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Strange Brew: The Tea Party and Federalism, Nullification and Secession

July 27, 2010

This is the seventh installment of Constitutional Accountability Center’s new series, ‘Strange Brew: The Constitution According to the Tea Party,’ exploring the Tea Party’s erroneous claims about the Constitution’s text and history.  Click here to view previous posts from this series.

As we noted in last week’s post taking on the Tea Party’s constitutional challenges to the “individual mandate,” the greatest rallying point for Tea Party opposition to federal government power is the Patient Protection and Affordable Care Act, the historic health care reform law enacted earlier this year.  The Tea Partiers’ heated rhetoric is reaching a boiling point with the upcoming elections.  Republican Rep. Zach Wamp, running for governor in Tennessee, suggested over the weekend that states should think about seceding from the Union because of the health care law, echoing a similar, earlier call from Texas Governor Rick Perry.  Several state attorneys general and governors have filed lawsuits challenging the Act -- including one filed by Virginia Attorney General Ken Cuccinelli, and another by a group of state officials led by Florida Attorney General Bill McCollum -- alleging that the Act exceeds Congress’s powers and infringes upon state sovereignty.   Virginia and Idaho have passed, and other states are considering, “nullification” laws that attempt to block implementation of the Act outright, a tactic not seriously pursued since a handful of states tried to block implementation of federal civil rights laws in the 1950s and ’60s.

Tea Party claims that federal health care reform violates the Constitution’s 10th Amendment and “states’ rights” rely on an inaccurate view of the federal government as a weak, sharply limited central government— a claim that CAC recently debunked in the Issue Brief, Setting the Record Straight: The Tea Party and the Constitutional Powers of the Federal Government— and a distorted understanding of federalism.  In reality, our Constitution creates a vibrant system of federalism that gives broad power to the federal government to act in circumstances in which a national approach is necessary or preferable, while reserving a significant role for the states to craft innovative policy solutions reflecting the diversity of America’s people, places, and ideas.  In addition, the Constitution’s Supremacy Clause gives the federal government the authority to enforce these lines of authority, preempting state law when necessary to achieve a national goal.

Faux Federalism Claims Against Health Care Reform

While most Tea Partiers speak generally about how health care reform violates states’ rights, the litigation in Florida provides some specific examples of these arguments — and their obvious flaws.

In the Florida case, the conservative AGs and their co-plaintiffs are arguing that the Affordable Care Act’s expanded Medicaid coverage places an unconstitutional burden on the states, which share the cost of Medicaid with the federal government.  Congress created Medicaid in 1965 to provide financial assistance to states that choose to pay for some costs of medical treatment for low-income state residents.  Since 1965, Congress has provided hundreds of billions of dollars for Medicaid.  State participation in Medicaid is entirely optional—for example, Arizona did not participate in Medicaid until 1982—but if a state does participate and accept federal money, then the state must comply with the requirements set by Congress, such as minimum eligibility requirements.  The Affordable Care Act reduces health care costs and provides insurance to millions of Americans in large part due to an expansion in Medicaid eligibility.  The federal government will pay states 100% of the cost of increased Medicaid benefits until 2016, an amount that declines gradually thereafter to 90%.

Putting aside the obvious point that this seems like a very good deal for the states and a welcome reform for low-income state residents, the argument that the Act’s Medicaid expansion puts an unconstitutional burden on the states is frivolous for a simple reason:  states are free to rid themselves of any burdens imposed by the Act by withdrawing from the wholly voluntary Medicaid program.  Indeed, the AGs in the Florida lawsuit candidly acknowledge this fact in their complaint, but assert that withdrawing from the Medicaid program is infeasible because it is so popular (“Medicaid has, over the more than four decades of its existence become customary and necessary for citizens throughout the United States.”).  In other words, the AGs want to keep the portions of the popular Medicaid program they like, while asking the courts to throw out the new Medicaid requirements they don’t like, which are aimed at reducing medical costs and expanding health insurance coverage.  This is an argument better suited for the halls of Congress than the halls of Justice — seeking a judicial do-over on the health care law seems like just the sort of invitation to “judicial activism” conservatives love to hate.

The Constitution and Supreme Court precedent make clear that Congress has the power of the purse — and strings may be attached.  As the Supreme Court clearly explained in South Dakota v. Dole (1987), it is well-established that “Congress may attach conditions on the receipt of federal funds.”  If the AGs don’t want their states to have to comply with the new Medicaid requirements, they should advocate that their states refuse federal Medicaid money and withdraw from the program.

