The Nullification movement is growing in South Carolina, specifically as it relates to the Patient Protection and Affordable Care Act, commonly referred to as “Obamacare.” Grassroots organizations around the state have picked up the torch of liberty after it became clear in November that the federal government was not going to change in our favor, and that the repeal of Obamacare had been effectively defeated in the national elections. SC House Representative Bill Chumley introduced House Bill 3101 and since then it has picked up 24 co-sponsors. A similar bill has been introduced in the SC Senate, S102, which has six co-sponsors.

Et tu, Brute´?

Et tu, Brute´?

In the weeks since these bills have been introduced, the citizen activists around this state have been putting the pressure on their representatives, at all levels, to support this measure. In fact, County GOP Executive Committees for Greenville, Spartanburg, Charleston, Berkeley, and Dorchester have all issued resolutions in support of H3101 and S102, Nullification of Obamacare.

The groundswell of support for this measure – our last line of defense against the federal takeover of the healthcare industry and the personal lifestyle habits of every citizen – has taken some party insiders and seasoned Republicans by surprise. In fact, SCGOP Chairman Chad Connelly, who initially endorsed the nullification effort, is now spreading the message that nullification is illegal and unconstitutional, and urging party members to refer to this opinion piece at Heritage.org.

The Heritage article strongly opposes nullification, and its argument rests on two main points: nullification is unconstitutional, and the founders rejected nullification. Let me address each of these points, with the help of experts from the Tenth Amendment Center and the author of the book “Nullification”, Tom Woods:

1) Nullification is Unconstitutional – In this argument, Heritage first creates a false argument for the nullifiers, in saying that the states claim the power to veto federal law.

Unfortunately, despite good intentions, some have been tempted to embrace nullification—the claim that an individual state legislature has the authority to veto federal laws.

This is not the case of nullification whatsoever. When a state nullifies a federal act, it is simply telling the federal government: We did not agree to give you this power, it is not listed in the constitution, and we will not allow it in our state. Nullification doesn’t veto the federal act, and it will still apply to states that do not nullify. In this argument, Heritage is creating a “straw-man”, meaning they are assigning a false position to nullification so that they can easily “blow it  away.” It’s a dishonest tactic, to say the least.

Then they declare nullification unconstitutional because of the Supremacy clause. As a reminder, here is the Supremacy clause:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.

Notice the added emphasis. Sure, all constitutional laws enacted by the federal government are the supreme law of the land. But any act that is unconstitutional or that oversteps the bounds placed on the federal government by Article 1, Section 8, is in fact NOT a law as it was NOT made in pursuance of the Constitution. The supremacy clause simply does not apply to unconstitutional acts.

2) The Founders Rejected Nullification – In this argument, Heritage points to the fathers of Nullification, Thomas Jefferson and James Madison,  and provides select anecdotes which supposedly prove that they were against Nullification.  As an example:

Madison’s Virginia Resolutions did not speak of nullification or voiding laws, asserting that the resolutions did not “annul the acts” but were only “a legislative declaration of opinion on a constitutional point.”

Of course they were just a declaration of opinion, after all, because they were simply resolutions. Just as many states have currently passed 10th Amendment Resolutions and Health Care Freedom Resolutions, they are a first “warning shot” that lay the groundwork for Nullification. The Virginia Resolutions, while not specifically using the word nullification, sent a very clear message to the federal government that it needed to cease and desist its actions while sending a message to the Virginia legislature that they had to duty to interpose on behalf of the Virginian people.

More importantly, these are just juvenile attempts to discredit the entire idea of Nullification and don’t seriously address any of the arguments laid out in the Kentucky and Virginia Resolutions. If you read the words of Madison or Jefferson, their intention is clear, as you can see in this quote from the latter:

…the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government… whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force… the Government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitution, the measure of its powers; but that as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Finally, Thomas Jefferson and James Madison were not the only “founders” of the United States. There were many men in leadership positions during the time of the Declaration of Independence, the Revolution, and the ratification of the Constitution. If it weren’t for brave Anti-Federalists such as Patrick Henry and Richard Henry Lee, we might not even have a Bill of Rights at all. Thankfully, we do, and the 9th and 10th Amendments spell out pretty clearly who holds the supreme power in this country, and it is the people and then the states.

So as you can see, it’s not hard to refute the arguments made in this sophomoric piece by the Heritage Foundation, but the question remains: why would Heritage oppose nullification in the first place? Why would they flatly dismiss it with such weak, unfounded arguments?

Well, it is impossible to know for sure what their motivations are, but it is clear to see that they have a tangled history with the issue of the PPACA and many of its most ghastly features, such as the individual mandate:

The controversial individual mandate that was upheld Thursday by the U.S. Supreme Court stems back more than 20 years, believed to have originated with a prominent conservative think tank.

The mandate, requiring every American to purchase health insurance, appeared in a 1989 published proposal by Stuart M. Butler of the conservative Heritage Foundation called “Assuring Affordable Health Care for All Americans,” which included a provision to “mandate all households to obtain adequate insurance.”

