An Idaho Senate panel Friday ended legislation that would tell state agencies to not follow federal health care reforms. The Idaho House approved the nullification plan earlier this month.

Sen. Bart Davis, R-Idaho Falls, was the first member of the Senate State Affairs Committee to speak out against the plan, saying that the U.S. Constitution doesn’t let states nullify federal laws. “I can’t find in that important document that our state has the authority to nullify a federal act,” said Davis, an attorney. He said that he opposes the federal reform plan passed by Congress last year, but that the courts are the proper arena to settle the issue.

A federal judge in Florida sided with Idaho, ruling the Patient Protection and Affordable Care Act (PPACA) unconstitutional, but other courts have sided with the federal government that the plan is fine.

Davis and other senators who opposed the plan said they didn’t favor the PPACA. “I find no constitutional justification for the things we are talking here today,” said Sen. Brent Hill, R-Rexburg, about the nullification plan. Six of the members of the Senate committee voted against the plan, with just Republican Sens. Russ Fulcher of Meridian and Chuck Winder of Boise backing the plan.

Sen. Patti Anne Lodge, R-Huston, said she voted against the plan because it could cost $12 million in federal grants for health programs she said go to people who can’t help themselves. “We’re in dire straits and we can’t even meet our budget now,” Lodge said. “There’s a threat that [the federal government] will take those dollars away from us. I can’t handle that right now.” After the meeting, Lodge was surrounded by several people supporting the nullification plan asking about her vote.

The committee listened to almost three hours of testimony on the plan, the vast majority of which supported the plan.

“If we can’t take a stand on this issue, where the court has already decided in the state’s favor, there is nothing to stop the federal government from doing as it pleases,” said Rep. Vito Barbieri, R-Dalton Gardens, who sponsored the plan.

“The number one concern of our members was for the repeal of Obamacare,” said Russ Smerz, the president of Tea Party Boise.

“I think we’ve heard from real Idahoans today,” Sen. Monty Pearce, R-New Plymouth, said at the end of testimony but before the committee killed the legislation. He called the PPACA the worst law in the history of the United States and said nullification is the proper course of action. “Nullification is not a dirty word but it has been made that way,” he said. “This is a peaceful solution to a serious problem.”

Pearce said that Gov. Butch Otter wanted the plan on his desk. He said one potential next step would be for Otter to write an executive order barring state agencies from following the PPACA. Shortly after the plan failed, Otter’s spokesman, Jon Hanian, had no comment on an executive order. Otter will be on a Fox Business cable channel show Monday to discuss health care reform Monday.

Idaho state agencies have received more than $2 million in federal grants for the first steps of the PPACA and spent thousands of dollars studying how to implement to program.

Lawmakers supporting the nullification plan could take further action this year against the PPACA. “I’m sorry we offended these guys’ constitutional senses,” Pearce said. “We weren’t doing this for show. We were doing this to protect the people of Idaho.”

Two people testified against the now-stalled plan. Donna Yule with the Idaho Public Employees Association said the plan showed disrespect to the Founding Fathers of the U.S. and Idaho Attorney General Lawrence Wasden, whose office issued a report saying nullification violated the Idaho and U.S. constitutions.

“There is an appropriate process to address the constitutionality of law and this is not it,” Yule said. She also said the plan could affect people on Medicaid, which uses federal and state funds to provide medical services.

The other person to testify against the plan, retired submarine officer and blogger Joel Kennedy of Meridian, quoted Presidents Andrew Jackson and James Madison in opposing nullification. “In no case has nullification been found to be constitutional,” Kennedy said.

Supporters of the nullification plan both supported the idea of nullification and criticized the federal health care plan. People who testified said the federal plan would be an economic nightmare and worse than Dracula.

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  1. Treason in the Idaho Senate
    Obamacare finally passed the US Senate in Dec 09 after some major back room deals between Pres Obama and Senator Ben Nelson and others. The majority of Americans opposed Obamacare then and were outraged at the manipulation by the executive branch.
    Fast forward to Feb 25, 2011 to the Idaho State Capitol. The scene is a senate committee public hearing regarding a proposed state law to nullify Obamacare in our state.
    There was a large enthusiastic crowd. The speeches by the public and legislature were well prepared and delivered with fire. The House already had passed the new law by a large majority, and the Governor was begging to sign the bill. Even the Senate Committee Chair gave a strong stamp of approval.
    It was like a romance novel where a handsome prince and his lovely bride kneel at the marriage altar. The bride smiles sweetly at her chosen one. The groom reassuringly smiles back. Now the preacher says “you may kiss the bride”. Suddenly the groom erupts in a fit of anger and instead gives his bride a black eye and bloody nose, then stomps out, leaving his bride on the floor.
    Although the citizenry gave virtually unanimous approval for passage (40 pro vs 2 con) for the bill to proceed for a full senate vote, their pleas fell on deaf ears as the Senate committee also voted practically unanimously (8 to 2), but against the bill.
    I’m not sure if treason in this case is taking bribes or simply taking your bride for a ride.
    Treason in the Idaho Senate.

