After leading the nation last year in passing a law to sue the federal government over the health care overhaul, Idaho's Republican-dominated Legislature now plans to use an obscure 18th century doctrine to declare President Barack Obama's signature bill null and void. Lawmakers in six other states — Maine, Montana, Oregon, Nebraska, Texas and Wyoming — are also mulling "nullification" bills, which contend states, not the U.S. Supreme Court, are the ultimate arbiter of when Congress and the president run amok.
It's a concept that's won favor among many tea party adherents who believe Washington, D.C., is out of control.
Though a 1958 U.S. Supreme Court decision reaffirmed that federal laws "shall be the supreme law of the land," Gov. C.L. "Butch" Otter is promoting the idea, too. In his January 10 State of the State speech, he told Idaho residents "we are actively exploring all our options — including nullification." Sen. Monty Pearce, an Idaho GOP lawmaker who plans to introduce a nullification bill early next week, wanted to be the first one to give Otter a recently published book on the subject, "Nullification: How to Resist Federal Tyranny in the 21st Century."
But Otter beat him to the punch.
"I took that copy and tried to give it to the governor," he said, pointing to a copy on his desk. "He already had a copy."
Sick of just passing largely symbolic resolutions decrying federal encroachment on states' rights, proponents like Pearce say their bills will ratchet up the pressure on the feds: This isn't just some piece of paper to wave about; if it passes — and there's plenty in Idaho to suggest it will — this would become the law of the state, Pearce says.
It's been tried before, a long time ago.
Back in 1799, Thomas Jefferson wrote in his "Kentucky Resolution," a response to federal laws passed amid an undeclared naval war against France, that "nullification, by those sovereignties, of all unauthorized acts... is the rightful remedy."
Three decades later, South Carolina Sen. John Calhoun pushed nullification of federal tariffs that many in the South deemed discriminatory toward agricultural slave states. President Andrew Jackson readied the military, before a compromise defused the situation.
In 1854, Wisconsin also sought to nullify the federal Fugitive Slave Act that forced non-slave states to return escapees.
And more recently, Arkansas defied the federal government's order to desegregate public schools after the landmark 1954 Brown v. Board of Education decision. In a unanimous 1958 ruling rejecting Arkansas' position, the High Court wrote that states were bound by the Constitution's Article VI mandating U.S. laws, when vetted by justices, "shall be the supreme law of the land." David Gray Adler, who directs the University of Idaho's McClure Center for Public Policy Research, said nullification proponents ignore the fact that one Supreme Court decision after another has gone against them.
What they seem to be advocating for, he said, is a return to the state sovereignty that existed under the Articles of Confederation — exactly what the Constitution's framers in 1789 sought to replace because it had failed. "The premise of their position and the reasoning behind it are severely flawed and have no support in our Constitutional architecture," he said. After passing its "Health Care Freedom Act" last year, Idaho is already among 27 states now suing the federal government over the constitutionality of what health care overhaul foes deride as "Obamacare."
Supreme Court justices haven't yet weighed in on questions like whether residents can be compelled to buy health insurance.
But Thomas E. Woods, Jr., author of the 2010 book "Nullification" that Otter and Pearce have in their Idaho Capitol offices, argues states have the final say on the gravest issues, like when the government forces citizens to spend their hard-earned money.
If the U.S. president, Congress, and the Supreme Court get it wrong, Woods said, then Jefferson had it right back in 1799 when he wrote that states, as creators of the federal government, "being sovereign and independent, have the unquestionable right to judge of its infraction."
"What do we do when we don't get proper relief in the court?" Woods told The Associated Press from his home in Auburn, Ala. "We can't just throw up our hands and say, 'We tried.' The creators had to have some way of not having that system destroyed."
For Idaho's Pearce, Obama and the Democratic-led Congress are destroying the American system.
"There are now 27 states that are in on the lawsuit against Obamacare," Pearce said. "What if those 27 states do the same thing we do with nullification? It's a killer."
