States Rights and Nullification
No doubt you have heard about the conservative Republican demand for "limited federal government" and their deep respect for "the rights of the states." If you catch them in the right moment, you might even hear them speak of the Civil War in terms of a fight to protect "the rights of states," echoing Jefferson Davis himself:
It has been a conviction of pressing necessity -- it has been a belief that we are to be deprived in the Union of the rights which our fathers bequeathed to us -- which has brought Mississippi to her present decision. She has heard proclaimed the theory that all men are created free and equal, and this made the basis of an attack upon her social institutions; and the sacred Declaration of Independence has been invoked to maintain the position of the equality of the races. They have no reference to the slave[.]
Yes the "Lost Cause" of "states rights" burns to this day, at least when it is convenient. But what about when it isn't? Well, like Roger Taney himself, whose trampling of "states rights" in Dred Scott is an oft-overlooked aspect of the case (one of the upshots of the decision would have been the inability of a state to prohibit slavery), conservative Republicans are more than capable of turning from deep concern for states rights to a deep confidence in federal government. Consider, for example, the Republican proposal to reform state tort law by federal edict, the styled Medical Care Access Protection Act:
To improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Medical Care Access Protection Act of 2011’ or the ‘MCAP Act’.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings-
(1) EFFECT ON HEALTH CARE ACCESS AND COSTS- Congress finds that our current civil justice system is adversely affecting patient access to health care services, better patient care, and cost-efficient health care, in that the health care liability system is a costly and ineffective mechanism for resolving claims of health care liability and compensating injured patients, and is a deterrent to the sharing of information among health care professionals which impedes efforts to improve patient safety and quality of care.
(2) EFFECT ON INTERSTATE COMMERCE- Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers.[Emphasis added]
As Randy Barnett noted at Volokh Conspiracy back in May, and Carrie Severino reports at National Review, Republicans appear to be "federalists in name only," even going as far as, as Barnett states, willing to declare state judicial systems as subject to Congressional power as instruments of interstate commerce:
Senate Republicans are claiming that Congress has power over the judiciary of the states because state courts are an activity that “affect[s] commerce.”
Severino writes:
The law’s own justification for its constitutional authority should be chilling to anyone committed to limited federal power. The bill’s findings state that health care and health insurance are industries that “affect interstate commerce,” and conclude that Congress therefore has Commerce Clause power to regulate them — even when it involves an in-state transaction between a doctor and patient, governed by in-state medical malpractice laws. Is there any industry that couldn’t be found to have an effect on interstate commerce? The agriculture and manufacturing industries, long considered the paradigmatic areas not covered by the Commerce Clause, certainly fall under federal power under this broad analysis.
But this should come as no surprise to anyone who has watched Republicans in action on "states rights." They are for limited federal government except for when they are not. Consider the federal ban on late-term abortions, where the federal power stampedes over any states right over the issue. You would think that "federalists" like Scalia and Thomas would have taken issue with this blatant usurpation of states rights. Alas, no. In Gonzales v. Carhart, the "states rights" federalists overcame their distaste for federal intrusion on "local matters," as Thomas, joined by Scalia, acknowledges in his concurrence:
I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) . I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973) , has no basis in the Constitution. See Casey, supra, at 979 (Scalia, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S. 914, 980–983 (2000) (Thomas, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709 , n. 2 (2005) (Thomas, J., concurring). [Emphasis added]
And when it came to a product liability case based on state law? Well, the conservative Republicans (save Thomas, who has actually written interesting opinions on the preemption doctrine) were shocked, shocked, to discover that the federal government was not given it due deference. In dissent in Wyeth v. Levine, Justice Alito wrote for Chief Justice Roberts and Justice Scalia:
The Court holds that a state tort jury, rather than the Food and Drug Administration (FDA), is ultimately responsible for regulating warning labels for prescription drugs. That result cannot be reconciled with Geier v. American Honda Motor Co., 529 U. S. 861 (2000) , or general principles of conflict pre-emption. I respectfully dissent.
"General principles of federalism" would lead "state rights" adherents to presume that federal law does not preempt state law, and to consider whether the federal power is lawfully exercised. But as Justice Alito notes, "this case illustrates that tragic facts make bad law." Except, "this case" is Bush v. Gore to me.
Yes, the ultimate in throwing over "states rights!" and "federalism" for conservative Republicans is, of course, Bush v. Gore, when the conservative Republican "states rights" wing of the Supreme Court, cheered on by conservative Republican "states rights" advocates, decided to overturn a Florida court on an issue of Florida election law, finding an "equal protection" violation that has never been recognized before or after.
Indeed, Bush v. Gore demonstrates vividly not merely the "in name only" commitment to "states rights" of conservative Republicans, it also demonstrates that conservative Republicans do not mean it when they demand "judicial restraint" and claim to abhor "judicial activism."
Yes, I come to evidence what you already know: conservative Republicans are disingenuous hypocrites. Film at 11.