Idaho official’s opinion not stopping push to nullify health law

BOISE – A group of Idaho lawmakers is pushing ahead with plans to introduce legislation today to nullify the federal health care reform law, even though a new Idaho attorney general’s opinion says such bills violate both the state and federal constitutions and state lawmakers’ oath of office.

“I’m not concerned about that,” one of the group, freshman Rep. Vito Barbieri, R-Dalton, said Tuesday of the attorney general’s opinion. “I think reasonable minds can differ.”

The legislation would declare the national health care reform bill “invalid in Idaho” and would forbid any state agency or state employee from doing anything to carry it out.

Said Barbieri, “Either we’re going to stand by some state sovereign power, or we’re just going to allow the states to become a rubber stamp to the federal rules and regulations.”

The Idaho attorney general’s opinion, issued in response to a request from Rep. Bill Killen, D-Boise, says, “There is no right to pick and choose which federal laws a state will follow.” It noted that both the Supremacy Clause of the U.S. Constitution and Article 1, Section 3 of the Idaho Constitution make clear that the U.S. Constitution is the supreme law of the land.

“Every legislator is required to affirm ‘that I will support the constitution of the United States and the constitution of the State of Idaho,’ ” the attorney general’s opinion said. “Legislators and other state officials, in other words, pledge to carry out their duties in a fashion that directly conflicts with the … nullification theory.”

That theory says a state can reject federal laws within its territory if state leaders think the laws are unconstitutional. It was first proposed in the Kentucky Resolutions of 1798, repudiating the Alien and Sedition Acts. But it’s been widely discredited since; a landmark 1958 U.S. Supreme Court decision declared federal law “the supreme law of the land” in response to Arkansas’ attempts to defy the 1954 Brown vs. Board of Education decision requiring schools to be desegregated.

Killen said, “It’s basically what the Civil War was all about – are we a federal government or are we not? Apparently these guys have decided to fight the Civil War all over again. It’s crazy. It’s like we haven’t got better things to do in this economy than this.”

Barbieri, who is co-sponsoring the bill with Rep. Judy Boyle, R-Midvale, and a group of other lawmakers, said he plans to push ahead and ask a House committee to introduce the bill this morning.

“The question is whether or not the state has any power to conclude that a law passed by Congress is overreaching,” Barbieri said. “If the state doesn’t have that power … the 10th Amendment is indeed a nullity.”

The 10th Amendment to the U.S. Constitution says, “The 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.”

Killen, an attorney, said that doesn’t say states can just opt out of federal laws. “It just doesn’t make sense,” he said. “They’ve let their personal wish list of what they would like to be reality get confused with the actual reality. But that doesn’t mean it won’t pass our Legislature – it wouldn’t be the last time or the first time something bizarre has passed.”

He added, “If they’re really serious about it, why don’t they nullify the federal income tax law and we can keep all that money and solve our budget problems? That might be more productive.”

Barbieri is a newly elected state lawmaker who ran unopposed in the November election, after winning a four-way GOP primary for an open seat in May. He serves the same district as tax-protesting Rep. Phil Hart, R-Athol, who supported Barbieri’s campaign.