Federal Judge Overturns Missouri Law Nullifying Contraception Mandate

 (The heart of this matter:  State sovereignty)

Fleissig’s opinion, which is shared by the majority of judges and legal scholars, seems to be that any federal law trumps any conflicting state law. But the supremacy clause is more nuanced than that. “That clause says that laws made by the United States ‘in pursuance’ of the Constitution are the supreme law of the land which means that acts not in ‘pursuance’ of the Constitution are not laws at all,” as Emory University professor Dr. Donald Livingston explained to the South Carolina House Judiciary Subcommittee in February.

Now Fleissig and others might argue that since the Supreme Court has declared ObamaCare constitutional, the matter is therefore decided, and states must simply accede to the wishes of the federal government. Livingston disagrees:

But who is to decide whether an act is or is not in “pursuance” of the Constitution? Some would say the Supreme Court. The Court may, indeed, express an opinion, but it cannot have the final say. That can only be vested in the supreme authority that ratified the Constitution and gave it the force of law, namely the people of the several states….

Only the states themselves have the final say over what their … powers are. And Madison said that if the central government should intrude into the state’s [sic] reserved powers, the states would have a “duty” to “interpose” and protect their citizens from harm.

Federal Judge Overturns Missouri Law Nullifying Contraception Mandate