If that’s not bad enough, when you read the entire healthcare policy proposal from Heritage.org it is plain to see that this supposed conservative think tank has not proposed a free market in healthcare or the roll-back of the government policies that have been crippling healthcare and sending costs skyrocketing, but is in fact offering the opposite: more bureaucracy, more regulation, more control from Washington, D.C. There are higher taxes for us working folks, more subsidies for people on Medicare, and new government agencies to administer various risk pools. Given the knowledge that the Heritage solution operates on the same premise as Obamacare: top-down management of the healthcare market as opposed to freeing the market of onerous regulations, it is easy to understand why they would oppose a bottom-up solution like Nullification.

Along those lines, it is important to realize what the Heritage Foundation is: it is a conservative think tank that promotes federal policy initiatives. They are an inside-the-belt-way special interest group who’s world revolves around Washington, D.C. This organization is one with nearly $200 million in assets, and an operating budget in 2010 of $80 million. These aren’t inherently bad things, but it is something you have to take into account when you start talking about ideas such as nullification, which represents the people in the states taking action to constrain the federal government. Their solutions to problems are for the federal government to enact the policies that they create. Encouraging nullification would be a self-defeating activity for them, as it would open up the door for left-leaning states to nullify Heritage.org inspired federal policies that are unconstitutional. The lack of federal “supremacy” for certain policies and regulations, which contain protections and subsidies for certain favored industries and corporations, would surely affect their bottom line.

In conclusion, this isn’t an article meant to demonize or vilify the Heritage Foundation as an organization. They do good work for the Conservative movement and they are one of only a handful of special interest groups that actually hold somewhat conservative positions. However, they have made a mistake in opposing nullification, and that mistake may have happened for several different reasons. I give them the benefit of the doubt, and think that they are simply suffering from normalcy bias, which means they are not thinking “outside of the box” on this issue, but instead, inside of the beltway.

 

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7 Responses to Why would Heritage.org Oppose Nullification?

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  4. Joseph Miller says:

    This is a thoughtful and interesting article. Let me give some slight pushback against certain portions though. I think what you will see is that this article actually endorses the Heritage position.

    First let’s define two terms…

    Nullification: a legal theory that a state has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional. (Heritage does side with Madison that this is not a valid legal doctrine, which the courts have consistently also agreed with)

    Interposition: an asserted right of a U.S. state to oppose actions of the federal government that the state deems unconstitutional. Under the theory of interposition, a state may “interpose” itself between the federal government and the people of the state by taking action to prevent the federal government from enforcing laws that the state considers unconstitutional. (A position that Heritage has endorsed as a legitimate doctrine for states to pushback against what they perceive as unconstitutional actions or laws)

    Nullification is by definition an action which makes the assertion that federal law is no longer in place, yet in the article this point is made… “Nullification doesn’t veto the federal act” and yet that’s exactly what Nullification does. This claim is also made…. “When a state nullifies a federal act, it is simply telling the federal government: We did not agree to give you this power, it is not listed in the constitution, and we will not allow it in our state.” This is not what nullification does, this is what interposition does, and Heritage supports states that want to embrace interposition as a method of pushing back against the federal overreach of their limited powers.

    So if we can correct our definitions, the type of action the article seems to be advocating for… interposition, is affirmatively supported by Heritage.

    I see quite a bit of misunderstanding of what exactly nullification is and isn’t. Another good example of this misunderstanding is when people suggest that a certain type of legislation is nullification when in fact it is actually anti-commandeering. Anti-commandeering is another legal doctrine that Heritage fully supports.

    As for the healthcare mandate… that was work done decades ago now, by one scholar at an institution that has hundreds of scholars. It was an idea meant at the state level to combat the free rider problem. After developing the idea, different departments at Heritage were finding huge policy and legal problems with it and Heritage, long before Obamacare came around, began to nix the notion entirely and as has been the case since its inception has long advocated for free market and state based solutions.

    You can see plainly that the solutions Heritage offers in healthcare policy are meant to drive solutions from the market and to get government out of the way.

    Heritage’s entire vision and philosophy is to devolve the power of DC and put it into the hands of states. In some policy arenas where the Constitution dictates federal involvement, Heritage seeks to keep such activity limited. You can plainly see dozens of areas where Heritage demands state based solutions instead of federal involvement, whether it’s roads, education, healthcare, etc.

    Heritage fully supports states standing up and pushing back against the overreach of federal policies and actively encourages states to stand up and say enough is enough, to take back their 10th amendment powers and to devolve solutions and responsibilities to the local level. Heritage wants DC to have less power and less of a strangle hold on the policy making process.

    So long story short, Heritage actively supports the interposition argument you made above and it would be great to see the language in the bills changed to reflect interposition instead of nullification, and to have the states stand up and stand between the federal government and their citizens. It would be awesome if 20-30 states passed interposition and anti-commandeering legislation and made it difficult for the federal government to enforce unconstitutional big government legislation.

