Nullification: Here We Go Again

IS SOUTH CAROLINA ABOUT TO BREATHE NEW LIFE INTO A DYING LAW? Ever since it was first proposed as an option for addressing U.S. President Barack Obama’s socialized medicine law, nullification has never really been our thing … Don’t get us wrong … we cannot stand Obamacare.  In fact we’ve…


Ever since it was first proposed as an option for addressing U.S. President Barack Obama’s socialized medicine law, nullification has never really been our thing …

Don’t get us wrong … we cannot stand Obamacare.  In fact we’ve spent the better part of the last four years fighting it.  We opposed it when it was first unveiled, we opposed it when it was being shoved down the throat of a Democratic-controlled U.S. Congress (by hook and crook) and we have repeatedly pushed to have the law repealed.  More recently, we were among the few “conservative” outlets to emphatically argue against providing funding for Obamacare – even if doing so meant partially shutting down the federal government in perpetuity.

Sadly “Republicans” in Washington, D.C. were far more open to accommodating this job-killing monstrosity … (see here and here).

Oh well …

Anyway, in addressing the nullification idea a year ago we wrote that it “missed the big picture,” most notably the soaring Medicaid spending taking place in South Carolina under so-called “Republican” Gov. Nikki Haley.

“To grandstand against Obamacare on the one hand while profiting from it on the other would be astoundingly hypocritical … even by S.C. political standards,” we wrote.

Of course that’s exactly what’s happening in the Palmetto State … legislators trumpeting nullification in a shameless effort to nail down their right flank (even though there’s no real evidence the “right flank” is on board with the concept) while at the same time voting to snatch up as many federal dollars for Medicaid as they can.

As it was a year ago, nullification is back on the front-burner in South Carolina – with several state lawmakers occupying the far right fringes of the Tea Party movement championing it in advance of the 2014 session of the S.C. General Assembly.

We haven’t written on nullification yet this year because as far as we’re concerned the more important (and more practical) battle lies in rejecting the Medicaid expansion accompanying the law – as well as the runaway Medicaid expansion being pushed by Haley.

Others are weighing in on nullification, though – like Americans for Limited Government (ALG), one of the most aggressive pro-free market, pro-freedom advocacy groups in the country.  ALG has been at the forefront of the fight against Obamacare – with its leaders arguing on behalf of defunding the measure long before other “conservative” groups jumped into the fray.  Not only that ALG has been one of the most aggressive opponents of Obamacare’s egregious taxation without representation.

So what do these battle-tested anti-Obamacare soldiers think of nullification?

Glad you asked: Just prior to Christmas, ALG released a paper on the nullification issue written by Dr. Bradley Gitz – a professor at Arkansas’ Lyon College.

Gitz’s conclusion? Well, he reaches several conclusions – but his first (and most important) one is that nullification is doomed to fail.

“There should be no doubt as to what the ultimate outcome will be here in a legal sense – even if the South Carolina Senate approves (the nullification of Obamacare) and South Carolina Governor Nikki Haley signs it into law, it will be stuck down as unconstitutional, likely without dissenting opinion, at the first opportunity,” Gitz writes.  “And that will also be the fate of other, comparable measures currently being considered by like-minded states.”


But Gitz’s paper reveals an even more disturbing practical consequence of pursuing this doomed approach – most notably the unintended havoc a nullification bid could wreak on the Palmetto State’s chronically struggling economy.  Specifically, he notes how any company that “currently provides health insurance to its employees and falls under the provisions of Obamacare will also run the risk of being targeted by its implied criminalization of compliance with federal law.”

“At the least, they will face tremendous uncertainty regarding their legal status and options; ambiguity which carries with it both potentially high litigation costs and an unstable investment climate,” Gitz writes. “By threatening criminalization in such a fashion under the logic of ‘nullification,’ South Carolina will likely encourage the departure of increasingly mobile firms and much-needed investment, jobs, and economic growth. ‘Doing business’ in Texas or Georgia will suddenly seem quite a bit more attractive and less risky than staying put or relocating to South Carolina.”

As if doing business in Texas or Georgia wasn’t already significantly more attractive …

Gitz’s final point addresses the cost of a failed “nullification crusade” from a national public relations standpoint – highlighting the momentum a failed bid would give to a pro-Obama, pro-socialized medicine movement that continues to lose steam with each passing day.

