Tea Party Demonstrations and the States’ Rights Challenge. Why Now?

I listened to The States’ Rights Challenge on the NPR radio show, On Point with Tom Ashbrook, my favorite radio broadcaster and he invited guests, Neil Siegel, professor of law and political science at Duke University and Thomas E. Woods, senior fellow at the Ludwig von Mises Institute in Auburn, Alabama, with very different viewpoints on the states' rights issue with respect to the health care reform package, in particular. As Ashbrook said, he wanted to discern whether the reemergence of this issue, at this time, points to the "proof of a vigorous democracy or fraying of national unity and authority.

Before health care reform even passed, two states, Virginia and Idaho had already voted to challenge its authority. Now, attorneys general from 13 states are challenging the constitutionality of the health care reform bill and in total, 36 states are considering legislation to limit certain portions or reject the bill, outright.

The first major tea party march, April 15, 2009, in response to President Obama's federal stimulus bill, was the first time this issue of "states' rights" materialized to the point of national recognition, especially with Texas Gov. Rick Perry threatening to secede from the union, which although he may deny it now, was clearly his message at the time.

Republicans claim big government is the monster in the closet when they don't like what's being legislated, and it appears - since President Obama has taken office - to include who is doing the legislating. This becomes apparent when you compare the lack of response to the huge expansion of federal power under former President Bush (prescription drug legislation, no child left behind, Iraq and cost of a war based on lies, ect.) So, one has to ask, why, now that we have our first black president, is there a push for state’s rights... talk of invoking the 10th amendment, nullification and secession, when article 6 clearly states federal authority outranks state’s authority?

Neil Siegel said it's important to distinguish the difference between challenging federalism and "couching" opposition to legislation in terms of 10th amendment, nullification and secession.

It’s important to make a distinction between Federalism – appropriate balance of power between the federal government and the states and “state’s rights”, nullification and secession which either intentionally or unwittingly invokes very powerful historical and cultural memories. Memories of southern opposition of federal regulation of slavery before the civil war; memories opposition of Brown v. Board of Education in school desegregation during what legal scholars call the second reconstruction.

Why is talk about the limits of federal power and the appropriate ways in which states should be pushing back against federal power when state officials think it’s being used in ways which are misguided…why is that being couched in terms of 10th amendment, nullification and secession and why is it being couched in those terms now?

It’s entirely legitimate for people to oppose health care reform, but what’s more questionable is whether it’s appropriate to couch those concerns in language of state’s rights. Is your substantive political opposition to health care reform or is it principled commitment to decentralization? It seems there are not very many principled people out there when it comes to state’s rights. Favorable to robust federal power when it suits them but then couch their concerns against a particular exercise of federal power in the deceptive procedural address of federalism. What specific constitutional principles of federalism render this legislation unconstitutional, in particular because it seems that individual states find it almost impossible to tackle health care?

One of the biggest complaints is about the portion of health care reform that would mandate individuals to purchase health insurance. However, isn't it true that citizens are mandated to purchase auto insurance? How is this "mandate" any different? Siegal explained it this way:

In the summer of 1787, when the Constitutional convention meets in Philadelphia, the convention instructs the Mid Summer committee of detail which is charged with drafting Congress’ powers in article 1 section 8, that congress should have the power to legislate when the states are separately incompetent. When the states face problems they can’t adequately handle on their own. Health insurance and an individual mandate to possess health insurance is a textbook example in economics which is a problem states can’t handle on their own.

Imagine some states have it and other don’t. Then you have people who are sick and unhealthy going to the states who have it and all the premiums of people in that state increase, and all health people in those states go to other states. Insurers only want to do business with those that don’t have the mandate. The states on their own can’t handle this.

Does the state has power to nullify federal law?

The 10th amendment says, "the powers not delegated to the United States by the constitution nor prohibited by it to the states are reserved to the states respectively or to the people..."

13 states: Alabama, Colorado, Florida, Michigan, Nebraska, North Dakota, Pennsylvania, South Dakota, South Carolina, Texas, Utah, Virginia, Washington. Alaska and Oklahoma reviewing legislation might file law suit.

Issues that involve states' rights:
Gay rights
Medical marijuana
Health care
Guns
Environmental
Continuous call up of the National Guard