The politics of nullification are now coming to the key early presidential caucus state of Iowa, where the Republican state House has just passed a bill outlawing the individual health insurance mandate in the federal health care reform law.
The Des Moines Register reports:
But it is not clear whether the states have the legal authority to exempt their residents from the requirements of the federal law.
Rep. Lance Horbach, R-Tama, said, however: “This bill deals with the federal government impeding upon states’ rights and individuals’ rights. We have the ability, the sovereign ability in the state of Iowa and as legislators representing the people, to make that decision. The federal government does not.”
The bill is not guaranteed to pass, though: It now heads to the state Senate, where Democrats hold a narrow majority.
Theories of nullification were often floated during the first several decades of the United States, by individual states having disputes with the federal government over issues ranging from slavery to tariffs. Nullification also goes against the clear language of the Constitution:
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; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Federal supremacy was finally established by the Civil War and the Northern victory over the South’s attempted secession. Nullification was later invoked by Southern segregationists during the civil rights movement, in efforts to interpose the state against federal civil rights laws and courts orders, and was consistently rejected in federal courts.
Thus, if the federal government has the constitutional power to establish the individual mandate — a matter currently under litigation — then states would not have the ability to opt out of it.