Home -> Law Blog Directory -> Obama Citizenship Blogs -> The Right Side of Life

Obama Citizenship

: The Right Side of Life

#iamthemob: States? Rights, Healthcare, and Term Limits

By Phil

I would typically post a “States’ Rights Update” for something like this, but enough stories broke out concerning a plethora of issues that are affected by the balance of power RE: federalism that I thought it best to put this under “#iamthemob,” a Twitter “hash tag” the speaks to the elites in DC calling tea partyers mobsters.

And, especially for this posting, the label works.

We’ll start out with a short snippet of a monologue by Judge Andrew Napolitano who happened to sub for Glenn Beck’s FoxNews show (h/t MediaMatters). If you’re a “Tenther” like me, you’re gonna love this:

As I’ve been chronicling highlights on my blog — and much more can be found at Michael Boldin’s TenthAmendmentCenter.com site — movement towards the concept of “nullification” is certainly at hand. The latest from Kentucky:

In states around the country, there?s a growing movement to address and resist two of the most abused parts of the Constitution ? the Commerce Clause and the 2nd Amendment.  Already being considered in a number of state legislatures, and passed as law in Montana and Tennessee this year, the Firearms Freedom Act (FFA) is a state law that seeks to do just that.

The latest to join the FFA movement?  Kentucky.  Pre-filed for the 2010 legislative session, HB87 seeks to ?Create new sections of KRS Chapter 237, relating to firearms, firearm accessories and ammunition that are made in Kentucky, marked made in Kentucky, and used in Kentucky, to specify that these items are exempt from federal law?

While the FFA?s title focuses on federal gun regulations, it has far more to do with the 10th Amendment?s limit on the power of the federal government.  The bills in state houses contain language such as the following:

?federal laws and regulations do not apply to personal firearms, firearm accessories, or ammunition that is manufactured in [this state] and remains in [state]. The limitation on federal law and regulation stated in this bill applies to a firearm, a firearm accessory, or ammunition that is manufactured using basic materials and that can be manufactured without the inclusion of any significant parts imported into this state.?

So, what’s the principle behind nullification?

Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ?nullifies? a federal law, it is proclaiming that the law in question is void and inoperative, or ?non-effective,? within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

All across the country, activists and state-legislators are pressing for similar legislation, to nullify specific federal laws within their states.

Such examples of nullification include the Arizona State Legislature that has put its own State constitutional amendment to be on the ballot in 2010 to, among other things, overrule anything that prohibits the sale of private insurance.

As far as the Second Amendment is concerned, there is already a lawsuit in effect in Montana based on their legislation that is now law that exempts any firearms or munitions specifically made and sold within the State from being subject to federal gun laws.

You can see much more concerning the movement to nullify federal gun laws here.

On the healthcare front, things are similarly brewing at the State level. As 73Wire generally reports:

With the House of Representatives passage of H.R. 3962, the Affordable Health Care for America Act, and the Senate currently reviewing at least two different versions of their own Health Care reform bills, States are beginning to prepare for the possibility that the Federal government will require, by law, that they spend (millions or billions) of dollars they do not have to provide insurance to their populations. …

The Individual Mandate portion of any bill would require State Medicare operations to accept an influx of new enrollees onto their books at levels never before seen in America. California, for example, already battling record high unemployment and budgetary problems would have to accommodate upwards of 1.6 million people required by law to have  coverage. …

Most states are facing similar problems, according to a new Pew Research report released today finding:  10 states face looming budget disasters and that?s just one part? these bills would also require States to set up and operate a network of state-operated healthcare exchanges …

Although some stimulus money was slotted to boost Medicaid in States across America to help alleviate the burden, those funds will run out well before States recover form high unemployment and a down economy.

More can be found at the link.

More specifically, Virginia’s new Governor-Elect is saying no to federally-ran healthcare (h/t CNSNews), instead wanting the States to take more control over exactly how programs are run:

Virginia?s Governor-elect Bob McDonnell (R) said that his administration would not participate in a government-run health insurance plan, if one is passed by Congress and signed into law. He also urged other governors to ?stand up? against federal proposals if they are not good for their states.

