Somehow, I missed Sen. Tom Davis’ announcement of how he was changing the emphasis of his nullification bill, until about three days later. So I didn’t write about it.
But now it’s been 10 days, and I think we should still at least make note of it, because it’s indicative of a shift of emphasis on the state’s rights front.
You’ll recall that Tom indicated earlier that he was backing away from “nullification,” which I saw as a positive development, since we really don’t need to revisit the discredited ideology of 1832. What Tom did 10 days ago was announce what he’s changing that wording to.
Here’s his release:
BEAUFORT, S.C. – Yesterday afternoon, State Senator Tom Davis (R-Beaufort) filed with the Clerk of the South Carolina State Senate a strike-and-insert amendment for H. 3101, a bill passed by the South Carolina House of Representatives in May 2013 that initially sought to nullify the Patient Protection and Affordable Care Act (ACA). Davis was appointed last June by Sen. John Courson, the President Pro Tem of the South Carolina Senate, to chair an ad hoc committee to review H 3101, and the committee subsequently held public hearings in Greenville, Columbia and Charleston. Davis’ amendment, a copy of which is attached, would slow the spread of the ACA in South Carolina by:
- Invoking the constitutional principle of anti-commandeering
- Requiring legislative approval for ACA grants and programs
- Rejecting the optional Medicaid expansion authorized by the ACA
- Prohibiting the creation of a state health-insurance exchange
- Registering ACA navigators with the state Department of Insurance
“The heart of my amendment is the anti-commandeering section,” said Davis. “The principle is a simple one: The federal government cannot compel a state to use state resources to implement a federal law. If the ACA is bad law – and I think it is – then South Carolina’s resources should not be used to implement it.” The principle of anti-commandeering was expressed by the United States Supreme Court in Printz v. United States, 521 U.S. 898 (1997): “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”
Anti-commandeering differs from nullification, in that the latter is a flat refusal by the state to allow a federal law to be enforced within its borders. “My amendment doesn’t say that,” said Davis. “It says that South Carolina will not use its resources to aid and abet in the ACA’s implementation. It really boils down to this: Why should we spend state money to implement a bad federal law?”
Other sections of Davis’ amendment would do the following: codify last year’s decision by South Carolina Gov. Nikki Haley to neither seek an ACA-authorized expansion of the Medicaid population nor create a state health-insurance exchange; require public entities that want to apply for ACA grants to justify the application in hearings open to the public and to obtain legislative approval prior to seeking them; and protecting South Carolinians from unscrupulous practices by navigators who are paid by the federal government to enroll people in ACA health-insurance exchanges.
“Ultimately,” Davis said, “it is up to the United States Congress to repeal the ACA. In the meantime, though, the states have the power and the duty to push back, and this is a way of doing that.”
The South Carolina State Senate is expected to begin debate on H 3101 next Tuesday.
And here’s a link to the amendment.
This strikes me as less a move away from extreme aims than a move toward strategic pragmatism. Which sounds like it would be good — whenever pragmatism even slightly displaces ideology, it tends to sound good to me — but I suppose one could see it as a glass-half-empty thing as well, in terms of getting more practical about achieving extreme aims.
But let’s be glass-half-full as well. At least Tom is acknowledging that states can’t nullify acts of the federal government. “Anti-commandeering,” even though the term suggests something local luminaries might have come up with during the Federal occupation of SC after the Recent Unpleasantness, makes a somewhat more modest assumption — that the feds can’t set states’ agendas or priorities, or tell them how to spend their resources.
The intended effect, however, is the same — “We don’t have to do what you goddamnyankees are telling us to do.”
Although Tom himself wouldn’t put it that way.
This is not a totally improvised fallback position, by the way. If you Google it, you’ll see “anti-commandeering” used on websites like tenthamendmentcenter.com/.