If you’ve been downtown, you’ve undoubtedly seen him, the dark silhouette of a cloaked figure looming 80-feet over the Holy City skyline and facing the busy street that bears his name: John C. Calhoun.
Known as the Great Nullifier, it was this South Carolinian, a U.S. senator and onetime vice president, whose chief legacy was the idea that individual states have the power to reject federal laws with which they don’t agree. His likeness also looms large in the State House lobby in Columbia, and his portrait — the largest in the room — hangs in the Senate chamber behind where the lieutenant governor presides.
This week, in 1832, South Carolina delegates gathered at a state convention in Charleston and approved the Ordinance of Nullification, which made it illegal to enforce certain tariffs within the borders of the Palmetto State. That move sparked what became known as the Nullification Crisis and ultimately laid the groundwork for secession and the Civil War.
Nearly 200 years later, Calhoun’s ideas are still alive in the S.C. General Assembly. A bill to nullify the federal Affordable Care Act health insurance law has been fast-tracked for debate in the Senate when lawmakers return to the State House in January. In the meantime, a bi-partisan group of state senators has been tasked with gathering input on the proposed bill.
Last week, when that Senate panel came to North Charleston, those on it aiming to halt Obamacare got a chilly reception.
‘This is stupid’
On Nov. 6, for more than three hours, members of the public let those senators know exactly how they felt about a plan to thwart the Affordable Care Act. In a room of about 70 at the North Charleston City Hall, one by one, locals stood to air their opinions about the proposed nullification law.
“Yet again, South Carolina reaches for the bottom,” said Gwen Robinson, a Mt. Pleasant attorney. “This is stupid.”
Robinson was one of more than a dozen South Carolinians ranging from teachers, doctors, ex-military, law students, healthcare workers, political operatives, and former lawmakers who showed up, speaking to five senators — three Republicans and two Democrats — about the S.C. Freedom of Healthcare Protection Act. The bill seeks to “render null and void certain unconstitutional laws enacted by the Congress of the United States taking control of the healthcare insurance industry and mandating that individuals purchase health insurance under the threat of penalty.”
Last session, the nullification bill passed the S.C. House, and it’s been set for special order in the Senate. That means lawmakers will take it up quickly when they return to Columbia in January.
Because of the bill’s polarizing and controversial nature, S.C. Senate President Pro Tem John Courson, a Columbia Republican, tasked a bi-partisan committee of senators to hold hearings on it throughout the state and gather public input. The dominant message those senators heard Nov. 6 in North Charleston was that such a symbolic measure is embarrassing for state residents, and lawmakers should spend their time and state resources on more serious matters.
At the hearing, lawmakers quibbled with whether the legislation was a true nullification bill, the kind of law that harkens back to the spirit of John C. Calhoun.
Tom Davis, a Beaufort lawyer and state senator revered by the state’s Tea Party movement, led the North Charleston hearing. Davis doesn’t think President Barack Obama’s signature domestic policy is in the best interest of South Carolina, and he supports measures in the nullification bill that would ban federal subsidies for health exchanges operating within the state’s borders and prohibit state resources from being used to implement Obamacare. He also supports provisions that would request the state attorney general to fight the ACA in federal court and another that would give state residents a tax exemption for any federal fine or penalty they might incur for not buying health insurance.
Responding to that, Sumter Democratic Sen. Thomas McElveen, also on the panel, said, “The end result of this bill’s passage would be the nullification of Obamacare,” an opinion shared by his Democratic colleague, Sen. Kevin Johnson. McElveen wondered if their time might be better spent working on how to fix the state’s crumbling roads and bridges and passing ethics and tax reform.
The state’s history with nullification wasn’t lost on a recent law school graduate named Andrew Patterson. He noted how it was this month in Charleston in 1832 that set the Nullification Crisis in motion.
“You can call this bill what you want,” Patterson told the lawmakers at the hearing last night. “But essentially it is gutting [a federal law] … the idea of nullification is terrifying to me.”
The three-and-a-half hours were dedicated to about 15 people who spoke out on the bill, a majority of whom were bitterly opposed to it, including 30-year-old law school student John Gentry, who said, “I’m a Republican, I’m conservative, but I’m against this law.”
On the other side of the political spectrum, Democratic strategist Tyler Jones of Mt. Pleasant said he was tired of South Carolina being the butt of jokes. He blasted Davis and his supporters for trying to generate headlines and stoke resentment within their Tea Party base. He said they know such a law will never pass and urged Tea Partiers to read the Constitution, take a civics course, “and for God’s sake turn off Glenn Beck.”
The bill, however, had its local supporters. The Charleston County Republican Party supports it, and the group’s chairman, John Steinberger, took to the floor to defend it, saying it had his backing in part because it starts with the words “South Carolina” and “Freedom.” He mentioned how some states had nullified the Fugitive Slave Act, and more recently likened the legalization of marijuana in some states as a form of nullifying federal drug laws.
Pacing back and forth in front of the panel in a Confederate soldier’s hat, an animated William Hamilton told the lawmakers he had penned a proposed counter law to the nullification bill that he calls the Healthy South Carolina Act. His version would expand Medicaid, allow the state to take part in healthcare exchanges, promote the fair collection of taxes and penalties under Obamacare, and instruct state officials to assist state residents with any benefits of the law.
