To those of you out there who are horrified by the depths to which our elected representatives in Washington and in the states have recently sunk in the pursuit of partisan goals, let me say: there's nothing new under the sun.

Exhibit A: The emails I keep getting from the Health Care Compact Alliance, an outfit that seems to be a darling of Tea Party adherents, which has latched onto the idea of the interstate compact as a way to generate sufficient pressure on Congress to repeal health reform, which it could do by ratifying the interstate compact.

This is of course too clever by half. In order to work, most states must enact legislation supporting the compact (not very likely) and then Congress must ratify it. (Psst: The very neutrally-entitled bill "To repeal the job-killing health care law and health care-related provisions in the Health Care and Education Reconciliation Act of 2010" passed the House, but not the Senate; why would compact ratification fare any differently?)  Also, interstate compacts are usually enetered into to do positive things, like create uniform rules for parole, childrens' services or environmental issues that don't stop at state lines — and not negative things, like nullify federal laws.

Exhibit B: The attempt by Kentucky and Virginia to subvert the Alien and Sedition Acts (passed during an undeclared war with France in the late 18th century) through use of the same Constitutional stratagem, advanced on a strict constructionist/ unenumerated-powers-reserved-to-the-states basis.

Note, especially, that Veep Thomas Jefferson, and James Madison secretly authored these resolutions after President John Adams signed the Acts into law, and that the tumult surrounding the acts and the Kentucky and Virginia Resolutions led to a "throw the bums out" approach to the subsequent national elections, leading to a change in power from Federalists to Republicans. 

Interestingly, New Hampshire — our "Live Free or Die" neighbor to the north — viewed the Kentucky and Virginia Resolutions as tantamount to a declaration of war, and its legislature passed this reolution:

Resolved, That the legislature of New Hampshire unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this state, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.

That the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government; that the duty of such decision is properly and exclusively confided to the judicial department.

We certainly have our share of court challenges to health reform, and as I've written before, I believe that the health reform law will be found constitutional.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting