By Howard Portnoy
January 22, 2011
Idaho, the first state to sue the federal government over the health care overhaul, has announced plans to resort to an obscure 18th century legal remedy that recognizes a state’s right to nullify any federal law that the state has deemed unconstitutional.
The doctrine, known as nullification, has its roots in the brand of governance practiced by the nation’s founding fathers. It was used as early as 1799 by then-law professor Thomas Jefferson, who wrote in a response to federal laws passed amid an undeclared naval war against France that
nullification, by those sovereignties, of all unauthorized acts … is the rightful remedy.As a legal theory, nullification is grounded in the assumption that states, and not the U.S. Supreme Court, are the ultimate arbiter in cases where Congress and the president have “run amok.”
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