if the people make it known that they do not consent then the imposition is nullified. The very first time that a nullification resolution was passed in our history was the Kentucky Resolutions of 1798 to nullify the Alien and Sedition acts. The author of this resolution was Thomas Jefferson, who had to write the resolution in secret because if it were known that he was opposed to these acts, he would have been imprisoned, even though he was vice president at the time.

Jefferson had help from another of the founding fathers, James Madison. Madison wrote the Virginia Resolution, which nullified the Alien and Seditions Acts in Virginia. These nullification resolutions were never tested in court since in the next presidential election Jefferson became president, repealed the laws and pardoned all those who had been imprisoned under the Alien and Seditions acts. The idea of nullification became popular again in the decade leading up to the War Between the States as many northern states nullified fugitive slave laws.

Now two western states are using the principle of nullification against federal narcotics laws to legalize marijuana for recreational use. Both Colorado and Washington had legalization measures on the ballot, and the measures passed. But Kevin Sabet, the former Obama administration's drug czar, stated:

"This is a symbolic victory for advocates, but it will be short-lived. They are facing an uphill battle with implementing this, in the face of presidential opposition and in the face of federal enforcement opposition."

But as of yet, agents from the Drug Enforcement Agency have not made a show of force by kicking in the doors of local head shops and hauling shopkeepers off to jail.

If the federal government does take action, it will likely be via lawsuit. They will argue the Supremacy Clause of the constitution. But the Supremacy Clause is not a slam dunk as some would have you think. In Federalist Paper #46 titled, "The Influence of the State and Federal Governments Compared," Madison comments on the idea of supremacy:

"These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone...."

Ultimately, if the federal government loses, then nullification will be used to do away with many overreaching federal laws, such as the Endangered Species Act, which has shut down agriculture in California, or to the Clean Air Act, which threatens to cause rolling blackouts across the nation.

But Colorado and Washington are not alone in the nullification movement; six other states are challenging federal law. Alabama, Montana, and Wyoming all passed measures guaranteeing health-care freedom, and Massachusetts approved a measure to legalize marijuana for medicinal use.

Last spring, Virginia passed legislation prohibiting state and local agencies from cooperating with any federal attempt to exercise indefinite detention without due process under the National Defense Authorization Act.

Idaho's Governor, C.L. "Butch" Otter, signed the Health Freedom Act into law which essentially nullifies the Affordable Care Act.

The nullification movement is alive and well, and growing exponentially, and as a result the beltway bandits may see their power greatly diminished.

Some thoughts

Most non-libertarians will like some of these nullification moves and abhor others. Conservatives hate the idea of legal weed, for instance, and liberals can't tolerate states running their own health care systems. In other words, both sides of the current US political establishment are all for a big, intrusive central government as long as it serves their ends, but dead set against it when it serves their ideological opponents. This philosophical, um, flexibility is what has allowed Washington to grow so steadily. When republicans are in charge, the powers of the federal police state grow. When democrats take over, the welfare state expands. Neither has the political capital to undo the other's expansion, so federal power continues to metastasize.

But now this process has begun to work in reverse. Liberal states are trying to push the feds out of the realms of drugs and sexual behavior, while conservative states are trying to reassert their dominance in economics. The result might be an irregular but steady erosion of federal power.

Very few dictators go down without a fight, however, so Washington might decide to make an example of rebellious states by asserting federal supremacy in the courts and then backing up favorable rulings with legal sanctions. Will it succeed or backfire? Who knows, but it will almost certainly energize the libertarian movement that Ron Paul helped create - which would be both educational and entertaining. So by all means, let nullification debate begin.

By the way, the godfather of the nullification movement is Thomas Woods. His book on the subject is here.



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John Rubino is the author of The Coming Collapse of the Dollar (co-written with James Turk), How to Profit From the Coming Real Estate Bust (Rodale, 2003), and Main Street, Not Wall Street (William Morrow, 1998). A former Wall Street financial analyst and columnist with, he currently writes for Fidelity Magazine and CFA Magazine He lives in Moscow, Idaho
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John, you make some good points. One small quibble, though: 'Liberals', (or Progressives more accurately,) have put in a health care system operated by the City of San Francisco. Massachussettes also set up its own plan. So it isn't always love of the Federal government. Conservatives and 'liberals' alike will work for what they want at the local or state level. Many progressives don't like the handover of millions of new customers to drug and medical insurance companies which has happened under the Obama legislation as well as the Bush Medicare drug law. And the drug war stuff is completely counterproductive and a great part of our loss of freedom and privacy as is to an even greater degree the 'War On Terror" madness. It is a terrible loss that the Republican convention succeeded in turning Ron Paul into a non-entity for the sake of total control, which did not bring them the Presidency after all. He is a good and honest man who would have bucked the system for a change.
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John, you make some good points. One small quibble, though: 'Liberals', (or Progressives more accurately,) have put in a health care system operated by the City of San Francisco. Massachussettes also set up its own plan. So it isn't always love of the  Read more
rimrock - 11/12/2012 at 4:50 PM GMT
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