The resistance

SC’s new nullifiers intent on blocking federal laws

abeam@thestate.comFebruary 17, 2013 

The SC State House dome.

TRACY GLANTZ — The State

  • The nullification Legislature Some of the bills in the S.C. Legislature that would nullify – or have the effect of nullifying – federal law: State Senate • S.92: A bill by state Sen. Tom Davis, R-Beaufort, would prevent state employees from enforcing the federal National Defense Authorization Act. Status: Approved by Senate Judiciary Committee, blocked on the Senate floor by Democrats. • S.224: A bill by Davis that would “nullify in South Carolina any presidential executive order restricting, abridging or otherwise infringing upon a citizen’s 2nd Amendment right to keep and bear arms.” Status: Has not had a subcommittee hearing. • S.247: A bill by state Sen. Tom Corbin, R-Greenville, that South Carolinians “shall have the right to possess ... all arms that could be legally acquired or possessed by a South Carolina citizen as of December 31, 2012.” Status: Approved by a Senate subcommittee S.C. House H.3101: A bill by state Rep. Bill Chumley, R-Spartanburg, that would make enforcing Obamacare in South Carolina a felony punishable by up to five years in prison or up to a $5,000 fine. Status: In a House Judiciary subcommittee. H.3436: A bill by state Rep. Donna Wood, R-Spartanburg, that is similar to Sen. Tom Corbin’s S.247. Status: Has not had a subcommittee hearing yet. • H. 3473: A bill by state Rep. Greg Delleney, R-Chester, that would, among other things, give a state tax credit to offset the federal tax penalty for someone who does not comply with Obamacare. Status: Awaiting an economic impact study.

— When the U.S. Congress passes a law, can South Carolina refuse to follow it? To a growing number of Republican state lawmakers, who control the S.C. Legislature, the answer is yes.

In the legislative session that started in January – two months after Democratic President Barack Obama was re-elected – S.C. lawmakers have filed dozens of bills that would nullify federal laws.

And, this year, the bills are not disappearing into the labyrinths of legislative subcommittees where proposals once thought to be fringe ideas have gone to die in the past. Instead, they are rocketing to the top of agendas and some are passing powerful judiciary committees.

“In all the years I have been here, I have never seen this,” said state Sen. Nikki Setzler, D-Lexington, South Carolina’s longest-serving senator and the leader of Senate Democrats.

The bills most frequent target is the federal Patient Protection and Affordable Care Act, commonly referred to as Obamacare.

Other bills seek to nullify as-yet-unpassed federal gun laws. One would allow an “unorganized militia” in South Carolina to be armed with military assault-style weapons, just in case the federal government passes a ban on the weapons.

Some bills – like H. 3101, sponsored by state Rep. Bill Chumley, R-Woodruff – would outright declare the health care law null and void within South Carolina’s borders. Other proposals – such as H. 3473, sponsored by state Rep. Greg Delleney, R-Chester – would indirectly nullify Obamacare, going to great lengths to avoid the word “nullification.”

State Sen. Tom Davis, R-Beaufort, doesn’t care what you call it. He says he is just happy that states are “for the first time I can remember in recent history ... actually stepping up (and) challenging the exercise of power by the federal government.”

Critics say many of the proposals are unconstitutional. Leaders of legislative Democrats say Republicans are trying to use the wrong forum, the Legislature, to express their disagreement with the federal government. Instead, they should take their case to the federal courts.

Davis is unfazed.

“The jury is still out in a lot of regards as to whether or not it will be effective,” said Davis, a Tea Party Republican. “But I think it is extraordinarily healthy.”

Healthy or not – effective or not – the nullification bills have the potential to swallow up the legislative session, overwhelming the agenda to the point of crowding out other proposals.

Last week, for example, Senate Democrats had a chance to push through one of their signature causes: a bill to allow early voting before election day. But to get it, they would have had to agree to a vote on Davis’ bill to nullify part of the federal National Defense Authorization Act.

