Fellow Constitutionalists, Last Thursday the 4th Circuit Court of Appeals weighed in on the Constitutionality of the individual mandate. Actually, to be more accurate, the 4th Circuit ruled that it would not rule on the individual mandate. Instead it found legalistic rationalizations to avoid doing its duty. The 4th Circuit ruled that the State of Virginia doesn’t have standing to challenge the individual mandate. The 4th Circuit also ruled that Liberty University can’t challenge the individual mandate because the individual mandate is a tax, not a penalty.
Both of these rulings directly conflict with other Circuit Court rulings on exactly these issues. We now have disagreement between the 4th Circuit, 6th Circuit, and 11th Circuit regarding several issues. Again, this means that the Supreme Court is almost certain to take up these cases very soon.
While I disagree with the 4th Circuit’s ruling that the State of Virginia lacks standing to challenge the individual mandate, the ruling does highlight an important point: Virginia’s law nullifying the individual mandate is nothing more than political bluster from Virginia State politicians. Virginia’s nullification law has no effect in the real world because it has no means of enforcement.
Nullification is a Constitutional doctrine where a State or individual ignores a Federal law because the law is unconstitutional. Nullification is a valid and powerful Constitutional doctrine. Long ago the Supreme Court established that unconstitutional laws are void. A state nullification law is simply legislation passed by a state that expressly concludes that a specific Federal law is unconstitutional.
Unfortunately, all current attempts by state legislatures to use this powerful doctrine have failed because they lack any kind of enforcement mechanism. They leave no consequence for the Federal government if it ignores the attempted nullification. In reality these so-called nullification laws aren’t laws at all, they’re simply unenforceable resolutions.
To be a real law, as opposed to a resolution, a legislative act must include a consequence for failure to follow the law. In other words, if you can ignore the so-called law and nothing happens to you, it isn’t really a law.
Virginia’s so-called law nullifying the individual mandate, is a perfect example. The law essentially said that no Virginia citizen can be required to purchase health insurance. However, it did nothing to protect Virginia citizens from the individual mandate because it created no consequence for the Federal government if the Fed gov ignored the Virginia law.
The 4th Circuit’s ruling recognized this failure of the Virginia law. Because Virginia had based its standing claim on its toothless attempt to nullify the individual mandate, the 4th Circuit concluded that the State didn’t have standing. According to the 4th Circuit, because the Virginia nullification law doesn’t require or allow the State to take any action upon violation of its law, the State STILL has no legal interest in whether or not the Federal government enforces the individual mandate against Virginia citizens.
Again, I disagree with the Court’s ruling for reasons I won’t get into here. But their ruling makes an important point: the Virginia legislature failed its citizens. It publicly said that the Federal government is violating its citizens rights, but isn’t willing to do anything about it. Virginia said, we’re going to highlight this violation by recognizing it and publicly condemning it, AND we’re going to sit here and do nothing while it happens.
I admit that I’m being a little harsh toward Virginia. It did, after all, sue to prove that the individual mandate is unconstitutional. This is more than many other states did. But its lawsuit has now been dismissed because it failed to pass a nullification law that had any teeth.
My home state of Tennessee is in even worse condition. Tennessee passed an Obamacare nullification law, AND the Attorney General of Tennessee refused to join any lawsuit challenging any aspect of Obamacare. So, Tennessee is currently in the position of publicly acknowledging that the Federal government is violating its citizens Constitutional rights, AND it is actively doing nothing to stop the violation. Worse, its State legislators are patting themselves on the back for passing a meaningless nullification resolution.
Unlike other state legislators, Tennessee legislators can’t plead ignorance about the toothlessness of their nullification act. Last Fall and Winter Liberty Legal Foundation actively lobbied the Tennessee legislature to pass several nullification bills that all had teeth. The bills we supported were different because they created criminal penalties for violation. Our bills would have made it a felony for any government agent, Federal or State, to attempt to enforce any Federal law that has been nullified by the State. After enactment, these bills would have required local law enforcement to arrest Federal agents if they violated the nullification law. Liberty Legal was successful in getting two bills introduced into both houses of the Tennessee legislature, and getting several legislators to support these bills. Unfortunately both bills were killed in committee. We will be lobbying harder during the next session.
Nullification laws with provisions for arresting Federal agents would obviously lead immediately to court challenges between the State and Federal government. But that’s the point. The 4th Circuit just refused to rule on the Constitutionality of the individual mandate by claiming that the State has no legal interest in the individual mandate. If any State had an IRS agent sitting in a jail cell, or even passed a law allowing them to jail an IRS agent, legal standing would not be a problem. In fact, Obama’s Department of Justice would likely file their own lawsuit against the State the day after such a bill was passed.
Passing a nullification bill with teeth would force the Federal government to bring the battle to us. Currently we have States like Virginia and Tennessee passing toothless nullification bills and the Federal government’s response is to ignore them.
We Constitutionalists need to start fighting smart. Force the enemy to come to us. We hold the high ground. Yet we continuously fight on their terms. This is why Liberty Legal Foundation refuses to challenge the individual mandate alone. We insist that ALL of Obamacare is outside of the Constitutional authority of Congress. By doing this we take the fight to where we want it to be. We lobby for nullification bills with teeth, so that the Federal government can’t simply ignore nullification. Liberty Legal’s methods will force the Federal government to come to us. It will force them to justify THEIR arguments, rather than the other way around.
We need your help to turn this fight around. Please contact your state legislatures and insist upon State nullification laws that would criminalize Federal enforcement of unconstitutional Federal laws. Please continue to spread the word about Liberty Legal Foundation. And please give what you can to support our efforts.
In Liberty,
Van Irion
Co-Founder, Lead Counsel
LIBERTY LEGAL FOUNDATION