Attorney General Wayne Stenehjem Actively Campaigned Against Anti-Obamacare Amendment

Yesterday I, like many of you, was outraged by the vote of 29 RINOs in the state House to kill an amendment (HCR3014) to the state constitution which would have enshrined in that document our right to choice when it comes to health care. For decades there has been a push, nationally, to move America to a government-run health care system. We now stand at the threshold of just that, and while the legal challenges to Obamacare of which North Dakota is a part stand a good chance in the federal courts, we need to illustrate to the federal courts that our state is serious about resisting Obamacare.

We need to make clear to the courts that this state has no desire to abide by an unconstitutional law, whatever the courts may rule.

We needed this amendment, to both strengthen our legal challenge to Obamacare to and to protect us from whatever comes next after the courts rule. So why did 29 Republicans, many of them claiming that they’re four-square opposed to Obamacare, vote down this amendment? For that, I think we must thank our state’s Attorney General Wayne Stenehjem.

Stenehjem, who is a likely candidate for higher office in 2012, was quick to join North Dakota to a federal lawsuit challenging Obamacare. But Stenehjem has also been pushing an active campaign among the state’s legislators to convince them that our state is powerless, outside of the courts, in the face of federal law.

Back in February, Stenehjem issued an opinion at the request of legislators concluding that federal laws, once vetted by the states, are the supreme law of the land and that it is unconstitutional for the states to resist them.

As applied to the Obamacare ruling, this means that if North Dakota loses its legal challenge against Obamacare that’s it. We’re stuck with it.

This is certainly a very popular school of thought on the left, and especially among lawyers. After all, who else but lawyers would think that lawyers arguing in our courts were the final deciders on the nation’s most important issues? Our founding fathers certainly didn’t intend for that to be the case.

This school of thought is based on a misunderstanding of the supremacy clause. Yes, the Constitution and such laws as the Congress may make are the supreme law of the land, but when the laws Congress makes violate the constitution then they cannot, by definition, be the supreme law of the land. That a federal court may endorse an unconstitutional law doesn’t make it any more constitutional.

But Stenehjem disagrees. To his mind, the federal government could (exerting the same authority it appropriated to itself with the Obamacare insurance mandate) pass a law requiring all Americans to eat four helpings of broccoli every day, and if that law were upheld by the federal courts it would be the law of the land and there wouldn’t be a thing we could do about it except obey or be punished. For that matter, taking this thinking to the extreme, the federal government could bring back the institution of slavery and as long as a court upheld it Stenehjem would have us believe it is the supreme law of the land and there is nothing states could do.

I disagree, but this is the thinking Stenehjem has sold our legislators. You could hear Stenehjem’s argument echoed in yesterday’s floor debate.

“We have positioned ourselves to challenge [Obamacare] in the the only legal way possible,” argued Rep. Bill Devlin, referring to the state’s lawsuit against Obamacare.

“I am as frustrated as anyone” about the passage of Obamacare, said Rep. Stacy Dahl but she went on to argue that if Obamacare is upheld by the courts then federal supremacy takes over and the amendment “impacts nothing.”

Several legislators have referenced votes on earlier bills, such as HB1165, as having given Stenehjem everything he needs to push the lawsuit. “I supported HB 1165 earlier in the session that gave Attorney General Wayne Stenehjem everything that he needs to challenge the federal law,” said Rep. Duane DeKrey in a message being sent out to citizens contacting him about his vote.

“Many of us have discussed this with the Attorney General and he has informed the legislature that we have already given him the authority through other legislation that we have passed for him to go full-bore into court and uphold the interest of ND,” said Rep. Tom Beadle in an email to me.

“We already passed HB 1165 that does protect your rights,” wrote Nancy Johnson in an email to a constituent that was forwarded to me. “We don’t need 10 bills doing the same thing.”

It’s clear, to me, that our Attorney General has been at the legislature twisting the arms of lawmakers to kill this Constitutional amendment. Indeed, that is exactly what several legislators who wish to remain off the record have communicated to me. And what’s frightening is just how willing these state leaders are willing to sell their own authority short. To allow themselves to be cowed by the federal government this way is to admit that, in a lot of ways, they are little more than rubber-stamps for federal policy.

Are we really so addicted to federal money that we no longer have the political will to assert our own state’s sovereignty? Either we believe that this is a federalist Republic and go about our business accordingly, or we end the pretense of local control and states rights and just admit that we have one, national government.

With Wayne Stenehjem clearly harboring aspirations for higher office, voters in North Dakota might want to remember just how hard he campaigned against the sovereignty of our state, and just how weakened his campaigning leaves our state in our battle to overturn Obamacare.

