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Capital follies: How do you say 'unconstitutional'?



Thank God someone in Raleigh knows something about the U.S. Constitution. That someone would be N.C. Attorney General Roy Cooper, who last week told Gov. Perdue that he could not defend the GOP-sponsored challenge to the national health care reform law, since — plain and simple — "State legislatures cannot pick and choose which federal laws the state will obey." Hopefully, Cooper will also be able to clarify a couple of things about the North Carolina Constitution to the new Republican majority in the General Assembly — but back to that later.

Cooper's letter to Perdue was initiated by the General Assembly's passage of the health care court challenge, which includes language telling Cooper he has a duty to defend the challenge in court. Cooper's objections are on very solid legal grounds. The Republican majority's bill seeks to block the provision in the federal health care reform law that requires most people to buy health insurance. They say the insurance mandate violates the right of individuals to choose whether to have health insurance. Gov. Perdue had said earlier that she would not sign the bill but would let it take effect without her signature. Insiders now say Cooper's letter — which also noted that the bill could mean losing Medicaid or children's health insurance funds — is reconsidering her position.

The constitutional problem stems from the GOPers' belief, shared by Republican legislators in at least a dozen state legislatures, that they are entitled to, as Cooper put it, "pick and choose" among federal laws. That belief is based on the tenets of the "Tenther" movement, whose adherents quote the 10th Amendment to the U.S. Constitution, which says that the powers not delegated to the federal government "are reserved to the states" or to the people. Unfortunately for the Tenthers, the Constitution's "Supremacy Clause" in Article VI, clearly states that federal laws "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." For nearly as long as the republic has existed, that clause has been held to mean that a federal statute trumps state laws — a view that means the health care challenge bill passed last week is illegal. In fact, no court has ever upheld a state effort to nullify a federal law.

Other Tea Partiers in the General Assembly, including Reps. Glen Bradley and George Cleveland, are preparing additional bills that would overturn federal laws. Cleveland, who apparently stays busy channeling the spirits of secessionists past, declared, "The federal government should not be dictating what we do in the states."

Anyone who has a grasp of American history knows that these guys are, at best, pissing into the wind. What's worse, though, is that they're on the verge of lighting a powder keg they've dug up from the cellar of U.S. history, namely the "Nullification Crisis" of the 1830s. That's when President Andrew Jackson (of Waxhaw) responded to South Carolina's declaration that it wasn't bound by a federal tariff by saying that the Constitution "forms a government, not a league" — and telling S.C. that it would abide by the tariff or he'd send federal troops to enforce the law and hang the nullifiers' leader, John C. Calhoun. In addition, if memory serves me, there was another little set-to in American history that revolved around some states that disliked federal policies so much, they wanted to secede from the U.S. That one didn't end too well for the nullifiers, either.

Now, yet another constitutional brouhaha is looming in Raleigh, this time involving the N.C. Constitution. House Majority Leader Skip Stam introduced a bill to give $2,500 tax credits to parents who move their children from public to private schools, a move that would essentially subsidize private schools. In addition, another bill would open the way for unlimited numbers of charter schools, set up under an agency separate from the state Board of Education.

The problem this time is that the N.C. Constitution does not allow for state subsidies of private K-12 education. Here it is, chapter and verse: Article IX, Section 2: "The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students." And then Section 5: "The State Board of Education shall supervise and administer the free public school system and the educational funds provided for its support ..." A reasonable person would, I believe, conclude that, under the N.C. Constitution, the state is not empowered to subsidize private schools, which is what the tax credit would do. On top of that, the state constitution makes no mention of any publicly subsidized schools being run by any agency other than the Board of Education.

My point here is simply that it would be a good idea if the members of the Tea Party faction in Raleigh, who are so fond of throwing the word "constitutional" around like so much confetti, actually knew what they were talking about.

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