  2. I thought the Tea Party supported the Constitution, Richwas, but you didn’t seem to understand the part that nullification isn’t a Constitutional action. Maybe you need to pay attention a little better.

  3. Good write-up, Brad. It’s clear the fix was in (as I was thinking it had to be, since the adults still nominally in charge of the Idaho GOP couldn’t let this unConstitutional and possibly dangerous bill pass). They decided to let the House vote “yes” to throw red meat to the Tea Party, then let the most extreme adherents air their views at this Senate hearing, before a non-recorded voice vote to shut it down.

    As far as the number of people at the hearing vs. the results, it looks like State Affairs is only taking their lead from the Education committee.

  4. Article VI, Clause 2 of the United States Constitution says:

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land.

    Does this mean that any and every law passed by Congress and signed by the President (or without the President’s signature, if approved by a two-thirds supermajority in both houses) automatically becomes the “supreme law of the land,” no matter even if it blatantly and openly violates expressed provisions of the Constitution itself?

    “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” ~ Alexander Hamilton, Federalits Paper #78

    “In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity.” ~ James Madison, Federalist Paper #14

  5. If I had known the deal was done before the first word in ‘testimony’ was uttered, I would have stayed home. We are in a red state with a big red majority in the Senate yet the weasels caved. As they refused to vote as their base demanded, I assume their base will remember. My wife and I will and we will help fund whoever runs against those cowards in the next election.

    “Far better is it to dare mighty things, to win glorious triumphs, even though checkered by failure, than to rank with those poor spirits who neither enjoy much nor suffer much because they live in that grey twilight that knows neither victory nor defeat” – Teddy Roosevelt

    Today I was confronted by a committee of those ‘poor spirits’, too afraid to do the right thing and unfit for office.

  6. “Nullification is incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed.” ~ President Andrew Jackson, 1832.

    “The true question therefore is whether there be a constitutional right in a single state to nullify a law of the U.S. We have seen the absurdity of such a claim in its naked and suicidal form.” ~ James Madison.

    Sorry, but we require the judicial system to decide if a law is Constitutional, not some guy on the Internet.

  7. Some clarification on the article and commentary that has ensued. First and foremost, not only is nullification covered in the Constitution, it is also covered in the Declaration of Independence. Not only is nullification Constitutional, it is guaranteed by the 9th and 10th Amendments. The only reason that people believe that it is not Constitutional is that they are misinformed and have bought into revised history post April 15, 1861 (check your history). As for Mr. Kennedy, I challenge you to publish the purported “evidence” that Jackson and Madison opposed nullification. President Madison authored the Virginia Resolutions of 1799 essentially nullifying the Alien and Sedition Acts. President Jackson was one of the staunchest supporters of state sovereignty and either signed or vetoed legislation based on what was actually written in the Constitution, both letter and spirit of the document, not based on some hacks interpretation of it.
    As for Bubblehead and Binkyboy, you should actually study history instead of listening to some half-wit hack interpretation of it. Go to and get it from the source. Also, go to and read the Inaugural Addresses of Madison, Jefferson, and Jackson. With some actual study of these individuals, you will discover that they supported states rights, from which you get nullification and secession. As for the latter, they were not in favor of it happening, but they recognized the validity.
    President Lincoln killed 640,000 American people (roughly 25% of the population) to put an end to nullification and secession. Slavery was not even part of the purported reason for the conflict (was not a war as it was not declared by congress) until 17 months into armed conflict. Since that point in time, all jurisprudence and indoctrination in the public schools has been that the Civil War was about slavery, but it wasn’t, it was about converting the federal government from the agent of the sovereign states to the master of the states. The Civil War did not end slavery, it extended to the entire population.
    As more people realize that they are sovereign and not slaves (you first have to recognize the initial condition), this collection of states will once again achieve the greatness that is its destiny.

