State nullification, still not an option

STATE NULLIFICATION, STILL NOT AN OPTION…. If/when health care reform becomes law, there will still be plenty of hurdles before the changes are fully implemented. One of the problems will be conservative state lawmakers who think they can override federal law at the state level.

This isn’t exactly the same as the Tenthers’ “nullification” agenda — effectively secession-lite — which argues that all federal laws are necessarily unconstitutional. Rather, this is a related nullification effort, which focuses on individual mandates.

In more than a dozen statehouses across the country, a small but growing group of lawmakers are pressing for state constitutional amendments that would outlaw a crucial element of the health care plans under discussion in Washington: the requirement that everyone buy insurance or pay a penalty.

Approval of the measures, the lawmakers suggest, would set off a legal battle over the rights of states versus the reach of federal power — an issue that is, for some, central to the current health care debate but also one that has tentacles stretching into a broad range of other matters, including education and drug policy.

Opponents of the measures and some constitutional scholars say the proposals are mostly symbolic, intended to send a message of political protest, and have little chance of succeeding in court over the long run. But they acknowledge the measures could create legal collisions that would be both costly and cause delays to health care changes, and could be a rallying point for opponents in the increasingly tense debate.

This has come up in 14 states, with varying degrees of progress. Proposals have been presented in 10 states, some of which have already rejected the idea of overriding federal law. Four more are poised to follow suit, with Arizona, where an amendment will be on the statewide ballot next year, the furthest along.

Some conservative lawyers think they have a shot at allowing states to block health care reform. They don’t. Timothy Stoltzfus Jost, a health law expert at Washington & Lee University School of Law, told the NYT, “States can no more nullify a federal law like this than they could nullify the civil rights laws by adopting constitutional amendments.”

Wake Forest law professor Mark Hall, who has studied the constitutionality of mandates that people buy health insurance, added, “There is no way this challenge will succeed in court.”

But conservatives are excited about it anyway, and should reform become a reality, these efforts will likely keep some annoyed Justice Department attorneys busy for a while.