Senate President Tom Niehaus was on Fox News to discuss the Tea Party’s proposed state constitutional amendment to ban individual health insurance mandates at the local, State, and federal level (and yet, the State of Ohio would still be able to mandate that all Ohioans carry auto insurance if they wish to drive on a public road in Ohio.)

According to a transcript from Fox News, host Bill Hemmer asked Niehaus to respond to “critics” of the bill who suggests that the proposed amendment is, itself, unconstitutional as it violates the U.S. Constitution’s supremacy clause.  That’s when things went a little off-script:

HEMMER: What I read is that there might be a court challenge even before you get to November. I don’t know if that’s the case or not. But critics contend even if it does pass, state law will not trunk (sic) federal law here. Are they right? (emphasis added.)

NIEHAUS: Well, that’s true, but again I think it’s important that voters have an opportunity to tell their elected officials in Washington, and in particular the president of the United States, how they feel about some of his initiatives. (emphasis added.)


(Starting at :57.)

It’s ironic to hear Niehaus talk about overreaching on health care reform right before Hemmer switches to talking about SB 5. It’s pathetic to hear Niehaus deny knowing whether the unconstitutional health care amendment was put on the ballot to try to help SB 5, especially since the Ohio GOP has made it no secret that’s why they helped get it on the ballot and the Republican-led House attempted to pass a resolution to put it on the ballot when it appeared the Tea Party groups might fail to get enough signatures to even submit the petition in time.

  • Anonymous

    You always  ignore the “pursuance” part of the Supremacy Clause, which only allow federal law to reign supreme if they are made within the confines of federal government’s Constitutionally enumerated powers. Would you at least recognize that the constitutionality of the individual mandate has not been settled?

    (Although I fully expect the SCOTUS to rule in favor of the feds, for the simple reason they are part of the federal government. Having the Supreme Court decide all issues of constitutionality is like having my cousin Louie mediate a dispute between you and me.)

  • Anonymous

    Sorry, Tudorman, but virtually every non-ideological constitutional scholar holds that mandates are not unconstitutional. That is a wishful fiction dreamed up by the far right.

  • Anonymous

    Right. That’s a hell of an argument.

    “I say everybody (or at least everybody that agrees with me) thinks you’re wrong, therefore you are.”

  • Anonymous

    Ever hear of the commerce clause?
    It’s an enumerated power.
    Hello McFly.
    Even Jeffrey Sutton agrees.

  • Anonymous

    This ballot initiative is not about the constitutionality of the mandate, but is a nullification attempt. States cannot nullify federal laws if the federal law is unconstitutional – that is the domain of the courts. I can anticipate a 10th amendment retort, but South Carolina tried that twice and look how well that worked.

  • Anonymous

    If the individual mandate is an unconstitutional exercise of federal power, then it is already void and you do not need to amend the State’s constitution to make it so.  If it is not, as Scalia’s former law clerk now on the Sixth Circuit has already ruled (which is binding legal precedent in Ohio), then the amendment is unnecessary because it is void as being unconstitutional under the U.S. Constitution’s supremacy clause.

    In other words, you’ve got it backwards.  Yes, I admit that the constitutionality of the health insurance mandate is “under question,” but in my opinion, it’s as much of a legitimate legal question as how the constitutionality of the federal income tax is “under question” by federal tax protestors all the time.

    What this amendment really is trying to do is to legitimize the legal doctrine of state nullification, a pre-Civil War era school of constitutional legal thought that was ultimately rejected by a majority of the States that formed the Confederacy during the Civil War.  If States are giving the power to choose which federal laws will or won’t be recognized within their borders, then we will find this country even less governable than it was during the Articles of Confederation which lead our Founders to creat the U.S. Constitution with the supremacy clause in the first place. 

  • Big Bob

    No matter what, people should vote against SB 5 (Now Issue 2) and vote against recinding the individual health insurance mandate in Ohio.

  • dlw

    “What this amendment really is trying to do is to legitimize the legal doctrine of state nullification”

    Hmmm… I’m not convinced there’s really that much purpose behind it. It strikes me that the sole purpose of the amendment is to have something on the ballot that will draw out the right so that they’ll show up at the polls and vote to keep SB5 around.

  • Rob

    “Well, that’s true, but again I think it’s important that voters have an opportunity to tell their elected officials in Washington, and in particular the president of the United States, how they feel about some of his initiatives. (emphasis added.)” So how much is this going to cost? wouldn’t it be cheaper to just send a letter or email? or is this all about something else….

  • Obamacare is unconstitutional!  No where in the U.S. Constitution is there an enumerated power given to the federal government to control healthcare!  (don’t even try to use the commerce clause, that dog won’t hunt)  So Obamacare is unconstitutional, there isn’t a supremacy clause conflict.  If states want to outlaw individual mandates , the 9th and 10th amendments give them that authority!

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