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The Doctrine of Nullification claimed as authority to obviated recent federal health care legislation

The Doctrine of Nullification claimed as authority to obviated recent federal health care legislation

State lawmakers in Alabama, Idaho, Kansas, Maine, Missouri, Montana, Oregon, Nebraska, Texas and Wyoming are considering adopting legislation to avoid the federal government?s efforts to ?overhaul health care? pursuant to the so-called Doctrine of Nullification.

The Doctrine, attributed to President Thomas Jefferson among others, purports to give States the ultimate authority insofar as the implementation of acts of Congress is concerned and is typically linked to the 10th Amendment of the United States Constitution. The Tenth Amendment provides that ?powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.?

A book printed by the U.S. Government Printing Office, The Constitution of the United States of America [Analysis and Interpretations, 1964], and prepared by the Legislative Reference Service of the Library of Congress, states that ?The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted? with respect to the division of power between the federal government and the States.

As to the Doctrine of Nullification,* the United States Supreme Court, in the context of a school desegregation case,** rejected the concept, stating that "Although ?the responsibility for public education is primarily the concern of the States ..., such responsibilities ... must be exercised consistently with federal constitutional requirements as they apply to state actions.? Consequently, ?a Governor who asserts a power to nullify a federal court order? implementing that ruling is subject to judicial restraint, for otherwise ?the fiat of a State Governor and not the Constitution ... would be the supreme law of the land..."

* See The Constitution of the United States, page 1035, footnote 2.

** Cooper v Aaron, 358 US 1, 18-19, [1958].

Full post as published by New York Public Personnel Law on January 28, 2011 (boomark / email).