In another victory for common sense and the Constitution, nullification has died a deserved death in North Dakota.  Sometimes you really can’t win for losing.

The originally proposed “Nullification of Federal Health Care Reform Law” declared the Patient Protection and Affordability Care Act (Obamacare) to be unconstitutional, and so “invalid,” “rejected” and “null” in North Dakota.  Any official, agent or employee of the United States government who tried to enforce that law would be guilty of a felony; any state officer or employee who tried to enforce the law would be guilty of a misdemeanor.

The first round of amendments wisely cut out all of that nullification nonsense. What is left is a piece of legislation that is a weak version of the Healthcare Freedom Acts passed by several states in recent years (and defeated in North Dakota in 2010).  Call it what you will, but it’s not nullification.

Unfortunately, the final legislation also watered down the constitutional statement against Obamacare: the final bill states only that Obamacare (along with the Health Care and Education Reconciliation Act) “likely are not authorized by the United States Constitution and may violate its true meaning and intent as given by the founders and ratifiers.” Such indecisive legislative language leaves the matter in the hands of others (e.g., the Supreme Court), an odd case of timidity given that North Dakota has previously joined twenty-six other states in challenging the constitutionality of Obamacare in federal court.  Well, North Dakota, is it unconstitutional or not?

If we are going to get rid of Obamacare and its assault on the Constitution we are going to have to remain focused and united. Loose talk claiming a state’s independent authority to declare federal law null and void at will not only confuses the situation but also undermines our constitutional credibility. States have the right–indeed, the responsibility–to push their own constitutional opinions about federal laws. They can go so far as to challenge those laws and “interpose” themselves (as James Madison advocated) between the federal government and their citizens. The objective is to change the objectionable law, stop its implementation and challenge it at every possible point. But an individual state (as Madison pointed out in 1798, 1800 and again in the Nullification Crisis of 1832) can’t take the law in to its own hands in violation of the U. S. Constitution and the rule of law.

The American people—not the federal government or individual states—are the sovereign in our constitutional system.  Their sovereign opinions rule through elections expressing their will, at the state level and at the federal level and, if necessary, through the process of constitutional amendment.

Despite its confusion, North Dakota is to be commended for joining several other states, following the lead of Idaho (and recently Wyoming, South Dakota and Arizona) that considered and then rejected the unconstitutional and unlawful claim of state nullification.