The View from the Left
by Derek Smith
Citizens and legislators in thoroughly red states have been engaging in a exaggerated form of sabre-rattling towards the federal government since Obama’s re-election, implicitly (and sometimes explicitly) suggesting the will of the majority of voters at the 2012 polls does not really reflect the will of the “real” American people.
The recently signed Second Amendment Protection Act in Kansas makes it a felony for U.S. officials or employees to enforce federal gun regulations with respect to any firearm manufactured and remaining in Kansas; over a dozen other states have less strident but similar bills, in spite of polls showing strong majorities of Americans favoring increased gun control measures. Dozens of measures to partially or fully block implementation of Obamacare have been introduced. One of these that has received particular attention recently is South Carolina’s H3101, the Freedom of Heath Care Protection Act, perhaps partly due to South Carolina’s longstanding love affair with the nullification doctrine (which has had its highs and lows for the state, to say the least).
Nullification and Interposition
While “nullification” has been used to describe many of these attempts, it is a misnomer with respect to the final version of H3101. The bill itself never mentions the nullification, and refers instead to the alternative concept of interposition. True nullification means both declaring a federal law unconstitutional, and declaring it therefore unenforceable within the state. H3101 does the former quite explicitly and indeed repeatedly—the most colorful characterization is found in the preamble of the bill, which declares, in part:
. . . [T]he “Patient Protection and Affordable Care Act” interferes with the right of the people of the State of South Carolina to regulate health care as they see fit and makes a mockery of James Madison’s assurance in Federalist #45 that the “powers delegated” to the federal government are “few and defined”, while those of the states are “numerous and indefinite” (emphasis added).
The General Assembly’s Declaration of Authority within the legislation (Section 1) delineates the following grounds:
(1) The Tenth Amendment to the United States Constitution provides that the United States federal government is authorized to exercise only those powers delegated to it in the Constitution.
(2) Article VI, Clause 2 of the Constitution of the United States provides that laws of the United States are the supreme law of the land provided that they are made in pursuance of the powers delegated to the federal government in the Constitution.
(3) It is the stated policy of the South Carolina General Assembly that provisions of the Patient Protection and Affordable Care Act of 2010 grossly exceed the powers delegated to the federal government in the Constitution.
(4) The provisions of the Patient Protection and Affordable Care Act of 2010 which exceed the limited powers granted to the Congress pursuant to the Constitution, cannot and should not be considered the supreme law of the land.
This is a pretty clear declaration of unconstitutionality. But the bill does not actually declare the PPACA unenforcable—i.e., it is actually illegal for anybody to enforce (early drafts of the bill did this). The substantive part of the law primarily focuses on prohibiting state and local governments from directly acting to implement the “unconstitutional” provisions of the PPACA, and specifically health insurance exchanges, and from purchasing insurance from a non-profit insurance exchange. Even if all of the PPACA was unconstitutional, this wouldn’t change much. Under the PPACA, the states are not required to establish exchanges; if they fail to do so, the federal government will implement one for them. South Carolina’s governor and legislature had already made perfectly clear they would not establish a state-run exchange, but they are not preventing their citizens or businesses from purchasing insurance through a federal exchange. So instead of declaring “the law is unenforceable,” South Carolina makes the much weaker assertion “we’re not going to help implement the law.” In fact, the next line of the Declaration of Authority is: “(5) The General Assembly of South Carolina has the absolute and sovereign authority to interpose and refuse to enforce the provisions of the Patient Protection and Affordable Care Act of 2010 that exceed the authority of the Congress.”
Characterizing H3101 as interposition is more accurate, but more ambiguous at the same time. Interposition does not have a precise mechanism of action, but includes a variety of options: a state may communicate with its citizens or other states to foster public opposition to the unconstitutional law, using the democratic process to repeal the law or oust over-reaching legislators, slow the implementation of the law, challenge the law in federal court, or initiate the process of amending the constitution. Since a legal challenge to Obamacare has already failed, and in a sense, so has the prospect of ousting those responsible since the 2012 election, South Carolina attempts to interpose primarily by refusing to assist in implementation. However, there are two other provisions of H3101 that could possibly be viewed through the wide lens of interposition.
