The problem with State Senator Shannon Jones is not that she’s a reckless driver; it’s that she’s a reckless legislator.

Tim Grendell and Shannon Jones have introduced both a constitutional amendment and now a new bill to protect Ohio’s right as a State to allow its citizens to die or go bankrupt (or both) due to the lack of affordable and quality health insurance coverage.

The language of the new bill is not yet available via the Internet, but Senator Jones said in her press release:

The bill, which will be formally introduced as Senate Bill 244 today, would state that it is the policy of the state that no Ohioan shall be required to obtain or maintain an individual health insurance policy, be it a private, employer-sponsored, state or federal plan. It would also ensure that Ohioans may not be assessed a fee or fine as a result of exercising their choice. (emphasis added.)

Please read that paragraph again closely.  The first part of the bill makes it illegal for even a private employer to require that their employees have health insurance, even insurance the employer provides, as a condition of employment.

I’ll get to the bolded part in the middle (trust me, it’s worth the wait) but let’s bring up yet another constitutional issue that goes to their bills and the recently touted efforts of the Tea Party to also pass a constitutional amendment that:

To add Section 21 to Article I of the Constitution of the State of Ohio
The proposed amendment would provide that:
1. In Ohio, no law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.
2. In Ohio, no law or rule shall prohibit the purchase or sale of health care or health insurance.
3. In Ohio, no law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance.
The proposed law would not:
1. Affect laws or rules in effect as of March 19, 2010.
2. Affect which services a health care provider or hospital is required to perform or provide.
3. Affect terms and conditions of government employment.
4. Affect any laws calculated to deter fraud or punish wrongdoing in the health care industry.

The March 19, 2010 date will have to be changed to the date the amendment is approved to the voters.

Here’s an interesting unintended consequence of the bill.  Abortion law in Ohio will be forever frozen.  Any change in the abortion law would make it a law that was in effect after March 19, 2010, thus rendering such a “prohibition” of the purchase or sale of health care unconstitutional and null and void.  So, if this passes, a Pro-Life conservative like State Senator Shannon Jones could unknowingly make abortion on demand the law of the land in Ohio thanks to this amendment.

Human cloning in Ohio?  State Senator Shannon Jones can no longer ban it because it wasn’t banned in Ohio law before last Friday.  Embryonic stem cell treatments?  Forever legal in Ohio if this amendment passes.

The other problem is that this bill and these constitutional amendments are all designed to set the stage so the State of Ohio could sue the federal government and argue that the health care insurance “mandate” violates the notion of federalism as described in the Tenth Amendment of the U.S. Constitution.

Except, they forget one key aspect of a good federalism claim.  In order to make a constitutional federalism claim, Ohio first has to establish that the federal government’s act encroaches on an already well-establish sphere of state policy and power. Last I checked, no State or court has ever recognized the right of a State to promote the death of its citizens by denying them health care.

(Oh, and the problem with Jones’ constitutional amendment is that the tax penalty is neither a fee or a fine.  Therefore, as written, her constitutional amendment would not even be effective against the health care insurance “mandate” even if it were somehow constitutional under federalism jurisprudence.)

If not, then there is no violation of the concept of federalism as the exercise of policy making by the federal government has no infringed on the power of the States as the States have never acted as if they had exclusive power over that subject in the first place.

Get where I’m going?  That’s right.  By introducing these bills and constitutional amendments, these conservatives have already created a record that they do not believe that Ohio already had a State power being interfered with by the federal government, until they created that State power after the federal policy was created.

This is not federalism.  What this is, though, is an attempt to create a legal argument that Ohio, as a State, can declare in its constitution that its citizens are immune from a federal statute even though it still belongs to the Union.  It’s an act of state nullification, and it’s entirely and unquestionably unconstitutional.

Ohio Tea Partiers, meet the federal Supremacy Clause of the United States Constitution as found in Art. VI, Clause 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, 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.

(emphasis added.)

In other words, no bill, no state constitutional amendment can make the State, or its citizens, exempt from federal law.  And, yet, that is EXACTLY what Shannon Jones and the Tea Parties are attempting to do.  They are engaging in an unconstitutional act to avoid being subject to a constitutional law.

We tried a system of government in which the States were entirely sovereign and could pick and chose which Acts of Congress it would recognize in their States and which they’d just ignore.  It lasted seven years.  It was called the Articles of Confederation.  Under it, the federal Congress had no power to tax or regulate interstate commerce.  The federal government had virtually little power at all.

Which is why the Federalist were able to convince the country to instead adopt the U.S. Constitution which promise “a more perfect Union” specifically because a stronger federal government would provide more uniformity of laws.  The failure of the Articles of the Confederation are specifically why the U.S. Constitution gave Congress the power to tax, the power to regulate interstate commerce, and the supremacy clause as well.

Roughly 44 years after the U.S. Constitution was adopted, South Carolina got annoyed with a federal protectionist tariff that was hurting the State’s economy.  A radical political faction in the State decided that the State could just simply declare, by passing a state statute, the federal taxes null and void within the State of South Carolina.  Known as the “Nullification Crisis,” the ensuing political crisis led to an actual preparation with war with South Carolina.

(What is NOT widely known today is that years later, when the Southern “States’ rights” champions seceded from the Union, the Confederate States of America enacted a Constitution that is a virtual identical twin to the U.S. Constitution, replete with a tax, interstate commerce, and supremacy clauses similar to the federal constitution.  Although a precursor to the eventual Civil War, nullification was not a recognized legal doctrine even by the Confederacy. Even southern States like Alabama, Georgia, and Mississippi openly rejected the concept of State nullification during the Nullification Crisis.)

Where does that leave State Senators Jones and Grendell and the Tea Party?  Members of the “Party of Lincoln” adopting a State’s right doctrine so radical and unprecedented, not even the states in the Confederacy, before or during the Civil War, believed that it was an acceptable legal doctrine. 

Shannon Jones and Tim Grendell both took an oath that said she’d constitution of the United States as required under Art. XV, Sec. 7 of the Ohio Constitution.  And not one media outfit has reported how their bill undeniably violates that oath.

Can Ohio’s cities and counties, then, nullify State laws they disagree with?  Where does it end… at the Republic of Joe?

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