McDonnell, who won election on Nov. 3 with 59 percent of the vote, said on the Nov. 8 edition of CNN?s ?State of the Union? that a government-run public option would be bad for his recently red state. McDonnell also said that during the campaign he heard concerns from Virginia voters about the negative consequences of the congressional Democrats? health care overhauls.

?My concern is just from hearing from Virginians over the last couple of months, is the increase in cost, less choices, perhaps longer waiting lines, and more government control,? McDonnell said on CNN.

?Families and businesses in Virginia told me they?re very concerned about those [issues], taking money from Medicare, maybe $400 billion,? he said. …

?Well, either way, my preference would be not to have Virginia participate,? McDonnell told CNN. ?We?ve outlined a number of things I think we can do at our state level, John [King, host of ?State of the Union?], that will help our people have more access at lower cost, but I?m very concerned about turning this significant section of the American economy over to the federal government.?

McDonnell said that other state governors needed to ?stand up? to Washington when federal policies are bad for individual states.

?I believe that a governor should stand up to Washington,? he said. ?If they do things that are bad for Virginia, that are going to kill jobs or raise taxes or create new bureaucracy or hurt small business, I will be a governor that will stand up and say, that?s not good for Virginia.?

McDonnell added that he and his fellow governors, both Republicans and Democrats, knew their states best and were well-positioned to make decisions on which health reforms work ? not Washington bureaucrats.

?I believe in our federal system,? he said, ?that the governors, Republican and Democrat around the country, [are] closer to the people [and] can make some of these decisions better.?

A general synopsis of how the proposed healthcare legislation would be mandated upon the States can be found at the link.

Switching gears somewhat, yesterday, South Carolina GOP Senator Jim DeMint introduced what he calls the “Term Limits for All” constitutional amendment:

November 10, 2009 – WASHINGTON, D.C. – Today, U.S. Senator Jim DeMint (R-South Carolina) introduced an amendment to the United States Constitution that would apply term limits to all members of Congress, limiting U.S. Representatives to three terms and U.S. Senators to two terms in office. The amendment is cosponsored by U.S. Senators Tom Coburn (R-Oklahoma), Kay Bailey Hutchison (R-Texas), and Sam Brownback (R-Kansas). As an amendment to the Constitution, it would require a two-thirds majority vote approval in the House and Senate and must be ratified by three-fourths of the states.

“Americans know real change in Washington will never happen until we end the era of permanent politicians,” said Senator DeMint. “As long as members have the chance to spend their lives in Washington, their interests will always skew toward spending taxpayer dollars to buyoff special interests, covering over corruption in the bureaucracy, fundraising, relationship building among lobbyists, and trading favors for pork ? in short, amassing their own power. I have come to realize that if we want to change the policies coming out of Congress, we must change the process itself. Over the last 20 years, Washington politicians have been reelected about 90% of the time because the system is heavily tilted in favor of incumbents. If we really want to put an end to business as usual, we?ve got to have new leaders coming to Washington instead of rearranging the deck chairs as the ship goes down.?

Senator Coburn added, ?The best way to ensure we are truly a government of the people, for the people, and by the people, is to replace the career politicians in Washington with citizen legislators who care more about the next generation than their next election. The power of incumbency has created an almost insurmountable advantage for Washington politicians. Incumbency allows politicians to raise millions of dollars in campaign funds in exchange for earmarks. Incumbency gives Congress the power to raise money for itself ? Congress just approved itself an increase of nearly $250 million from the U.S. Treasury that members will spend to promote themselves. Finally, with redistricting incumbents can choose their voters rather than voters choosing their representatives. Term limits is the best way to break this cycle.?

- PDF of Term Limits for All amendment
- Download Senator DeMint’s podcast on Term Limits for All –

?Some say only long-serving, seasoned elites have the skills to lead the people, but that?s exactly what we have today and how do you think it?s working out for us?? said Senator DeMint. ?It wasn?t the ?people? who gave us a $12 trillion debt, an IRS tax code seven times longer than the Bible, over 1,700 departments of the federal government, trillion dollar deficits as far as the eye can see, $100 trillion long-term shortfall in Social Security and Medicare, the Wall Street and auto bailouts, and the pending health care takeover.

?This nation can no longer afford these entrenched men and women who enjoy lives of luxury wholly insulated from the consequences of their major policy failures.