Other Provisions of H3101
Section 3 of H3101 creates a tax deduction for its citizens who are subject to the individual mandate penalty, equal to the amount of the penalty. This doesn’t truly “interpose” with respect to the federal law, just attempts to offset one of its consequences. Earlier versions of the bill would have made it a felony for the IRS, or any other agent of the federal government, to attempt to enforce the PPACA—an example of true nullification. While backing down from such an extreme approach is sensible, offering to pick up the tab for its citizens’ penalties feels more like a feeble than defiant gesture.
The one section of H3101 that fosters a more activist style of imposition creates a cause of action for the state attorney general:
Whenever the Attorney General has reasonable cause to believe that a person or business is being harmed by implementation of the Patient Protection and Affordable Care Act and that proceedings would be in the public interest, the Attorney General may bring an action in the name of the State against such person or entity causing the harm to restrain by temporary restraining order, temporary injunction, or permanent injunction the use of such method, act, or practice (emphasis added).
In spite of the breadth and ambiguity of this power—with vague standards of “reasonable cause,” “being harmed,” and “in the public interest”—it is likely to have only a minor effect in practice. It only allows the Attorney General to seek an injunctive relief—not prosecution, not damages—and since the federal judiciary has already found the PPACA to be constitutionally enforceable, lower courts will have to abide by this ruling. The most such actions could do is to somewhat slow the implementation of Obamacare through drawn-out court proceedings, at South Carolina’s expense— the state also has to be willing (and able) to pay the attendant costs of litigation in exchange for a slight delay in the inevitable.
Why Not Real Nullification?
Some on the right take issue with H3101 precisely because it is not a real attempt at nullification, and would have preferred the original language of the bill. Yet never in the history of the United States’ jurisprudence has nullification (or interposition, for that matter) been considered a constitutionally valid response of the states to federal overreach. Therefore, those who argue for nullification must by necessity also seek a reversal of two centuries of case law running back to Marbury v. Madison (1803), which established the federal judiciary’s role as the final arbiter of constitutional interpretation. Not only is this extremely unlikely to happen as a practical matter, this argument has a rather dubious constitutional basis.
Admittedly, Marbury v. Madison has some dubious aspects as well (particularly the idea of a self-selected power), but its holding is still more reasonable than the alternative. If individual states’ were the arbiters of constitutionality, we could effectively have 51 different versions of the U.S. Constitution in play across the country—the interpretation of each state plus that of the federal government. If two states reach different results in assessing the constitutionality of federal law, there are no longer any truly “federal” laws. And as discussed in Marbury v. Madison, it makes more sense to leave constitutional interpretation to the apolitical (i.e., not elected) branch of government—we wouldn’t want the arbiters to be swayed by the mercurial opinions of the public and reelection prospects. As much as conservatives decry judicial activism—despite of the judiciary’s comparable stability and reluctance to change course—they should imagine how much more quickly constitutional law would change if interpretation were left to, say, state legislators.
Furthermore, even if we eschew the Supreme Court’s interpretations and attempt to divine the intentions of the Framers of the Constitution ourselves, we find little support for nullification, and only marginally more for interposition. There were of course numerous Framers of the Federalist persuasion (such as Hamilton and John Adams) who were consistently and unarguably opposed to the theory of nullification. A central tenet of their perspective was the notion that the Constitution was a product of the people—as in, “We, the people”—not just a contract between states. But rather than engage in confirmation-biased selection of original intentions, this discussion will ignore the Federalists’ arguments, since modern proponents of nullification don’t seem to consider them to be “true American” Founding Fathers anyway.
