This video is from a couple of years ago, but I think the subject is still quite relevant today. It is a recording of NPR’s “On Point with Tom Ashbrook” where Neil Siegel (a Duke Law Professor) and Tom Woods (professor of U.S. history) are guests, discussing the subject of nullification in light of the Patient Protection and Affordable Care Act.
At first, I was struck by how poor the arguments were by callers. Then, I noticed how bad the arguments by Professor Siegel were. And finally, I began wondering if they were going to let Tom Woods speak. It was quite frustrating to listen to, and what better place to vent my frustration than the Internet?
@01:22 Neil Siegel expresses that he thinks there are legitimate discussions about limits to federal power but doesn’t like the fact that such discussions often involve talking about nullification or secession. This seems strange to me for a couple of reasons: 1) he says the individual mandate is constitutional because of Congress’ taxing power, and agrees with the decision of the Raich case (where SCOTUS ruled that Congress, under the Interstate Commerce clause, has the power to regulate marijuana that has neither been sold nor crossed state lines) which to me implies he believes that there are no limits to federal power; 2) he doesn’t address how limits to federal power will be enforced. He repeatedly says that nullification is not mentioned in the Constitution and is therefore not legitimate, yet does not acknowledge the fact that neither is judicial review by the US Supreme Court.
@04:30 Siegel doesn’t talk at this time about the merits of whether people who oppose the health care law have a legitimate beef with it being constitutional; rather, he talks about how nobody was talking about nullification when George W. Bush was in the White House (but in fact, some were) and how inconsistent they are (which is ironic because he begins by rightfully complaining about the wars, but not the fact that the current president was continuing them). I don’t see why some people failing to complain about the size and scope of the federal government when a Republican is in the White House implies that their current complaint is then illegitimate.
@07:00 Before this point, Woods has to field whatever leftovers Ashbrook decides to give him. He gave Siegel open-ended questions that he could answer how he wanted and wherever he left off is where Ashbrook had Woods continue. Woods has to take charge by addressing a point that Siegel made that Woods wasn’t given the chance to address. Siegel talks about nullification only in terms of being pro-slavery or anti-civil rights movement, being unquestioned by Ashbrook. Woods correctly points out that nullification has never been invoked in order to protect slavery, but was in fact used against the Fugitive Slave Act. Yet, @08:40 Ashbrook interrupts Woods in order to let Siegel address a point that Woods made about constitutional ratification.
@09:20 Siegel mentions talks at the constitutional convention of the federal government being able to intervene to do something the states cannot adequately do themselves (I’ve never heard this before and will have to look into it). He says health care is a textbook example. His reasoning is as follows: if individual states try to have an individual insurance mandate, the healthy will move out of state and the unhealthy will move into the state, and this is why only one state has tried it. But think about the implications of this argument: health insurance is so undesirable for healthy people that not only would they be unwilling to pay for it, they would go through the inconvenience of moving out of state and foregoing health insurance altogether. As well, the subsidy to sick people is so large that they would be willing to move states in order to get it. These things are necessarily entailed by his statements. But the unspoken assumption is that health insurance is so important that everyone should be forced to have it. But the idea that people would be willing to move to another state to avoid paying for it contradicts this assumption.
This analysis fails on other levels. He seems to also assume that insurance pools will only exist within a single state’s borders (otherwise the sick wouldn’t have to depend on healthier people staying in state). To be fair, his assumption is correct: people are not allowed to buy health insurance across state lines. But why not bring up this failure in policy as a target of reform instead of forcing everyone to buy insurance whether or not it’s a good deal for them?! In fact, the entire discussion about the federal government being able to intervene when states cannot do something raises the question: “If certain individuals find a policy detrimental enough such that they would go through the trouble of leaving a state if its government tried to implement it, why would we want it to be law at the national level?” The argument that some things such as this can only be enacted at the national level seems to be a prima facie evidence that it violates the General Welfare clause, which, contrary to popular opinion, means that federal law is supposed to be generally beneficial, not only towards special interests at the expense of others.
@11:18 Siegel says, “Show me where the nullification clause is in the Constitution.” Show me where Congress being able to mandate everyone buy insurance is. It seems crazy to me that the same people who will argue endless implied powers for the federal government then demand that the specific power of states to nullify federal law must be expressly stated. He says it’s not in the 10th Amendment, but this begs the question: How exactly are states and the people supposed to retain their reserved powers if not disobeying (and thereby nullifying) unconstitutional federal law? He never addresses this issue.