Rob Port is the editor of In 2011 he was a finalist for the Watch Dog of the Year from the Sam Adams Alliance and winner of the Americans For Prosperity Award for Online Excellence. In 2013 the Washington Post named SAB one of the nation's top state-based political blogs, and named Rob one of the state's best political reporters.

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  • NDSuperman

    Are the Stenehjem’s North Dakota’s version of the Kennedy’s?

    • ec99

      I thought the Heitkamps were.

      • NDSuperman

        They can be the Bushs (or Bush’s…Bushes…maybe Bushi i dunno)

  • Game

    I was at the debate yesterday. My favorite moment was when Jim Kasper said that he is not a legal expert or a historian. Exactly Jimbo, because if you were, like say Rep. Dahl and the Attorney General, you would study a couple of hundred years of case law and understand that this was a piece of junk legislation that does not belong in the North Dakota Constitution.

    But as you are, you are a hack politician who listens to right wing blogger and the heritage foundation and believes them over the established law.

    Only hacks like that would attempt to pass an unconstitutional law in response to what they feel is an unconstitutional law.

    Thank God 29 Republicans had some integrity.

    By the way Jimbo, the Civil War was not about freeing the slaves until the Gettysburg address. Prior to that, Lincoln would have kept the slaves in bondage in order to save the union.

    • Rob

      Some had no idea what they’re talking about.

    • dalaibama

      Or even DURING the civil war. Lincoln’s repatriation of blacks to somewhere far far from the U.S., and his assertions that blacks and whites were not equal and would never be able to live together are glaringly on record. Conveniently overlooked, but there.

      Once great power was seded to the acting King (Lincoln) and he was able to deny Habeus Corpus, exile seated Senators, etc., the South was the only hope left for States rights as outlined in our original founding documents.

      And you GAME have every right to twist and turn things your way as you were on the winning side in the war that changed it all. Winners can do what they want.

      Too bad, so sad…we originalists lost back in 1865. The great Federal machine has been creeping ahead since that time.

      Maybe things change after our next war. “the war of Eastern agression” :)

      • borborygmi

        another Rebel still fighting the Civil War , excuse me the NOrthern War Of Aggresion.

        • dalaibama

          No not fighting…just pointing to the source of the issue. massive belief in Federal Government as it’s Savior.

          We weren’t always sickly little wimps sucking from the great Federal teat. Well….maybe YOU were,

          And it was a Republican that did it.

      • Game

        I love the fact that we are arguing about a war that ended over 100 years ago.

  • dalaibama

    duplicate post

  • borborygmi

    It looks like a lot of arm chair lawyers P!ssing and Moaning

    • Rob

      Or a bunch of citizens expecting that the Constitution and what it says, you know, actually mean something.

      Guess we’re not allowed to do that unless we have a law degree or soemthing.

      • dalaibama

        Don’t you know Rob, that there are hundreds of little ~nuances~ that we miss not being lawyers.

        And if given the choice of the well-educated and the plain people, I would side with Barry-

        “I am obliged to confess I should sooner live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.”


        • Gamescrows

          Considering the fact that Goldwater was such a successful politician on a national level, I think he is a great example to use.

          His campaign for president looked like he kicked the smart people out of the room and let the C students run the show.

          It is sort of how John Boehner is trying to run the house right now. And how Micheal Steele tried to run the GOP.

          And today, those same C Students are the likes of Jim Kasper, Michelle Bachmann, and Sarah Palin.

          • dalaibama

            Let me guess, game. Teacher? Government employee? It works so well on you!

  • Camsaure

    We need to begin to activley thwart every possible future campaign of this glaring RINO.

  • John

    Our judicial system is run primarily by a bunch of graduates of the UND School of Law. You know that 4th tier, 4th rate law school that is part of our dysfunctional Board of Higher Education. Should we expect any less from Stenehjem?

  • The Whistler

    The people need every tool they can get to fight for our rights.

    I wrote in my lawyer’s name for AG last November.

  • badlands4

    “Are we really so addicted to federal money that we no longer have the political will to assert our own state’s sovereignty?”

    Surely you are not seriously asking if our state is so addicted to federal money that we will do whatever we have to do to keep it.I am not sure there is a state that has a bigger addiction to federal money than we do.

    That 1.68(or whatever it is now) back for every 1.00 we pay in federal taxes is a sweet gig. Well, not for the citizens of Idaho or Michigan, but who cares as long we *we* get ours right?