Even before President Barack Obama signed health-care reform into law, two states had already taken steps to invalidate it. In Utah, lawmakers proposed a measure requiring their approval before the law was enforced in the state, while the Oklahoma House of Representatives approved a resolution requiring that health-care reform be put to a vote before it could be enforced.
In fact, several states have recently introduced-and in some cases passed-legislation to declare their sovereignty over the federal government in a variety of areas.
In South Dakota, Gov. Mike Rounds signed a bill declaring all federal regulation over firearms produced and used in the state invalid, and a similar bill was signed in Wyoming. At the end of its legislative session, a Utah resolution recognized the state's "inviolable sovereignty" over the federal government under the 10th Amendment of the U.S. Constitution, a point lawmakers used to invoke eminent domain authority to take land back from the feds. Other states are considering legislation such as power over the U.S. National Guard and whether local law enforcement can supersede federal authority, to name a few.
States' rights advocates say recent displays of federal authority, such as health-care reform, have led lawmakers to pursue nullification options-the process through which state law can trump federal law. They also contend that an increase in states' rights has been shown to affect federal policy. Take medical marijuana, for example: Over the past decade, various states have decriminalized it even though federal law considers any use of the substance criminal. The U.S. Department of Justice came around, however, announcing in late 2009 that it would not take action against those in states with legalized policies, so long as the person is in compliance with state law.
Legal scholars, however, say that if states persist and take their rights issues to court, the outcome will most likely favor the federal government. Article Six of the Constitution gives the feds the upper hand, and past cases-specifically those dealing with desegregation-have shown that states seldom overcome federalist practices.
Some states are taking their chances in the courts anyway, suing the federal government over health-care reform, claiming that it violates the Constitution by calling on states to enforce laws without proper reimbursement. If past cases are any indication, there is little chance this claim will invalidate federal authority.