“At present there is no better way to raise Obamacare from its deathbed than to do what the South Carolina Senate is contemplating doing (and the South Carolina House has already done),” he writes. “Rather than having let Obamacare die from its many self-inflicted wounds, they will have unintentionally aided and abetted its recovery and entrenchment in our national life.  The struggle against Obamacare is both important and necessary, and South Carolina appears poised to only make it more difficult.”

Few are going to take issue with any of Gitz’s conclusions.  In fact we find ourselves feeling a bit jealous for not having had the foresight to pen such a piece ourselves.  And there’s been virtually no objection coming from any point along the South Carolina political spectrum in the two-and-a-half weeks since the ALG paper was first published.  Or the national political spectrum, for that matter.

Well … with the exception of one outlet, The New American (the mouthpiece of the John Birch Society).

In a verbose and at times indecipherable critique of Gitz’s paper, columnist Joe A. Wolverton, II of The New American rebukes the notion that nullification is doomed to fail constitutionally – and accuses ALG of committed a “deadly and unforgivable sin” by presuming its inevitable demise in the court system.

Furthermore he urges “conservative” lawmakers in South Carolina to keep the nullification fight alive.

“Until ‘conservative’ state legislators begin informing themselves of the rights retained by the states and begin ignoring the irrational and incorrect opinions of professors and judges, there will be no end of federal demands and they will get more and more difficult to comply with and will thereby justify increasing federal control over the apparatuses of state government,” Wolverton concludes.

Wow.  Thems’ fightin’ words, people …

We admire Wolverton’s passion – and appreciate the lengths his column goes to in an effort to parse the wisdom of our nation’s founding fathers – but the bottom line is there’s a reason why even die-hard limited government groups are opposing nullification (and only groups like the John Birch Society are supporting it).

“There are just not that many John Birch Society members, even in South Carolina. And the conservatives are more united in opposition than in support (of nullification),” one national free market operative told us. “So, just exactly who do these guys think they are appealing to?”

As Michael Cannon of The Cato Institute has correctly noted, the real battle over Obamacare lies in its ability to spend money (the Medicaid expansion issue) and its ability to impose taxes and regulations (the taxation without representation issue).  On those two points hang the future of the law – and right now that future is looking pretty bleak (thanks in large part to efforts by groups like ALG).

Unfortunately while many “Republicans” in South Carolina are willing to breathe fire in support of nullification (knowing full well it will be struck down), they are quietly working behind the scenes to grab as much federal health care money as they possibly can … no matter what new regulatory strings are attached.

Which is precisely what we feared … 

Look, we’re not unilaterally dismissing nullification as a concept – or even necessarily ruling it out at some point in the future as a proper response to an “insupportable oppression” imposed on states by the federal government.  But at this particular time (as it relates to this particular scrape) it strikes us as a terrible idea for all the reasons outlined in Gitz’s paper.


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Frank Pytel January 6, 2014 at 8:42 am

There are so many incorrect assumptions in both Gitz’s paper and this article that it is impossible to rebut all of them without many many hours of time to pick this apart. This is typical RINO BS.

The simplest and most important reason this article pisses me off to no end is the simplest of them. This is nothing more than another ‘Is this person electable’ article. Respectfully, that’s the most piss poor reason in the world as to why to do or not do anything. Stinks to high heaven of establishment crony capitalist largesse.

I have received and will continue to expect considerably more from FITSNews than this pablum. Rotten pablum at that.

Will Folks aka Sic January 6, 2014 at 9:48 am

Yes because the website that endorsed Ron Paul and Gary Johnson in the last presidential election – and which vents its spleen on a daily basis against the GOP establishment – would peddle “typical RINO BS.” And as for our views on the myth of electability … https://www.fitsnews.com/2012/11/09/on-electability/

Frank Pytel January 6, 2014 at 9:50 am

I do not disagree that this site is a stalwart in defense of real capitalist and conservative values at nearly every turn. Hence the final sentence of my comment.

FITS sorely missed the marked on this one though. #Respect.

Cato sucks-and so does ALG January 6, 2014 at 9:25 am

Gotta love (C)Stato and one of its tentacles(ALG) arguing against Nullification. Their hypocrisy is astounding at times.

Not taking Medicaid money would be akin to not taking all of your tax breaks. It’s monumental stupidity. DC is going to take SC’s money no matter what, so you better to try to get as much back as possible until the game changes.

