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Nullification: The doctrine that state governments have the power the to refuse to recognize and/or enforce laws passed by the US Congress.
The Civil War nearly came thirty years early.  In the fall of 1832, a group met in South Carolina to declare tariffs passed by Congress to be null and void in the state.  The state made preparations to meet efforts of the federal government to ensure compliance with constitutional order with military resistance.  In Washington, Congress passed the Force Bill authorizing President Jackson to take military action against the state of South Carolina. Ultimately, the crisis came to end with the passage of new tariffs to the liking of South Carolina, and the revocation of the state's nullification legislation.  This result empowered advocates of states rights, leading to a far deadlier war thirty years on leaving nearly a million dead and wounded in its wake.

Nullification is a precursor to secession.  Unfortunately, nearly a fifth of Congress and thousands more elected state officials adhere to an organization that lobbies for the passage of nullification bills in state legislatures and Congress. There's more......

ALEC's Freedom of Choice in Health Care Act

The American Legislative Exchange Council is an organization which most have become familiar with through its relationship to voter suppression and the "stand your ground" law which contributed to the murder of Trayvon Martin. What has been less reported is the support of the group for the repeal of the Affordable Care Act, commonly known as Obamacare, and the nullification doctrine which underlies it.

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.

The day after the U.S. Supreme Court upheld Obamacare as constitutional, Americans for Prosperity-Wisconsin held a rally with Michael Boldin of the California-based Tenth Amendment Center arguing directly for nullification, telling the crowd that "any act or set of actions that you take on a state or a local level which has as its effect rendering a federal act null and void -- that's what we are trying to do."

In July on the Rush Limbaugh Show, George Mason University economics professor Walter E. Williams argued that, "I think the American citizens ought to press their state governors and legislatures just to nullify the law -- just to plain nullify it and say, 'The citizens of such-and-such-a state don't have to obey Obamacare because it's unconstitutional, regardless of what the Supreme Court says.'"

In the past week, local Republican Party chapters and Tea Party groups across Wisconsin have been urging Walker to avoid implementation and explicitly "nullify" the law. A Facebook page called "Wisconsin United for Nullification" has also popped up.*

Legal scholars expect that efforts to nullify the federal health care law would fail because, under the U.S. Constitution's Supremacy Clause (Article VI), the federal law would trump any "Health Care Freedom Acts" or state executive orders.

The Nullification Acts

Brandon Fischer at CMD gives us a good understanding of the legal doctrine behind the Obamacare Repeal effort.  However.... you don't have to have a first class legal mind like Brandon's to figure out what the point of a number of ALEC's less subtle model bills is.  Three ALEC bills aiming to rewrite the US Constitution in order codify nullification need less explaining, aiming as they do 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."

I'm not going to lay out the arcane details of each bill here. Brandon gives you a very good explanation of the doctrine at work above. This is an action diary.

Does 1/5th of Congress Really Support Nullification, Precursor to Secession?

Nullification is a precursor to secession.  As much as we can kvetch about the fact a petition to allow Texas to secede has got over 100,000 votes, the truth of the matter is that this isn't  going to really change the country.  But when you have 100 people who have the same opinion sitting in the US Congress, and thousands more in state houses across the country, it just well might.

But we can do something about this.  A full(er) list of ALEC state members is up at ALEC Exposed.

For the moment, let's focus on ALEC Alumni in Congress.  

I've created a petition at Change.org calling upon Congressional  Alumni to ask ALEC to renounce nullification doctrine and repeal the offending model bills at ALEC's States and Nation Policy Summit at the Grand Hyatt Washington (1100 H Street), which runs from the 27th till the 30th of November. It's only a short Metro ride from Capitol Hill.  Surely ALEC alumni Congress can find the time to take the ride, and tell ALEC that they do not support nullification, and would like ALEC to drop its support as well.

I'm going to end this diary with the list of ALEC Alumni in Congress.  There may be some change from the election, but I suspect the list is basically the same.