Hamilton, a local lawyer who said his ancestors stood on Tennessee’s Missionary Ridge in Confederate uniforms during the Civil War, pointed to a woman in the crowd named Loreen Myerson who works as a navigator for the Affordable Care Act. (Versions of the nullification bill would bar state officials from implementing Obamacare; navigators work for groups that have been given federal grants to help implement it.)
“Your employees won’t help people get healthcare,” Hamilton told the panel. “Your clinics won’t, your governor won’t, Lindsey Graham won’t, Mark Sanford won’t. Loreen will.”
He said even if the website isn’t working Myerson is.
“Sir,” Hamilton said, gesturing toward Davis as he wrapped up his speech, “You don’t have to do what I ask you to do in Columbia. You don’t have to respect what I believe. This state can continue to embarrass me … but I can promise you … if you come after my friend and her navigators, I pledge this, sir, the blood that stood for the state of South Carolina on Missionary Ridge will fight again.”
Following the hearing, Davis said the public’s input had opened his eyes to some interpretations of the proposed state law.
“I have to tell you, there are some things I’ve learned I did not know,” he said. “And I suspect as time goes on between now and January when the session starts there will be additional things I’ll learn that I did not know … It’s helped me understand this bill in a way I didn’t understand it before.”
That said, Davis still maintains the Affordable Care Act is bad for South Carolina.
Last winter, when the nullification bill started picking up steam in the Legislature, Charleston Law School professor William Merkel had planned to testify against it at a State House hearing. The clock ran out before he could offer his opinion that day, but he shared with the City Paper his opinion on the bill.
A constitutional law scholar who is skeptical of originalism, Merkel says he’s leery of claims that the Founding Fathers favored a strong view of states’ rights.
“The Articles of Confederation, the system of government that pre-dated the Constitution, provided for the extremely strong states’ rights and a very weak federal government, but that was viewed as problematic,” he says. “The purpose behind the Constitution — and [James] Madison, the reputed father of the Constitution spells this out in great detail in his notes he made leading into to the constitutional convention — the principle purpose was to strip the states of powers and provide the federal government with ample authority.”
So in Merkel’s view, the nullification bill South Carolina is trying to pass just doesn’t square with constitutional law.
“There’s no technical definition of nullification,” Merkel says, adding that the strongest form of what’s associated with it came from John C. Calhoun at the time of what was called the Tariff of Abominations in 1830. Back then a nullification bill South Carolina passed provided for the arrest and criminal prosecution of federal officials and became famous for a showdown with President Andrew Jackson who’d threatened to use federal troops to enforce the tariffs.
“The phrase nullification doesn’t appear in the Constitution,” Merkel says.
But some of the things the current proposed nullification bill would do nearly 200 years later in regard to Obamacare, Merkel says, could likely pass constitutional muster.
For instance, a section requiring state officials to refrain from enforcing the Affordable Care Act within the state’s borders is entirely legitimate, he says, because the U.S. Supreme Court has ruled that the federal government may not “commandeer” state civil servants into enforcing federal law. And a provision that would grant state residents a tax a credit to make up for penalties the IRS could levy for not having health insurance, would likely also fly.
But Merkel is alarmed by a provision of the bill that essentially says any health insurance contract bought or set up through Obamacare would be void and couldn’t be enforced by state courts. He says that appears to contradict the Contracts Clause of the Constitution.
In a document Merkel has circulated to media, Merkel wrote that “far, far more dubious still” is language in the nullification bill that would authorize the state attorney general to restrain anyone from enforcing the Affordable Care Act if the AG has reason to believe a person or business might be harmed by it’s enforcement.
“To be sure, militant states’ rights advocates relish visions of a showdown with federal officials,” Merkel says, “But the attorney general and … state officials should have no illusions about the real-world consequences of violating and conspiring to violate federal criminal law.”
Not all on board
Last week, during the hearings, which took place in other parts of the state, mainstream Republicans might have been given a reason to back off from the bill. In Columbia, when the Senate panel met to take public input, the president of the S.C. Manufacturers Alliance, Lewis Gossett, spoke out against it.
“We oppose this legislation,” Gossett told the committee members. “It gives us a terrible choice. We will either comply with federal law or state law and that’s not a position we want to be in. We realize that reading this legislation that there are certain things if we engage in — and one is compliance with Obamacare — that we will perhaps be susceptible to attorney general action in South Carolina. We don’t want that.”
At least one Republican senator from Charleston is not on board with resurrecting the Calhoun ghost.
Republican Sen. Ray Cleary, a dentist who represents Charleston and Georgetown counties, was scheduled to attend the to Nov. 6 forum — he’s on the committee tasked with hearing public input on in it — but he couldn’t make the hearing. He’s no fan of the Affordable Care Act, and he thinks the public will largely turn against the federal law. That said, he doesn’t believe South Carolina can nullify Obamacare.
“I’m a senator in South Carolina looking for what’s best for the citizens of my state, and I’d rather spend my time trying to get comprehensive legislation to fix our roads and our education and the other needs of our state that are many and varied than necessarily doing a feel-good thing that not really does a whole lot,” he says.
He says he’s told Davis that he’d be open to the bill but doesn’t want something that’s just window dressing.
“If I could nullify it I would — if it would be worthwhile— but, like I told somebody, my high school lost every football game my junior and senior year and on Mondays we had moral victories. I’m not necessarily a believer in moral victories,” he says.
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