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Nullification Argument Takes on Obamacare

January 26, 2011

Obamacare NullificationThe ghost of John C. Calhoun must be proud.

The AP reports that Republican lawmakers in Idaho, Alabama, Kansas, Maine, Missouri, Montana, Oregon, Nebraska, Texas and Wyoming are talking about nullification measures--arising from the principle that individual states can reject federal laws they view as unfounded--as a way to battle the new health-care law.

The 18th-century doctrine hasn't had a great success rate when politicians have invoked it in the past.

Calhoun, as vice president, fought passionately in the 1820s and 30s for South Carolina's right to declare certain federal laws unconstitutional and thus ignore them. He based the right on writings by Thomas Jefferson and James Madison, none of which were actually included in the Constitution. (Though "states rights" proponents also point to the 10th Amendment--which reserves all powers not enumerated as belonging to the federal government as belonging to the states as justification.)

South Carolina voted to nullify the federal tariff, which state leaders viewed as a burden on its agricultural export, after Calhoun resigned the vice presidency, but revoked the nullification after they renegotiated the terms of the tariff with the federal government in the 1830s. Andrew Jackson also threatened to use force against the state if it didn't fall into line.

The conflict set the stage for secession and the Civil War. Northern states invoked "states rights" defenses to fend off pro-slavery laws that required runaway slaves to be returned to their owners. (The Supreme Court ruled the Northern states were violating federal law, but they continued to resist.) But when President Abraham Lincoln was elected the tables turned and Southern states began to use the argument again.

South Carolina became the first state to declare its independence from the Union in 1860--and indeed cited Northern states' failure to enforce the fugitive slave law as part of the justification for seceding, as historian Paul Finkelman writes.

After Brown v. Board of Education desegregated schools across the country, Arkansas and several other Southern states invoked nullification in the 1950s to say they would not enforce the law. The Supreme Court decided the states had no right to reject the ruling.

The lengthy court precedents upholding the federal law over against the authority of the states to decline its jurisdiction means any nullification measure to fight health-care reform would be largely rhetorical and quickly shot down in courts, constitutional scholars told the AP.

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