?I want to be clear: demanding that reformers adopt self-imposed term limits is a recipe for self-defeat on this issue. We lost the battle for term limits after the 1994 Republican Contract with America because we forced our best advocates for reform to go home, while the big-spending career politicians waited them out. We must have term limits for all or term limits will never succeed. Only when we apply the same rules to all will we be able to enact vital bipartisan reforms.

?Term limits will increase legislative turnover, expand the field of candidates who run for office, and instill transparency and accountability in our public officials. By ratifying this amendment, we can end the tremendous advantage enjoyed by incumbents in Washington, break long-lasting ties to special interests and lobbyists, and transform Congress from the body of career politicians that it has become, to a chamber of true citizen legislators,? said Senator DeMint.

However, as The Washington Times notes, don’t expect the Democrats to be too thrilled with the proposal:

<”It’s a great issue to talk about, but it’s not going to happen,” said Sen. Richard J. Durbin of Illinois, the Democratic majority’s second-highest ranking leader.

Mr. Durbin said he didn’t know whether the bill would even get a vote.

Though, Sen. DeMint’s spokesman Wesley Denton said that the bill would succeed if enough people got behind it and forced Congress to bring it to a vote.

GOPUSA had a similar sentiment:

I whole-heartedly support this action. The problem is that for the Constitution to be amended, the proposed amendment must pass by two-thirds vote in both the House and Senate and then be ratified by three-fourths of the states. Thus, Congress has to first pass an amendment that would bring to an end their perks and power.

As noted in the Washington Times, “Senate leaders and longtime Washington watchdogs said Mr. DeMint’s bill had a zero chance of becoming law, mostly because of a general lack of interest and the high hurdles to amending the Constitution.”

Thus, the only way such a measure could pass is if the public got behind it. We have seen what can happen with the Tea Party movement and the 9/12 Project. Americans are more than frustrated with the federal government. Enough is enough!

It’s time to put an end to career politicians in Washington, DC. Go there, do your job, and come back home!

As I had posted back on January 20, 2009, the Supreme Court has already essentially ruled that any restrictions that go beyond the Constitution regarding the length of federal office tenure cannot be settled at the State level (from a discussion showing that States could enforce things like the presidential eligibility clause, but cannot add to what’s already laid out):

Also, a state cannot impose additional requirements on elections to federal offices?which is why Congressional term limits can only come from Congress (fat chance). In U.S. TERM LIMITS, INC. v. THORNTON(1995) the Supreme Court ruled (in the usual 5-4 split, with Kennedy in the majority) that

?. . . the Constitution prohibits States from imposing congressional qualifications additional to those specifically enumerated in its text. Petitioners? argument that States possess control over qualifications as part of the original powers reserved to them by the Tenth Amendment is rejected for two reasons. First, the power to add qualifications is not within the States? pre-Tenth-Amendment ?original powers,? but is a new right arising from the Constitution itself, and thus is not reserved. Second, even if the States possessed some original power in this area, it must be concluded that the Framers intended the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby ?divested? States of any power to add qualifications.?Nor can the Court agree with petitioners? related argument that (term limits are) a permissible exercise of state power under the Elections Clause, Art. I, 4, cl. 1, to regulate the ?Times, Places and Manner of holding Elections.? A necessary consequence of that argument is that Congress itself would have the power under the Elections Clause to ?make or alter? a measure such as (term limits), a result that is unfathomable under Powell v. McCormick. Moreover, petitioners? broad construction is fundamentally inconsistent with the Framers? view of the Elections Clause, which was intended to grant States authority to protect the integrity and regularity of the election process by regulating election procedures, see, e.g., Storer v. Brown, 415 U.S. 724, 730 , 733, not to provide them with license to impose substantive qualifications that would exclude classes of candidates from federal office.

While this case dealt with term limits, there really is no distinguishing facts that would allow a different decision regarding presidential primaries. The Constitution does not provide for state enforcement of the ?natural-born citizen? clause, so any enforcement will have to come from Congress.

-Phil

AxXiom’s Rules for Activists

Subscriptions -=- Twitter: @trsol -=- Facebook (TRSoL) -=- Facebook (Rightside Phil)

Photo courtesy Senator DeMint’s web site

Full post as published by The Right Side of Life on November 11, 2009 (boomark / email).