North Carolina is joining a nationwide movement in which states are attempting to reassert their sovereignty.
House Bill 2, Protect Healthcare Freedom — which attempts to exempt North Carolinians from the federal mandate requiring them to purchase health insurance — is only one of several bills state lawmakers are introducing this session in an effort to re-establish the authority of the 10th Amendment to the U.S. Constitution.
Rep. George Cleveland, R-Onslow, filed House Resolution 34, State’s Right to Claim Sovereignty, on Feb 2., and Rep. Glen Bradley, R-Franklin, filed House Bill 65, North Carolina Farmers Freedom Protection Act, on Feb. 9.
The 10th Amendment states 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.” The bills seek to limit the federal government’s authority over North Carolina residents.
Legal experts, however, say the measures are unlikely to have any practical effect. The Supremacy Clause from Article VI of the Constitution states that all federal laws and treaties enacted in accordance with the Constitution are considered “the Supreme Law of the Land,” and that when state and federal laws conflict, federal legislation prevails. States wishing to rein in federal authority or overturn federal legislation would need to amend the U.S. Constitution, these scholars say.
H.R. 34 urges the federal government to “cease and desist” issuing mandates that are “beyond the scope of any constitutionally delegated powers” and to repeal any such legislation that has already been enacted.
Cleveland said the purpose of the legislation is to tell the federal government to stay out of the state’s business.
“The federal government is leading the states down primrose path by federal dollars,” he said.
Cleveland said too often states give up their sovereignty in exchange for federal funding. He offered Medicaid as an example. The state is forced to increase Medicaid populations to continue receiving federal funds for the program, he said.
“It’s a vicious cycle,” he said.” They send monies to do things, they fund it for two or three years, and then they cut their money off and we’re stuck with sticking our citizens with the bill.”
Cleveland introduced identical legislation (HB 849) last year, but it never got out of committee. He thinks he will have better luck with the new Republican majority.
H.B. 65 attempts to exempt North Carolina farmers from federal regulations as long as their food is produced, sold and consumed within the borders of North Carolina.
Bradley wrote the bill in response to the FDA Food Safety Modernization Act (S. 510), which he sees as a federal takeover of the food supply.
Bradley said it could cost farmers making as little as $50,000 a year as much as $10,000 annually to comply with the new regulations. It’s a cost that puts small farmers, farmers markets, and local restaurants in danger of extinction, he said.
“It’s going to make it more expensive to buy local produce from the farmers market than it is to buy California produce from the grocery store,” Bradley said.
“It’s up to the states to enforce the Constitution against the federal government,” he said. “The Congress is not going to call the Constitution on itself. It’s just not going to happen.”
Bradley has two other 10th Amendment bills in the works: The Firearms Freedom Act, which would exempt firearms manufactured, sold, and used within state lines from federal regulation, and the Intrastate Commerce Act, which more generally would state that the federal government had no jurisdiction over commerce that didn’t cross state lines.
Practicality
While the bills may send a political message to the federal government, they may not have any legal force, said Eugene Volokh, a constitutional law professor at the UCLA School of Law and publisher of The Volokh Conspiracy, a group weblog written by conservative and libertarian legal academics.
The State’s Right to Claim Sovereignty bill is merely an expression of the state’s sentiment, Volokh said. He said phrases in the bill including “supports” and “urges” have no legal effect.
Different versions of H.B. 2 have passed the House and the Senate. The House may take a final vote on the bill as early as today and send it to Gov. Bev Perdue. The bill attempts to pre-empt federal law, “and that’s something a state can’t do,” Volokh said.
While the state has no legal authority to exempt its citizens from federal laws, it does have the ability to sue the federal government if Washington creates laws that are beyond the limits of the powers allowed by the Constitution. That’s the point of a multistate lawsuit challenging the constitutionality of the federal health care law. H.B. 2 orders Attorney General Roy Cooper to join that lawsuit.
North Carolina’s participation in the lawsuit might not affect any court action, Volokh said. But if North Carolina and enough other states speak up, he said, it could have an impact, even if the lawsuit eventually does not succeed.
“It may send a political message, and sometimes law is ultimately changed through people sending political messages,” he said.
The Farmers Freedom Protection Act, Volokh said, is the only one of the three bills that may have a legal leg to stand on.
Section 5 of the bill prohibits federal, state, and local officials from enforcing federal regulations against farmers engaged in intrastate commerce. The penalty is a misdemeanor.
A state cannot restrict the actions of federal agents, Volokh said, but he noted that the federal government cannot compel state agents to enforce federal law.
While the state could not protect its farmers from FBI or Food and Drug Administration agents, he said, it could make it difficult for the federal government enforce S.510 by instructing state and local law enforcement agencies not to assist federal officers.
Volokh said states that are serious about regaining their sovereignty should call for a Constitutional Convention and amend the U.S. Constitution.
Two-thirds of the states (34 legislatures) would have to pass resolutions calling for the convention, and any proposed amendment would have to be approved by three-fourths of the states. A convention has not been called since the Constitution was ratified in 1787, but it’s not impossible, Volokh said.
On Wednesday, the South Carolina House of Representatives approved a resolution calling for a Constitutional Convention to enact a “repeal amendment.” Under this provision, a vote of two-thirds of the states could repeal any federal law.
A constitutional amendment allowing states to repeal federal legislation not only could repeal the health care and food safety laws, Volokh said, it also could put Congress on notice not to enact similar laws giving federal regulators such extensive powers.
Sara Burrows is an associate editor of Carolina Journal.