The Democrats’ drive to pass health care reform has resurrected ancient legal demons. As The New York Times reported last week, nullification, typically considered a pretty-much dead 19th century notion of the relationship between states and the federal government, is experiencing a resurgence.
The early American debates about the relationship between state and federal power came to a head in 1832, when a South Carolina state convention passed the Ordinance of Nullification, declaring the federal tariffs of 1828 and 1832 unconstitutional. South Carolina thus claimed the ability to annul a federal law. The South Carolina state convention repealed the Ordinance after the U.S. Congress passed a law revising the tariff and another authorizing the use of force against South Carolina for its actions. The conflict over the nullification concept was not settled, as South Carolina did not claim it lacked nullification powers. However, a decade later the U.S. Supreme Court ruled in Prigg v. Pennsylvania that federal law is superior to state law. The conflict was not actually settled until the Civil War, when the federal government used brute force to assert its control over the states.
This hasn’t stopped Oklahoma from attempting to preemptively repeal health care reform within its boundaries. A bill in the state House and Senate aims to exempt Oklahoma from the legal obligation to implement federal health care reform if it happens. Similar actions have been undertaken in Utah and Virginia. In Idaho, the governor has actually signed such a bill into law. In Arizona, voters will vote on a similar measure.
The New York Times dubs this drive “more smoke than fire.” This assessment is probably correct. Still, this is the year that will prove Russian academic Igor Panarin either wrong or right