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Sixteen facts about Nullification
Why nullification? Why now?
By Rep. Bill Chumley
Since I pre-filed the Obamacare Nullification bill (H.3101), in the SC House of Representatives last year, a lot of information and misinformation has raged back and forth over the issue. As the 2014 legislative session nears, I wanted to set the record straight on a few points. So, here are the main questions concerning nullification in general, and H.3101 in particular, along with the answers.
1. What is nullification?
Nullification is the responsibility of a state to determine the constitutionality of a federal law. If it is determined to violate the U.S. Constitution, the state may void that particular law within its borders.
2. Do States truly have this authority?
Yes, because it has to do with sovereignty. Sovereignty is defined as: “final say”, “ultimate authority”, or “the buck stops here”. God is sovereign because He is all-powerful. Politically speaking, the people are sovereign because we can change our government or laws. The fundamental message of the Declaration of Independence is that the thirteen States were nullifying the laws of the British crown. The people exercise this “ultimate authority” through the States. The representatives to the Constitutional Convention were deputies for States, not a monolithic national citizenry. Even, the wording of the Treaty of Paris, which ended the Revolutionary War, proves it because King George III individually recognized the thirteen “sovereign” and “independent” States.
3. Doesn’t the US Constitution say that Federal law trumps all state laws?
The so-called Supremacy Clause of the constitution does make Federal law “superior” to state laws in application, but only if the Federal law is constitutional. Refer to Art 6, clause 2 of the Constitution as well as Hamilton’s Federalist 33. So, the issue really resolves itself into the question of “who” has the final decision to determine if a law is constitutional. Here, again, is where state sovereignty comes into play.
4. Doesn’t the Supreme Court make the final decision?
The Supreme Court has an inherent right to speak to the legality of actions of its coequal branches of government. However, according to James Madison and Thomas Jefferson in the Kentucky and Virginia Resolutions of 1798, “final say” is, again, an attribute of sovereignty. The States are considered “distinct and independent sovereigns” by the Constitution, according to Madison in Federalist 40.
5. Isn’t Nullification just a way for SC to avoid obeying a law it doesn’t like?
No, over her history South Carolina has complied with many laws it disapproved. Nullification is only concerned with the constitutionality of a law regardless of whether it is a bad idea.
6. Can an individual citizen or a local government nullify a law?
No, that would be anarchy. Law and order requires a citizen to comply with statutes and judicial decisions. Only the state government mechanism may execute the sovereignty of the people, in the aggregate, by invalidating a Federal law. Similarly, local governments, such as counties, are created by the state legislature and the legislature could create new counties or abolish old ones if they wanted to. Not even the most rabid nationalist would argue that Congress has the power “abolish” a state. The States created the Federal government and, with the exception of the District of Columbia, all local governments.
7. What is interposition?
Interposition and nullification are synonyms. A state interposes by standing between the people and the enforcement of an unconstitutional law.
8. Aren’t elected officials who support Nullification violating their oath of office?
On the contrary, an elected official’s oath requires him to defend the United States and South Carolina Constitutions. Duty and honor require that public officials defend these documents from encroachments even by our own governments. To do less would be to subject our constituents to arbitrary power, which is the definition of tyranny.
9. Isn’t Nullification a radical and revolutionary remedy?
No, the people of the States created the Federal government so only the States may alter it. The Constitution specifically mandates this requirement in Article 5. Only the States may amend the constitution, the national government cannot. As Jefferson points out in the Declaration of Independence, experience shows that “…mankind are more disposed to suffer, while evils are sufferable…” thus indicating that only the most egregious cases of abuse will be addressed by a state through nullification.
10. If Congress fails to repeal Obamacare, doesn’t that leave the law in place?
The recent so-called “government shutdown” illustrates our problem here. The House has repeatedly voted to repeal Obamacare, but the true conservatives in the Senate are outvoted by the liberals. Therefore, the true constitutionalists in Congress have been unable to defund this monster because of a voting bloc of liberals and Republicans who don’t have the courage to stand firm. As a result, the States are the “firewall” or last line of defense for the people.
11. So Obamacare is unconstitutional?
Yes, a recitation of the reasons would require more time and room than we have here, but it is sufficient to say that nowhere in the national government’s grant of powers, in the Constitution, are they given the authority to mandate that a citizen have health insurance. So, Obamacare certainly violates the Tenth amendment.
12. Is SC bill H3101 dead?
No, H3101 has passed the SC House and will be taken up by the state Senate in January when the legislature reconvenes. So the bill is very much alive.
13. Has H3101 been so amended that it is no longer effective?
No, the version of H3101, that passed the SC House by a vote of 65-39, is a good bill. Certainly, I would have preferred my prefiled version which declared Obamacare null and void and criminalized its enforcement by federal authorities within SC. However, 150 years of federal overreaching is NOT going to be rolled back with one law. So, even had my original version passed without amendment, we would still have needed many more follow-up pieces of legislation to enforce it and extricate our state from the tentacles of federal usurpation. Similarly, H3101, in its current version, will require more follow-up legislation to ultimately get us back to the position where the States will prohibit federal enforcement of unconstitutional laws. But, every journey begins with a first step. It is essential, in my opinion, that the state senate pass H3101 and send the message that SC will defy a centralized government that intends to destroy our constitution.
14. So what does H3101 do?
This bill, as passed by the House, declares that the Tenth amendment limits the power of the federal government. This bill explains that federal laws are only supreme if pursuant to the Constitution. The bill declares that any provision of Obamacare which violates the Constitution will not be considered the “supreme law of the land”. Most importantly, H3101 says that SC has the absolute and sovereign authority to interpose and protect the people by refusing to enforce federal laws that exceed the authority of Congress. Also, the bill prohibits any state or local officer or agency from enforcing or aiding in the enforcement of any provision of Obamacare that violates the Constitution. It also empowers the attorney general to sue on behalf of anyone harmed by Obamacare. The bill provides for a state tax deduction to offset any penalty or tax imposed by the IRS through Obamacare. Lastly, the bill prohibits health care exchanges, health insurance purchased from exchanges, and any home searches by a state agency on behalf of Obamacare.
15. What will happen if the SC Senate passes H3101 and the governor signs it?
South Carolina will become the first state to nullify Obamacare by making it illegal for the state or any local government or agency to enforce that law. Also, the path will be cleared for further actions to resist the federal bully by indicating that this state will defend her constitutional rights by, if necessary, criminalizing FEDERAL enforcement of unconstitutional laws within our borders. Mark my words, unless the precedent of defiance is set, the feds will try to force homosexual marriage on us while taking our guns AND our right to public prayer.
16. So what can I do to help?
Contact your senator and ask your friends and family to do the same. Tell him you want the senate to approve H3101. Also, attend the town hall meeting in Greenville, being held by Sen. Tom Davis on Nov 5th, to discuss nullifying Obamacare. I truly believe the survival of our republic depends on two things: a return to Christ and the Scriptures; and, reestablishing States’ rights and state sovereignty as our political foundation. Feel free to contact me anytime at (864) 303-2726, with any questions or comments. I’d love to hear from you.