Eric Kleefeld May 14, 2010, 1:14 PM

The New Hampshire House of Representatives yesterday defeated a proposal to nullify the federal health care law and to make it a felony for any federal official or employee to attempt to enforce it. The margin was 121 in favor to 182 against.

One of the co-sponsors, state Rep. William Smith (R-New Castle), told TPMDC that he does not believe the states can nullify any and all federal laws — only those federal laws that are unconstitutional themselves. “I think obviously those that are backed up by the Constitution, the provisions of the federal Constitution … that the federal government has the top jurisdiction in those areas where the federals have authority to create laws, such as for defense,” said Smith.

The proposal — which can be found here — declared that the federal government overstepped its authority under the Tenth Amendment. It also states: “The people of the state of New Hampshire have never delegated to the United States of America any power, jurisdiction and right other than those expressly enumerated in Article I, Section 8, Clauses 2 through 17 of the United States Constitution.”

It then declares the health care reform law null and void in the state, and that it would be a crime in New Hampshire to enforce it:

I. The general court of the state of New Hampshire declares that the federal law known as the “Patient Protection and Affordable Care Act,” signed by President Barack Obama on March 23, 2010, is not authorized by the Constitution of the United States and violates its true meaning and intent as given by the Founders and Ratifiers, and is hereby declared to be invalid in this state, shall not be recognized by this state, is specifically rejected by this state, and shall be considered null and void and of no effect in this state.

…

IV. Any official, agent, or employee of the United States government or any employee of a corporation, association, or organization providing services to the United States government who enforces or attempts to enforce an act, order, law, statute, rule, or regulation of the government of the United States in violation of this act shall be guilty of a class B felony and upon conviction shall be punished by a fine not exceeding $4,000, or a term of imprisonment, or both.

I asked Smith if the co-sponsors’ intention here had genuinely been to jail federal employees, or was this instead an effort to jump-start litigation over the health care law itself? “Well, we didn’t have much doubt in our mind that it would trigger the litigation,” said Smith. “On the other hand, without penalty there is no bite to that. So it would depend on the circumstances if the bill had passed.”

However, Smith made clear that this proposal was not simply about triggering litigation — noting that attorneys general in other states are already suing the federal government over it. And Smith noted that New Hampshire Gov. John Lynch’s (D) administration is not participating in it.

“That litigation to challenge it is what I would have preferred to have seen,” said Smith. “But we obviously weren’t going to take that approach as determined by the governor, so we did the approach we could take in the legislature.”

Health Care, Nullification, Tenthers