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

by Phil on 11/11/2009

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 –
icon for podbean

“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

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Photo courtesy Senator DeMint’s web site

There are 11 comments in this article:

  1. 11/12/2009Anonymous says:

    Hoffman wins NY-23?

    http://www.syracuse.com/news/index.ssf/2009/11/its_not_over_recanvassing_shows_ny23_race.html

  2. 11/12/2009kj says:

    Phil,

    The Constitution does not provide for state enforcement of the “natural-born citizen” clause, so any enforcement will have to come from Congress.

    How about the states requiring candidates to show proof of where and when they were born (with the nationalities of their parents)? This information and the number of years residence could be included on the primary ballots with the candidates names. At least the voters would know what they were voting for. Eligibility information could be listed above the candidates on the ballot and a similar approach to candidate listing could be applied to all other candidates on the ballot. The ballot would be only a little longer, maybe 15%?

    What about the removal of ineligible candidates from the ballot for the last election? No one has challenged the states for the removal of Roger Calero’s name. If ineligible candidate removal from the ballot has been a common practice in the past, wouldn’t it be supported by precedent?

  3. 11/12/2009kj says:

    Resisting federal gun laws to allow the states to muster militias would be something that the founders would definitely have supported.

  4. 11/12/2009Phil says:

    kj,

    Phil,

    The Constitution does not provide for state enforcement of the “natural-born citizen” clause, so any enforcement will have to come from Congress.

    How about the states requiring candidates to show proof of where and when they were born (with the nationalities of their parents)? This information and the number of years residence could be included on the primary ballots with the candidates names. At least the voters would know what they were voting for. Eligibility information could be listed above the candidates on the ballot and a similar approach to candidate listing could be applied to all other candidates on the ballot. The ballot would be only a little longer, maybe 15%?

    What about the removal of ineligible candidates from the ballot for the last election? No one has challenged the states for the removal of Roger Calero’s name. If ineligible candidate removal from the ballot has been a common practice in the past, wouldn’t it be supported by precedent?

    What you had quoted was a part of the original FreeRepublic posting.

    Knowing what I know now, I would suggest that the enforcement of presidential eligibility — per a reading of the actual SCOTUS opinion — would more than likely have standing with the States.

    Again, it’s the argument of the extent of “sole” power of enforcement, and I don’t see anywhere that states that only Congress has this sole power.

    -Phil

  5. 11/12/2009qwertyman says:

    Hoffman wins NY-23?

    http://www.syracuse.com/news/index.ssf/2009/11/its_not_over_recanvassing_shows_ny23_race.html

    Your article says no such thing. It says there’s a 3000 vote margin of victory with 10,000 absentee votes outstanding. While possible, it is extremely unlikely that these absentee votes will change the outcome, especially since a large percentage of them were submitted before Scozzafava dropped out of the race.

  6. 11/12/2009siseduermapierda says:

    Well let’s see, Hutchison said she was going to resign her seat in fall of 2009 as she runs for Gov of Texas. 4 more weeks and it will be winter. She’s into her 3rd term, as a show of good faith, she should resign immediately. Tom Coburn is also in his 3rd term, he should set a good example and resign.

  7. 11/12/2009siseduermapierda says:

    kj says:
    November 12, 2009 at 12:36 pm
    *This information and the number of years residence could be included on the primary ballots with the candidates names. *

    We shouldn’t pay to spoon-feed voters who are too lazy to learn about the candidates before they go to the voting booth. Presidential campaigns start at least 18 months before the primaries, plenty of time to learn about the candidates and decide. Show of hands – who in 2007 didn’t know Barack Obama was born and raised in Hawaii and John Sidney was born in Panama?

  8. 11/12/2009keokuk says:

    Phil

    Out of curiosity, given your support for states rights, I am curious about your feelings on the Republican healthcare bill that got voted down last week. Specifically, its provisions for tort reform place an enormous mandate on state governments by telling them where they must cap non-economic damages and how long their statutes of limitations on medical malpractice claims must be. I found this to be a rather jarring intrusion into state sovereignty. It seems to me that if New Jersey or Texas or Georgia want to have a longer statute of limitations or a higher cap on non-economic damages, they should be allowed to do so. Even if tort reform is an important goal, isn’t the entire point of states’ rights supposed to be to let the states decide how they want to set their own laws on matters like this?