  8. Correction to the statement above 640,000 was 25% of the males between 20 and 40. This would be the equivalent of losing 5 million men in Viet-Nam (we lost ~50,000).

  9. @ErvThe”Enforcer” – Actually, Bubblehead and Joel Kennedy are one in the same. “Bubblehead” is a military term, with which I assume you would be unfamiliar. President Jackson clearly opposed nullification, as I quoted — you should look up the Force Act and his Proclamation to the People of South Carolina, from which I quoted:
    If someone who governed by the “letter and spirit” of the Constitution and “supported states rights” (which I agree with you that he did) was so adamantly opposed to nullification, what does that tell you?

    Madison also clearly opposed South Carolina’s attempt at nullification:

    So, how do you “enforce” your views? Personally, I think President Lincoln did a good job. I’m sorry you oppose President Lincoln. Do the rest of your compatriots feel the same way?

  10. Convenient to take quotes out of context Bubblehead.
    The full context of your selected Madison quote is; “The true question therefore is whether there be a constitutional right in a single state to nullify a law of the U. S. We have seen the absurdity of such a claim in its naked and suicidal form. Let us turn to it as modified by S. C., into a right in every State to resist within itself, the execution of a Federal law deemed by it to be unconstitutional; and to demand a Convention of the States to decide the question of constitutionality, the annulment of the law to continue in the mean time, and to be permanent, unless ¾ of the states concur in over-ruling the annulment.” (Madison Notes on Nullification 1835) This means that the measure should go to an Article V convention and require approval of 3/4 of the states prior to becoming enforceable.
    The bottom line is that two judges have found the PPACA to be unconstitutional, while two others have not. Since the federal government has chosen to continue with business as usual without waiting for SCOTUS to rule on the legislation, the states have to find another course of action.

  11. If you want to read the entire discourse, Madison addresses the issue from every possible angle at

    Keep in mind also that Madison never envisioned the commerce clause becoming the justification for unlimited federal government power either.

  12. We should all recognize that Sen. Patti Anne Lodge, R-Huston, was the only member honest enough to state the real reason to vote against it.
    At least we have admission that we have been sold.

  13. Actually, three judges have ruled it Constitutional:

    Personally, I don’t think the individual mandate is Constitutional, but it’ll be up the the Supreme Court to decide, not some random blogger from Meridian. You should look up more of Madison’s writings regarding the South Carolina nullification crisis to get a full idea of his views. And I note you didn’t address Jackson’s proclamation. Since, as you say, he was known for his strong belief in state’s rights, and Jackson clearly opposed nullification, doesn’t it therefore follow that nullification is not a right held by the states? Suppose a state nullifies an Electoral College result?

    And I suppose you were calling for Idaho to enforce the 9th Circuit court ruling in 2002 (Idaho is part of that circuit) that ruled that teacher-led recitations of the Pledge of Allegiance that contained the phrase “Under God” were unConstitutional? Personally, I’m happy that Idaho decided to wait for the Supreme Court to weigh in on that case before Idaho rushed off to pass a law in response to a lower court ruling.

  14. I reserved opinion on the 9th circuit ruling in 2002 until SCOTUS ruled. That ruling was the result of a lawsuit, not legislation. As for your proposal of nullification of Electoral College results, I do not believe that nullification applies to that situation.
    Please provide the reference for the Jackson quote as I haven’t found that particular quote in its full context.
    As for Madison, I provided the link to the entire essay in my 12:09pm post, and as I stated there, based on readings of both Presidents Madison and Jackson, I do not believe that either of them would find PPACA remotely conscionable under the guise of Constitutional authority.
    What we are talking about is a Legislative mandate under the guise of the commerce clause that is absolutely unconstitutional. The passage of the bill was questionable to begin with (procedural gymnastics and unread) and there are multitudes of questionable components, the worst of which is the individual mandate. Even one judge ruling that the legislation is unconstitutional should result in an automatic cease and desist order until SCOTUS rules, but Moordor on the Potomac pushes forward. By the way, SCOTUS is part and party to a century and a half of usurpation of the people’s rights.

  15. Where is the logic in saying “I can find now where in the Constitution that nullifying an unconstitutional law is Constitutional”?

    Bubblehead, the problem with our country today is that we require the judicial system to decide if a law is Constitutional. We the people, the overseers of government, should know the Constitution. We should know whether or not a law is unconstitutional before the judicial system even takes a look at he law.

