Pubdate: Thu, 08 Aug 2013
Source: Chicago Tribune (IL)
Copyright: 2013 Chicago Tribune Company
Page: 24


How States May Assert Their Rights - and How They May Not

After 224 years, you might think some basic issues of government in
our republic would be settled - particularly the correct division of
power between the states and the federal government. But despite all
the blood and ink spilled over that issue during the Civil War and the
civil rights revolution, it's still the subject of contention. And
lately, the battle has been getting more intense.

The passage of Obamacare, combined with proposals in Congress to
expand federal gun laws, has elicited a strong reaction from
anti-Washington forces. Kansas recently enacted a law barring federal
regulation of any guns made and kept within its borders - as several
other states have done. Kansas also made it a crime for anyone to try
to enforce such restrictions. Some states have acted to nullify
Obamacare's individual mandate to have health insurance.

The impulse is not strictly a conservative one. The Tenth Amendment
Center, which favors nullification efforts, says they really began
when states began to allow medical use of marijuana in defiance of
federal drug policy. The American Civil Liberties Union encouraged
states to refuse to go along with the Real ID act, which imposed rules
for state driver's licenses.

The medical marijuana movement has dramatized an important reality: If
states refuse to go along with federal law, they can make it very hard
for Washington to enforce its preference. The Drug Enforcement
Administration can and does raid cannabis dispensaries, but without
the help of local police, its effectiveness is limited.

That's part of what those behind the "nullification" effort hope to do
in other areas. States do have rights that can undermine federal
undertakings. Many states have declined to set up the health care
exchanges that are supposed to help implement Obamacare - forcing the
U.S. Department of Health and Human Services to take on the burden.

Many states also have refused to expand Medicaid coverage as the
administration encouraged them to do. Their uncooperative approach
could badly hinder the administration's plans.

Where the issue gets dicey is when states assert their right to
invalidate such laws - such as existing restrictions on firearms. The
Constitution states unequivocally that federal law overrules state
law, not the other way around.

State officials have every right to challenge federal measures in
court. The final word on whether laws are constitutional, though,
comes from the Supreme Court and no one else. Now that the court has
upheld Obamacare, states don't have the option of treating it as illegal.

Even more malignant are attempts to criminalize federal law
enforcement. Kansas doesn't have to like federal gun laws and it
doesn't have to help the feds enforce them. But it has no right to
actively impede enforcement. Even think tanks that favor curbing the
power of Washington, like the Cato Institute and the Heritage
Foundation, oppose such extreme action.

Cynics may dismiss these nullification efforts as empty gestures meant
to impress gullible voters. It's safe to assume that many of the
lawmakers who support such measures know their laws won't survive
judicial scrutiny.

The larger principle here: It's a mistake for the nullifiers to think
they're entitled to overturn the mechanisms established to resolve
even the bitterest policy disputes. Example:

The claim that Congress can't legislate on guns that never cross a
state border rests on the theory that they fall outside Washington's
power to regulate interstate commerce. That reasoning, however, was
firmly rejected by the Supreme Court in a 2005 case challenging drug
laws. "Prohibiting the intrastate possession or manufacture of an
article of commerce is a rational (and commonly utilized) means of
regulating commerce in that product," said the court.

In disputes such as this, the feds will ultimately prevail. But they
shouldn't be too cavalier about nullification efforts, which indicate
that many Americans feel the federal government has exceeded its
rightful authority and is intruding into places it shouldn't. It would
also be a mistake for our leaders in Washington to forget the value of
understanding what these people are angry about. It's not enough to
win the policy wars. It's equally important for the victors to find
ways to bridge the differences that remain.
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MAP posted-by: Matt