Raising the bar: health care nullification and interposition

By Michael Boldin

When a state 'nullifies' a federal law or regulation, it is passing legally-binding legislation that makes the federal act in question void and inoperative, or 'non-effective,' within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

Current nullification efforts around the U.S. have states passing laws that effectively defy federal laws and regulations on firearms, marijuana, identification cards and more. In 2010, we expect to see similar legislation in response to Health Care, No Child Left Behind, Federalization of the Guard and more.

The most asked question is — once such a law is passed, what next?

STANDING BETWEEN

In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Here Madison asserts what is implied in nullification laws — that state governments not only have the right to resist unconstitutional federal acts, but that, in order to protect liberty, they are "duty bound to interpose" or stand between the federal government and the people of the state.

It is on these principles that New Hampshire State Representatives Itse, Ingbretson, Dumaine, Comerford, and Villeneuve have raised the bar for the 10th Amendment Movement with their introduction of House Bill 1648 (h/t Chris Lawless)

Any act, order, law, statute, regulation or rule restricting the ability of New Hampshire citizens to contract with healthcare professionals or facilities for the provision healthcare services or to contract with corporations providing health insurance authorized by the State of New Hampshire for health insurance is unconstitutional, void and of no force. Any attempt to enforce such a law is an affront to the Sovereignty of the States and their Citizens.

PENALTIES FOR FEDERAL AGENTS

Not only does the bill make restrictions of health care choices unconstitutional, it expressly prohibits interference in these choices by federal agents and requires state agencies to interpose as a protection. From the text of the legislation:

Any officer, agent, or employee of the United States or employee of any corporation providing services to the United States who prevents, attempts to prevent, interferes with, or withholds medical services from a legal resident or inhabitant of New Hampshire or withholds medicines or medical treatment from a legal resident or inhabitant of New Hampshire based upon a law, statute, regulation or rule of the United States without the consent of the General Court of New Hampshire shall be guilty of a class A misdemeanor.

Any officer, agent, or employee of the United States or employee of any corporation providing services to the United States who prevents, attempts to prevent, interferes with, voids or penalties for a contract between a legal resident or inhabitant of New Hampshire and a health insurance provider authorized to business in New Hampshire based upon a law, regulation or rule of the United States without the consent of the General Court of New Hampshire shall be guilty of a class A misdemeanor.

WEED: A LESSON FOR RESISTANCE

While many people are calling on State AG's to sue the federal government over the Constitutionality of national health care, many others take the position that going to federal courts in the hope that they'll limit the power of the federal government is likely a lost cause.

But for those that pursue such court action, the real question remains — If the "Supremes" rule against the Constitution as they have so many times before, will they give up at that point, or will they follow in the footsteps of medical marijuana activists around the country?

The latter faced down nearly the entire federal apparatus — federal agencies who didn't recognize state law, countless federal raids and arrests, and a Supreme Court that ruled against their cause in 2005. Even with such stacked odds, they persisted in their state-level efforts, and today, enough states have medical marijuana laws that the federal government is unable (or unwilling) to oppose them.

With legislation giving support to their cause by requiring state interposition in their defense, will health freedom activists have the same courage? Only time will tell.

© Michael Boldin