Editor’s Note: The following is an exchange of messages between our Linda R. (one of our most committed volunteers!) and State Senator Gwen Howard, a member of the Health and Human Services Committee. LR289ca, entered by Senator Beau McCoy on January 13. You can read more about this measure, by reading THIS prior post.
I live in your district, and I voted for you, largely because I saw you as someone who is conscientious about representing the interests of your constituents rather than pursuing a personal ideological agenda. The Health and Human Services Committee has heard and will soon be voting on LR289CA, the health care nullification measure introduced by Senator Beau McCoy. I’m writing to ask you to support the measure, and I’m sending a copy of this email to the other members of the Committee to urge their support as well.
To many American citizens it is clear that members of the two major political parties do not represent the people’s interests, but their own. This is particularly true at the national level and never more true than with regard to the current push to “reform” health care in America. The American people overwhelmingly oppose the proposed reform. Recent polls in Nebraska indicate that 67 percent of us oppose it. We have been diligent in expressing our disapprobation. We’ve written, we’ve called, we’ve emailed, we’ve attended town hall meetings, and, as a last resort, we’ve taken to the streets in protest of what’s going on in Washington. They refuse to hear us. Worse yet, we’re disparaged by those we sent to Washington to represent us. They’re saying we’re too stupid to understand what’s good for us, that they know better, that we should just sit down and shut up and let them take care of business. I beg to differ. It’s not THEIR business they were sent to Washington to do, but MINE.
The founders designed a federal system, not a national one. That difference is vital to the survival of our Republic. What Congress is trying to do with regard to health care reform is, essentially, to intrude into issues that were left to the states to control under the Constitution. The governments of the several states must step forward and send a clear message to Washington that they will not forfeit their power to an increasingly centralized and non-responsive national government. LR289CA does just that.
You are our first line of defense. Nebraskans need to you step forward, draw a line in the sand, and defend us from the tyranny of those who would impose their will upon the people rather than do the will of the people. Pass LR289CA out of committee and see that it gets approved by the Legislature. The people of Nebraska deserve the opportunity to vote upon this vital issue.
Thank you for your consideration.
Thank you for your e-mail about LB 289CA. As a member of the Health and Human Services Committee, I listened to the testimony on both sides of this issue. I and several members of the committee have serious concerns about putting this in the Nebraska Constitution given several problems that the introducer of the resolution brought up at the hearing. Once something is in the state constitution, it is very hard to change. In addition, even if this constitutional amendment were approved by the voters, it would have no impact on the federal health care legislation currently going through Congress. The Supremacy Clause of the U.S. Constitution prohibits states from ignoring federal laws. I appreciate hearing from you. Sincerely, Gwen Howard State Senator
Dear Senator Howard:
I appreciate your attentiveness to the testimony at the hearing on the measure. However, I also think you have an obligation to listen to the opinions of citizens of the State of Nebraska. I am not a member of a lobbying group or other type of organization that has a political agenda, similar to those who, I understand from the article in the Journal Star, testified at your hearing. I am a concerned citizen, and I am perfectly within my rights to ask that you consider my opinion and the opinion of others like me in deciding how you will cast your vote on this measure.
As to your assertion that this provision “would have no impact on the federal health care legislation currently going through Congress,” I have to disagree. Federal law only preempts that of the states where the federal government has the requisite power and authority to legislate. Many Constitutional scholars are of the opinion that the federal government lacks the authority to, for example, compel United States citizens to purchase insurance from a private insurance company. I am of the same opinion. By the way, I have the credentials to render that opinion. I hold a law degree and was a practicing attorney for a number of years before I quit to become a stay-at-home mother to my two sons. The Supremacy Clause cannot elevate an unconstitutional law to the level that it preempts a duly enacted provision of a state constitution. The Supremacy Clause has no force and effect in this situation.
Thank you for your response. I would be happy to discuss this issue with you further, at your convenience, of course.
While I appreciuate your views, the reality is the US Constitution, which every state senator swears to uphold, does not permit what you believe can happen. The entire issue of state nullication was settled in 1831 and the claim that states can just leave the Union was settled in 1865. SUPREMACY CLAUSE "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, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." U.S. Const. art. VI, Paragraph 2 Under the Supremacy Clause, everyone must follow federal law in the face of conflicting state law. It has long been established that "a state statute is void to the extent that it actually conflicts with a valid federal statute" and that a conflict will be found either where compliance with both federal and state law is impossible or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Edgar v. Mite Corp., 457 U.S. 624, 631 (1982). Similarly, we have held that "otherwise valid state laws or court orders cannot stand in the way of a federal court's remedial scheme if the action is essential to enforce the scheme." Stone v. City and County of San Francisco, 968 F.2d 850, 862 (9th Cir. 1992), cert. denied, 113 S. Ct. 1050 (1993). Sincerely, Gwen Howard State Senator
I appreciate your position. I’m only asking that you consider mine, although I realize that may be impossible.
First, no one has said anything about secession.
Second, nullification occurs more often than you must be aware, although I admit, it hasn’t occurred recently in response to federal legislation on the magnitude of the health care overhaul. For example, there are more than a few states that now have laws permitting the growth, sale, and use of marijuana for medical purposes. All of these states’ statutes are in direct contravention of federal law concerning the matter. Another example is that of Arizona in steadfastly refusing to observe Daylight Savings Time. Likewise, in the 1970’s, many states resisted the federal government’s decision to enforce the 55 miles-per-hour speed limit on our nation’s highways. They were only brought into line by the feds with some fairly heavy handed threats, including the withdrawal of federal highway funds. So, you see, nullification is not the inconceivable thing you seem to believe.
I pressed “Send” before I made my third point. (See my previous email for the first two.)
Third, the Edgar case is, indeed, a succinct statement of the force and effect of the Supremacy Clause. I can only quote it back to you — “a state statute is void to the extent that it actually conflicts with a VALID federal statute” (Emphasis added.). As I noted before, there are serious Constitutional problems with Congress’s proposed legislation, not the least of which is forcing U.S. citizens to engage in commercial activity. The Commerce Clause has been considered to be essentially elastic, but if it permits Congress to mandate the purchase of health insurance, can it not require its citizens to buy anything and everything? GM is in crisis financially. Could the Congress mandate the purchase of new cars from GM to prop it up? After all, it is too big to fail.
Best regards for the hard work you do everyday and the flak you take from people like me.