    Nullification is simply the people of Idaho saying “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land.”

    So in other words if the law is Constitutional it is the law of the land. If a law has been made that is not in “Pursuance thereof” the Constitution the people of Idaho can declare it null and void.

    You should also read the tenth amendment and tell me if maybe you think that might give us the right to nullify the health Care Law.

    When a law blatantly and openly violates expressed provisions of the Constitution itself it should be our duty to nullify it. Those who voted no understand this. They just don’t want to loose the federal funding for the entitlements. I understand there are those who are less fortunate and cannot always frovide for themselves. But, there are other ways to take care of them. Some will say, “but they won’t help the needy” ofcourse they won’t if the government is allready doing it. But if given the chance I think things would be different.

    Besides, what happend to the time when a citizen noticed a need and they went to work trying to take care of it. We have become to dependant on the federal government to take care of our needs. Government has never been good at that.

    We would be better of just nullifying this law and letting them take their funding and go to work as citizens feeding the hungry, clothing the naked, and taking care of the sick and afflicted.

  16. Though some may disagree, I am very impressed by the Senate State Affairs Committee.

    If those folks had taken the easy vote, they would have supported nullification. The crowd would have cheered. The members would probably not heard another word as they attended Lincoln Day dinners.

    Instead, they made the tough vote. They listened to the Attorney General — nullification is unconstitutional under both the U.S. and Idaho Constitutions and a violation of their oath of office.

    This was a vote of courage that will probably cost at least a couple members their career. But, they put Idaho over the howls of the crowd. Very, very gutsy. I really admire these folks.

    Everyone needs to take a deep breath and remember that this issue will truly be resolved by one of three (constitutional) paths: 1) The Supreme Court will declare the law unconstitutional. 2) The House will succeed in defunding the law. 3) A new President and Senate will work in 2013 to repeal it.

  17. Ignore the request for the Jackson reference, I missed the link in the 10:40 post (the delay from moderation is interesting). I had started with your 15:40 post when I sat back down. I’ll read and reflect and chime in later.
    What is your blog, we can have longer conversations there.
    As for how do I “enforce” my views? You’re looking at it. The more people that will read and think, the better off we will all be. You are correct that I was unfamiliar with the Bubblehead term, but why would you “assume” that I would be unfamiliar with it. If you are alluding to something, please state it clearly.
    As for Lincoln, if you view him as the slavery champion that he is painted as by the revisionist historians, you are sorely mistaken. Read his speeches from prior to 1862 and you will notice that he had no interest in freeing slaves, just exporting them and reserving the territories for whites.

  18. My blog is linked in the main story to my name (Joel Kennedy). I get about 10x the traffic this blog does, so I might miss your comment; if so, I apologize in advance. I was alluding to my assumption that you had never served in the military; otherwise you might have linked the mention of a retired submarine officer in the story with my nom de blog in the comments. I never claimed that President Lincoln was a champion for slaves; my claim is that he was a champion for preserving the Union.

    Someone has to decide if a law is Constitutional, otherwise our Republic will fall apart, and the Constitution and precedent established during the Jefferson Administration make that “someone” the Supreme Court. Leaving it to the hands of a shifting majority renders us a democracy that Tea Partiers are always railing against — or at least they were until this year. I’m glad that you don’t think that nullification applies to the Electoral College — I’m sure when some future State Legislature is debating a bill to do just that someone will say “but ErvTheEnforcer in Idaho says it doesn’t apply” and they’ll table the bill. Nullification would set a very dangerous precedent.

  19. Correction to my previous post — actually, this site’s traffic has increased significantly since I last checked, and I only get about twice the traffic Idaho Reporter does. Good job, Idaho Reporter staff!

  20. The Jackson proclamation (thanks for the link) is good reading. While you are correct that he is opposed to the act of nullification coming from SC, he can also clearly point to a specific justification within the Constitution for the law (imposts clause). Jackson actually vetoed significant legislation, pushed through by the Whig party, because he viewed it as unconstitutional. If memory serves correctly, there were one or two pieces of legislation that the Congress had to use 2/3 approval to override the veto.

    Does someone know when the last time a President vetoed a piece of legislation because he deemed it unconstitutional? Not simple partisan bickering, but actual reference to a violation of the Constitution. I think Cleveland was the last, but someone please correct me if I am mistaken.