U.S. Senate

Sen. Mike Enzi (R-WY)
Sen. Lindsey Graham (R-SC)
Sen. James Inhofe (R-OK)
Sen. Jon Kyl (R-AZ)[3]
Sen. Joe Manchin (D-WV)
Sen. Jerry Moran (R-KS)
Sen. Jim Risch (R-ID)
Sen. Marco Rubio (R-FL)
Sen. Richard Shelby (R-AL)
Sen. Roger Wicker (R-MS)

U.S. House of Representatives

Rep. John Boehner (R-OH)
Rep. Eric Cantor (R-VA)
Rep. Sandy Adams (R-FL)
Rep. Rodney Alexander (R-LA)
Rep. Justin Amash (R-MI)
Rep. Steve Austria (R-OH)
Rep. Spencer Bachus (R-AL)
Rep. Rick Berg (R-ND)
Rep. Jaime Herrera Beutler (R-WA)
Rep. Diane Black (R-TN)
Rep. Marsha Blackburn (R-TN)
Rep. Dan Boren (D-OK)
Rep. Leonard Boswell (D-IA)
Rep. Kevin Brady (R-TX)
Rep. Dan Burton (R-IN)
Rep. David Camp (R-MI)
Rep. John Campbell (R-CA)
Rep. Howard Coble (R-NC)
Rep. Mike Coffman (R-CO) [8]
Rep. Tom Cole (R-OK)
Rep. John Culberson (R-TX)
Rep. Jeff Denham (R-CA)
Rep. Charlie Dent (R-PA)
Rep. Mario Diaz Balart (R-FL)
Rep. Jeff Duncan (R-SC)
Rep. Michael G. Fitzpatrick (R-PA)
Rep. John Randy Forbes (R-VA)
Rep. Rodney Frelinghuysen (R-NJ)
Rep. Cory Gardner (R-CO)
Rep. Scott Garrett (R-NJ)
Rep. James Gerlach (R-PA)
Rep. Bob Gibbs (R-OH)
Rep. Phil Gingrey (R-GA)
Rep. Sam Graves (R-MO)
Rep. Tom Graves (R-GA), former ALEC Tax and Fiscal Policy Task Force member[9]
Rep. Morgan Griffith (R-VA)
Rep. Brett Guthrie (R-KY)
Rep. Andy Harris (R-MD)
Rep. Vicky Hartzler (R-MO)
Rep. Richard Norman "Doc" Hastings (R-WA)
Rep. Bill Huizenga (R-MI)
Rep. Lynn Jenkins (R-KS)
Rep. Sam Johnson (R-TX)
Rep. Walter Jones (R-NC)
Rep. James "Jim" Jordan (R-OH)
Rep. Steve King (R-IA)
Rep. Jack Kingston (R-GA)
Rep. Raul Labrador (R-ID)
Rep. Doug Lamborn (R-CO)
Rep. Robert Latta (R-OH)
Rep. Jerry Lewis (R-CA)
Rep. Frank LoBiondo (R-NJ)
Rep. Frank Lucas (R-OK)
Rep. Blaine Luetkemeyer (R-MO)
Rep. Kenny Marchant (R-TX)
Rep. Thomas McClintock (R-CA)
Rep. Cathy McMorris Rodgers (R-WA)
Rep. John Mica (R-FL)
Rep. Jeff Miller (R-FL)
Rep. Kristi Noem (R-SD)
Rep. Alan Nunnelee (R-MS)
Rep. Steven Palazzo (R-MS)
Rep. Erik Paulsen (R-MN)
Rep. Joseph Pitts (R-PA)
Rep. Todd Platts (R-PA)
Rep. Bill Posey (R-FL)
Rep. Thomas Price (R-GA)
Rep. David Rivera (R-FL)
Rep. Mike D. Rogers (R-AL)
Rep. Mike J. Rogers (R-MI)
Rep. Ileana Ros-Lehtinen (R-FL)
Rep. Dennis Ross (R-FL)
Rep. Lucille Roybal-Allard (D-CA)
Rep. Edward Royce (R-CA)
Rep. Jean Schmidt (R-OH)
Rep. Kurt Schrader (D-OR)
Rep. David Schweikert (R-AZ)
Rep. Austin Scott (R-GA)
Rep. Tim Scott (R-SC)
Rep. Michael Simpson (R-ID)
Rep. Adrian Smith (R-NE)
Rep. Steve Southerland (R-FL)
Rep. Steve Stivers (R-OH)
Rep. Marlin Stutzman (R-IN)
Rep. John Sullivan (R-OK)
Rep. Pat Tiberi (R-OH)
Rep. Scott Tipton (R-CO)
Rep. Daniel Webster (R-FL)
Rep. Lynn Westmoreland (R-GA)
Rep. Joe Wilson (R-SC)
Rep. Kevin Yoder (R-KS)
Rep. Don Young (R-AK)