Neither side would budge, and nothing happened.

‘That didn’t work out too well’

If you ask Senate President Pro Tem John Courson, R-Richland, about nullification, he – like many others – brings up the Civil War, which South Carolina started by nullifying its union with the United States.

“That didn’t work out too well,” Courson said.

But the new nullifiers see the Civil War as a clear example of why nullification works and why it is necessary.

The South did not secede because it wanted to nullify federal law, they say. The South seceded because it was angry Northern states were nullifying federal slavery laws. South Carolina’s Declaration of Secession, adopted in December 1860, called out 13 Northern states that had “enacted laws that either nullify the Acts of Congress or render useless any attempt to execute them.”

“That’s an example of nullification actually being used against an evil system, against the evil system of slavery,” Davis said.

The nullifiers base their legal argument on the 10th Amendment to the U.S. Constitution, which says that “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.”

If the federal government oversteps its bounds, it is up to the state to push back, Davis said.

State Sen. Brad Hutto, D-Orangeburg, agrees. But he says Davis is using the wrong vehicle – the Legislature – to resist.

“The arbiter ... is the federal courts,” Hutto said. “The federal courts decide the constitutionality of an act of Congress.

“I just don’t see it as a state proceeding for us to act ... to determine the constitutionality of a federal bill. But that’s what we are being asked to do.”

South Carolina has used the 10th Amendment defense before and won.

In 2005, the federal government passed a law standardizing driver’s license requirements. South Carolina, along with many other states, said the federal regulations were too burdensome and expensive. When the state passed a law refusing to comply with the regulations, the federal government threatened that it wouldn’t recognize South Carolina driver’s licenses for boarding commercial airplanes.

So far, that has proved an empty threat.

“(The federal government) put a standard in place for states to follow, and we looked at it, and we looked at it very thoughtfully and we said, ‘No,’” said Senate Judiciary Committee chairman Larry Martin, R-Pickens.

‘This is a bill about love’

On Feb. 6, more than 100 people crammed into a meeting room at the State House for a House Judiciary subcommittee hearing on state Rep. Chumley’s bill to nullify Obamacare in South Carolina.

“This is a bill about love,” Chumley told the subcommittee. “About love of freedom, about love of liberty, about love of our way of life.”

The bill, citing the 10th Amendment to the U.S. Constitution, declares that the federal health care legislation is unconstitutional and says anyone who tries to enforce it in South Carolina would be guilty of a felony, punishable by up to five years in prison or a fine of up to $5,000.

The proposal is patently unconstitutional, seeking to overturn a law that has been upheld as legal by the U.S. Supreme Court, critics say.

Chumley’s bill “is based upon long-rejected political philosophy and a misunderstanding of our Constitution,” says Thomas Crocker, a constitutional law professor at the University of South Carolina.

“I can’t say anything nice,” Crocker said. “It’s just so completely wrong.”

Delleney, the House Judiciary Committee chairman, agrees.

‘Give people money to violate federal law’

But Delleney is not giving up. If individuals or employers do not comply with Obamacare, they will have to pay a fine or, as the U.S. Supreme Court put it, a tax.

In his bill, Delleney proposes that the state give a tax credit to that individual to offset the cost of the federal tax.

“My bill is an alternative. It’s a legal way of resisting Obamacare,” Delleney said. “It doesn’t have the word nullification in the bill. It’s a resistance, it’s a legal nullification, if you will. It’s a constitutional nullification.”

Delleney still does not know how much his bill would cost, however. He is waiting for an analysis by the state Board of Economic Advisors before giving the bill a public hearing.

USC’s Crocker said Delleney’s approach – unlike Chumley’s – is constitutional.

“The state of South Carolina can do whatever it wants with its tax code,” he said. “If the state of South Carolina wants to give people money to violate federal law, essentially, it can do that.”

Reach Beam at (803) 386-7038.

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