    Neither the general welfare nor commerce clauses can justify the Constitutionality of PPACA and I am hoping against reason that SCOTUS (recently packed by Obama) will determine the same.
    @Bubblehead: I don’t expect anyone to use my word as justification for anything, except taking the time to do their own research and engage in honest, civil debate on the battlefield of ideas. – thank you for doing so.

  21. We need to nullify Bart Davis and Brent Hill by sending their political careers the way of the dino or rather rino. Bart Davis, the only thing that outweighs his ego is himself.

  22. I followed this bill and the hearing. The nullification bill was appropriate in light of what the Obama administration pushed through if the endgame was simply to do the political equivalent of encouraging everyone that agrees with you to stand in front of their respective local news outlets and at a predetermined time, then scream in unison, while hopping up and down on one leg.

    We are a Republic. Anyone from Ohio can stay in Ohio and tend to the matters of his own state. The slipshod imitation of labor and environmental terrorist’s political tactics that were on display during this meeting was embarrassing. For any like myself, who follow the conservative online community such as Michelle Malkin, there is growing ground swell of anger over the assault on Tabitha Hale, from Freedomworks, by a CWA Union troll. Interesting how the large and enthusiastic crowd singled out the only woman lawmaker and surrounded her like dogs, with the intention of physical intimidation. When we mimic the worst of the opposition, we have lost the moral high ground.

    Fighting the good fight does not demand continual political actions that burn precious grassroots energy and power when the end result of using those precious commodities is a foregone conclusion. Fight and act politically, like you actually intend to persevere while keeping your dignity and self respect.

    I would urge anyone who was unhappy with the final committee vote to contact Sen. McKenzie and see if he has anything in mind that is actually constitutionally viable while providing a political pathway that places Idaho in the forefront of the states rights movement.

    I for one am very interested to see if the Senate State Affairs Committee offers something of their own to address the wishes of their constituents here in Idaho next week.

  23. Well, we have our answer to what the State Affairs committee had in mind. Sen. McKenzie introduced the Madison Amendment Monday morning and it passed unanimously.

    Real reform to limit the growth of federal power in 2011 could come from states. There exists now, a once-in-a- generation opportunity to start a process that could restore a balance of state and federal power and fiscal responsibility to Washington.
    With GOP leaders in both Houses of the legislature in 27 states, 5 more states where conservative Democrats hold the balance of power, and several more where moderate Democrats might favor giving states more influence in Washington a bipartisan coalition of 34 states has the potential in 2011 to persuade Congress to propose constitutional reform to limit the growth of federal power.

    Until Oct 2011 most states will also have the unique power that comes with Congressional redistricting. An Amendment proposed in 2011 could go far towards ratification in 2012 while we still have the ‘once in 75 years’ level of conservative strength in state legislatures. This window it may not come again for a generation. It is an extraordinary opportunity, but an extraordinarily short time frame.

    There are some State House Speakers, Senate Presidents, legislators, and other political leaders like Ted Cruz, Grover Norquist, David Keene and Charlie Black who understand that we have this opportunity. The growth of federal government power and debt is out of control. Constitutional reform is needed to restore a balance of federal and state power and fiscal responsibility to Washington.

    Congress is not likely, on its own to propose such Constitutional reform. Many fear calling for an unpredictable Constitutional Convention to propose Amendments. Reagan’s Attorney General, Ed Meese originally suggested giving states the same power as Congress to propose a specific Amendment to the U.S. Constitution.

    Madison thought states had this power when he wrote in the Federalist Papers #43: “It (the Constitution) equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side or the other”.

    The Madison Amendment, based on Meese’s original concept, would ensure that Article V of the Constitution was interpreted in the way the authors of the Constitution intended, so states have the clear power to limit the scope of a Convention they call for to a single Amendment.

    Ratification of a “Madison Amendment” would:
    1. End the risk of an accidental runaway Constitutional Convention because states could clearly and constitutionally limit its scope.
    2. Give States effective new bargaining power with Congress because 34 states could propose a single Amendment.
    3. Open the door to more fundamental limits on government and federal debt that Congress would never impose on itself.

    The prospects for a balanced budget, tax limit, or spending limit amendment would be significantly improved if advocates did not have to counter fears of a “runaway convention”.

    The Madison was drafted by a team of experienced Constitutional lawyers including current and former legal staff to the House Judiciary Committee and the DOJ. More information can be found on the Madison Amendment website,

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