Nullification advocates typically seek justification in 1798’s Virginia Resolution and Kentucky Resolutions, which were secretly drafted by James Madison and Thomas Jefferson, respectively, and adopted by the state legislatures in response to the truly over-reaching Alien and Sedition Acts. Madison’s Virginia Resolution first presents the idea of interposition, declaring:
…[T]hat it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
However, in the follow-up Report of 1799, in which Madison sought to clarify some of the controversial provisions of the resolution, he suggests a fairly narrow interpretation of this interposition duty:
It does not follow, however, that because the states, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed, either in a hasty manner, or on doubtful and inferior occasions… [I]n the case of an intimate and constitutional union, like that of the United States, it is evident that the interposition of the parties, in their sovereign capacity, can be called for by occasions only, deeply and essentially affecting the vital principles of their political system.
In fact, during the 1832 tariff-nullification crisis in South Carolina, which also cited Madison’s earlier work as justification, Madison wrote several vehement objections to its employment. In a letter to an acquaintance Madison noted that “a free Government… is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater right to break off from the bargain, than the other or others have to hold them to it.” In other writings he asserts that states may not individually engage in nullification, and suggests it would require something approaching a majority of states to join in the effort: “These startling consequences from the nullifying doctrine have driven its partizans to the extravagant presumption that no State would ever be so unreasonable, unjust & impolitic as to avail itself of its right in any case not so palpably just and fair as to ensure a concurrence of the others, or at least the requisite proportion of them.”
Jefferson’s Kentucky Resolutions were more strongly worded in favor of the states, and the document uses the word “nullify” twice, albeit loosely. Due to the controversy they caused, these also received a borderline groveling update by the Kentucky legislature a year later, although its authorship is uncertain. It partly echoes Madison’s implied requirement of a majority of states, professing that Kentucky would “cheerfully…surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy;” the state also acknowledges federal supremacy, and “as a party to the federal compact, will bow to the laws of the Union.” It concludes by labeling the resolution a “solemn protest”—essentially admitting they had no authority to do anything other than register a formal complaint.
The View from the Right
by Gregory Conterio
There are few issues which really test the United States Constitution like Nullification. Conversely there are few issues whose study can yield a deeper and more nuanced understanding of the deliberate tension between the federal and state governments our founders designed. One must necessarily recall that the original 13 colonies which rebelled against England were independent, sovereign states, whose citizenry regarded themselves as such. The notion of being a citizen of some greater union was alien to the average person, and but a dream (or nightmare) to most of the founders. This attitude prevailed throughout Antebellum America. When Abraham Lincoln offered Robert E. Lee command of the Union Armies, he refused, despite being personally opposed to slavery, and holding generally pro-Union views, because the possibility of making war upon fellow-Virginians was utterly repugnant to him. Such was the personal identification with one’s state through most of America’s first century. The Framers of our Constitution had a well-founded distrust of government generally, and if the current revelations of abuse of power are any indication, little has changed which should assuage such concerns.
Derek has done a good job summarizing South Carolina H3101 above, but needless to say I don’t agree with some of his conclusions. The theories of Nullification and Interposition indeed have their roots in the so-called Principles of 98, which was the slogan used to collectively refer to the Kentucky and Virginia resolutions of 1798. The two resolutions were a response to the Alien and Sedition Acts, which as Derek points out were a clear overreach of federal, and especially executive branch power, but were they really the wrong idea? Certainly they were derided by many prominent figures of the time, including George Washington himself, who found the resolutions “appalling,” but what often is lacking is the reason they were found so. Washington, and every other critic of the Principles of 98 feared it would eventually lead to the sundering of the Union itself, which was a very fragile thing at this time. Indeed, many thought it was busy tearing itself apart without the Principles of 98. The Shays’ Rebellion of 1786, the Whiskey Rebellion of 1794, and the Fries Rebellion of 1799 were all serious threats to the new government. Then there was the 1798 Quasi-War, an undeclared war between the United States and the post-revolutionary Republic of France, characterized by a series of naval skirmishes. France had been instrumental in winning American independence, and the events leading up to the Quasi-War inflamed intense acrimony between Federalists, and Democratic Republicans, many of whom supported France. It was against this backdrop the Alien and Sedition Acts were signed, and the Principles of 98 were a direct reaction. The Union was already on very shaky ground. The common culture of America was to place patriotism to one’s state above that of the country, and both internal and external forces were conspiring to break the Union apart. The principle, overriding goal of the Federalists, including Washington, Adams, Hamilton, and others was to preserve it at all costs. It is little wonder they opposed Jefferson and Madison’s resolutions promoting Nullification and Interposition. The Federalists consistently opposed anything that threatened the Union, even if it meant tossing aside some of their own principles, as with the Alien and Sedition Acts. One can in fact make a strong argument that this was the eventual undoing of their party, but that is another story.
