Maybe this year is getting off to a good start. Eleven GOP attorneys general are willing to take on the legality of the executive directives in changing status – the so-called fixes to Obamacare. As reported by the Fiscal Times, the Attorneys General say the president is breaking the law because he is making changes without first going through Congress. The group sent a letter yesterday to Health and Human Services Secretary Kathleen Sebelius regarding the constitutionality of Obama’s most recent executive action decreeing that insurance companies may continue to offer plans that he previously considered “junk plans” and were cancelled. The letter called the rule change “flatly illegal under federal constitutional and statutory law” and said “the illegal actions by this administration must stop.” Gee, ya think?
According to the Fiscal Times:
The Republican attorneys general argue that President Obama’s rule change violates both the separation of powers between the branches of government and his responsibility to execute laws faithfully. “We are deeply concerned that this Administration is constantly rewriting new rules and effectively inventing statutory provisions to operationalize a flawed law,” the letter said. “And the irony, of course, is that the changes being put forth to fix the disastrous exchanges will ultimately destroy the market and increase health insurance premiums for customers who played by the rules.”
So does this mean the States might have a chance at nullification? The concept of nullification is based on the theory that because the States are essentially the creators of the federal government, they have the final authority to determine the limits of its power. Under this theory, the States would therefore have the authority to strike down or nullify any federal laws they believed were beyond constitutional limits.
Sounds good in theory, but it has rarely been upheld, and rejected by the Federal courts on more than one occasion – including the Supreme Court. Under the Supremacy Clause of the Constitution, federal law is superior to state law. And under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution — as Chief Justice John Roberts did in making the decision on the constitutionality of Obamacare.
However, in so doing, he greatly expanded federal taxing authority, basically granting the power of behavior modification by way of taxation when he ruled individual mandate was actually a tax and constitutional.
In any event, the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states don’t have the power to nullify federal laws.
Do I believe the States will exert their rights as these attorneys general have done? Absolutely. Are they right in challenging the countless iterations of changing law, granting waivers, exemptions, and delays through executive fiat and mandate, not by legislative action? Certainly.
What do you, “We the People” believe? Is this a huge overreach by the Executive Branch and inconsistent with the separation of powers of our Constitution? And how will it end up?
EDITORS NOTE: This column originally appeared on AllenBWest.com.