Better to argue the massive redistribution shouldn’t be occurring and take the money in the mean time rather than bankrupt the state in trying to make a point. There’s no hypocrisy in that because SC citizens have to hand their money over to DC no matter what and that’s no ones fault but DC.

tomstickler January 6, 2014 at 1:25 pm

South Carolina was already getting $1.92 back from the Federal Government in 2010 for every dollar sent to DC in taxes. Maybe Nikki didn’t want to be labeled a “taker” or a “moocher” when she turned down that 100% funding under ACA.

Turns out South Carolina will be spending an additional $372 million on Medicaid by 2022, whether we accept the ACA money or not.


idcydm January 6, 2014 at 4:49 pm

Don’t care who or who didn’t take the money, it’s still spending money they don’t have be it State or Federal.

Smirks January 6, 2014 at 9:29 am

The Republicans are looking to shift strategies because they know they don’t have the capabilities of getting rid of it now. They took a beating in the polls during the shutdown and now the establishment Republicans are looking at primary challengers for ending it. That doesn’t sit well with a lot of sitting Senators and Representatives, especially those who have the nice positions.

At some point, the establishment Republicans will stop calling it “Obamacare” and call it the “Affordable Care Act” to ditch some of the negative stigma, and they’ll shift from repeal or defund to altering some parts and accepting others. The other half of the party will continue to call it “Obamacare” and demand repeal with whatever strong-arm tactics they can muster. Every election will have establishment versus hard-liner Republicans beating each other over the head to gain control of any seat they can. They’ll divide on so many other issues, too, to the point that it will appear as two separate parties entirely.

Right now, it’s like watching a fight between Dr. Jekyll and Mr. Hyde over who gets control of the body.

idcydm January 6, 2014 at 4:42 pm

Have you forgotten that the President said he didn’t mind that it was called “Obamacare” of course that was before the roll out? What about the beating in the polls the President has been taking lately?

venomachine January 6, 2014 at 9:32 am

If the (R)s were smart, they’d let O-care crash and burn on its own ‘merits.’ Then, in 2014 and 16, say, “See? That’s why none of us voted for it.”

SCBlueWoman January 6, 2014 at 11:19 am

Here’s the rub: O-Care isn’t crashing and burning. People do like it. People are signing up by the millions. I’ve noticed that fox not the news has started calling it the ACA and not O-Care. Wonder why? Positive stories, that’s why.

Frank Pytel January 6, 2014 at 11:43 am


TontoBubbaGoldstein January 6, 2014 at 11:49 am


TBG will have what the Blue Lady is having and one for my buddy Frank, also.

Put it on the Underhill’s tab.

Frank Pytel January 6, 2014 at 12:23 pm

Damn Skippy

venomachine January 6, 2014 at 12:26 pm

Jury’s still out, and the employer mandate has yet to hit. Watch what happens to the (D) approval when tens of millions get a letter saying they are losing coverage.

And right before elections.

The Colonel January 6, 2014 at 11:34 pm

“People are signing up by the millions”.
Millions is technically accurate, I guess, 2.1 million people have completed the process to date. By comparison, the “I Support Phil Robertson” page had 830,000 likes on Facebook in less than 3 days – of course the guys who built Facebook knew what they were doing…

Rick David January 7, 2014 at 3:06 pm

2.1 million is the amount of people who signed up on the private exchange. You forgot to mention the other 4.4 million people who received Medicaid through the ACA and the 2.6 million people who received insurance through their parents plan (under 26). These statistics are widely available with a simple search. So, as a result of the ACA, more like 9 million people were afforded healthcare, with 6.5 million people singing up. Keep pulling facts from Breitbart.com though, the amount of spin and BS is repugnant and comical at the same time.

The Colonel January 8, 2014 at 7:54 am

Funny thing, had we just expanded Medicare or Medicaid none of this idiocy would have been necessary – by going for the brass ring, we only wound up with a hand full of broken promises.

“You can keep your doctor…” (hahahaha)

“…we’ll lower premiums by up to $2,500 for a typical family per year.” (they’re up almost $3,000)

“[F]or the 85 and 90 percent of Americans who already have health insurance, this thing’s already happened. And their only impact is that their insurance is stronger, better and more secure than it was before. Full stop. That’s it. They don’t have to worry about anything else.” (nobody’s laughing at this one, at least 4,000,000 have LOST coverage under Obamacare and most expect that number to climb above 7,000,000 http://www.washingtontimes.com/blog/inside-politics/2013/feb/5/obama-health-law-will-cost-7-million/)

Now, on to your erudite and factual response – you are correct with you numbers I guess, I haven’t checked this week. However you missed the key detail in my post – I said “completed the process” as in “stroked a check” or actually completed all of the requirements and as of Sunday, the total number of people who had completed the process was 2.1 million.

