Are Senate Republicans On Board With Nullifying Obmacare?

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Written By:
Rob Port

May 8, 2011
9:21pm

Last week the 26 US states who have filed a lawsuit challenging Obamacare asked the 11th Circuit Court of Appeals to uphold the ruling of US District Court judge Roger Vison’s ruling that the legislation is unconstitutional.

The Republicans in the US Sente plan, according to these floor remarks made by Senator Orrin Hatch last week, to file an amicus brief on behalf of the state supporting the notion that the law is unconstitutional. But something Senator Hatch said in his remarks was pretty interesting:

Thanks to President Reagan, Ed Meese, and others who 30 years ago began reviving principled constitutionalism, we are equipped to fight this battle today. No longer do our fellow citizens simply assume that the Constitution means whatever judges say it means. No longer do the political ends always justify the constitutional means. This week, Minority Leader Mitch McConnell and I circulated an amicus brief for Senators to sign that will be filed in the 11th Circuit as they consider this issue. Thirty-two senators signed a similar brief that we filed in the district court last year and, after last November’s election, I hope that more Senators will be with us on appeal.

One bit of federalist philosophy that has gotten a lot of attention during the Obamacare debates (thanks to scholars like Dr. Tom Woods) is nullification, which holds that states can “nullify” what they deem to be unconstitutional federal laws. Conventional wisdom in political circles is that the federal courts have the last say on what is and is not legal under the Constitution, but nowhere in our nation’s founding documents are the federal courts granted this authority. It’s something the courts granted themselves.

The proponents of nullification, which include myself, would argue that the federal government is a creation of the states and that the states themselves have the final say on what is and is not constitutional.

Hatch suggesting that judges aren’t the final say on what is and is not constitutional suggests support for nullification. Which would be a major victory for the proponents of nullification who are usually scorned in so-called “mainstream” politics as cranks, at best, and racist secessionists at worst. Of course, one comment made by a politician in a speech is hardly indicative of the widespread embrace of this philosophy, but it’s a nice development none the less.

Federal judges are not the final arbiters of what is and is not legal under the Constitution, and it’s time many were disabused of that notion.