How Frivolous is Frivolous?
“I don’t want to say that they are out and out frivolous. But it’s extraordinarily unlikely that the Supreme Court will be sympathetic. Unless they want to provoke the greatest constitutional crisis since the 1930s.”

—Constitutional Law Professor Sanford Levinson

AT THE AGE OF 12 I jumped from the back of a moving pickup truck and learned that momentum is the product of an object’s mass and velocity. I assume there are similar laws of social physics. And that it is going be a while before a mass that includes Congressional Republicans, teabaggers, tenthers, and nullifiers comes to rest. After all, that mass was moving even before right-wingers hijacked hundreds of Congressional town hall meetings last summer.

Where does the opposition to health care reform go now that Speaker Nancy Pelosi salvaged legislation declared dead a month earlier, and resurrected the presidency of Barack Obama?

The obvious answer is the 2010 elections. But for the moment, tenthers and nullifiers have taken their fight to state legislatures, two of which have passed laws liberating their citizens from individual mandates in the health care act. And to the courts, where 14 attorneys general are challenging the legislation on constitutional grounds.

Tenthers broadly construe the Tenth Amendment to the Constitution in order to narrowly construe the three articles that define the powers of the federal government. They argue that the language “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” imposes drastic limits on the power of the federal government.

Ian Millhiser wrote in the American Prospect last August: “Under the tenther constitution, Barack Obama’s health-care reform is forbidden, as is Medicare, Medicaid, and Social Security. The federal minimum wage is a crime against state sovereignty; the federal ban on workplace discrimination and whites-only lunch counters is an unlawful encroachment on local businesses.”

Proponents of Tenth Amendment constraints on federal authority bristle when they are described as hostile to advances made by the civil rights movement. But that is the baggage with which they arrived. They continue to carry it.

At the Conservative Political Action Conference in February, I sat through a 90-minute talk by one of the intellectual authors of the movement. Thomas E. Woods told a standing-room-only audience (all white, mostly men in their 20’s and early 30’s) that state governments must either refuse to comply with or nullify federal law that exceeds the limits the Tenth Amendment imposes on the federal government.

Woods built his argument on resolutions passed by the Kentucky and Virginia legislatures in 1798 and 1799 respectively, which invoked the states’ right to nullify the Alien and Sedition Act. The resolutions were drafted by Thomas Jefferson and James Madison, but never adopted by the other states.

According to Woods, Jefferson believed that doing nothing in the face of an overreaching federal government is one extreme. “Another extreme was to secede from the Union—which Jefferson does not rule out, by the way,” Woods said. “He does believe as a matter of common sense that the states, in the same way they joined the Union, can of course withdraw.”

For Jefferson, nullification represented a happy medium. As did “interposition,” by which states place themselves between their citizens and the unconstitutional acts of the federal government.

Woods inoculated the argument that nullification “has only been used by evil people who want to oppress black people” by citing Massachusetts’ defiance of the Non-Intercourse Act of 1809—which kept American ships in port to protect against seizure by Britain and France, who were at war. And he described governors and legislators who refused to follow Kentucky and Virginia as “a bunch of bozos who didn’t understand the Constitution.”

Woods seems to be proposing a peculiar paternity test for the founding fathers. Those who supported nullification and the idea that the United States is (he would say “are”) a compact from which states can withdraw are legitimate. Those who didn’t, not so much. Equally peculiar was Woods’s argument that by electing Jefferson president, the American public ratified his position on nullification and secession.

Woods never got around to the Nullification Crisis of 1832, when President Andrew Jackson sent a federal fleet into Charleston harbor in response to South Carolina’s nullification of federal tariffs. And somehow he missed the Civil War, which most historians seem to agree settled the state sovereignty argument.

If Woods’s reading of our country’s history recalls Rocky and Bullwinkle, in which Mr. Peabody and his dog Sherman traveled back in time to rejigger historical events, Woods is not exactly lacking in supporters. At CPAC Woods was cheered by an audience of 200 as he made his case for nullification, then implicitly (and at times explicitly) argued that if nullification fails there’s always secession.

