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Seceding from the healthcare reform union

March 12, 2010 | 10:41 am

Bob McDonnell, 10th Amendment, healthcare reform, nullification, individual mandate
Virginia Gov. Bob McDonnell, speaking in the Virginia House of Delegates chamber (AP Photo/Steve Helber)
Opponents of Obamacare may soon add Virginia to the (short) list of states that have passed legislation to preemptively nullify the proposed mandate that everyone obtain health insurance. Arizona lawmakers agreed last year to put a "health care freedom" amendment to the state constitutionon the ballot this fall.  (But then, Arizona lawmakers are especially nervous about the specter of health mandates; they approved a similar proposal during the non-healthcare-reforming Bush administration, only to have voters narrowly defeat it in 2008.) This month, both houses of Virginia's legislature approved a modified version of the Arizona bill as a state statute. The latter awaits Gov. Robert F. McDonnell's signature, which seems certain, given that he's said he would sign it

Meanwhile, according to the Tenth Amendment Center's helpful "Health Care Nullification" tracking page, similar bills have passed one chamber of the legislature in five other states. The legislation has stalled in four states, and it has yet to be taken up in 19 others, the center reports.

The constitutional experts I've talked to say that nullification is about as valid as, well, Wesley Snipes' views on the federal income tax. Here's what University of Texas law professor Sanford Levinson had to say in a piece last month in the Austin American-Statesman:

[N]o serious lawyer could believe that nullification could possibly be effective as a legal possibility. Anyone who believes otherwise is simply deluded or being misled by an ignorant demagogue. To paraphrase former Defense Secretary Donald Rumsfeld, we conduct our politics under the Constitution we have, not the Constitution some people wish we had.

I know there's plenty of emotion on the other side, but I think it's long been settled law that the courts, not state legislatures, have the power to overturn acts of Congress. By "long" I mean "pre-Civil War." So in a battle between Virginia's statute and a federally enacted individual mandate, I'd put my money on the individual mandate -- at least until someone (from Virginia, even) successfully challenged the constitutionality of the federal law in court. (The Arizona referendum poses a more intriguing question about a clash between Congress and state constitutions, which may not be settled law. If you can point to any Supreme Court decisions on that issue, please do.)

I've argued before that the mandate is constitutional (and good policyto boot). What proponents of nullification are really trying to do, though, isn't about law as much as it is about politics. They're trying to build the case for their representatives in Congress to vote against the comprehensive healthcare reform bill. That's a valid pursuit, and it raises really interesting questions about the role of lawmakers in a representative democracy (CliffsNotes version: Should they make policy decisions by relying on research or on public-opinion polls?). It would be a more honest exercise, though, if state legislators passed resolutions calling on Congress to reject the individual mandate, rather than pretending they have the power to nullify it by statute.

-- Jon Healey

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