If SCOTUS Rules ObamaCare Constitutional, States Must Nullify It

Wednesday, April 14, 2010

First, some background information:

As I write this, 20 states are challenging or have confirmed they will be challenging the constitutionality of ObamaCare (click the lawsuit links to read the complaints filed in court): 

A lawsuit filed by Florida AG Bill McCollum in U.S. District Court for the Northern District of Florida, Pensacola Division on March 23, 2010 includes or soon will include Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington, Idaho, South Dakota, Indiana, North Dakota, Mississippi, Nevada, Arizona, and Georgia as plaintiffs versus the U.S. Department of Health and Human Services; Kathleen Sebelius, U.S. Secretary of the Department of Health and Human Services; the U.S. Department of the Treasury; Timothy F. Geithner, U.S. Secretary of the Department of the Treasury; the U.S. Department of Labor; and Hilda L. Solis, U.S. Secretary of the Department of Labor as defendants.

Virginia's great defender of liberty, AG Ken Cuccinelli filed a separate lawsuit in the U.S. District Court for the Eastern District of Virginia, Richmond Division on March 23, 2010 with the Commonwealth of Virginia ex. rel. Kenneth T. Cuccinelli, II as the plaintiff versus Kathleen Sebelius, U.S. Secretary of the Department of Health and Human Services as the defendant.  AG Cuccinelli's suit is separate because of the Virginia Healthcare Freedom Act, which asserts Virginia's sovereignty against the most blatantly unconstitutional part of ObamaCare, the individual mandate.  Virginia is the only state so far with such legislation passed and signed into law, although many other states are working on similar measures.

Now, to the point at hand:

The Virginia Healthcare Freedom Act, contained in SB283, SB311, SB417 and HB10, consists of the following language:

No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services where an individual is named a party in a judicial or administrative proceeding. No provision of this title shall render a resident of this Commonwealth liable for any penalty, assessment, fee, or fine as a result of his failure to procure or obtain health insurance coverage. This section shall not apply to individuals voluntarily applying for coverage under a state-administered program pursuant to Title XIX or Title XXI of the Social Security Act. This section shall not apply to students being required by an institution of higher education to obtain and maintain health insurance as a condition of enrollment. Nothing herein shall impair the rights of persons to privately contract for health insurance for family members or former family members.

This is a great first start to nullify ObamaCare within the Commonwealth of Virginia and provide the Commonwealth and its citizens legal standing to sue the federal government and attempt to get ObamaCare declared unconstitutional in court.  But, what if some of these suits make it to the U.S. Supreme Court (SCOTUS) and they declare ObamaCare constitutional in a massively disgraceful example of judicial activism?  Should the states listen to the SCOTUS ruling and just give up?

The Virginia Healthcare Freedom Act doesn't go far enough to protect the citizens of the Commonwealth at this point.  At this point, any state that wishes to protect its citizens and sovereignty will need to pass something like the Federal Health Care Nullification Act proposed by the Tenth Amendment Center:

An Act to render null and void certain unconstitutional laws enacted by the Congress of the United States, taking control over the health insurance industry and mandating that individuals purchase health insurance under threat of penalty.

SECTION 1. The legislature of the State of ____________ finds that:

1. The People of the several states comprising the United States of America created the federal government to be their agent for certain enumerated purposes, and nothing more.

2. The Tenth Amendment to the United States Constitution defines the total scope of federal power as being that which has been delegated by the people of the several states to the federal government, and all power not delegated to the federal government in the Constitution of the United States is reserved to the states respectively, or to the people themselves.

3. The assumption of power that the federal government has made by enacting the “Patient Protection and Affordable Care Act” interferes with the right of the People of the State of _____________ 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.”

SECTION 2. NEW LAW

A new section of law to be codified in the [STATE] Statutes as Section [NUMBER] of Title [NUMBER], unless there is created a duplication in numbering, reads as follows:

A. The Legislature of the State of _______________ declares that the federal law known as the “Patient Protection and Affordable Care Act,” signed by President Barack Obama on March 23, 2010, is not authorized by the Constitution of the United States and violates its true meaning and intent as given by the Founders and Ratifiers, and is hereby declared to be invalid in this state, shall not be recognized by this state, is specifically rejected by this state, and shall be considered null and void and of no effect in this state.

B. It shall be the duty of the legislature of this State to adopt and enact any and all measures as may be necessary to prevent the enforcement of the “Patient Protection and Affordable Care Act” within the limits of this State.

C. Any official, agent, or employee of the United States government or any employee of a corporation providing services to the United States government that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this act shall be guilty of a felony and upon conviction must be punished by a fine not exceeding five thousand dollars ($5,000.00), or a term of imprisonment not exceeding five (5) years, or both.

D. Any public officer or employee of the State of ____________ that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this act shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding two (2) years or by a fine not exceeding One Thousand Dollars ($1,000.00) or both such fine and imprisonment.

E. Any aggrieved party shall also have a private action against any person violating the provisions of subsections (C) or (D).

SECTION 3. This act takes effect upon approval by the Governor.

The most important addition in this proposed legislation is that it attempts to block federal enforcement of the unconstitutional law through harsh criminal and civil penalties for those who attempt to enforce the provisions of ObamaCare.  Federal employees who attempt to enforce ObamaCare would be guilty of a felony and state employees guilty of a misdemeanor and both subject to civil suit by the aggrieved party.  This would hopefully deter federal and state agents from enforcing ObamaCare for fear of personal criminal and civil consequences to the federal or state agent him or herself, not just to his or her agency.

But, if SCOTUS rules ObamaCare constitutional, doesn't the Supremacy Clause of Article VI of the U.S. Constitution prevent nullifcation of ObamaCare?

The Supremacy Clause reads as follows:

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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The founders never intended SCOTUS to be the sole arbiter of constitutionality.  The is no enumeration of this power to SCOTUS anywhere in the U.S. Constitution.  This power was seized for SCOTUS by SCOTUS in Marbury v. Madison (1803) by the Hamiltonian Chief Justice John Marshall in a gross power grab, Hamiltonian style.  Many of the founding fathers envisioned that states and each of the federal branches individually would share this role through competition.  This power is not an enumerated power of SCOTUS, but an unconstitutional seizure that has gone on for far too long.

The states have every right to declare ObamaCare unconstitutional and not supreme over their own laws because Obamacare was not made in "pursuance" to the enumerated powers given to Congress by the U.S. Constitution.

Remember the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 The states can and must nullify ObamaCare if SCOTUS does not strike it down.