Funny that a program that was supposed to insure 30,000,000 uninsured folks is really just moving a lot of people who already had insurance around.

TheSaltMiner January 6, 2014 at 10:10 am

I support nullification as a concept, especially since states have no recourse to fight against oppression from Washington since the 17th amendment (Marshall’s usurpation of Constitutionally dubious judicial review didn’t help matters either), but I am getting a little burned out on Republican attempts to repeal/defund/nullify PPACA. Given that all such efforts are doomed to failure, it strikes me as attempts at publicity as we go into an election year – publicity that generally just makes conservatives look bad since it’s easily slanted to look like disdain for the less fortunate.

johnq January 6, 2014 at 10:57 am

Why would anyone think conservative republicans have disdain for the poor?

I just can’t see it. Just because all their policies and goals benefit the rich at the expense of the poor doesn’t mean they don’t “care”.

They cut food stamps, they cut unemployment, they cut welfare while still giving tax breaks and subsidies (welfare) to the rich and corporations. They don’t LOOK like they have disdain for the poor, they hate the poor and are making their lives as hard as possible while reaping the benefits of society for themselves.

The day is coming when the poor are going to eat the rich. It ain’t gonna be pretty when the tidal wave rolls in. Nullification of a law designed to help the poor get healthcare is going to be the least of your worries.

TheSaltMiner January 6, 2014 at 12:45 pm

You’re right – the Republicans that thrive on doling out corporate welfare (probably around 99% of them) clearly have no sympathy for the downtrodden and need to go, but there is ample data and historical evidence that our excessive “social safety net” is doing them no favors either. Even PPACA, now that it’s getting into full swing, is showing it’s true colors as no friend to the infirm – yes, plenty of people with preexisting conditions are now able to buy insurance, but the cost is so prohibitive that their position hasn’t really improved. If there are any conservatives who actually care about this, and not just scoring political brownie points with their usual supporters, should try to lovingly point out the damage PPACA is doing, instead of just ranting about and trying to get rid of it.

Fits Aint No Republican January 6, 2014 at 3:30 pm

It’s not so much that Republicans have disdain for the poor.They just like rich people better.Indeed,if they weren’t always defending the rich and thinking up new ways to put more money in their pockets,they wouldn’t really have a reason to exist.

Tyrone Butterballs January 6, 2014 at 10:45 am

Lyon College…this is the Harvard of Arkansas, right? This is the equivalent of Liberty University or Bob Jones University, right? It’s always a good idea to quote the best minds from the best schools.

Name one job Obamacare has destroyed. But I can name thousands of American jobs lost through offshoring, outsourcing. decline in manufacturing, and smart gadgets that are eliminating jobs. Jeff Bezos wants stuff from Amazon.com delivered to your home by

drones, so that will eliminate FedEx and UPS jobs. We are in a DEPRESSION second only to the 1930s.

FITS is jousting at windmills and playing the blame game. It’s always those darn Democrats. The prob is the GOP which has NO alternative to Obamacare and no good ideas to fix the economy. The GOP is hellbent on destroying the poor and the middle class. The GOP does not want to extend unemployment benefits because it does not want to give the economy a shot in the arm. which would help the Dems.

I think we fix the economy by slashing the capital gains tax for businesses, and putting people on a bus to North Dakota and places where our energy boom has taken off.

The stock market is over 16,000 thanks to the Fed and low interest rates without inflation. The deficit is coming down strong. These are bright spots.

I wish I was TBTF January 6, 2014 at 11:28 am

Technically speaking, the “inflation” has already happened. It’s the price increases(beyond the supposed 2% per annum) that people are concerned about, including the two recent Nobel economics winners.

With much of the inflation sitting in bank reserves it puts a damper on price increases-but when it starts to come out you better hold onto your hat. If you think the Fed can drain quick enough let alone keep banks solvent then you are in for a rude awakening.

Cooter Brown January 6, 2014 at 11:57 am

Ain’t but one or two down thare dat got the balls, smarts, or principles t’ make a reel stand. Dat bill wuz gutted in committee– worthless!
Az long as SC leeders whore themselfs out fer fed dollars, we will continue t’ suffer th’ shame of occupashun an’ debt slavery…

pFeather January 6, 2014 at 3:45 pm

How can it be assumed that nullification will be struck down when the 9th and 10th amendments provide for such nullification, although not using the term. If it isn’t a power given to the federal government in the Constitution then it’s un-constitutional is it not?

