State Senator Verdell Jackson (R-Kalispell) and State Representative Derek Skees (R-Whitefish) have each introduced nullification of federal laws bills that the ghosts of John C. Calhoun and Jefferson Davis would applaud, and that just might cause Andrew Jackson to rise from his grave to once again to put a stop to such nonesense.
Jackson’s bill, SB-161, “The Montana State Health Care Freedom Act of 2011,” cites the ninth and tenth amendments to the Constitution of the United States, and concludes that:
…the Patient Protection and Affordable Care Act of 2010 and the Health Care and Education Reconciliation Act of 2010 are invalid, null, void, and unenforceable in Montana; providing penalties for enforcement or attempted enforcement; and providing an immediate effective date.
SB-161 was heard in the senate’s public health, welfare, and safety committee on 21 January 2010. The fiscal note was printed the next day. No action on the bill has occurred since the hearing. I have video highlights from the hearing and hope to post them to YouTube later today.
Skees’ bill, HB-382, the “Montana Nullification Reaffirmation Act,” contains a long list of Whereases that are best described as the tenets of constitutional and historical fundamentalism and sets up an 11-member nullification commission to recommend federal laws for the Montana Legislature to nullify. Like Jackson’s bill, Skee’s bill is based on its author’s not-quite-mainstream understanding of the ninth and tenth amendments to the U.S. Constitution.
HB-382 will be heard at the crack of dawn by the house's judiciary committee on Tuesday, 8 February 2011.
These bills are part grandstanding, part zealotry. Blatantly unconstitutional, they never will become law. If approved by the legislature, they'll be vetoed. As Whitefish resident, and former Montana Secretary of State, Bob Brown wrote in a widely published essay, these Nullifiers are playing with fire:
Some still believe that a state can nullify a federal law, and apparently some who do are serving in the Montana Legislature. It is their view that states voluntarily entered into the union, but didn’t give up self -governing powers in doing so. Therefore, they argue, states are independent to follow or reject the laws of the United States, and are ultimately free to secede from the union, just as they voluntarily joined it when they agreed to the Constitution.
A system in which state laws have supremacy over national laws is a confederation, not a union…
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As we stand before the flag of our country and recite our national oath, we citizens of the United States pledge our allegiance to one nation which is indivisible. The Civil War settled the destructive and incendiary issue of nullification a century and a half ago. The new nullifiers are playing with fire.
Brown endorsed Skees, probably betting that Skees would lose, so writing that essay was the least he could do to atone for an act of Republican solidarity that ill-served Montana. Nevertheless, he’s right. Jackson and Skees are playing with fire, and at a minimum are burning legislative time that could be put to constructive use.
If you prefer a law professor’s opinion on the subject, Edward Lazarus’ Findlaw essay on the tenth amendment is a good place to start. For a more detailed analysis of the South Carolina nullification crisis, read Richard E. Ellis’ The Union at Risk. And, of course, there’s the opinion on nullification of the other Jackson, Andrew.
Representative Keith Reiger (R-rural Kalispell) is the Flathead’s representative on the judiciary committee. He served on the Kalispell school board before he ran for the legislature. He opposes abortion, but apart from HB-167, which criminalizes abortion and passed the house on a party line vote, he hasn’t introduced legislation that attempts to turn the clock back two centuries. If you think that HB-382 should be killed in committee, it might be a good idea to send him a note at kregier@centurytel.net. Pronto.
This will be Skees’ second appearance before the house’s judiciary committee. The first one did not go well. One can only imagine how Chairman Peterson will respond this time.
Jackson’s bill does not describe, let alone authorize, a Montana replacement for Obamacare. That’s because the Republican plan for health care is “personal responsibility” combined with an under-regulated private health insurance industry. In other words, you’re on your own, and if you get sick, don't ask for help: just die quickly. Former George W. Bush speechwriter Michael Gerson says this soul chilling, stiff-arm thy brother, teabagger libertarianism “…involves not only a retreat from Obamaism but a retreat from the most basic social commitments to the weak, the elderly and the disadvantaged, along with a withdrawal from American global commitments.”