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.