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The far right in Europe is different than in America. Right wing movements [such as Le Pen’s] in Europe often differ in significant ways from the right wing that’s made in the U.S.A. Put aside the usual caricature of “people in pointy hoods and the Ku Klux Klan,” Marine Le Pen says, and she still believes “the American right is much more to the right than the National Front.” She might agree with those who want to manage American frontiers more effectively and prevent massive illegal immigration, but she’s also a big believer in the state’s ability and obligation to help its people. “We feel the state should have the means to intervene,” she says. “We are very attached to public services à la française as a way to limit the inequalities among regions and among the French,” including “access for all to the same level of health care.”

Analysis:

Perhaps the American right is more far-right in terms of government, but I suspect not in terms of immigration and other issues.  For example, the euro-skeptics are much more skeptical of the EU than the state rights advocates in America are of the US. I am struck by the fact that the far right in Europe is for universal health-care. Notice that the assumption is that the states of the EU (e.g., France) should cover health-care policy.In the US, by contrast, health-care policy is assumed to properly reside with the US Government rather than with the states. Also, it seems that the wealthy “I don’t want to help others with my tax dollars—just defense” view doesn’t seem to get much political expression in the EU.

Source: http://www.newsweek.com/2010/09/05/how-marine-le-pen-is-changing-french-politics.html

Senator Ron Wyden has written to government officials of Oregon to encourage them to “come up with innovative solutions that the Federal government has never had the flexibility or will to implement.” This is significant because he is a democrat. As long as a state covers the same number of uninsured and keeps coverage as comprehensive, the following can be waived:

1. the individual mandate to purchase insurance (i.e., what Virginia and Florida are suing over)
2. regulations about business taxes
3. federal standards for minimum benefits
4. allocation of subsidies in the insurance “exchanges.”

These are called section 1332 waivors. There is also some flexibility on medicaid--but how much flexibility do these waivors proffer? The states might be able to determine how the uninsured are to be insured. For instance, they could go single-payer. Or could they?The federal allocation of subsidies in the insurance “exchanges” can be waived, but can the “exchanges”?

There is a trade-off involved in federal standards and state waivors. If the federal standard is too high (e.g., the number of uninsured covered and the amount of minimum coverage), then not much freedom is involved in the waivors because the standards must be met regardless. Given the diversity within the Union and our system of federalism, the US Government should have been oriented to coming up with minimum standards for health-care rather than trying to make it a federal responsibility. By minimum, I mean that below which is unacceptable for a state in this union. For instance, it could be that universal health-care is a minimum if health care is to be considered an American right. The states, rather than the general government, would then be required to pass laws to implement the minimum standard in any way they preferred. They could determine the means, whether single-payer or exchanges. I’m not sure that the existing waivors, which do not begin until 2017, allow for such flexibility as would accommodate the various political ideologies of our states. Once power is grasped, it is very difficult indeed to let go of some of it.

Source: Wyden Defects on ObamaCare, WSJ, September 3, 2010, p. A16.

On the US Supreme Court being the decider of last resort, Madison’s Report of 1800 reads in part, “this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.”  The government being referred to is the US Government—that is, the federal, or general, government. The parties to the compact are the states.  So the theory here is that the US Supreme Court can have its say after the US President and the Congress, but not as binding on the States.  John Breckinridge, who sponsored the Kentucky Resolutions in the Kentucky House, wrote, “Who are the judiciary? Who are they, but a part of the servants of the people created by the Federal compact?” (James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery, 1957), 75) The Federal Courts are part of the US Government that was created by the states, so those courts can’t be the final deciders with respect to the states.

Historically, nullification of US Law by a State has been urged by some (such as by South Carolina in 1831). In his book, Nullification, Thomas Woods argues that the VA and Kentucky Resolutions of 1798, the Report of 1800, and the Kentucky Resolutions of 1799 hold that the federal government had been created when sovereign states granted it a few enumerated powers. Also, should the federal (general) government exercise a power it had not been delegated, the states ought to interpose. The Virginia Resolutions of 1798 read in part, “the powers of the federal government, as resulting from the compact, to which the states are parties.” The Kentucky Resolutions of 1799 read in part, “that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy” (Woods, p. 50).

It seems to me that there is indeed a conflict of interest in having the US Supreme Court be the umpire of conflicts between the federal and state governments.  However, nullification presumes that the states did not cede part of their sovereignty.  In other words, were nullification to be allowed, there would be no compact, as any state could exempt itself from any federal law it didn’t like under the claim that the law exceeds the enumerated powers. The states are semi-sovereign, so there must be a means of holding them against their will. I contend that the final decider of contests between the US Government and any of the states should be composed of judges selected from the state supreme courts. That way, the conflict of interest would be eliminated and an individual state could still be held against its will. In other words, we need not succumb to either the hegemony of the US Supreme Court whose members are selected and paid by the US Government, or to the destructive effects of nullification on the federal compact itself.

Source: Thomas Woods, Nullification: How to Resist Tyranny in the 21st Century (Regency, 2010).