Wednesday, March 17, 2010

State Resistance to Federal Authority: Part 2

A while back I blogged about Minnesota state legislators trying to pass a state constitutional amendment prohibiting the prospective health care mandates from taking effect in Minnesota. At the time, I was of the opinion that such mandates are plainly within the purview of the Constitution and thus any attempt by Minnesota stands to fail in court. Meanwhile, the Pennsylvania Law Review hosted a debate on exactly the same issue, where my view was also endorsed by Jack Balkin (though I doubt he knew it was my view too).

Two interesting developments, however, merit another post. First, the constitutionality of individual mandates, which seemed be beyond question at the time, is now seriously debated among constitutional scholars. This speaks, I think, to the indeterminacy of constitutional law and to how the changing political winds can make certain arguments, once thought deviant, to be more palatable.

Second, the Minnesota attempt, which I termed "constitutional amendment as protest" has now seemed to pick up. Several states in the past weeks have passed legislation, of dubious constitutionality, which seeks to challenge federal authority. This ranges from legislation from South Dakota holding that weapons manufactured in that state are exempt from federal regulation, to legislation that requires state approval for any federal health care reform (Utah). Utah also passed a bill which incredibly states that state police power can limit federal power on federal lands within the state. Can anyone think of a better way to defy the Supremacy Clause?

This brings to mind the Nullification Crisis of 1832. Back then, Congress had to pass a "Force Bill" authorizing President Jackson to exercise force against South Carolina. I doubt that this will happen now, but I do reiterate my point from my previous post: even if this legislation doesn't have a constitutional leg to stand on, it is still important as a proxy for states' resentment over what they perceive are federal encroachments into traditional areas of state concern. With primaries and elections around the corner, the Obama Administration and the Democrats are advised to take heed.


  1. Adam, very interesting and timely post. But how do federalism issues (if any) figure in state resistance scenarios, not just in health care, but also gun ownership (as in recent attempts by South Dakota and Wyoming to declare 'gun freedom'? Generally speaking, can the principle of federalism itself be a tool of resistance, given that as you say, constitutional law is indeterminate?

  2. Yes, definitely. Federalism has always been a tool for states to assert authority, and the supreme court has not always been clear about what the lines are. Think about National League of Cities v. Usery or Metropolitan Authority v. Garcia, or U.S. v. New York, for example.

  3. Paul Horwitz is exploring a similar line of inquiry over at PrawfsBlawg. He casts the debate in terms of sovereignty:

  4. To the extent, if any, that state legislatures actually mean something more than crass politics, there's a simple way for them to demonstrate their resolve such that voters will immediately take notice of their principled stand: decline federal Medicaid funding and all of the strings attached to it.

    Of course, I rather doubt that any state legislature is prepared to do that, so the feigned rebellion is precisely that.


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