This is a real possibility if the American Legislative Exchange Council (ALEC) and its members have their way. Lost in the recent discussion about thousands of Americans signing petitions to support secession is the simple fact that thousands of state legislators and a nearly a hundred members of Congress are affiliated with an organization that supports the discredited legal doctrine of nullification as in their opposition to the Affordable Healthcare Act, aka Obamacare:
With the Freedom of Choice in Health Care Act, ALEC is essentially arguing for "nullification," a legal theory asserted before the Civil War to protect slavery in the South (although Northern states also tried using it to reject the Fugitive Slave Acts), and which relies on the notion that any state has the right to nullify or invalidate a federal law the state deems unconstitutional. The U.S. Supreme Court has rejected nullification, most recently in the 1950s when Southern states tried using the strategy to resist racial integration of public schools. (The Cannon and Adler theory is based largely on a textual analysis of the health care law and is not "nullification" in a traditional sense).
But even in states where the ALEC Freedom of Choice in Health Care Act has not become law, Tea Party groups and others on the right have been urging governors and legislatures to find other ways to "nullify" health care reform.
What Nullification Means.
The idea that a doctrine that we all learned about in American history is wreaking havoc still comes as a surprise to many. In 1832, the state of South Carolina provoked a national crisis when it announced that it would no longer allow the enforcement of federal tariffs on its territory. This became know as the nullification crisis, and nearly started the US Civil War thirty years early. Stated simply all the nullification is, is the idea that states have the right to reject the application of federal laws laws where they believe them to conflict with the Constitution. That the Constitution itself assigns this role to the US Supreme Court has been ignored.
As crazy as it seems the adoption of this doctrine by any one state makes scenarios like the one mentioned in the headline a real possibility. The application of the Civil Rights Act to private facilities has long been a bete noire of conservatives, and comments like this one by US Sen. Rand Paul show why it would likely be one of the first targets of nullification, if ALEC succeeds in getting its way.
Conservatives believe that the Civil Rights Acts are examples par excellence of the federal government overreaching the authority granted to it by the Constitution. And who's the judge of that? If the nullificationists have their way, the states.
ALEC Really Supports Nullification?
Yes. Opposition to the Affordable Care Act is just the tip of the nullification iceberg that ALEC has been pushing in the states. It's what we can see, below the water thousands of state legislators have signed on to an organization that promotes model bills aiming to:
1. Permit "repeal of any federal law or regulation by a vote of two thirds of the state legislatures."
2. "nullify federal laws and regulations in such cases as the states deem that the federal government has exceeded the limits of its authority;"
3. Prohibit "the federal government from imposing regulations and mandates upon the States."
If you follow the links, what you'll see is legal boilerplate. This is exactly what a model bill is, a template which state legislators can take and insert the information for their own state into, and submit as their own. State legislators do it all the time. Sometimes the even forget to remove the instructions before they submit it. The bills above? Quite possibility coming to a state near you sometime in the near future. Social issues aside, how useful would it be to a corporation if they could get states to repeal pesky federal laws, like the minimum wage or the Clean Water Act?
ALEC Comes to Washington
While the radicals that petitioned the White House to allow their states to exit the United States let their intentions flow freely, most other of their brethren in power have been careful to hide their agenda behind a veil of moderate talk. For example, TX Governor Rick Perry had the good sense to deny it when asked if he supported secession. Yet, if you go to Perry's personal twitter feed you'll see that he proudly posted the photo of him receiving ALEC's Jefferson Award in 2010.
This despite the fact that ALEC has nullification bills on the books in its code of model legislation. And it's not just Perry.
Today, ALEC will be meeting at the Grand Hyatt Washington. The do this after every Congressional election so that state legislative leaders can glad hand with members of Congress. At the November 2009 meeting, Rep. Eric Cantor also accepted a Jefferson award, and outlined an agenda for attacking what they felt to be a federal leviathan protecting the undeserving.
Following the victory of Koch-funded partisans in the 2010 elections, we saw the consequences. In Ohio, Indiana, and Wisconsin state leaders took the ALEC agenda home, and we know the consequences. Attacks on working people, attempts to suspend democratic government in Michigan, and more. With nullification on the agenda, God only knows what they plan to go after next.
ALEC rarely releases information about its meetings beforehand, so it is difficult to know exactly who will be attending. What I can tell you is that a number of members of Congress will be in attendance. Before we assume that this is just a Republican problem, it's important to know that among ALEC's Congressional alumni are at least 5 Democrats.
You can do something, I've created a petition on MoveOn that will deliver the following message to them.
The American Legislative Exchange Council (ALEC) has authored three model bills that call for states to repeal federal law. As member of that organization, we call upon you to ask ALEC to remove these bills from their books.If you are interested in adding your name to the petition, please follow this link.