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State Sen. Phil Berger’s grandstanding leaves even conservative jurists speechless

bergerFrom the News & Observer:

State Senate Republican leader Phil Berger said Tuesday that he will introduce a bill when the legislature reconvenes in May to allow citizens to opt out of the any mandates of the new health care law.

And from NPR:

However, a wide variety of experts and scholars across the political spectrum say opt-out state laws are a political exercise with no legal effect.

“The notion that a state can just choose to opt out is just preposterous,” says former Reagan administration Solicitor General Charles Fried. “One is left speechless by the absurdity of it.”

Fried says similar attempts at “so-called nullification” led to the Civil War.

Conservative scholar and former federal appeals court Judge Michael McConnell agrees that states’ opt-out laws are legally meaningless.

“If the mandate is constitutional,” he says, “then the state statutes are pre-empted” — they are trumped by federal law. And “if the federal law is unconstitutional, the state laws are unnecessary.”

Washington and Lee law professor Tim Jost calls the state opt-out laws “political theater” — an expression by the states that they don’t like the federal law, but an expression that has little, if any, legal effect.

Instead of fighting to snag headlines, perhaps Berger could concentrate on making the state better.

4 Comments


  1. Kimberly

    March 24, 2010 at 11:46 am

    Phil Berger is a teabag supporter who would love nothing more than to secede from the nation, to move the poor and sick out of North Carolina and let the rich and elite and republican supporters take over the state. He isn’t interested in making the state better for the average citizen. Please let us know when this legislation is introduced so we can fight it.

  2. HunterC

    March 24, 2010 at 11:57 am

    It’s a damn shame the Democratic party and the NC Senate Democratic caucus left this fool to sure reelection.

    It is a failure of leadership to not put someone in the race against him.

    I hope the leadership of the party that allowed this to go on without consequence — that’s the Democratic party — is replaced.

    Time for a new Chair and Executive Director at party headquarters.

  3. IBXer

    March 26, 2010 at 11:57 am

    I will not comply.

  4. […] This post was mentioned on Twitter by Walter Levin. Walter Levin said: Blog: The Progressive Pulse – State Sen. Phil Berger's grandstanding … http://bit.ly/aFJJNs […]

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