U.S. health care law not immune to nullification

In their battle against the federal health care legislation, Republican lawmakers in at least 11 states are turning to a centuries-old and rarely used tactic in an effort to wrest power from the federal government.

The Republican-controlled Idaho House of Representatives became the first elected body in the nation to pass a nullification bill on Feb. 16, when it voted 49-20 in favor of a measure to nullify the Patient Protection and Affordable Care Act. Seven Republicans voted against the nulification bill along with all House Democrats.

The doctrine of nullification has deep roots in U.S. history. Thomas Jefferson in 1798 first outlined the notion that states have the right to void federal laws that they perceive run contrary to the U.S. Constitution when he argued against Congress' passage of the Alien and Sedition Acts.

The Idaho Senate State Affairs Committee took up the patient bill on Friday. The GOP controls the Senate, 27-8. Idaho Republican Gov. Butch Otter has indicated he would sign the bill if it passes, according to Republican Rep. Vito Barbieri, the bill's sponsor in the House.

Political scholar Larry Sabato, author of the book A More Perfect Constitution, said nullification bills are "interesting concepts," but they won't get very far. "The U.S. Department of Justice or other interested groups are going to file a federal lawsuit and sooner or later the courts are going to overturn these laws," he said.

Michael Boldin, executive director of the Los Angeles-based Tenth Amendment Center, disagrees. The center advocates for states rights based on the U.S. Constitution's 10th Amendment — that powers not granted to the federal government nor prohibited to the states by the Constitution are reserved to the states or the people.

Boldin said states already have proven their ability to nullify federal law. He points to 15 states that have openly defied federal drug laws by legalizing medical marijuana and 25 states that refused to implement the 2005 REAL ID Act, a law creating a national identification card.

"When enough people say no to Washington, D.C., and enough states pass laws backing them up, there's not much Washington, D.C., can do to enforce those laws," Boldin said.

Critics, including Montana Gov. Brian Schweitzer, a Democrat, have called efforts to nullify federal laws "anti-American." Schweitzer indicated that he would likely veto such measures if they get to his desk.

Idaho Republican Rep. Eric Anderson, one of seven GOP House members to vote against the bill to nullify the federal health care act, said that he does not support the new federal law but that it isn't up to state legislatures to pick and choose which laws they think are constitutional.

"Until the U.S. Supreme Court says this is unconstitutional, it is the law of the land. And as much as I might not like the health care act, I just simply don't think that's my prerogative or a legislature's prerogative to overturn it."

Republican Rep. Ken Andrus said his vote in favor was a signal to Washington that Idaho would no longer acquiesce when far-off agencies try to direct it.

"I can't plow a ditch in my own field without federal government permission," Andrus said.

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