A considerable amount of hay has been pitched lately on state nullification as a strategy to block the implementation of Obamacare in the state of New Jersey. Proponents of nullification argue that when the U.S. Constitution was ratified, it was understood that among the powers reserved to the states was that of nullifying (i.e., voiding) any federal legislation that violates the provisions set forth in the tenth amendment. In effect, the legislature of each and every state in the Union becomes a mini-SCOTUS, possessing both the competence to interpret the Constitution and the authority to nullify any federal legislation deemed unconstitutional.
In fact, it was reaction on the part of the Lonegan Cabal to my initial criticism of legislation sponsored by Assemblywoman Alison Littell McHose nullifying Obamacare that obliged me to resign from RightDirection.com. Not long thereafter, I founded Bulldog Pundit and have since exposed the Lonegan Cabal and their stooges at Conservative New Jersey for the Jacobin weasels they truly are.
Over the past three months I have argued against nullification in some detail here and here. Then it occurred to me: if, as Ms. McHose argues, nullification is an effective strategy against Obamacare, then surely it would be an even more powerful tool to stop federal abortion law dead in its tracks, so to speak. All New Jersey has to do is nullify any federal legislation that prohibits the states from outlawing the slaughter of unborn human beings.
And yes…it has been a slaughter: since 1973, roughly 50 million unborn babies have been killed, thanks to a majority of U.S. Supreme Court Justices . But would the nullification option apply in this case?
Michael Maharrey – Communications Director of the Tenth Amendment Center – certainly believes so.
The Supreme Court has no power to outlaw abortion. The federal government has no authority over life and death matters. That’s why federal laws against murder don’t exist. It is a state issue. So at best, Ertelt and pro-life advocates can only hope for a decision overturning the ridiculous assertions of Roe, throwing the issue back to the states.
So here’s a question for pro-life advocates: why waste the time and energy battling at the federal level when the states rightfully hold the keys? Court rulings carry no weight when they defy the Constitution, and states should simply refuse to enforce them.
In fact, some states have already started to flex their muscles.
Last week, the Ohio House passed bill would that would make abortion illegal after the fetus has a detectable heartbeat. HB 125 passed 54-44.
The law would not punish the woman who had the abortion, but instead targets abortion providers.
The Ohio bill does not rest on a constitutional argument, but instead asserts the “viability” of a fetus after the heart begins beating. Even many in the pro-life community oppose the bill, fearing the courts won’t buy the argument and that it will simply strengthen Roe.
“Unfortunately, the court has ruled that states can place limitations on post-viability abortions, but pre-viability there can be zero restrictions,” executive director of Ohio Right to Life Mike Gonidakis told the Columbus Dispatch. “We certainly don’t want the courts to reaffirm Roe with a decision in Ohio.”
The fundamental question remains, why should five black-robed demi-Gods have the right to decide for the people of Ohio how they choose to define viability?
Answer: they shouldn’t.
And federal courts have no authority to do so under the Constitution.
So there it is: nullification is not only a viable option but, according to Maharrey, the only one that will truly work. All of which leads us back to Alison McHose, sponsor of NJ Assembly Bill A4155, which “Renders federal “Patient Protection and Affordable Care Act” null and void in NJ.”
It’s worth noting that Ms. McHose has sponsored or co-sponsored a raft of legislation addressing various pro-life issues:
- A151 – “Ovarian Health Protection Act”; prohibits procurement or use of human eggs for research or experimentation.
- A162 – Establishes sex-selection and race-selection abortions as third degree crimes and permits civil actions.
- A163 – Requires physicians to provide patients opportunity to undergo obstetrical ultrasound or sonogram within 48 hours of performing abortion.
- A1376 – “Women’s Right to Know Act.”
- A2968 – Requires women incarcerated in county correctional facilities to cover full cost of abortion.
- A3085 – “The Abortion Mandate Opt-Out Act”; prohibits certain qualified health plans that provide abortion coverage from participating in health benefits Exchanges in the State.
- A170 – Prohibits use of public funds for embryonic stem cell research.
- ACR71 – Proposes amendment to constitution regarding parental notification for medical or surgical procedures or treatments relating to pregnancy to be performed on minor children.
So what’s missing from this legislative agenda? You guessed it: a bill that nullifies the federal legislation authorized by Roe v Wade and reserves to New Jersey the sole authority to legislate on the matter of abortion.
But is such legislation even possible? Absolutely…it has already been proposed in the state of Georgia:
Georgia Rep. Bobby Franklin (R – Marietta) filed a bill during the 2011 legislative session that got more to the point. The legislation declared life begins at conception and went on to assert the state’s right and responsibility to protect the lives of its citizens.
What, then, prevented or is preventing Assemblywoman McHose from following Rep. Franklin’s lead? Good question. We know that Ms. McHose is an ardent proponent of nullification who understands perfectly well that her proposed bill would never be voted into law by the NJ State Legislature – and if it did pass, it would be struck down by SCOTUS.
Therein lies an irony: true-believing Tenthers maintain that SCOTUS is NOT the final arbiter of federal law and authoritative interpreter of the U.S. Constitution – they argue that the legislatures of the individual states have the constitutional authority and the competence to declare any federal law in violation of the U.S. Constitution.
Based on her seemingly enthusiastic support of nullification, the reasonable observer may conclude that Alison McHose shares this opinion regarding the power of the Supreme Court of the U.S. If so, I am understandably curious to know how she explains this passage from the Statement section of ACR238, a resolution that “Claims sovereignty under Tenth Amendment to United States Constitution over all powers not otherwise enumerated and granted by Constitution to federal government.“
Additionally, this resolution notes that in New York v. United States, 505 U.S. 144 (1992), the United States Supreme Court ruled that Congress may not simply commandeer the legislative and regulatory processes of the states. As such, this resolution claims sovereignty under the Tenth Amendment over all powers not otherwise enumerated and granted by the Constitution to the federal government and serves as notice and demand to the federal government to cease and desist mandates that are beyond the scope of these constitutionally delegated powers.
A4155 implicitly rejects the authority of SCOTUS as the court of final review while ACR238 relies upon it for the strength of its argument. The poison of the former becomes the sustenance of the latter and we are left wondering what to make of all this.
Here is my understanding – and you can take it or leave it:
Alison Littell McHose is a politician – and politicians routinely pander to the constituents who form their base of support. She knew perfectly well that the nullification legislation she proposed hadn’t a chance in hell of becoming the law of New Jersey or surviving a SCOTUS review. But she was also perfectly aware that her sponsorship of the legislation would resonate strongly with constituents and organizations whose familiarity with nullification was a passing one at best. In effect, A4155 is nothing more than shameless pandering…red meat for a conservative base that is understandably alarmed by the prospect of Obamacare but otherwise ignorant of the nuances of the nullification issue.
In my mind, any person of integrity who truly believes in both the nullification option and the inalienable right to life of all humans – as Alison McHose appears to believe – would not hesitate to invoke nullification on behalf of the unborn. Unfortunately, the on-going slaughter of unborn babies apparently doesn’t merit an Assembly bill proposing its nullification on the part of Assemblywoman Alison Littell McHose and for good political reason: it doesn’t top anyone’s list (except the pro-life movement, of course) as a hot-button campaign issue at this point in time and therefore isn’t as affective a tool for pandering as Obamacare.
Apparently, Ms. McHose doesn’t so much believe in the power of nullification as she believes in the power of re-election – making her yet another dreary political hack who happens to embrace the conservative agenda.