Outside the Beltway

White House Dismisses Missouri Vote On Health Insurance Mandate

The Obama Administration is dismissing the results of a referendum in Missouri that purports to strike down health insurance mandates.

Doug Mataconis · Thursday, August 5, 2010 · 3 comments

The White House isn’t giving any indication that it takes Tuesday’s vote against health insurance mandates in Missouri all that seriously:

White House press secretary Robert Gibbs flatly dismissed Missouri’s vote Tuesday rejecting a key part of the healthcare law.

Gibbs said Missouri’s vote approving a ballot initiative to exempt residents from the new law requiring individuals to buy health insurance was “of no legal significance.”

Asked what it means that voters in Missouri would vote against the federal mandate, Gibbs said: “Nothing.”

Legally, of course, Gibbs is correct. State law cannot trump Federal law, and the doctrine of nullification that many on the right have been trumpeting recently is a discredited legal concept:

While there are some interesting structural arguments to be made on behalf of a power of nullification, of course it is not recognized by the text. And my doubts that it was thought by the founders to be a power reserved to the states is fueled by James Madison’s famed Report of 1800 in which he defended the Virginia Resolution objecting to the constitutionality of the Aliens and Sedition Act. I include a lengthy excerpt from Madison’s report in my casebook, including this telling passage near the end. (So readers have the full context, I include the paragraphs in full while putting in bold the more crucial language):

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

I realize this is only one statement by one founder. But if James Madison’s most famous defense of the earliest alleged act of state nullification expressly denies, or at minimum equivocates about whether, there is a literal power of nullification in states, then I would need to see pretty compelling evidence of original meaning to the contrary. And recall that no other state supported the Virginia and Kentucky resolutions. Indeed, Madison’s report was written to respond to criticisms lodged against the effort.

Politically, though, I think the Obama Administration is being naive if it truly believes that a vote like this, or the Virginia statute barring mandates, or the multiple lawsuits against ObamaCare can be safely ignored. Polls continue to show that the public is mostly opposed to the plan, and it continues to provide impetus to Republican candidates who are promising to make efforts to repeal it if they are elected in November. To say the very least, it seems politically unwise to dismiss these clear expressions of public disapproval with the plan by saying they amount to nothing.