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Blog of Mass Destruction

Supreme Power Over States

By The Reverend Published: February 5, 2011

I suppose it's all because a Democratically controlled federal government dared to pass legislation to confront our national health care cost crisis. It could, of course, just be another attempt to delegitimize a Democratic president.

Whatever the reason, our national discourse, such as it is, has been filled with numerous claims about the Constitution, mostly asserting that the federal government was assigned very limited powers in the writing of the Constitution.

Distilled down by these same conservatives to fit what's called Obamacare, a theory has been floated which says that the federal government cannot compel anyone to purchase anything, in this case health insurance.

I understand the psychological dynamic at work. Some citizens do not want to be forced to purchase health insurance. I think that's one likes to be told what to do.

However, to work backwards from that dynamic, constructing out of whole cloth some new ahistorical, "lost" meaning of the Constitution,....ala a Nicholas Cage movie....with claims that the federal government is, somehow, significantly limited on what it has the power to pass and simply wrong.

From a recent The Nation piece by Garrett Epps.....

Conservatives.... claim that the Constitution was set up to restrain the federal government. If so, there's precious little evidence of it. The actual text of the Constitution is overwhelmingly concerned with making sure the new government had enough power; the framers thought the old Articles of Confederation were fatally weak.


The old Articles of Confederation had set up a Congress with the power only to beg states for money and recommend laws for them to enact. That didn't work; the country found itself headed for bankruptcy and disaster. To replace that old Congress, the Constitution created a bicameral Congress with a long and impressive list of textual powers. It also gives this Congress the power "to make all laws which shall be necessary and proper for carrying into execution," not only those specific powers but "all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

Epps adds...."That's a lot of power." Yes, it is.

You may have heard that the Arizona legislature (Idaho, as well) is now doubling down on their new unconstitutional immigration law by proposing that...

....the state actually nullify federal laws that legislators believe are invalid.

The measure crafted by Sen. Lori Klein, R-Anthem, would set up a committee of 12 lawmakers to review federal laws and regulations to determine which are "outside the scope of the powers delegated by the people to the federal in the United States Constitution."

Ratification of the panel's recommendation would mean the state and its residents "shall not recognize or be obligated to live under the statute, mandate or executive order."

But Klein said SB1433 is not challenging the fact that Arizona is part of the United States, at least not exactly.

"We're not seceding," she said. "We're looking at nullifying laws coming from the federal government that are mandates that are not constitutional."

Clearly, the U.S. has courts to determine which laws are constitutional and which are not.....and states have no power, other than to file suit, to nullify legislation passed by our federal Congress.

All this wrongheaded libertarianism philosophizing that states have been granted power, somewhere, of a higher nature than the federal government's simply a myth. It's simply not true.

Last night, MSNBC's Lawrence O'Donnell read what's called the Supremacy Clause of the Constitution during his program. He did so to rebut the most recent attack on federal powers by the state leaders of Arizona. (Seriously, what the hell is wrong with Arizona?)

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Like I said earlier.....I can understand why people do not want the federal government mandating the purchase of health insurance. I get that. That said, it is also obvious that the federal government's power to mandate purchasing health insurance in an overall remodeling of national health care regulation is well within the broad powers given the federal government in the Constitution.

Now, it will be all up to Justice Kennedy.



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