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Posted on: Thursday, February 10, 2011
BOISE - More than 200 people crowded into the Idaho Capitol on Wednesday for a hearing on a bill to void President Obama's health care overhaul, an effort that invokes the spirit of a 200-year-old state's rights doctrine championed by federal government foes but found unconstitutional by the U.S. Supreme Court.
The measure being pushed by conservative Republicans would forbid Idaho agencies from putting the 2009 federal law into effect - a declaration of state sovereignty over what the bill's advocates call a federal power grab. It could mean returning money that Idaho has already received to enact some aspects of the federal law.
Dozens at the House State Affairs Committee wore yellow "Yes Nullify!" stickers on their shirts or jackets. Many were tea party adherents; some included small business owners and citizens who fear the law will not only limit their rights, but increase their health insurance costs and expand the power of the Internal Revenue Service.
"Not only is it unconstitutional, but common sense shows the federal government is overreaching. And if Idaho does not set precedent in stopping this, the federal powers will continue to usurp 'We the people,'" said Mike Chism, a member of the Oath Keepers group whose members vow to resist what they believe are unconstitutional federal mandates.
After more than three hours of testimony, a vote on the bill was postponed until at least Thursday.
Alabama, Kansas, Maine, Missouri, Montana, Oregon, Nebraska, Texas and Wyoming also are considering so-called "nullification" measures. The provisions are an expression of broad concern over the Patient Protection and Affordable Care Act, especially its requirement that residents to buy insurance or else face fines after 2014.
Constitutional scholars and the Idaho attorney general have said legislative attempts to nullify the law are unlikely to survive legal challenges. They say Idaho is better off pursuing the case in court, where a federal judge in Florida has already ruled against the overhaul even as other courts have ruled more favorably. It's likely bound for U.S. Supreme Court review.
David Gray Adler, a constitutional scholar who directs the University of Idaho's McClure Center for Public Policy Research, has said there's nothing in the U.S. Constitution to support that nullification is a lawful means of opposing the federal government. Idaho Assistant Chief Deputy Attorney General Brian Kane has written that states can't "pick and choose" which federal laws to follow.
Other lawyers agreed.
"You're essentially tilting at a windmill here that will get you nowhere," Bruce Bistline, a lawyer from Boise, told the committee Wednesday.
Even the bill's sponsors disagree about what the final effect of the measure will be, should it pass the House and Senate and win Gov. C.L. "Butch" Otter's signature.
For instance, Rep. Vito Barbieri, R-Dalton Gardens, said Idaho would likely have to conform to the health care law should the U.S. Supreme Court eventually rule it is constitutional.
"The only alternative would be troops on the border," Barbieri said following the meeting. "Ultimately, the state is going to comply."
But Sen. Monty Pearce, R-New Plymouth, said Idaho, not the nation's high court, would have the final say.
Rep. Erik Simpson, R-Idaho Falls and a member of the State Affairs Committee, believes it's the courts that will decide if the Idaho Legislature has overstepped its boundaries.
Idaho's bill declaring the health care law "void and of no effect" in Idaho is based on an idea that future President Thomas Jefferson broached in 1798 when he argued states were the final arbiter of constitutionality.
In a resolution passed by Kentucky, Jefferson wrote that the "rightful remedy" was nullification, a doctrine he created to express his disgust with the Alien and Sedition Acts enacted by then-President John Adams during an undeclared naval war with France.
Despite Jefferson's views, however, the U.S. Supreme Court has shot down such efforts, including in the 1950s when Arkansas tried to block desegregation of its public schools, and in the 1850s when Wisconsin sought to block laws requiring Northern states to return escaped slaves to their owners in the South.
Even so, proponents of the Idaho bill called on state lawmakers to "erect barriers" against federal expansion, calling the health care law a further step in America's march into socialism. High court justices appointed by the president can't be trusted, Leah Southwell told the panel.
"If we allow the Supreme Court to be the final arbiter in this, we are not a Republic - we are an oligarchy," said Southwell, from Coeur d'Alene. "Our founding fathers would be disgusted with us, if we were to allow that to happen."
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