The following is an op-ed I had published at The Daily Caller today.
Oral arguments over the constitutionality of the Patient Protection and Affordable Care Act will wrap up Wednesday. The Supreme Court is expected to issue its ruling in June. In the meantime, conservatives, constitutionalists and libertarians will anxiously await the Supreme Court’s decision, hoping that the justices find the mandate unconstitutional. They should be hoping for the opposite.
To be clear, the mandate is absolutely unconstitutional. The commerce clause was never intended to allow the federal government to micromanage every aspect of commerce (it was intended to allow Congress to “make regular” commerce between the states by prohibiting tariff wars between them), and the power to tax does not carry with it the power to compel a purchase that otherwise would not have occurred.
Constitutionally minded individuals generally agree with that argument, and therefore want the Supreme Court to rule against the mandate. This is understandable, and a nearly universal opinion amongst this group. But in the long run, the goal of upholding the Constitution and promoting conservatism or libertarianism would actually be better served by the court declaring that the mandate is constitutional.
Too many Americans today wrongly believe that the U.S. Supreme Court is the sole and final arbiter of what is or is not constitutional. Questions of a law’s constitutionality thus become held hostage to the opinions and preferences of a small, elite group of lawyers dressed in black robes who are expected to keep the rest of the federal government in check — as if in a battle between the states and the federal government, a branch of that very federal government would be completely free of any conflict of interest.
James Madison, the father of the Constitution, held an opposing view. Writing in his Report of 1800 regarding the Virginia Resolutions passed two years prior, he explained that even the Supreme Court’s power must be checked by the states:
The  resolution supposed that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution [the states], to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.
In other words, Madison saw the states (being parties to the constitutional compact) as having the authority and ability to determine a law’s constitutionality and take appropriate action based upon whatever decision they make. While the Supreme Court could hopefully be of help in checking Congress and enforcing the terms of the Constitution, Madison knew that it could not be relied upon to perform this task in every case.
Numerous other statesmen from the founding era concurred with this view, recognizing that the Supreme Court would not necessarily be comprised of infallible constitutional experts, and that the judges themselves might be the instruments of tyranny in upholding federal powers that were not authorized by the Constitution. They therefore advocated, in unison with Madison, a state-based remedy.
In an 1820 letter, for example, Thomas Jefferson rebuffed the notion that the Supreme Court’s judges should be the “ultimate arbiters of all constitutional questions.” He wrote that it is “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.”
If the court upholds the constitutionality of the individual mandate in June, conservatives and libertarians will loudly and justifiably protest the result. This anger, however, will lead many of them to explore alternatives in pursuit of upholding the Constitution and fighting the federal government. In that endeavor, they might soon learn that there are other effective ways to challenge the federal government’s encroachment upon the powers of the people.
This is not a radical or untested suggestion. Indeed, it is one which has been implemented quite often over the years and in different states. Two dozen states objected to the REAL ID Act of 2005, uniting to oppose the federal government’s unfunded mandate and unconstitutional intrusion into people’s privacy. As a result, the federal government backed off. Numerous states reject the federal prohibition of marijuana and allow their citizens to purchase and ingest marijuana for medicinal purposes. Some states have also opposed the federal government’s commerce power regarding the regulation of food, guns and health care.
Indeed, one of the reasons the Supreme Court ended up entertaining the challenge to the individual mandate is that the Utah Legislature passed a bill two weeks before Obamacare was enacted exempting the state from its implementation. Utah Governor Gary Herbert signed that bill into law a day before President Obama signed the federal bill, which gave the state standing in federal court to challenge its constitutionality — standing extended to the 25 other states also in opposition.
Hoping that a few lawyers-turned-judges will uphold the Constitution is an exercise in futility and misplaced priorities. While it does occur from time to time, the Supreme Court tends to enable the federal government’s usurpation of powers. A ruling in favor of the individual mandate would help spark a strong resurgence of interposition and nullification by the states, which are much better equipped to provide a check against the federal government’s unconstitutional actions.
Spencer Roane, a Virginia judge who would have been appointed chief justice of the Supreme Court by Thomas Jefferson had John Adams not chosen John Marshall in the final hours of his presidency, once observed that “the Supreme Court may be a perfectly impartial tribunal to decide between two states, but cannot be considered in that point of view when the contest lies between the United States and one of its members.”
