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Published: Friday, 3/26/2010

In a democracy, sometimes you get what you don't like

LANSING, Mich. - When I heard that a group was trying to get Michigan to "opt out" of federal health-care reform, I had a sudden flashback to a fine April day many years ago.

This newspaper had sent me to Cincinnati to do a story on how our federal income tax returns were received and processed.

Nobody ever likes paying taxes, and the officials showed me a few bizarre things, such as a check written on a T-shirt. A man wanted to make the point that the government was taking the shirt off his back. The Internal Revenue Service cashed the shirt.

There was a place they put returns from people who claimed they didn't have to pay taxes. One man said he was "a citizen of the galaxy." Another said he was a citizen of the "sovereign state of Michigan," and that the federal government had no power to tax him. "What do you do with these?" I asked.

"Oh, wait until we process the rest and then go after them," an official said.

That made sense; in our nation, federal laws are supreme, even for citizens of the galaxy. Federal laws also outrank state laws, in cases where the two conflict. I learned that in high school civics class.

The Constitution includes the Supremacy Clause, which states that all laws of the United States "shall be the supreme law of the land … the laws of any state to the contrary notwithstanding."

Nevertheless, a new, evidently ad hoc, group called Michigan Citizens for Health Care Reform wants to collect signatures and put something on the November ballot asking voters whether they want to reject federal health-care reform. This seems largely to be a Tea Party effort, led by state Rep. Tom McMillan (R., Rochester Hills). Mr. McMillan, best known for opposing gay rights, has a bachelor's degree in accounting and is not a lawyer.

But Michigan Attorney General Mike Cox is a lawyer and the state's top law enforcement official. He is joining other state attorneys general in claiming the new law is unconstitutional. They are filing a lawsuit asking the federal courts to agree with them.

So what is going on? Because I am neither a lawyer nor a constitutional scholar, I turned to someone who is. Robert Sedler has a special academic rank at Wayne State University. As a distinguished professor of constitutional law, he has written widely on such issues and has argued civil rights cases before the U.S. Supreme Court.

When I asked him about this, he laughed. It's all ridiculous, he said: "Political posturing. Any first-year law student knows that states cannot defy the federal government."

If Michigan Citizens for Health Care Freedom were to get something passed, he told me, the federal courts would invalidate it in a heartbeat.

But could the attorney general be on stronger ground? Could the high court agree with his argument that the federal government has no authority to make people buy health insurance?

"No. It's political grandstanding," Mr. Sedler said. Mr. Cox, after all, is in the middle of a crowded and hotly contested GOP primary race for governor.

The law here is just as clear, Mr. Sedler noted. He directed me to a case called Massachusetts vs. Mellon, which a conservative U.S. Supreme Court decided in 1923.

The unanimous opinion said "we have no power per se to review and annul acts of Congress on the ground that they are unconstitutional."

The court added that it can only review laws for their constitutionality when someone can show that a law causes him or her direct and improper injury, and not just that he "suffers in some indefinite way in common with people generally."

"States, in other words, can't invalidate federal law," Mr. Sedler said. That was, after all, what the Civil War was all about. Six hundred thousand Americans died to settle whether states could defy the federal government.

The answer was no. It was no again when George Wallace stood in the schoolhouse door, trying to block black students from attending college. Those who don't like any law have the right to campaign for its repeal. But I wonder whether health-care opponents have thought through the implications of the idea that states should be allowed to "opt out" of some federal laws.

Would Mr. Cox agree that Michigan, which voted against George W. Bush both times, should have been allowed to opt out of sending tax dollars for the Iraq War? Would Tom McMillan agree that Ann Arbor should be allowed to opt out of the state Constitution's prohibition against gay marriages?

There's a word for a society where sometimes you have to live with laws you don't necessarily like. It's called democracy.

Jack Lessenberry, a member of the journalism faculty at Wayne State University in Detroit and The Blade's ombudsman, writes on issues and people in Michigan.

Contact him at: omblade@aol.com



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