The Ghost of John C Calhoun January 6, 2014 at 4:37 pm

Damn Straight!

nctenther January 6, 2014 at 6:26 pm

Dying? LOL that’s a good one!!
The liberal / left Democrats have led the way with Nullification!!

Federal Marijuana Laws? Nullified
Federal Real ID Act?? Nullifiied

Federal Immigration Law? Sanctuary Cities have put a hurt on that with acts of noncompliance/nullification

Federal Defense of Marriage Act???
Ha, pro-gay states were nullifying that prior to SCOTUS decision in 2013

Yep, now it’s time that the “Conservatives and Libertarians” do it!!

William January 6, 2014 at 6:47 pm

So after two years of listening to GOP and Libertarian crap about how “Obamacare” was driving up the cost of health care in the country this comes out.


I guess we now know why the Fake News Network has starting referring to the law as the Affordable Care Act.

Jackie Chiles January 6, 2014 at 10:11 pm

Seemed to work out last time we tried it.

bob sacamanto January 7, 2014 at 11:57 am

Agree with Krauthammer…one of the best things the national GOP could do is tie the debt limit extension to a small change to Obamacare law to remove the possibility of bailouts for insurance companies (with the law currently allows for). Result, insurance companies will begin to act accordingly and stop participating in the exchanges…the law begins to fall apart even faster.

Bill January 7, 2014 at 5:57 pm

Stopped reading at Krauthammer.

Rick David January 7, 2014 at 2:58 pm

Another anti-ACA piece that offers up exactly ZERO alternatives to the ACA. So when you say you “hate Obamacare” does that mean you want pre-existing conditions again? Do you want lifetime caps on how much insurance you can use again? What are your alternatives? Back to the old system, eh?

james fitzgibbons January 8, 2014 at 9:10 pm

at a time when republicans are eliminating unemployment benefits and most republican governors have refused to adopt obamacare that denies health care to their working poor citizens and Rubio and Ryan are trying to put a new face on the republican party- i do not understand the logic.



lawmanjed January 21, 2014 at 1:20 am

Well, I just started to read the paper by Dr. Bradley Gitz, entitled “Nullification: South Carolina Heads to Disaster”, expecting a well-reasoned critique of nullification from an expert in the field. Barely through the first page, under the heading entitled “THE LEGAL PROBLEM”, I run into a “legal problem” alright:

1) Gitz’ asserts that “there are two constitutional provisions that come immediately into play here” and that “…The first of these is ArticleVI, otherwise known as the ‘Supremacy Clause,’ WHICH SPECIFIES that federal laws ‘are the supreme law of the land’ and therefore take precedence over state laws, meaning that in our constitutional framework Obamacare legally trumps any legislative acts from South carolina’s state government”. Case closed, apparently! Actually, Article VI reads “This Constitution, and the Laws of the United States WHICH SHALL BE MADE IN PURSUANCE THEREOF … shall be the supreme Law of the Land…” With the phrase in caps conveniently omitted and his audience unaware of the omission, the good Dr. appears to have made his point.
But with the actual language of the Article in place, no way! In fact, it is this language omitted by Dr. Gitz that, of course, begs the crucial question at hand: “just which laws are or are not ‘made in pursuance’ of ‘this Constitution’? Was Gitz unaware of this qualifying language in Article VI and therefore totally uninformed and unqualified to opine on the subject at hand? Or was he aware of this language, but somehow too stupid to understand its significance? In any event, his failure to mention this qualifying language amounts to misleading his readers, ie. lying, whether intentionally or by neglect.
2) Gitz follows up this nonsense with another boner: “Second is Article III of the Constitution, WHICH SPECIFICALLY GRANTS (caps added by me) the federal courts, the highest of which is the United States Supreme Court (SCOTUS), the power to determine that which is and isn’t constitutional, a power generally referred to as “judicial review”.
Gitz is simply WRONG about Article III, which simply states that “The judical Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”. Article III goes on to define the judicial Power, but it says nothing about judicial review or the power of the courts to determine constitutionality, and certainly does NOT SPECIFICALLY GRANT them this power. Once again, Gitz is wrong, ie. he is LYING!
With a shaky foundation like that, why should I or anyone else take what Dr. Gitz has to say seriously? If he can’t even properly understand or interpret the simple, clear language of the two Constitutional provisions that he quotes, why should we trust his wisdom or logic, or his motives at all?


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