Should South Carolina be able to opt out of the federal law commonly called “Obamacare”?

Nullification in other states

Other examples of nullification in the U.S. include:

The Colorado Marijuana Legalization Amendment was approved by voters Nov. 6. It legalizes marijuana in the state, even though marijuana possession in the U.S. is a federal crime.

The Alabama Health Care Amendment was approved by voters there Nov. 6. It decided that federal participation in any mandated health care system is prohibited. The U.S. Supreme Court upheld the constitutionality of the Patient Protection and Affordable Care Act in 2012.

The Montana Firearms Freedom Act says the federal government has no authority to regulate guns, gun accessories and ammunition that are made and used within Montana. It was passed in 2009.

State agencies

What about firearm regulations? The Second Amendment of the Constitution protects our right to bear arms, but what if the state chose to turn its back on gun policy set by the U.S. Congress?

The Supremacy Clause

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Article VI of the U.S. Constitution

At the heart of both of these issues is whether state laws trump federal ones. The answer depends on who you ask.

Article VI of the U.S. Constitution, a few Supreme Court decisions handed down over the past 200 years and the Civil War seem to say no, states can’t nullify federal laws. But some Republican legislators in Columbia disagree.

That’s why a handful of nullification bills have been introduced in the General Assembly this year. They are the latest in a long list of laws drafted by South Carolina politicians over the years asserting that the state’s sovereignty supersedes federal regulation.

One of these, called the Freedom of Choice in Health Care Act, would make the entire Patient Protection and Affordable Care Act void in South Carolina and would prohibit any state employee from enforcing it.

Another proposed law would exempt any firearm made and kept in South Carolina from federal regulation. A third, called the Second Amendment Preservation Act, says South Carolina will ignore any federal gun laws it deems unconstitutional.

Nullification in South Carolina goes back to the 1820s, said Bernard Powers, chairman of the history department at the College of Charleston.

“The flashpoint for South Carolina was the issue of tariffs and whether the federal government had the authority to pass protective tariffs,” Powers said.

It culminated in the Nullification Crisis of 1832 when President Andrew Jackson threatened to dispatch troops to South Carolina to enforce federal law. The crisis was averted at the 11th hour by a compromise, Powers said.

“These measures were basically symbolic, but nevertheless, what they tell us was the position that South Carolina took in the early 1830s set the stage for the coming of the Civil War,” he said.

The Legislature pushed back against the tariffs in part to test its boundaries with Washington on the much more hot-button issue of slavery, Powers said.

“Ultimately, it was settled on the battlefield,” he said.

Today, nullification laws in South Carolina and other states are little more than political posturing and carry no legal weight, said Derek Black, a constitutional law professor at the University of South Carolina.

“As much as states hate it, they have absolutely zero authority to nullify federal action,” Black said.

The Supremacy Clause in Article VI of the Constitution says that the Constitution and U.S. laws are the “supreme Law of the Land.” South Carolina does not have the right to decide which federal laws it will or will not comply with by passing a state law, Black said.

“Legislators love to do it because when Congress passes laws that local folks don’t like, it helps you get re-elected, but it doesn’t have any legal effect,” he said.

Karen Miller, a tea party organizer in Spartanburg, interprets the Constitution differently.

“Any laws that are passed outside the limits of the Constitution are not in pursuance of the Constitution. To me that’s pretty simple,” said Miller, who supports the proposed Second Amendment Preservation Act, sponsored by an Upstate lawmaker, Rep. Lee Bright, R-Roebuck.

“It is a shame that the states have to exert their sovereignty to protect their citizens from federal overreach, but it seems like we have to pass these laws,” Miller said.

Bright did not return two phone messages on Thursday.

Nullification supporters cite the Constitution’s 10th Amendment as a counter to Article VI’s apparent supremacy.

The Bill of Rights document declares, “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.”

None of the proposed nullification laws that have been proposed this session in South Carolina have been passed. The General Assembly breaks for the year on June 6.

Until then, legislators in Columbia will continue to debate gun control, health care and more. While none of these issues may be as polarizing as slavery was in the 19th century, Powers said South Carolina’s antebellum past offers important lessons.

“These kinds of issues seem to reach a crescendo when they involve ... one group of people who fear that their rights and liberties are being encroached upon. When you look at the cases when nullification has received the greatest attention, you’ll find that the nullifiers have ended up on the losing end,” Powers said.

“The lesson to be learned is that the state ought to tread very warily and with great trepidation when it defies the authority of the federal government.”

Reach Lauren Sausser at 937-5598.