Woods has an impressive academic pedigree: an undergraduate degree in history from Harvard and a Ph.D. in American history from Columbia. He’s written nine books. His 33 Questions About American History You’re Not Supposed to Ask made it to number eight on the New York Times best seller list and Meltdown: A Free Market Look at Why the Stock Market Collapsed … is held to be in the same class as The Wealth of Nations, at least by Fox News’s Sean Hannity. Coming in June is Nullification!

Yet there’s something about Woods’s institutional affiliations and publishing history that is a bit dodgy. If he has distanced himself from the League of the South, a racist and theocratic organization that once claimed him as a founding member, his publication history is harder to erase. (The Southern Poverty Law Center classifies the League as a hate group.)

I turned up one article in the League’s Southern Patriot (in 1996) in which Woods took on the “militant egalitarians in Washington who have managed to seize control of every neighborhood and school system in the nation,” and described the South as the “only region with the moral and spiritual strength to repel the persistent advances of the central state.” Woods also contrasted “Northern feminists congregated at Seneca Falls in 1848 to bemoan their oppression and subjugation” with the “social harmony and adherence to tradition that characterized the South.”

University of North Carolina Law School professor Eric Muller has mined Woods’s writing and turned up some unsavory material, including:

• an argument that “the real watershed from which we can trace many of the destructive trends that continue to ravage our civilization today was the defeat of the Confederate States of America in 1865”;

• an observation that 19th-century abolitionists were “not noble crusaders whose one flaw was a tendency toward extremism, but utterly irresponsible agitators who put metaphysical abstractions ahead of prudence, charity, and rationality”;

• the view that desegregation and integration were “allegedly desirable social outcome[s].”

There’s more. But Woods’s arguments point to the tenther movement’s antecedents in states’ rights laws that made second-class citizens of African Americans until the federal government stepped in in the 1960s. Laws that relied on the same reading of the Constitution on which Alabama Governor George Wallace relied in 1963, when he stood in interposition on the steps of Foster Auditorium at the University of Alabama in defiance of a federal court order that opened the university’s doors to two African-American students.

LITIGATION AND LEGISLATION—The state sovereignty theory that Woods is trying to resurrect is about to be tested. Fourteen states have gone to court to challenge the federal health care law. Among those 14, Virginia and Idaho have doubled down, enacting nullifying legislation and suing the federal government.

Virginia filed its own suit, rather than joining 13 other states. That decision might have as much to do with its newly-elected Republican attorney general as it does with any legal theory. Ken Cuccinelli recently ordered Virginia’s universities to stop addressing homosexuality in discrimination policies and predicted that President Obama’s claim to American citizenship will be tested when a citizen retains legal counsel and refuses to comply with a federal law until the president proves he was born in the U.S.A. Cuccinelli has turned himself into a right-wing celebrity and eclipsed every other elected official in Virginia, so it’s not surprising that he’s going it alone.

Idaho Attorney General Lawrence Wasden is a more conventional elected official and provides a clearer reading of the conflict. Yet despite his moderate tone, when Wasden announced the lawsuit on March 23, he relied on the Tenth Amendment. “The law exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution,” he said.

Wasden is in an odd spot. The Idaho Constitution prohibits the legislature or the governor from ordering the AG to file a suit. Yet the Idaho Health Freedom Act passed by the legislature and signed by the governor (in his only public signing ceremony of the legislative session) orders the attorney general to file suit to block any federal health care mandates.

The bill divided the Republican majority from the Democratic minority and passed on a straight party vote in the Idaho House. Three Republicans joined the Democratic minority to oppose it in the Senate.

The legislation didn’t originate in Idaho. Like similar bills filed or passed by state legislatures it was lifted from a template. “This was based on a bill drafted by ALEC,” Democratic Senate Minority Leader Kate Kelly said in an interview. The American Legislative Exchange Council is a conservative public policy group that among other activities drafts boilerplate legislation that it makes available to state legislatures. It currently is chaired by former Texas Speaker of the House Tom Craddick.