    Malpractice is an area of law that has historically always been left to the states, and it’s rather difficult for me to understand how some Republicans will complain about federal intrusion into state sovereignty in the Democratic healthcare bill while ignoring the fact that their own alternative bill would impose a similar intrusion.

  9. 11/12/2009Phil says:

    keokuk,

    Phil

    Out of curiosity, given your support for states rights, I am curious about your feelings on the Republican healthcare bill that got voted down last week. Specifically, its provisions for tort reform place an enormous mandate on state governments by telling them where they must cap non-economic damages and how long their statutes of limitations on medical malpractice claims must be. I found this to be a rather jarring intrusion into state sovereignty. It seems to me that if New Jersey or Texas or Georgia want to have a longer statute of limitations or a higher cap on non-economic damages, they should be allowed to do so. Even if tort reform is an important goal, isn’t the entire point of states’ rights supposed to be to let the states decide how they want to set their own laws on matters like this?

    Malpractice is an area of law that has historically always been left to the states, and it’s rather difficult for me to understand how some Republicans will complain about federal intrusion into state sovereignty in the Democratic healthcare bill while ignoring the fact that their own alternative bill would impose a similar intrusion.

    It’s politics, pure and simple. At this time, it’s rather unfortunate but true that the GOP has to take the radical left approach and turn it into essentially a left-of-center approach to be considered in this Congress.

    Ideally, I think you’re absolutely right that the States ought to be making decisions regarding the “how” of dealing with domestic issues.

    -Phil

  10. 11/13/2009kj says:

    siseduermapierda says:
    November 12, 2009 at 3:55 pm

    kj says:
    November 12, 2009 at 12:36 pm
    *This information and the number of years residence could be included on the primary ballots with the candidates names. *

    We shouldn’t pay to spoon-feed voters who are too lazy to learn about the candidates before they go to the voting booth. Presidential campaigns start at least 18 months before the primaries, plenty of time to learn about the candidates and decide. Show of hands – who in 2007 didn’t know Barack Obama was born and raised in Hawaii and John Sidney was born in Panama?

    You and many others that frequent this site know that Mr. Obama claims to have been born in Hawaii to a British Colonial national and a US mother. There is probably a large segment of the US population that still couldn’t tell you his version of his background today.

    Unfortunately, the press did not do its due diligence on “the new guy on the scene” Mr. Obama’s background and even admitted it after the election, citing how little they knew about Mr. Obama and that they had no idea what approach he would take to foreign policy and domestic issues. Mr. Obama was elected on blind faith by a voting public that desperately wanted change. Unfortunately, they never understood that Mr. Obama’s version of change was not what most Independent voters had in mind. It is interesting that Mr. Obama does not understand (or perhaps wish to see or is being protected from the knowledge) that most Independent voters do not support Mr. Obama’s idea of change.

    If the voters are to vet at the ballot box as some posting here and some members of Congress have claimed, give them verified eligibility information on the candidates in the ballot box. This would be especially helpful when national candidates are relatively unknown to the nation. No games of cat and mouse. No confusing press versions or overt omission of essential information. No Court denial of right to know when possibly essential information is withheld by a candidate.

    How much would it cost to print this information on the ballots? What if the ballots are electronic? If it saves a few trillion dollars, maybe the little money spent on printing would be worth it!

    You can dismiss my comments if you like. At least you have had the opportunity to be exposed to some different ideas.

  11. 12/16/2009Ken Benway says:

    Another approach that is taking hold is offered by the Alliance for Bonded Term Limits http://www.bondedtermlimits.org/ a grassroots, 501 (c)(3) non-profit organization in Pinehurst, NC.

    See our history-making signing of Will Breazeale, candidate for NC 7th Congressional District http://www.youtube.com/watch?v=aZusco2nqew

    We now have five candidates for the Congress in the bonded term limits pipeline.

    And, see JC Watts’ endorsement http://www.lvrj.com/opinion/a-fresh-approach-to-term-limits-65931402.html

    Letting candidates for the Congress put their money where there mouths are, and end-running the term-limit legislative Gordian Knot. It’s all about credibility.