Category Archives: States Rights

Defend Not Amend tour going through SD

1098410_10203116082005160_1550330389_nFor next few days attorney Richard Frey will be traveling through the great state of South Dakota speaking against an Article V convention (I briefly mentioned this a couple of weeks ago). I explained before than an Article V convention is NOT the way to fix the many problems that exist in DC; and that an Article V convention may actually make matters worse!. So far in the 2014 legislative session there have been 3 attempts in the South Dakota legislature to apply or set conditions for an Article V convention. Luckily each of these attempts was stopped:

  • HJR1004 – Purpose: Making formal application to Congress to call an Article V convention of the states for the sole purpose of proposing a federal balanced budget amendment.
    This particular application for an Article V convention was doubly bad. Not only was it asking for a convention, it was asking for a balanced budget amendment. Personally I would love a federal balanced budget amendment! But any such amendment would by necessity have to exempt ‘defense’ spending. All the federal government would need to do in getting around such an amendment is use creative accounting and classify more areas of spending as ‘defense’. I am glad to say this resolution failed on the House floor 28-42.
  • HJR1005 – Purpose: to apply for a Convention of the States under Article V of the Constitution of the United States.
    This one died in the House State Affairs committee the same day they passed HJR1004. I think the committee realized that the subject of an Article V convention doesn’t really matter, because it has no impact upon what actually happens at the convention.
  • HB1136 – Purpose: limit the authority of delegates to a limited Article V convention to vote for unauthorized amendments contrary to legislative instructions and to provide a civil fine for the violation thereof.
    This was a close one. It failed with a vote of 33-37 on the House floor. The next day a vote to reconsider was defeated narrowly with a vote of 35-35. This particular bill would not have actually petitioned for an Article V convention. Instead it would have tried controlling the actions of any delegates sent from South Dakota to a convention. Such a move would be both unwise and potentially unconstitutional.

Now just because the above three bills were defeated it doesn’t mean there is nothing more to fear in this legislative session. There are tricks that can be used to resurrect an attempt to push an Article V convention through. Hopefully those attempts can be stopped before they actually start.

But in the meantime I would urge everyone to meet with Mr Fry on the Defend Not Amend South Dakota tour!

In 2014 the South Dakota legislature should follow Obama’s example and nullify parts of Obamacare

nohcgovA couple of week ago I took a look at the actual text of the Affordable Care Act (ACA) to determine where Obama got the authority to unilaterally ‘fix’ people losing their existing health insurance coverage. Of course there is no portion of ACA that allows the President to change the law; and there also happens to be no place in the Constitution that allows this either. Essentially the move is asking state insurance regulators to ignore the law because the Obama administration simply won’t enforce it for the next year. A portion of me is angered that the President would once again openly ignore rule of law in favor of gaining political points. But a bigger portion of me is glad Obama took this approach because it shows states what they can and should do moving forward: nullification!

Earlier this week South Dakota took a first step when the State Insurance Director Meirle Scheiber released this statement:

“The South Dakota Division of Insurance will allow healthcare insurers the flexibility to extend current plans in 2014. The decision came down to protecting South Dakotans who would have lost their health insurance coverage through no fault of their own, even though the federal government is only allowing this flexibility for an additional year.”

Technically it is not legal for Scheiber to make this move. Yet it gives the South Dakota legislature a good starting point for making this temporary ‘fix’ a permanent solution. Our legislators should have the LRC draft up a law that would permanently allow carriers in South Dakota to sell plans that were in existence before 2014. This legislative fix would codify the action taken by Obama. It would also be a nullification victory for those of us that believe in the 10th Amendment. And most important it would also be a victory in the battle to reduce the impact of Obamacare on the economy.

It is almost certain the Obama administration would oppose such an action and the law’s constitutionality would be questioned in federal court. That is a good thing! States need to be more proactive in keeping the power of the federal government in check. Similar nullification laws could be  created for other parts of federal law that are in dispute. Instead of trying to nullify the all of Obamacare it may be easier to get smaller portions nullified.

Unfortunately since Reid went nuclear with the filibuster it is quite likely the federal courts are going to be filled with judges sympathetic to a large federal government. But the fact that this route will be hard and may potentially fail should not prevent the South Dakota legislature from trying. The alternative of doing nothing about an overreaching federal government certainly isn’t going to work any better.