“[Sponsors of the bill] handed out ALEC templates at committees,” Kelly said. “This is a customized version of ALEC legislation.” (The customization included a subsection ordering the attorney general to sue.) The ALEC template informed legislation across the country.

I spoke with Kelly the day after Idaho Governor Butch Otter signed the bill into law but prior to the filing of the lawsuit. According to Kelly, no lobbyist lifted a finger to pass the Health Freedom Act. “You have to understand that this is Idaho, a very conservative state. And it’s an election year. There is a certain subset of Americans with whom this strikes a chord.”

Kelly was hopeful that the attorney general, who is independently elected, would refuse to file. She maintains that the bill and any lawsuit that would result are frivolous. “The basic bar rules say that an attorney cannot file a frivolous lawsuit,” Kelly said.

Democratic Senator Nicole LeFavour, who also opposed the bill, seemed almost sympathetic with her Republican colleagues in the Senate. “Given the constitutional issues, it’s fairly clear that they have no basis,” LeFavour said. “What’s going on on the ground here is that even our most conservative Republicans are facing protests, tea parties, and other angry constituents. They felt as if they had to get out ahead of them to avoid primary opponents.”

Representative Jim Clark, the House sponsor of the bill (and ALEC’s legislator of the year in 2009), also said that ALEC informed the legislation. “We looked at the ALEC legislation and made some changes,” Clark said. “But as far back as last year, we said if they pass this, we’re going to sue them.” Clark described the Health Freedom Act as being a very narrowly tailored challenge of federal authority.

Attorney General Wasden’s spokesman Bob Cooper said the AG had considered suing before the law passed, and the suit filed by Wasden is based on the AG’s inherent authority. “He appreciates that the legislature and the governor have his back,” Cooper said.

The Idaho legislature authorized (but has not yet appropriated) $100,000 to litigate the case, but Representative Clark said there should be no cost to the state because the Arizona-based Goldwater Institute has already committed to underwrite and assist with the lawsuit.

Senate sponsor Monty Pearce described a broader confrontation with the federal government. “It’s time to push back and tell them to get out of our face, you’ve overstepped our rights and lines,” Pearce said in a telephone interview.

“The states created the federal government, not the other way around. The states were given all the rights not given to the federal government. Can you show me anywhere in the Constitution that says the word health care, or that the federal government has the right to require someone to buy insurance?

“They hide behind the Commerce Clause,” Pearce said. “And that’s a long reach.”

I asked Pearce if the federal government was wrong when it relied on the Commerce Clause in theHeart of Atlantic Motel v. United States desegregation case in 1964.

“Maybe desegregating should have been left to the states,” Pearce said. “The states should have a right to determine their own destiny. There’s a lot of history where I see the federal government come in and try to dictate things. Let the state decide. If I don’t like it, I can move to another state.”

CAN THE TENTHERS WIN?—“The Supremacy Clause and the Commerce Clause [of the Constitution] preempt what they are trying to do,” Senator Kelly said. Kelly is a lawyer (if not a constitutional lawyer) and it appears that she is onto something.

Sanford Levinson teaches constitutional law at the University of Texas Law School. According to Levinson the Supremacy clause provides the federal government an advantage the states will find hard to overcome.

“It’s all very very clear,” Levinson said. “The court has held that under the Supremacy Clause, in conflicts with the federal government and the states, the national government wins. Unless there is an independent basis that the law is unconstitutional.” (In his CPAC talk, Woods ripped into an article Levinson had written, and called him “some kind of crumb” and “a shill for the establishment.”)

Levinson sees the suits as political posturing: “My hunch is that all of these attorneys general, first of all they are elected, figure that this will help them politically.”

“The fact is that the states don’t have very much power, so they file frivolous suits,” Levinson said.

“I don’t want to say that they are out and out frivolous,” Levinson said. “But it’s extraordinarily unlikely that the Supreme Court will be sympathetic. Unless they want to provoke the greatest constitutional crisis since the 1930’s.”

His one caveat: “Since Bush v. Gore, one should have learned to be a little fudgy on such comments.”

My prediction: a feast for lawyers, as attorneys general (and foundations) retain private counsel to make legal arguments full of sound and fury.