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.
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.