Here’s a great article from Michael Boldin of the Tenth Amendment Center who was on the Mike Slater show this morning explaining how Bob Cooper our AG didn’t know what he was talking about saying the “Supremacy Clause” in the Constitution made passing the Tennessee Healthcare Freedom Act unconstitutional. I agree with Michael Boldin, the AG doesn’t know what he is talking about. Bob Cooper the AG left out part of the Constitution talking about the “Supremacy Clause” when it says all law must be pursuant to the Constitution or in other words the law just passed and signed into law must fall into the category of being one of the “enumerated powers” granted them by the States in the Constitution before the “supremacy clause” applies. Giving the federal government the authority to demand citizens buy a product isn’t one of the “enumerated powers”, therefore Obamacare is unconstitutional. (my comments in red.)
Constitutional Ignorance from the Tennessee
In an opinion released today on the Tennessee Health Care Freedom Act (HFA), State Attorney General Robert Cooper informs us that the Act is unconstitutional (and in essence, shouldn’t be passed by the legislature).
Here’s his argument, in short (read the full opinion here):
Congressional power to preempt state law arises from the Supremacy Clause of the United States Constitution. The Supremacy Clause provides that the laws 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,” U.S. Const. art. 6, cl. 2. ( Bob Cooper left out part of it, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;” ….”pursuance thereof” ….in other words the law must be in accordance to the enumerated powers granted in the Constitution.)
The Supremacy Clause results in federal preemption of state law when: (1) Congress expressly preempts state law; (2) Congress has completely supplanted state law in that field; (3) adherence to both federal and state law is impossible; or (4) the state law impedes the achievements of the objectives of Congress.
My first question to the AG is this – why did you leave the most important part of the “Supremacy Clause” out of your opinion….was it because you’re unaware of it, or were you intentionally trying to obfuscate and keep it out of the public discussion?
Reading the full clause should make clear to the reader why I ask this question:
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]
Interesting how Mr. Cooper didn’t include the absolute fact that for a federal law to be supreme, it must be a law made IN PURSUANCE of the Constitution….the very limited powers delegated to the federal government by the Constitution, that is.
HFA 1, Cooper 0
Also in Cooper’s “Federal Law is Supreme” rant, the AG seriously takes the position that Federal Law is supreme, as he alluded, pretty much as long as Congress decides to be supreme. In essence, he’s claiming that Congress has a VETO power over state laws that conflict with it. (Let’s see if I have it right, using the AGs logic if Congress passes a law banning the ownership of all guns and it’s signed into law, then the supremacy clause kicks in and it’s Constitutional in every state just because the bill was passed?…..Wrong! A bill can’t violate the Constitution and be legal, in this example the 2nd amendment would be violated by this hypothetical bill and therefore it wouldn’t be Constitutional even tho Congress passed it and the president signed it into law. Same with Obamacare, just because it’s signed into law, doesn’t mean it’s supreme law of the land, because it’s not one of the enumerated powers granted to the Federal government in the Constitution.)
This is verification, to me, that the AG either is lying about his constitutional knowledge, or is simply unaware of the history of the Constitution’s ratification.
The REAL history of federal power is this – during the Constitutional Convention, members proposed what became known as the “Virginia Plan.” This, if it were approved, would have given Congress the power to veto state laws as it saw fit – and as the AG has claimed as well.
The problem though, for lovers of federal power (like the Attorney General of Tennessee) is this – the constitutional convention considered this plan, and rejected it.
HFA 2, Cooper 0
So what the AG is arguing for is something that the Founders said NO to. Instead, they created the Supremacy Clause, which made clear that federal law is supreme only when in line with the enumerated powers in the Constitution – not whenver they want, which is what he is, in essence, claiming.
Bottom line? Either he’s unaware of this plain and simple historical fact (as most State Attorney Generals are), or he’s obfuscating in order to stop this essential measure from being passed.
My guess on this would be…
Here’s the reality of the situation – the Constitution means what the Founders and Ratifiers told us it means, not what the Attorney General of Tennessee hopes it means. (“Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.” –James Madison}
HFA 3, Cooper 0
It’s my hope that the legislature of Tennessee will continue to show the courage they’ve been showing in recent history – with passage of the state sovereignty resolution and the Firearms Freedom act – and defy these blatant falsehoods from both Cooper and the Federal Government.
CLICK HERE – for Professor Brion McClanahan’s essay on the Supremacy Clause
CLICK HERE – for the Tenth Amendment Center’s Federal Health Care Nullification Act
Michael Boldin is the founder of the Tenth Amendment Center. He was raised in Milwaukee, WI, and currently resides in Los Angeles, CA.