Senator Tom Davis on next steps for H3101 in the Senate

“The ACA is an infection that endangers not only the effective delivery of health care in our nation, but also our economy and quality of life,” state Sen. Tom Davis, R-Beaufort, said. “South Carolina and other states have an obligation to slow the spread of that infection as best they can until such time as Congress repeals the Affordable Care Act.” And there are lots of ways in which the state can discharge that obligation:

• Invoking principle of anti-commandeering
• Rejecting federal funds to enroll people in exchange
• Rejecting ACA-authorized Medicaid expansion
• Prohibiting the creation of a state exchange
• Challenging the illegal implementation of the ACA
• Curbing abuses by ACA navigators
• Protecting state insurance commissioner’s authority

My amendment to H 3101, the so-called “Obamacare Nullification” bill, incorporates all of those pushbacks. But outright nullification, in the sense of declaring any implementation of the ACA within the borders of South Carolina to be a criminal act, is not an available remedy. Yes, states have in fact effectively used the principle of nullification, even in the 21st century, in cases where it has determined the federal government has acted unconstitutionally. For example, two dozen American states, including South Carolina, nullified the REAL ID Act of 2005. More than a dozen states, not including South Carolina, have defied the federal government over the use marijuana for medicinal purposes. And, of course, Colorado and Washington state recently nullified federal laws that make the recreational use of marijuana illegal.

When it comes to the ACA, however, the situation is different. The United States Supreme Court, on June 28, 2012, in a case titled National Federation of Independent Business v. Sebelius, ruled the ACA was a constitutional exercise of power by Congress. Therefore, as to the ACA, nullification is not a remedy available to South Carolina, or any other state, for two reasons:

• First, Article VI of the United States Constitution, commonly referred to as “Supremacy Clause,” provides that federal laws “are the supreme law of the land” if Congress has acted constitutionally, that is, within the powers delegated to it by the states in the constitution; and

• Second, in 1803, in the case of Marbury v. Madison, the United States Supreme Court declared that Article III of the federal constitution provided it (the court) with the power to determine what is and is not constitutional, commonly referred to as the power of judicial review

The United States Supreme Court has ruled the ACA to be a constitutional exercise of power by Congress. I happen to think the court’s ruling was wrong, and that Congress in fact grossly exceeded its authority when it passed the ACA. I also think the United States Supreme Court engaged in unconstitutional power grab in Marbury v. Madison by giving itself the power of judicial review.

But what I personally think is irrelevant; the ACA has been declared constitutional by the United States Supreme Court, and 211 years of American constitutional jurisprudence says it has the power to make the declaration, which means the ACA is the supreme law of the land, and which means nullification is not an available remedy.

At this point, I think the best course of action for the South Carolina General Assembly is to aggressively pursue all of the other ways in which it can to slow the spread of that infection as best they can until such time as Congress repeals the Affordable Care Act. I was appointed by the President of the South Carolina Senate last June to chair an ad hoc committee to review H 3101 and to make recommendations, and that’s what I will urge when the session reconvenes next Tuesday.

January 9, 2014  Tags:   Posted in: Uncategorized

3 Responses

  1. NetRight Daily» Nullification returns: Mark Levin vs. the Tenth Amendment Center - January 10, 2014

    […] In a statement, Davis spoke clearly against nullification, “[O]utright nullification, in the sense of declaring any implementation of the ACA within the borders of South Carolina to be a criminal act, is not an available remedy.” […]

  2. Minuteman - January 10, 2014

    This is an unjust law. We the people must resist it.

  3. GOOD NEWS AND BAD NEWS FOR OBAMACARE NULLIFICATION | sreaves32 - January 13, 2014

    […] a statement published on a Tea Party website, Davis said nullification was not “an available remedy” and then went on to […]

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