Opponents of the Patient Protection and Affordable Care Act (PPACA), or ObamaCare, are trying many options to defeat its implementation, and a handful of Idaho legislators are hoping their state will blaze a new path: State nullification of the health care law.
Rep. Vito Barbieri (R-Dalton Gardens) has introduced HB 59 which, according to the bill’s statement of purpose, “invokes the original intent of the founding fathers that the sovereign states have the earnest responsibility and the legitimate authority to interpose to protect their citizens from unconstitutional acts of the federal government.”
Barbieri’s bill, introduced January 26, has 15 cosponsors and is being championed in the State Senate by Sen. Monty Pearce (R-New Plymouth). Pearce says there is “lots of public support for this.”
Governor May Support
Barbieri and Pearce may have an ally in Idaho’s governor, C. L. “Butch” Otter. In his State of the State Address in January, Otter said in regard to PPACA, “We are actively exploring all our options—including nullification.”
Much of the inspiration for the bill can be found in the 2010 book Nullification: How to Resist Federal Tyranny in the 21st Century, by Thomas Woods. The book points out the long history of states using nullification to oppose federal laws they saw as unconstitutional.
Pearce says he bought the book when it first came out and was inspired to start writing a nullification bill after reading it.
Wayne Hoffman, executive director of the Idaho Freedom Foundation, brought Woods to Idaho in November 2010 to speak on the subject. Several legislators, including Pearce, were at the talk, and Otter and several legislators attended a briefing on nullification by Woods and Hoffman during the visit.
Bill Would Ban Enforcement
The proposed legislation would prevent any Idaho state employee from implementing PPACA’s provisions, helping the federal government do so, or accepting any federal funding related to implementation. It would also ban federal government employees or contractors from enforcing the bill’s mandates on Idaho residents or businesses.
Violation of the law would constitute a misdemeanor subject to 6 months in jail and/or a $1000 fine.
“I do think health-care nullification will be tricky to carry out and needs to be thought through,” Woods says. “What exact portions of the legislation can a state successfully obstruct? Legislators need to study this.”
Shaky Legal Provenance
The Idaho Attorney General’s office contends the proposed nullification law rests on shaky legal ground. Assistant Chief Deputy Attorney General Brian Kane issued an opinion maintaining the law violates both the federal and state constitutions.
“The alpha and omega of the nullification theory … rest upon rejecting the principle that the U.S. Constitution is the supreme law of the land. The theory runs contrary to the very purpose of the federal constitution and Idaho’s express constitutional acknowledgment … of that supremacy,” said Kane.
Pearce disagrees, saying, “We’re the ones defending the Constitution here.”
Hoffman likewise rejects the Attorney General’s opinion.
“To some extent, we’re in familiar territory,” Hoffman said. “Remember, our Legislature, as well as others, in 2008 rejected Real ID, under the premise that the federal government had overstepped its authority. This is the same thing, except on a larger scale. It’s now up to states to prevent the federal government’s healthcare legislation from going into effect.”
Will Other States Join?
The nullification legislation is not the first action taken in Idaho against PPACA implementation. Last year Otter signed the Health Care Freedom Act, which prohibited Idahoans from being forced to participate in any health care system or required to have health insurance, and the state has joined the multistate lawsuit against the federal government to overturn PPACA.
When asked if a new crop of Tea Party-inspired governors will take up the cause of nullification as well, Woods notes they will face challenges.
“Whether other governors will be receptive, I don’t know. They’ve seen how the media is likely to treat them—with smears, along with seventh-grade arguments against nullification,” says Woods.
Pearce says other states getting involved is a key to success. “We hope some other states get on board,” he says. “If 15 or 20 states get on board, … then nullification would work.”
Marc Kilmer ([email protected]) is a senior fellow at the Maryland Public Policy Institute.