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Comment Preferences

  •  Sign the Petition! (4+ / 0-)

    http://www.economicpopulist.org

    by ManfromMiddletown on Sun Nov 18, 2012 at 05:58:53 AM PST

  •  Nullification equivalent to secession IMO (2+ / 0-)
    Recommended by:
    Wee Mama, ManfromMiddletown

    Thanks for writing about such an important subject, MfM, and for the links you provide.  I've hotlilsted this for later review.

    Living in Indiana, I've seen our State government 'nullify' some provisions of Federal law (LIHEAP administration) by writing procedural regulations so that they violate Federal regulations.  I've also seen the mayor of a small town effectively declare his town a Free-Speech-Free zone when, by fiat, he closed down a gathering in a city park (after a citizen had been abducted in Iraq, people quickly planned a candlelight vigil in support of the family).

    In these, and other instances, I've pondered on 'what just happened?' and have come up with the word 'nullification':  That the person or governmental entity just decided that they didn't want to do things the way the Constitution and/or the Federal law required, so they just simply said, 'that doesn't apply here.'  So (imo) in these big or little instances, 'nullification' removed the Rule of Law from the locale or its citizens.

    So, imo, if a locale's governmental entities can institute 'nullification at will', there's no need for secession.  Once the State (or smaller governmental unit) has claimed the right to act as if it is not required to obey Federal law, the citizens of that domain have (in a de facto kind of way) lost their rights to full citizenship.

    The ALEC activities that you describe appear to be a way for States to formalize and codify their 'right' to no longer act as part of America.  In practice, however, there are already states/counties/towns that are (de facto) exercising their self-claimed 'right' to nullify Federal law.

    The fact that ALEC and it allies are working to firmly establish a 'state's right to nullify at will' is, well, dreadfully important, with the emphasis on 'dreadful'.  Thanks for shining a light on this . . . well, do I go  too far if I call it  a 'conspiracy to subvert'?

  •  supremacy clause (1+ / 0-)
    Recommended by:
    CroneWit

    in the constitution since the beginning.  It's the point of passing this constitution instead of the original one.  But Alec and it's cohorts don't know about that.
    By the way what do you mean by alumni of ALEC?

    WE must hang together or we will all hang separately. B.Franklin

    by ruthhmiller on Sun Nov 18, 2012 at 09:02:24 AM PST

  •  John C. Calhoun (1+ / 0-)
    Recommended by:
    CroneWit

    was the leading proponent of nullification. As he was leaving the Presidency, Andrew Jackson remarked: "After 8 years as president, I have only two regrets. That I have not shot Henry Clay or hanged John C. Calhoun."
      I don't know about Henry Clay, but we should also regret that he didn't shoot Calhoun.

  •  I'm dismayed -- (0+ / 0-)

    -- that your diary got so little response.  Was it the timing, on a Sunday?  

    Or do people just not understand what nullification is?  Do they need a title that will grab them (shockier, 'sexier') and pull them in so they can see what a threat creeping nullification is to America's basis as a Constitutional nation?  Perhaps a diary containing examples of how de facto nullification takes away protections?

    MFM, I hope you will write more on this subject.  If the dKos community doesn't understand this, they need to.  We can elect Dems til the cows come home and pass all the sparkly do-good laws anybody could possibly want, and still end up regressing as a country if states/localities can just thumb their noses at the law.

    Please keep up your good work, and write more on this.

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