    We have a path forward for states to legally get in the way of federal actions, let’s use it, we can’t veto federal law so let’s not waste our time on that. We can either amend the constitution to restrict federal powers, or we can ultimately, and as the very last recourse, use the rights outlined in the Declaration of Independence as our ultimate solution. We need to first start using interposition and anti-commandeering, not nullification, which is a violation of the supremacy clause.

    As a movement, understanding the difference between nullification, interposition, and anti-commandeering will be vital to gaining the broadest spectrum of support and to legally pushing back against the progressive lawmakers in DC.

    Keep up the good work in S.C., and don’t give up trying to peel back the influence of DC.

  5. The Ninth says:

    Interesting thing about “nullification” is that folks who espouse it in this context don’t first cite the Preamble, which sets the framework of power: We the People…do ordain and establish this Const. for the US of A. People supreme, legislative, executive and judicial branches mere employees of We the People, who specifically delegated powers/rights to the federal gummint. And just in case the humans who become our employees behave as humans are wont to do, by arrogating unto themselves NON-delegated powers, we have Madison’s 9th Amendment (hey, assholes, listen up: just because we listed a few rights retained by the people during this exercise of Republic-building, does not, and shall not “be construed to deny or disparage others retained by the people.” And the 10th is a 2nd reminder vis-a-vis “reserved POWERS.” One of which is surely the one set out in the Declaration of Independence, to change or abolish the gummint that fails to serve the needs of We the People.
    Some folks maintain that the full phrase “We the People of the United States” should be construed to mean that it is only as citizens of a state that We the People have retained rights and reserved powers. I’m not in that tent city. But I am in the camp of grand jury and petit jury nullification, as one of the orderly ways citizens project their power over our employees, namely, the federal gummint.
    Grand Jury nullification asserts that once a grand jury is impaneled by a district attorney, that grand jury is whole and complete in and of itself. The jurors can subpoena witnesses and evidence on their own; they are not the “tool” of the prosecutors, but rather, the boss of the prosecutors and the judicial system. The grand jurors can investigate on their own motion. They can keep the DAs out of their deliberations, cite DA and judges for contempt and jail them for interfering w/ the administration of justice. But most folks have absolutely no idea that the grand juries have such powers. And “the system,” the “deep gummint,” or the “status quo” aren’t going to educate the People as to their supreme power.
    Furthermore, the Grand jury can refuse to indict whosoever is proffered by the DA as a putative defendant, just as a petit jury (the one that sits on but one case) can refuse to convict, whether on the facts, the law, or the entire process. Judges keep instructing juries that the jurors are “finders of fact” and the judge is arbiter of the law. But this isn’t true. The jurors can not only determine the facts, but the substance of the law and the process by which the accused was subjected to the administration of the law. And they don’t have to offer any information other than the number of votes for and against conviction.
    As to actions by states against the federal gummint, the gummint decrees, the state(s) disagree, the gummint sues, and the issue is joined as to whether We the People delegated this power to the federal gummint, whether the gummint’s action was, first, “necessary,” and second, “proper” (that is, I see the “necessary and proper” clause as imposing TWO tests which must be passed), remembering that We the People set out six goals, or “in order to”s for our gummint to achieve, namely:
    1) form a more perfect Union,’
    2) establish Justice (I don’t see this goal as having been yet met; howabout you?),
    3) insure domestic Tranquility (not “scare the shit out of everyone all the time about Eurasia and Eastasia attacking Winston Smith’s Oceania,” or “terror” freezing our limbs),
    4) provide for the common defense (this would apply to such things as 9/11/2001–oops, guess our gummint done messed up on that objective), secure borders, but not hobby wars, some 122 of which we’ve fought since 1798, or about one every two years–but inasmuch as some wars go on longer than two years, it basically describes a nation (US) constantly at war, in conflict, etc. No peace-mongers need apply for gummint postings),
    5) promote the general Welfare (keyword, “general”. Not Bankster welfare; not Military-industrial or other corporate welfare), and
    6) secure the Blessings of Liberty to ourselves and our Posterity.
    I see these six adjurations as thoughtfully prioritized, though I’ve found no evidence for it directly. But follow the logic: First, lets improve cooperation between the states, 2nd, keep the cooperation in place by providing justice for all; 3rd, do the necessaries of insuring domestic tranquility. With those three goals attained, we finally have something worthy of defending, so 4) provide for the common defense. (defense is the only goal not capitalized, which some take as insignificant), 5) having protected a more perfect Union, Justice and Tranquility, now we can go about promoting the general Welfare, and 6) having that assured, we can, like the maraschino cherry atop a mound of whipped cream resting on three scoops over a split banana, go about wrapping our heads around the Blessings of Liberty for ourselves and our children.
    Set out in that order, it makes sense to me.

  6. Great information thanks Tom.

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