Monday, March 15, 2010

Down With The Supremacy Clause!

8th graders understand that when federal and state laws are in conflict, the federal law trumps state law.

But when states disagree with the thrust of national legislation, state legislatures often set up direct conflicts with the national government.

Remember that Wisconsin passed a law making it a felony to assist slavecatchers in the wake of the 1850 strengthening of the Fugitive Slave Law. If you didn't assist the slavecatchers, you were violating federal law. You will recall that one of the biggest complaints of South Carolina's Secession Ordinance was that northern states were exercising states' rights to interfere with the enforcement of federal law.

In the last decades, "range wars" have broken out when Western states have objected to the conservationist bent of federal land policy. State lawmakers began asserting that their power superseded federal power regarding federal land within their states (never mind that pesky McCullough v. Maryland).

During the last administration, California passed laws that legalized medical marijuana. Bush enforced federal pot laws and fought a head on battle with the states' rights folks in the "hippie utopia" (Says Tueting with a snarky smile). The court decision in Raich not only upheld the Supremacy Clause, it massively expanded the power of the Interstate Commerce Clause.

Virginia, fearing the application of Full Faith and Credit when Massachusetts legalized gay marriage, passed a Constitutional Amendment refusing to recognize gay marriages performed in other states. We will see a Supreme Court ruling relating to that Amendment in the next couple of years.

Last week, our Virginia legislature, anticipating a Democratic Party health care bill that would require citizens to purchase health insurance, passed a law making federal law illegal. The clear sense of the legislature, including many Virginia Democrats, is that a mandate is undesirable. Their bill is largely symbolic - we will lose hard under the Supremacy Clause, but a strong statement has been made.

Washington Post Article reprinted below for educational purposes:

Va OKs 1st bill banning mandated health coverage

The Associated Press
Wednesday, March 10, 2010; 5:10 PM

RICHMOND, Va. -- Virginia's General Assembly became the first in the nation Wednesday to approve legislation that bucks any attempt by President Barack Obama and Congress to implement a national health care overhaul in individual states.

The Republican-ruled House of Delegates, with wide Democratic support, voted 80-17 without debate for the largely symbolic step aimed at the Democratic-backed reforms pushed by Obama and stalled in Congress. The vote sends the measure to Republican Gov. Bob McDonnell who intends to sign it.

Thirty-four other state legislatures have either filed or proposed similar measures - statutes or constitutional amendments - rejecting health insurance mandates, according to the American Legislative Exchange Council.

Obama carried Virginia in his historic ride to the presidency in 2008, the first Democrat to do so in a presidential race in 44 years. But since then, the tide has turned. Virginia's Republicans routed Democrats in last year's gubernatorial and legislative elections, partly because of public distrust of Democrats' proposed health care reforms.

GOP lawmakers expedited the bill and three others like it as a legislative statement reflecting broad voter discontent over the proposed reforms. Virginia's legislative session is, on average, the nation's briefest, and the bill passed four days ahead of Saturday's scheduled adjournment.

The legality of bills like Virginia's is questionable because courts generally rule that federal laws supersede those of the states.

The bill's sponsor, Del. Robert G. Marshall, R-Prince William, and other supporters advocated the measure as a defiant statement to an overreaching federal government. They say it falls under the Constitution's 10th Amendment that deals with state sovereignty. Marshall said he expects the law to be challenged and ultimately decided by the U.S. Supreme Court.

"There are limited powers the federal government has. Simply because of the supremacy clause, it doesn't mean anything that the Congress does, in fact, must be enforced at all levels of government in the United States," Marshall said in an interview after his bill won passage.

"It gives the state of Virginia the right to intervene on behalf of individuals should they decide not to pay for insurance and they refuse to pay the fine or they refuse to pay the fee or the tax or whatever you call it," he said.

Separate bills passed by the U.S. House and Senate would impose a penalty on people who don't have health insurance except in cases of financial hardship. The intent of the mandate is to expand the pool of people who are insured and paying premiums and thus offset the increased costs of insuring those with preexisting conditions or other risks.

More distressing for Virginia Democrats was that 21 of their 39 delegates in the 100-member House sided with the GOP in defying the initiative that is their party's national priority.

There was no immediate response to a telephone message seeking comment from former Gov. Timothy M. Kaine, now chairman of the Democratic National Committee.

DNC spokesman Alec Gerlach said Virginia's legislation only burdens middle-income families struggling to pay insurance premiums and medical bills, adding "they'll have to answer to those folks on election day."

One opponent of the bill likened its passage to Virginia's failed efforts to defy federal orders to desegregate public schools in the 1950s.

"It's a rejection of the federal role in the provision of health care and an extension of the old idea of interposition," said Del. James M. Scott, D-Fairfax. He was referring to a discredited legal theory that the state had a right to interpose itself to shield residents from some federal directives.

No comments:

Post a Comment

Questions? Comments? Bueller? Bueller?