At its core the question of nullification is simply this: Are there principles so important that their violation requires an act of defiance? While I certainly agree with Derek, and the greater part of jurisprudential history that the Supreme Court is the sole authority on final interpretation of the constitution, what happens when the Supreme Court gets it wrong? There certainly have been many instances where the SCOTUS has rendered decisions that were more about expedience and contemporary politics than constitutional foundation. The Dred Scott ruling comes immediately to mind. More contemporarily there is Kelo vs. City of New London, in which it was held that it’s perfectly OK for a municipality to invoke eminent domain to take real property away from one private entity and give it to another for private use. (You really should read Justice O’Connor’s scathing dissent!) The Supreme Court certainly can get things terribly wrong, sometimes at the cost of life and property.
A Supreme Court decision with a more direct bearing on the question of Nullification had to do with the Fugitive Slave Act of 1793, which spurred several Nullification attempts. The SCOTUS upheld the Act in the case of Prigg vs. Pennsylvania. While Prigg effectively shot-down Pennsylvania’s attempts to nullify federal law pertaining to runaway slaves, it also opened the door to an effective Interposition policy subsequently applied by a number of anti-slave states through so-called Personal Liberty Laws, which were a series of state laws forbidding any officer or representative of the state from assisting in the recovery or arrest of runaway slaves in any way.
The Fugitive Slave Act of 1850 was especially onerous, and the anger and resentment over its implementation was probably every bit as responsible for fomenting the Civil War as the question of slavery in the territories. In 1859, Wisconsin tested the Nullification theory in Ableman v. Booth, in which the Wisconsin court, borrowing language from the Kentucky Resolution of 1798, declared the Fugitive Slave Act of 1850 unconstitutional and void. It further declared the SCOTUS had no authority to review the decision, and the Wisconsin legislature passed a resolution to the effect that the Supreme Court had no authority in the matter, but review it they did. In the most detailed examination of Nullification theory to date, the Supreme Court again ruled that the state had no authority to overrule federal statutes, and in so doing enabled another moral abomination.
South Carolina is undoubtedly wise to take the Interposition road as opposed to actual Nullification, at least when one notes the track record left by the latter theory in the courts. But I disagree with Derek’s assessment on the likely impact or success of the tools they have at hand. I believe the “breadth and ambiguity” of the powers this bill gives the Attorney General work to his favor. I believe Derek also misinterprets the so-far existing Supreme Court record on Obama Care in that they have not yet ruled on its enforceability. While the individual mandate has been ruled constitutional by virtue of recasting it as a tax, there are many parts of the act yet to be challenged which could readily bring about its downfall, and unpopular as it has always been, the political winds are starting to blow even more vigorously against it as its implementation seems to grow ever more troublesome and expensive by the day. But what of Nullification? I think Madison gave us a roadmap when he wrote in 1834 that no single state could embark upon a policy of Nullification on its own, but that a “majority” might do so. Twenty six states sued to overturn Obama Care. Hmmmm.
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