This should be an interesting debate in the courts.
Idaho Republicans have been leaders in the fight against ObamaCare. They are already pursuing a lawsuit to keep the health care overhaul from taking effect within its borders, but now they are considering a more bold approach – nullification.
Nullification roots back to 1799 when Thomas Jefferson wrote the “Kentucky Resolution” as a response to federal laws during an undeclared naval war against France. In the resolution Jefferson stated that “nullification, by those sovereignties, of all unauthorized acts…is the rightful remedy.” It has been used and attempted a few other times throughout our nation’s history, but its legality remains sketchy. From The Washington Post:
Three decades later, South Carolina Sen. John Calhoun pushed nullification of federal tariffs that many in the South deemed discriminatory toward agricultural slave states. President Andrew Jackson readied the military, before a compromise defused the situation.
In 1854, Wisconsin also sought to nullify the federal Fugitive Slave Act that forced non-slave states to return escapees.
And more recently, Arkansas defied the federal government’s order to desegregate public schools after the landmark 1954 Brown v. Board of Education decision.
In a unanimous 1958 ruling rejecting Arkansas’ position, the High Court wrote that states were bound by the Constitution’s Article VI mandating U.S. laws, when vetted by justices, “shall be the supreme law of the land.”
Despite the court decision, strict Constitutionalists remain steadfast that the states are the ones who hold the power to determine constitutionality within their borders, not the courts. That belief has spread quickly. Maine, Montana, Oregon, Nebraska, Texas, and Wyoming are also considering similar nullification laws. And when you consider that 27 states are in the lawsuit against ObamaCare, its not hard to see that a revolt of the states against the federal government is brewing.