Monday, February 24, 2014

Governors: ObamaCare Here To Stay

by JASmius

A textbook case of a self-fulfilling prophecy:

No matter where they stand on ObamaCare, America's governors agree on one thing about President Barack Obama's controversial healthcare overhaul: It's not going away.

"We're just trying to make the best of a bad situation," said Republican Governor Terry Branstad, of Iowa at a meeting of the nation's governors in Washington, D.C., this weekend.

"We're trying to make it work as best we can for the people of Iowa," said Branstad, who calls the healthcare law "unaffordable and unsustainable," yet something he has to implement by law.

Governors from both parties report that a full repeal of the law would be complicated at best, if not impossible, as states move forward with implementation and begin covering millions of people — both by expanding Medicaid rolls for lower-income resident or through state or federal exchanges that offer federal subsidies to those who qualify.

I'm of two minds about this story.  As a realist I recognized that the last chance to get rid of ObamaCare was the 2012 election; remove its namesake, elect Mitt Romney in his place, and repeal would be a serious possibility because the core implementation hadn't taken place yet.  Tragically, this didn't happen, which meant another four years of O (at least) and at least that long for ObamaCare to become irremovably entrenched.  So in this sense, governors are simply seeing the handwriting on the wall.

But what about nullification, you may be asking?  As you might imagine, this is far more of a political matter than a constitutional one:

Nullification, in United States constitutional history, is a legal theory that a state has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional. The theory of nullification has been rejected repeatedly and rarely legally upheld by the Federal courts.

The theory of nullification is based on a view that the States formed the Union by an agreement (or "compact") among the States, and that as creators of the federal government, the States have the final authority to determine the limits of the power of that government. Under this, the compact theory, the States and not the federal courts are the ultimate interpreters of the extent of the federal government's power. Under this theory, the States therefore may reject, or nullify, federal laws that the States believe are beyond the federal government's constitutional powers....

Courts at the state and federal level have generally rejected the constitutionality of nullification, including the Supreme Court.[2] The courts have decided that under the Supremacy Clause of the Constitution, federal law is superior to state law, and that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore, according to the Supreme Court's interpretation of the Supremacy Clause, the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws.
There's just one wee problem with the above; Article III makes no mention of "judicial review," nor does it exclusively empower the courts as the arbiters of constitutionality.  That power was illegally glommed by the infamous Chief Justice John Marshall in the equally infamous case Marbury v. Madison.  What Article III does do is establish the Supreme Court's case jurisdiction.

Which brings us to the aforementioned Supremacy Clause, under Article VI Section II, the actual justification for governors' collective feelings of hopeless resignation:

The Supremacy Clause is the provision in Article Six of the United States Constitution, Clause 2, that establishes the U.S. Constitution, federal statutes, and U.S. treaties as "the supreme law of the land." The text provides that these are the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law of any state.

Wow.  I guess that's that, then.  Endgame.

Or is it?  What does the Supremacy Clause actually say:

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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Well, now.  So unconstitutional laws are not the supreme law of the land, and the states are free to disregard - or "nullify" - them.  But this gets us right back to judicial review, which we're told by judges gives them the sole right to determine constitutionality by way of.....judicial review.  And that judicial review decided that ObamaCare was constitutional.  Or, to put it another way, an unconstitutional law was unconstitutionally declared constitutional.

And that gets us back to the matter of this being more a case of political will - even moreso constitutional knowledge - than constitutionality.  With 211 years of entrenchment and momentum behind it, the concept of judicial review is part of the de facto "law of the land," while nullification is obscure and considered so "fringe-y" as to not even be a legal theory.  So I, personally, wouldn't be so hard on GOP governors over this.

What's that expression about "nature, red of tooth and claw," though?  ObamaCare is unaffordable and unsustainable, among other "Things," as Governor Branstad observed.  It's laying waste to both American health care and what's left of the U.S. economy.  The question is, will, at some point, a majority of Americans finally exclaim, "mevyap!" and be willing to support repeal, or will their corrupt obliviousness keep us inescapably in poverty and serfdom?

I'd only add that the entrenchment factor applies just as much, if not more, to Da Peepul than it does to state governors.  And you can extrapolate from there what that does to the chances for nullification of the Patient Predation & Unaffordable Care-Less Act.

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