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A Republican US President pushes hard for the US Government to play a more active role in K-12 education via “No Child Left Behind.”  A Democratic US President pushes hard for the US Government to play a more active role in health-care.  In regard to the latter, proponents of the health-insurance law argue that Congress acted within its authority under the Constitution’s Commerce Clause.  However, Ken Cuccinelli, the attorney general of Virginia, says the U.S. Supreme Court has never ruled that the clause allows Congress to require citizens to purchase a good or service like health insurance. Cuccinelli’s complaint also argues that the Virginia law that outlaws the federal government from forcing state residents to purchase health insurance trumps the federal law because it is a matter assigned to the states under the Constitution’s 10th Amendment. That amendment says that all powers not explicitly granted to the federal government remain with the states.

In spite of being semi-sovereign (plus having the residual sovereignty beyond that which is enumerated for them and for the US Government), the State governments have generally been sleeping through federal encroachments for decades.  This is understandable, as past efforts to thwart federal encroachment have failed.

In 1830, Andrew Jackson sent federal troops into South Carolina because its legislature had decided that it could nullify federal law encroaching on its domains of governmental sovereignty.  The South Carolina legislature relented (though its succession document would be retreived in 1858 after the Congress passed a tariff on rice and cotton exports).

In 2010, one would think that the lesson against nullification had suddenly been lost on several of the State governments.  In March, the Senate defeated an amendment that would have allowed states to opt out of the health-insurance requirement.  Yet the governor of Virginia signed the nullification bill into law nonetheless.  The policy argument against nullification stresses that state opt-outs would reduce the size of the insurance pool and thus preempt the anticipated cost-savings.  There is also the point that if access to health-care is indeed a redistributionist right, then it could be argued that it ought to exist in the entire Union.  However, such a right could be argued to be basic law, and thus requiring an amendment to the US Constitution.  Alternatively, it could be argued that the determination of whether a right is involved ought to reside with the states.  In terms supremacy and nullification, if the power to require health-insurance is not within the commerce clause, then the federal law would not override state laws to the contrary.  However, it is commonly thought that preemption and supremacy go with any US law.  Yet this has not stopped states from reasserting their constitutional prerogatives.

Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on March 12, 2010 declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota. On the day before, Wyoming’s governor, Dave Freudenthal, a Democrat, had signed a similar bill for that state. The same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul. In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session that week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.” Alabama, Tennessee and Washington are considering bills or constitutional amendments that would assert local police powers to be supreme over the federal authority. Rhode Island, Vermont and Wisconsin — none of them known as conservative bastions — are considering bills that would authorize, or require, governors to recall or take control of National Guard troops, asserting that federal calls to active duty have exceeded federal authority.

Given the Nullification Crisis in the nineteenth century, the actions in the twenty-first seem likely to be dismissed by US Supreme Court. Given the structural conflict of interest, the federal high court has tended historically to interpret the Constitution in the federal government’s favor. It is like having a member of one of the teams as the umpire.  So it is easy to dismiss the state laws as political theater.  However, ignoring them would only stoke the fires of resentment and add to the pressure that could eventually dissipate the Union.

“Everything we’ve tried to keep the federal government confined to rational limits has been a failure, an utter, unrelenting failure — so why not try something else?” said Thomas E. Woods Jr., a senior fellow at the Ludwig von Mises Institute, a nonprofit group in Auburn, Alabama.  Article 6 of the US Constitution indicates that federal law is superior over state law where there is a conflict, but it wouldn’t make sense for this to apply outside of the federal government’s enumerated powers—for otherwise why even include the latter?  In other words, a constitution cannot be both consolidated and federal with the republics having some governmental sovereignty, or autonomy, from the government of the Union.  We can’t rely on elections to protect the balance of power necessary for our federal system to remain federal (and thus operate as a check on each government); there are too many other contending issues and character traits at issue in a given election.  “Whether the political impulse of states’ rights and nullification will become a direct political fault line in the national elections this fall is uncertain,” said Mr. Woods of the von Mises institute. Also, drawing the federal dividing-line by election presumes that the people understand federalism.  Even so representatives pushing for more of a balance miss it. “Who is the sovereign, the state or the federal government?” said State Representative Chris N. Herrod, a Republican from Provo, Utah.  In actuality, both governments have governmental sovereignty in the American federal system.  It is not “either or.”

States opting out is not unprecedented in federalism.  In the EU, for example, three States have opted out of the EU’s currency.  One State has opted out of the EU’s social program.  If the US Supreme Court will not allow us to do likewise, we can propose and ratify an amendment to the US Constitution instituting a process for it.  If we deem that as insufficient to restore a balance, we can propose and ratify an amendment stating that the supremacy and spending clauses pertain only to the powers that are enumerated expressly for the US Government.  Lastly, we can propose and ratify an amendment that puts sitting State Supreme Court Justices on the US Supreme Court (on a rotating or nominated basis) so to counter the conflict of interest in having a federal branch being the umpire on conflicts involving federalism questions.  The deck, as it were, is presently stacked against a healthy federal system in favor of a consolidated Union.  The individual republics standing up in protest by passing laws that will likely be cut down by the US Government Court may be counterproductive because people might assume the efforts are sufficient and go on to other things.  Proposing and ratifying amendments to the federal system take a lot of energy—it would be ashamed to dissipate it just when it could be used for structural changes…systemic change…real change.

Sources: http://www.msnbc.msn.com/id/35906430/ns/politics-the_new_york_times// ; http://politicalticker.blogs.cnn.com/2010/03/24/virginia-governor-to-sign-law-firing-back-at-health-care-bill/?fbid=UERb4EI-c6a#more-96318