He was right. The individuals and states challenging the constitutionality of any law, including the Patient Protection and Affordable Care Act, should consider this implicit conflict of interest and encourage the states to fulfill the role of constitutional arbiters that many of the nation’s founders envisioned them fulfilling.
Jefferson once argued that government officials should be bound down from mischief by the chains of the Constitution. Some believe that a few judges, as part of the federal government, can adequately bind the legislators and bureaucrats within that same government. This is horribly misguided: questions of constitutionality should ultimately be decided by the many, not the few.
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11 comments so far. Care to chime in?
#1 Kevin | March 27th, 2012 3:37 PM
I’m not entirely sure looking all the way back to 1800-ish is warranted anymore given the change in balance of power between the States and Federal government granted in the latter-half of the 19th Centure vis-a-vis Sections 1 and 5 of the 14th Amendment. I haven’t devoted much thought to it – perhaps you have, so I’m curious to hear your view – but it seems like the 14th Amendment significantly cuts back against a State’s ability to independently declare a federal law unconstitutional and thereby refuse to enforce it. As a theoretical matter, I agree with you and believe that’s the way it should work, I’m just not sure, practically speaking, it can work that way anymore. Thoughts?
#2 Jim Davis | March 27th, 2012 8:57 PM
I agree with the message of this post but I still don’t agree with the title. Shouldn’t we use every moral means within our power (legal and otherwise) to overturn the federal government’s usurpation? I see nullification as one of the checks and balances of the Constitution but wasn’t the Supreme Court also supposed to be a check/balance on the legislative and executive branches? I guess my point is- just because the courts have failed miserably in the recent past to uphold the Constitution shouldn’t mean that we root for them to continue to do so in the hopes that state-nullification will be successful.
I have several layers of defense against illness and disease- sanitation, cleanliness, antibodies, an immune system, etc. My hope isn’t that because my environment has been disease-infested that I should rely solely on my last line of defense. I hope all of my layers of defense are successful. I think you do too but I suspect your title was meant to have a shock/awe factor. But correct me if I’m wrong.
Initially, I think the intent of the judicial branch was brilliant. But what was supposed to be a check on the other branches of federal government has become a legislative branch unto themselves. They have incrementally interpreted, ignored and legislated our country so far from anything recognizable by our Founders. Their (in)actions are what I call legal precedent stepping stones away from the spirit and letter of the Constitution. Hopefully we can reverse that trend.
#3 Ascentury | March 28th, 2012 6:15 AM
While I’m all for nullification, for those of us who live in states that aren’t going to lift a finger to challenge their home-grown son (Illinois), declaration that the Affordable Patient Care Act is unconstitutional is liable to help out a lot more than another state’s nullification of the law. Unless the feds do back off universally (which I don’t think will happen with the signal achievement of this administration).
Also, since the no-health-insurance fines are intended to be collected by the IRS as part of the federal taxes (aren’t they?), wouldn’t nullification in one state lead to a LOT of confusion by tax filers within that state? Not an argument against, per se, but an observation.
#4 TRON | March 29th, 2012 11:23 PM
I am amazed that more conservatives and libertarians don’t realize that if the supreme court stops “Obamacare,” then the next step would be full socialized medicine paid for with taxes and no private sector involvement. This lawsuit could become their own worst nightmare if they win. At least with “Obamacare” it’s mainly private sector involvement.
#5 Charles D | March 31st, 2012 8:43 PM
While I agree that the mandate is unconstitutional, and I certainly have no confidence whatever in the current Supreme Court’s judgment on any issue, I’m dubious about the feasibility of your approach. If we move into a situation where states can choose whether or not to obey the federal government, or whether or not to enforce any federal law or mandate, then we seem closer to anarchy than anything else.
We have a federal government that is clearly out of control with massive usurpation of individual liberties, a legislature that is unable to act decisively except on matters where lobbyists agree, and an executive branch that continually asserts more unconstitutional powers. Rather than attempt to hold that shell of a government together while reining in what each state may view as its excesses, we might be better off dissolving the union altogether. American banks are too big to fail, but America may be too big to govern.
#6 lum | March 31st, 2012 9:38 PM
Striking down the individual mandate would have the funny side effect of making currently proposed republican reforms to social security and medicare illegal/unconstitutional. The Ryan care medicare coupon program mandates the purchase of insurance and covering of any costs above the fixed value of the coupon by the individual and SS private accounts require an individual savings mandate!
