Last month, Texas state Rep. Leo Berman (R) introduced a birther bill preventing any persons from appearing on a presidential ballot in his state unless they present their “original birth certificate indicating that the person is a natural-born United States citizen.” As it turns out, however, Berman’s birther bill is only his second most radical proposal. Berman has also introduced a proposal to make it a felony for any federal official to enforce the Affordable Care Act:
FEDERAL ACT NOT AUTHORIZED. The [Affordable Care] Act is not authorized by the United States Constitution and violates the constitution ’s true meaning and intent as expressed by the founders of this country and the ratifiers of the constitution. [...]
(a) A person who is an official, agent, or employee of the United States or an employee of a corporation providing services to the United States commits an offense if the person enforces or attempts to enforce an act, order, law, statute, rule, or regulation of the United States in violation of this chapter.
(b) An offense under Subsection (a) is a state jail felony punishable by confinement for a term of not more than five years, a fine of not more than $5,000, or both the confinement and the fine.
Lest there be any doubt, Berman’s proposal is wildly unconstitutional. The U.S. Constitution expressly states that Acts of Congress “shall be the supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding,” thus expressly establishing that states do not have a veto power over federal laws.
Yet Berman is hardly the only right-wing leader to embrace the pre-Civil War notion that states can simply nullify laws that they don’t like. Governors Bob McDonnell (R-VA) and Bobby Jindal (R-LA) each signed obviously unconstitutional laws claiming to nullify the Affordable Care Act. Former Texas Solicitor General Ted Cruz recently claimed — falsely — that two or more states can nullify federal laws simply by joining together into an agreement with each other. One state attorney general candidate even read aloud from the works of a right-wing pseudo-historian who once wrote that “[t]he real watershed from which we can trace many of the destructive trends that continue to ravage our civilization today, was the defeat of the Confederate States of America in 1865.”
Berman, however, appears to be the first state lawmaker to actually consider throwing rank-and-file federal officials in jail simply for doing their job.