@13:00 Here is caller Cesar’s argument against secession: If you secede from the federal government, how are you going to deal with hurricane damage (if you don’t have the money to pay for it)? I don’t even know if I should respond to this lest the reader think I am tossing myself softballs, but in any case I will. Firstly, hurricanes aren’t really an issue for every state. Secondly, though it may be hard to believe, the federal government doesn’t have the money to pay for it, either. They are not an endless supply of funds. Thirdly, if you believe individuals are either unable or not responsible enough to save for their own emergencies, and neither are charities, churches, or even state governments, what in the world makes you believe that the federal government is? Fourthly, what hurricane relief provided by the federal government makes you believe that it would be a secession deal breaker?
@13:22 Caller Sarah says that the federal government spends a lot of money on health care, therefore it should have the right to be able to force people to buy health insurance, kind of like car insurance. Under this reasoning, the government has a right to regulate nearly anything you do since it spends money on nearly everything. This is not hyperbole. Really, if the government is so involved in health care that it can force you to buy health insurance, what behavior can it not regulate? Any activity that involves risks to health (which almost all do) can then arguably be dictated by the government. Alcohol can cause health issues. Lack of exercise can cause health issues. Travelling out of the country can cause health issues. Should the government be able to take away your beverage, force you to exercise, make you get vaccinated when you leave the country (or even forbid you from leaving)? I honestly don’t believe Sarah would accept these conclusions even though her reasoning implies them.
@15:02 Ashbrook, instead of having Siegel defend his contradictory argument that the federal government should force everyone to buy health insurance, he asks Woods, “What about Neil’s argument?” How come the burden of proof is constantly on Woods while Siegel’s points go unquestioned?
@16:15 Brian writes in, “I thought we settled the nullification issue with the death of 700,000 Americans in the 1860s and the liberation of 4.2 million slaves.” This argument is just another way of saying, “Might makes right.” Since Lincoln was able to conquer the Confederacy, this means the federal government has the right to dictate whatever it wants. But can I blame Brian? My ethics professor made the same argument.
@16:23 Lark asks, “Why aren’t proponents of state’s rights opting out of Medicare?” Maybe because it’s not allowed, Lark? Who picks these questions?
@18:06 After Elena says she would prefer the state of New York to opt out of Medicare, Ashbrook states, “There may come a time when you feel differently.” No question where he stands.
@18:56 Siegel asks, where does the power of nullification logically end? Can states opt out of foreign policy? Questions like these give me the feeling that Siegel is making little effort to understand the nullification advocates. It seems pretty obvious that they desire to nullify unconstitutional federal laws that infringe upon state’s rights. If he is worried that states will go rogue and nullify federal laws that are within the purview of Article I, Section 8’s list of enumerated powers, then why wouldn’t he be far more worried that the federal government would go beyond its enumerated powers? We have far more evidence for the latter happening than the former.
@21:05 Billy claims that what George W. Bush did (including the invasion of Iraq), though people may have not agreed with it, was constitutional. Well, we should know that only Congress can declare war; it didn’t, therefore the invasion of Iraq was unconstitutional. As for things like warrantless spying, torture and indefinite detention (which I assume he’s talking about), the first is prohibited by the 4th Amendment protection against searches and seizures, the second is outlawed by the 8th Amendment’s bar against cruel and unusual punishment and the third is prohibited by the 5th Amendment’s due process clause (and if one makes the argument that those protections don’t apply to non-Americans, then I retort that they violate the Geneva Conventions, all of which were signed by the U.S.). So Bill is incorrect about that. But he doesn’t think the individual mandate is constitutional. Ashbrook responds, What if legal scholars say that Obamacare is constitutional? Bill replies by saying (rightfully so) that legal scholars can be wrong and that he knows the mandate limits his freedoms. But I certainly hope Bill will come to understand that much of what Bush did also infringes upon freedom.
@22:37 Siegel: I don’t hear anyone saying that it would be unconstitutional for the states to require people to purchase health insurance. Maybe because they aren’t trying to do so? Or at least that was true for most of them in 2010. But how is this relevant? It’s like Siegel keeps criticizing people for the arguments they aren’t making rather than the ones they are. Granted, Billy was incorrect in presuming something is unconstitutional because it infringes upon individual freedom. However, Siegel incorrectly inferred that Billy’s argument also presumed the individual mandate violated state constitutions; he is attacking a straw man.
