Before Chief Justice of the Supreme Court, John Roberts, wrote the majority opinion upholding the alleged constitutionality of the Affordable Care Act (on one hand, denying its constitutionality under the Commerce Clause, but, on the other, sanctioning the individual mandate as a tax Congress has the power to impose), otherwise known as Obamacare (ADA), several states had announced that they would refuse to implement the law or conform to its specific provisions. At last count there were four, from the original twenty-seven, led by Florida.
Such opposition may move Congress to repeal Obamacare in part or in its entirety, instead of fighting the states (provided Republicans retain control the House and win control of the Senate); it may cause it to “replace” Obamacare with something less onerous (but no less unconstitutional); or it may cause another Constitutional crisis in which the states invoke the Tenth Amendment and are answered by the federal government overriding the states’ supposed right to resort to that strategy.
The last major defiance of federal policy by the states on the basis of states’ rights precipitated the Civil War.
The questions are: Can the states successfully resist the federal government on this issue? Can they unite in their opposition? Would the federal government back off, or offer a compromise, such as was reached during the Nullification Crisis of the 1830’s? Can the federal government override their opposition? Will the federal government threaten to punish states that refuse to comply with Obamacare, e.g., by withholding federal highway funds or Medicaid funds, or by devising another strategy to induce compliance? And if the states champion noncompliance with any facet of Obamacare, on what moral grounds?
Three features of the Constitution will come into play in this pending conflict:
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, or to the people.
The Supremacy Clause of Article VI, Section 2, which states that the Constitution, and the Laws of the United States…shall be the supreme Law of the Land. This clause applies solely to the enumerated powers granted to Congress in Article I, Section 8, and to no other laws, assumed or imagined. This clause by inference also exempts the federal government from complying with state laws.
The Necessary and Proper Clauseof Article I, Section 8, which reads: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. This is the last of eighteen enumerated powers.
The Tenth Amendment, or the “states’ rights or sovereignty” Amendment, has a dubious history. It has been invoked by states in the past to impose or legitimate the denial of individual rights to blacks or to sanction the statist mischief or criminal behavior of a state legislature. The Amendment has never been invoked to protect individual rights.
Furthermore, in the 20th century, the argument from state sovereignty or from “reserved rights” lost credibility when states began to accept federal money for various highway, welfare, and other federal programs. By accepting those funds, the states lost a great portion of their vaunted sovereignty. They could claim arm-twisting by the federal government, but once they submitted, the wind went out of their claims to state sovereignty. They became addicted to and dependent on the subsidies in terms of their own budgets and expenditures. They complemented the growth of federal power with the growth of their own powers. It may be too late to reassert their sovereignty now. States maintain that they can pick and choose which powers they reserve (in the name of “the people”). This they might do, but the federal government has in many instances adopted a policy of “benign neglect” in respect to allowing states to assert their own prerogatives.
The Supremacy Clause has been virtually ignored by Congress, because Congress has passed thousands of laws not enumerated in the Constitution (“implied” powers), but whose enactment has been rationalized by Article I, Section 8, whose first clause reads, The Congress shall have Power To lay and collect Taxes, Duties, imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
The Necessary and Proper Clause has been as troublesome as the first clause, because it corrals together both legitimate and illegitimate functions of the federal government, in addition to all those “implied” or unenumerated powers. The first three clauses, together with the fifth, sixth and seventh, grant Congress powers it should never have been granted, and which have allowed the inevitable expansion of federal power. Proponents of the ADA based much of their sanctioning on the Commerce clause (“among the several States”), interpreting the term regulate to suit their own agenda, and ignoring its original meaning, which was to impose some kind of legal structure on the chaos in trade and commerce between states. The term did not sanction statist controls over commerce. (No kidding, Nancy!)
Naturally, statists counter with, “That was then. This is now. We are not as narrow-minded as the Founders and Framers. We have a broader and superior understanding of the term. Conditions have changed. Society is more complex. We are more enlightened. We have responsibilities the Framers never dreamed of.”
Oh, they dreamed of them, all right. Or rather, had nightmares about such powers, which most of them never wanted to delegate or bestow. Those dreams and nightmares are discussed in The Federalist Papers and The Anti-Federalist Papers.
The states cannot oppose Obamcare with a straight face. Their own tax-and-spend-and-regulate programs lift chump change from their citizens’ pockets, while Obamacare and other federal programs raid whole bank accounts across the country in what could be called the federal “interstate commerce” in robbery, fraud, and extortion. The states cannot cock a snook at the Supremacy Clause because it contains all the vices and villainy they practice, as well. Virtually the only things the states cannot emulate is to print their own money and run their own postal service.
The aforesaid powers are, from the perspective of recognizing and upholding individual rights, improper and wholly unnecessary. If the states wish to nullify Obamacare, they should understand that their own statist powers ought to be nullified, as well.
The states cannot challenge the Necessary and Proper Claus, either, because they have adopted their own unenumerated powers. For virtually every mammoth federal bureaucracy, in every state there is a Mini Me clone.
The states are the pot proposing to call gang-leader Kate “Ma” Barker black. One could view the conundrum from this perspective: The federal government is Ma Barker, obese, sly, and accustomed to having fancy and expensive things got through her sons’ criminal activities; the states are her dependent, obedient, fiscally-challenged offspring. This criminal association creates an image it will be hard for the states to shake, or reconcile with their “principled” opposition to Obamacare, or even deny. You can bet that the federals will remind them of this and their friends in the mainstream will make a lot of noise about it.
The leftist mainstream media have served the federal government for decades now in a triple role: press agent, shill, and graffiti artist. You can count on the MSM to contribute their own confusion, ignorance, and collectivist biases to the fight the conservative governors and legislatures are spoiling for.
Forgotten, however, in all the chatter, lawsuits, and braggadocio over which governments claim prerogative supremacy over clashing legislation – the federal or the states – is the supremacy of the individual who owns his own life and the necessary and proper primacy of his liberty. Denied the recognition that he owns his own life, and seeing the primacy of his liberty negotiated away or simply erased from law, man becomes a part-time or full-time indentured serf.
There is not a single state in the Union that has not enacted its own à la carte nullification of freedom. So, on what grounds can the state credibly oppose the lavish, cannibalistic banquet of Obamacare? All the states can do, in opposition to Obamacare, is clam first “rights” to impose their own statist imperatives.
Put another way: Whose supremacy is it, anyway? Whose supremacy ought to be the issue – the State‘s, or the individual’s?