I must wonder how much of the mandate is part of an 11 dimensional chess game.
Struck down or upheld sounds like Obama/Democrats win either way.
#7 JJL9 | April 3rd, 2012 3:05 PM
Although I rarely like to side with TRON, I will say that he is at least partially onto something. Declaratoin by the Supreme Court that Obamacare is unconstitutional could be a complete setup. First of all, if they declare only certain provisions (like the individual mandate) to be unconstitutional, then in order to cite them as your source of authority on the matter, then by default you almost have to agree with them that the other parts ARE constitutional.
Alternatively, if they deem Obamacare to be unconstitutional, and we hang our hats on that, then perhaps with a little tweeking Obamacare in some other form comes back and they uphold in, in which case, since our hats are hung on their previous ruling, we lose credibility by opposing the newly upheld version.
For these reasons, I would rather see the states simply nullify and refuse Obamacare in its entirety. There are downsides to that too because we have our Governor out their claiming that Utah is better equipped to solve the healthcare problems of Utahns than is the federal government.
My solution comes in two parts. State nullification of Obamacare and the adoption of a state constitution that limits the authority of the state government in ways comparable to the US Constitution’s restraints on the federal government.
I love how the “States Rights” crowd will quote the Declaration of Independence and refer to natural rights and God-given rights when it comes to dealing with the federal government, and then they turn around and want the state government to step in and usurp those rights instead. On a fundamental level, these people have no principle. They just want more power. They have no problem with a government controling our lives for us, but most of them have significant influence at the state level, so they would like that power transfered from the federal government to the state government.
I don’t want Obamacare, but I don’t want Herbert-care either.
#8 J4y8 | April 7th, 2012 11:45 PM
These sorts of statements perpetually bother me.
“If we move into a situation where states can choose whether or not to obey the federal government, or whether or not to enforce any federal law or mandate, then we seem closer to anarchy than anything else”
It’s as though people were taught some silly comic book idea of what anarchy is. I am an anarcho-capitalist and it took me many years of economic study and rigorous logic to arrive at the conclusion that true freedom works. Spontaneous order is what creates society and it’s cultural norms, government only impedes it. If government is supposed to reflect the voice of the people then cut the nonsense and let the people reflect themselves. Anarchy is rule by the people while government is rule of the people. It’s very simple people. It’s time to unlearn the paradigm the system has taught you. It’s an old relic full of contradiction and nonsense ment to keep you pacified and stupid. Wake up!
Great blog by the way. Let freedom ring!!!
#9 Quincy | April 10th, 2012 11:38 PM
I don’t buy it. Certainly the Supreme Court is not the only branch of government that has a duty to uphold the Constitution, and of course unconstitutional laws ought to be opposed by states and individuals as well. But that doesn’t support the conclusion that it would be better if the Supreme Court upheld an unconstitutional law.
Like it or not, Supreme Court rulings are recognized by a strong majority of citizens as authoritative, and they are incredibly difficult to overturn. Your practical politics argument that an incorrect ruling by the Supreme Court would create enough outrage that citizens and states would embrace nullification is entirely unrealistic. Roe v. Wade proves that point clearly and powerfully. A huge number of individuals in both parties opposed the ruling then, and many still oppose it now; many legal scholars–even some who support abortion–have criticized it as nonsense; and yet no state has defied the court’s order to stop prosecuting abortion seekers and doctors.
States have defied the federal government in the past, and it didn’t turn out well for the states. Setting aside the obvious example of the Civil War, there was a Minnesota Attorney General in the early 1900s that tried to enforce a state statute that conflicted with a federal statute. A case was filed against him in federal court; he defied the court’s ruling; and was thrown in jail for contempt. Unsurprisingly the state law yielded and the federal law prevailed. See Ex Parte Young, 209 U.S. 123 (1908). Surely you don’t think state politicians have developed stiffer spines or embraced a stronger theory of state sovereignty during the past hundred years.
The Supreme Court should do its duty and uphold the Constitution–even when the other branches of government fail to do so, and even when the citizens and states fail to do so. We freedom-lovers should applaud any victory we can win in that venue.
#10 TGraham | April 13th, 2012 8:58 AM
If we didn’t have the 17th Amendment, all of this would be moot. It would have never passed in the first place.
#11 Liz | April 21st, 2012 7:28 PM
Good stuff. This thing has legs.
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