The irony of “states’ rights” claims that the health care law violates constitutional principles of federalism is that the Act actually reflects the federal-state partnership at its best and works to preserve state policy independence where possible.  For example, the Act gives states the discretion to form their own insurance exchange or join with other states to form a regional exchange, allowing them to choose what health care plans are available to their citizens.  It even allows states to opt out of the system set up by the Act and create their own—with or without an individual mandate, or including a “public option”—so long as the state’s alternative system meets the coverage and cost containment requirements in the Act.  The Act preserves the states’ longstanding role as leaders in policy innovations that better protect their citizens, resources, and environment.  The federal government learned from state experiences with health care reform, and, in turn, the Affordable Care Act preserves the states’ regulatory flexibility in several key ways to come up with tomorrow’s health care solutions.

Attempts to “Nullify” Federal Health Care Reform in the States—and Threats of Secession

More troubling than the legal claims that the Act violates the 10th Amendment are Tea Party suggestions that the Amendment justifies state nullification of the health care law.  For example, underlying the Virginia lawsuit challenging the constitutionality of the Affordable Care Act is a state law passed to “nullify” the Act’s requirement that individuals who can afford to purchase a minimum level of health insurance do so or face a tax penalty.  This is contrary to Article VI of the Constitution, which provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States and of the several states, shall be the Supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Known as the “Supremacy Clause,” this constitutional provision establishes that duly passed federal laws “shall be the supreme Law of the land” and any conflicting state law will be trumped or “preempted” by federal law.  Advocates who disagree with health care reform—or environmental regulations or civil rights laws—are perfectly entitled to argue that these laws go beyond Congress’s enumerated powers, and even to bring lawsuits asking the courts to so hold.  But when they take the extreme step of advocating for the nullification of federal law—in direct contradiction of the Supremacy Clause—they are dishonoring our Founders and the Constitution itself.

When states attempt to nullify federal action, they pass legislation or take other official action that seeks to block implementation of federal law.  Nullification has been suggested to aid noble causes—such as resisting the Alien and Sedition Acts and the Fugitive Slave Act—but the tactic was most aggressively advocated for in the 1820s and ’30s by pro-slavery politician John C. Calhoun (who started the short-lived Nullifier Party), extended by the Confederate secessionists in the 1850s and ’60s, and then reinvigorated by segregationists in the 1950s and ’60s.

For example, after the Supreme Court’s 1954 decision in Brown v. Board of Education, a number of southern state legislatures passed “Resolutions of Interposition” vowing not to abide by the Supreme Court’s ruling that the Constitution required desegregated schools.  In Cooper v. Aaron (1958), in a unanimous opinion in the name of all nine Justices, the Supreme Court repudiated the Little Rock, Arkansas school board’s plan to prevent African-American students from attending the formerly all-white Central High School and strongly reaffirmed that states have no power to nullify federal law.  Quoting the Supremacy and Oath of Office Clauses and discussing precedents dating back to the birth of the Republic, the Court held flatly unconstitutional Arkansas’ refusal to obey the mandate of the Equal Protection Clause.  “[N]o state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”

As this history suggests, while supporters of nullification efforts claim that they are upholding the Constitution, Virginia’s nullification law and a similar act in Idaho are in fact attacks on our Nation’s charter.  States can use the political process as well as the courts to raise constitutional objections to federal action, but they cannot claim a unilateral right to nullify federal law.  Even if nullification efforts are simply symbolic protest, states should think twice about adopting such a charged motif — state efforts to block implementation of federal law are part of a dark chapter in our Nation’s history that none of us should want to reopen.

Speaking of dark historical chapters, secession threats by politicians like Governor Perry and Rep. Wamp not only hearken back to low points in American history but are also blatantly unconstitutional.  As acclaimed constitutional historian Akhil Amar definitively demonstrated in America’s Constitution: A Biography, once states ratified the Constitution, secession was no longer an option — the Constitution allowed for amendments if the people became dissatisfied, but the Constitution in Articles V and VI also “extinguished the right and power of unilateral secession for each state populace that joined the Constitution’s new, more perfect union.”  Not to mention the fact that we fought a bloody civil war over President Lincoln’s vision of this more perfect union — and the Union prevailed.

Nullification and secession might have been reasonable ways to express opposition to federal health care reform, if our country had continued under the fundamentally flawed Articles of Confederation.  But under our enduring Constitution — the real one, not the Constitution According to the Tea Party — such efforts are not just unwise, but unconstitutional.