A group of Idaho lawmakers wants to tell the federal government to keep the federal health care reform law out of the Gem State.  Republicans are set to introduce a plan to nullify the federal law early next week in a House committee and are working to gain the blessing of Gov. Butch Otter.

The legislation would prohibit state agencies from receiving money or entering into agreements with the federal government to carry out the health care law.  It would also block the federal government from regulating health insurance policies in Idaho, including the mandate that individuals purchase health insurance.

Lawmakers backing nullification admit it could stir a rebuke or lawsuit from the federal government, but they say they’re defending Idaho citizens from a law they see as unconstitutional.

Rep. Vito Barbieri, R-Dalton Gardens, one of the House sponsors of the plan, said it would nullify the health care act within Idaho’s borders and that nullification has a long history in the U.S.

Barbieri said he hopes Idaho’s plan can serve as a model for other states.

Barbieri said he expects other states could join in, given the number of them suing the federal government over the individual mandate to buy insurance.  At least five other states, including Montana, Wyoming, and Oregon, are considering similar nullification plans.  The proposed legislation in Texas would make it a felony for a federal official or private-sector employee to follow the federal health care law.

Sen. Russ Fulcher, R-Meridian, said the legislation is the latest effort by lawmakers to follow the will of citizens opposed to the federal health care plan.

The governor mentioned nullification in his State of the State speech, saying it’s one of the options he’s exploring to stop the federal plan.  Otter’s staff has discussed the looming legislation with lawmakers, but isn’t currently endorsing the plan.

“We are listening to them and working with them,” said Jon Hanian, Otter’s spokesman.  “There are still details being flushed out.”

Some of the basis for the law comes from author Tom Woods, who wrote the book “Nullification: How to Reduce Federal Tyranny in the 21st Century.”  Woods defines nullification as states’ refusal to allow the enforcement of an unconstitutional law.  He claims the federal government today does what it wants without constitutional restraints and that if a federal law is constitutional, it’s not a law at all.

“The idea is to keep the federal government from unconstitutionally asserting itself into matters that are reserved to the states,” said Wayne Hoffman, executive director of the Idaho Freedom Foundation.  Hoffman brought Woods to Boise State University last fall, has distributed copies of Woods’ book, and worked with lawmakers on the particulars of the nullification plan.

Woods says historical precedence for nullification dates back to Thomas Jefferson and James Madison’s opposition to the 1798 Aliens and Sedition Act and continues with modern-day states’ opposition to the REAL ID national identification system and the federal ban on medical marijuana.

Sen. Monty Pearce, R-New Plymouth, said Idaho lawmakers effectively nullified REAL ID without realizing it.

Critics of state nullification say it runs afoul of the U.S. Constitution’s supremacy clause, which calls the Constitution and federal law the supreme law of the land.

Timothy Jost, a law professor at Washington and Lee University in Virginia and supporter of federal health care reform, called state nullification laws pure political theatre.  “State law cannot nullify federal law,” Jost wrote in a New England Journal of Medicine article last year about federal health care reform.  “This principle is simply beyond debate, and state legislators, many of them lawyers, know that.”

Idaho officials have voiced their concern about the health care plan since before it was passed. Otter signed a law last year opposing the individual mandate and requiring the state to sue the federal government over the mandate’s constitutionality.  Idaho is one of more than 20 states currently in court with the feds.  At least six other states have similar laws on the books.  The Legislature also approved sending a memorial to Congress calling for a constitutional amendment opposing the mandate.

Barbieri and Rep. Judy Boyle, R-Midvale, who will also sponsor the plan in the House, said that health care could be the first federal law to be nullified.  “If we can be successful here, there are huge issues we can tackle,” Barbieri said.

Idaho lawmakers have argued with the federal government over laws and regulations on guns, wolves, environmental regulations, and other issues.  “It’s dollars and cents, and it’s state sovereignty,” Barbierei said.

Note: IdahoReporter.com is published by the Idaho Freedom Foundation.

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  3. “Federal law” is not the supreme law of the land. Read Article VI – “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, shall be the supreme Law of the Land;”

    If a federal law is not made pursuant to the Constitution – think a federal law which seizes powers not delegated to the federal government in Article 1, Section 8 – then it is NOT the supreme law of the land.

    It’s that simple. As Jefferson and Madison recognized, the States are not bound by unconstitutional laws, and have a duty to recognize and refuse to follow federal laws that are not within the confine of the Constitution.

    Nowhere does the Constitution provide for the Supreme Court to be the arbiter of constitutionality – that’s a power it simply asserted for itself. States have every bit as much Constitutional authority as the Supreme Court to declare a federal law unconstitutional.

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