@23:45 It is interesting to note that Siegel says that if the US Supreme Court strikes down Obamacare, it would imply massive changes to Medicare and the taxing power. Congrats to him for recognizing the implications: if Obamacare is unconstitutional, so are a huge number of federal programs.
@24:32 Richard criticizes Woods for “invoking Jefferson,” but not mentioning the unconstitutional things he did, like the Louisiana Purchase and the Embargo Act. The only problem with this is…Woods actually mentioned the Embargo Act! As well, Richard says that Hamilton often disagreed with Jefferson, so why should Jefferson’s views take precedence over Hamilton’s? The thing is, Woods never relied upon “This is what Jefferson said, therefore this is what is constitutional.” Rather, he talks about how the Constitution was sold to the states. If we are to think of the Constitution as a social compact, what the people signing it believed they were signing is highly relevant.
@26:45 Robert says they are not acknowledging the “elephant in the room”: racism! That’s right! (Even though I suspect Siegel subtly tried to make that point when all historical efforts he described as attempts to defend state’s rights had to do with preserving slavery or impeding the Civil Rights Movement.) Robert says the opposition to Obama is primarily due to race and civil rights. Why? Because “it is inconceivable that you would not allow a child to have access to health care due to pre-existing conditions.” But, of course, this is a non-sequitur. It is not the case that if you don’t want the government to force you to buy health insurance that you are against children with pre-existing conditions getting medical care. But what makes health care different than everything else? Some people claim it is a right because we would die without it. But that same consideration applies to food and I would doubt those same people would advocate centralized farming. To housing as well, but I don’t know of anyone calling for the government to provide condos for everyone. So what is it about health care that it should be centrally planned rather than the government simply having programs for the needy? (P.S. It should go without saying that opposing Obama’s policies does not imply you a racist.)
@30:26 Again, Woods has to insert himself into the conversation, right after Ashbrook allows Siegel to comment on the race issue and then tries to go to another caller. It seems hugely unfair to characterize the opposition to the individual mandate as at least partially racially motivated and then not allow the opposing guest to speak.
@32:23 Caller Kristen criticizes Billy’s argument that the individual mandate would infringe upon his freedom because if he got hurt and was uninsured then someone else’s freedom would be infringed upon because they would be forced to pay for Billy’s recovery care. Doesn’t it go without saying that in this scenario Billy wouldn’t force anyone to pay for his care, the government would!
@33:55 Siegel: “Any talk of nullification bothers me because it’s talk of lawlessness.” There you have it. 300 million people must have their all of their actions approved of by a central authority or else there is lawlessness. Why is it then not the case that we live in lawlessness because there isn’t a one world government? Can there be a more arrogant statement of hegemony? And, as mentioned above, Siegel expresses approval of the Supreme Court’s decision in Gonzales v. Raich (2005), where a woman who grew her own marijuana plants in her own home for her own consumption in total accordance with California law was raided by the feds, who destroyed her plants. Wikipedia reports that “Angel Raich’s physician has stated that, without marijuana, Angel’s life is threatened by excruciating pain.” In its decision, the Court cites Wickard, one of the worst decisions the Court has ever made. They stated that a farmer growing wheat for his own consumption could be regulated under the Commerce clause because his non-participation in commerce affected interstate commerce. Again, a woman growing marijuana for her own use affected interstate commerce. Under this logic, there is no substance or object that Congress cannot regulate.
@34:34 Siegel: You’re not going to find any court in the land, at least not a federal court, that says, ‘Yes, states have a constitutional power of nullification.’ But wouldn’t this be an argument to why a check upon federal power that is not the federal government itself is necessary? The federal government believes it should have a monopoly on interpreting its own power. Big surprise!
@36:50 “Social security is constitutional, and no one’s challenging that anymore, so it that’s constitutional then this is constitutional,” says Siegel. But Social Security isn’t constitutional. And, yet again, Siegel is criticizing us for not challenging all constitutional laws simultaneously. No pleasing him.
As a final note, I timed the speaking time for both guests. Neil Siegel was allowed to speak for approximately 12 minutes and 15 seconds according to my stopwatch. Tom Woods was given 8 minutes and 15 seconds and had to assert himself to get his voice in. Nice moderating, Ashbrook.