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A nullity

In Idaho as in many places, a lot of conservative Republicans make a great sound about adhering to and upholding the constitution – as self-described “constitutionalists.” So how does that work out in practice?

The House State Affairs Committee this morning introduced a measure (bill number yet to be assigned), by Republican Representatives Judy Boyle, Midvale, and Vito Barbieri, Dalton Gardens, which says (in Barbieri’s paraphrase): “The federal health care laws recently passed by the U.S. Congress have invaded the traditional sovereign powers of the state. This bill declares that this intrusion by the federal government is … null and void.” The vote to introduce was party-line, all Republicans in favor.

Democrats had a variety of issues to raise, though those evidently had little pull. After Barbieri offered an estimate of savings to the state of $228 million if the federal law were nullified (here’s a good one for PolitiFact to check out), Representative Phylis King, D-Boise, had a more immediate query. She “said the state Department of Insurance already has received $2 million from the federal government to start setting up health care exchanges. “This is the law of the land. So are we going to give it back? Are those folks working on this, are they going to be fired?” she asked. Barbieri said, “It’s inestimable, and that’s the difficulty.””

Some difficulty.

Not all indicated they will necessarily support the measure later. At least one, Representative Lynn Luker of Boise, pointed out that as a legislator he swore to uphold the constitution of the United States, and this bill … well, might run afoul of that.

Luker’s concern is much more than just speculative. A state attorney general’s opinion delivered on January 21 was conclusive: While federal laws can be challenged for constitutionality in the courts (and Idaho is among the state lawsuit challengers to the health care care law), state legislature have no authority to overrule a federal law.

From the AG’s opinion: “Once Idaho was admitted as a State it acquired all of the privileges and immunities held by each of the other States, but as reflected above, the right of nullification, the right of secession, and the compact theory had all been rejected by the United States by the time of statehood. The framers of the Idaho Constitution were acutely aware of that fact. Article I, § 3 of our Constitution states: ‘State inseparable part of Union.-The State of Idaho is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land.’ The framers therefore expressly recognized Idaho’s status as a part of the United States and the supremacy of the United States Constitution. Consistent with this recognition, every legislator is required to affirm “that I will support the constitution of the United States and the constitution of the State of Idaho.” Legislators and other state officials, in other words, pledge to carry out their duties in a fashion that directly conflicts with the second form of the nullification theory. The alpha and omega of the nullification theory, in sum, rest upon rejecting the principle that the United States Constitution as the supreme law of the land.”

And here we thought Barbieri and Boyle, and many of the Republicans on the State Affairs Committee, were among the corps of self-described “constitutionalists.” Or if they are, what could the term possibly mean?

UPDATE Noting reports about a book being delivered en masse to legislators, Nullification by Thomas Woods, a book cuirculated nationally among the networks of the right. (National Public Radio reports: “As a college student in 1994, Woods helped found the League of the South, an Alabama group the Southern Poverty Law Center says has become a “neo-Confederate group” seeking a second Southern secession. Woods told the AP last week he thinks states have a right of secession, but he doesn’t support the Confederacy’s return. He’s no longer a member.”)

A suggestion: Read Garry Wills’ excellent A Necessary Evil: A History of American Distrust of Government, a fine overview of the subject, with some concise but clear and ample discussion of the problem of nullification.

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