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Is Nullification an Alternative?

The country is deeply divided, with tremendous political differences among the states and their individual citizens. From the November 2020 election, California voters preferred the Biden-Harris ticket on President Donald Trump by more than five million votes along with a margin of 29 points. In different states, voters preferred Trump over Biden-Harris with a similarly lopsided margin. In Tennessee, where I live, Trump won over 60 percent of the vote, and in my home county that the split has been 71-27 percent.  Despite the opposition of more than 74 million voters, constituting an electoral majority of 25 states, in winner-takes-all fashion the Biden-Harris government is pursuing an unparalleled agenda of far-left policies, including H.R. 1, the PRO Act, the Equality Act, multi-trillion-dollar lending programs, the Green New Deal, statehood for the District of Columbia, and lots of contentious executive orders. These proposals have galvanized conservative immunity, often beneath the banner of the Tenth Amendment.

In our constitutional system, the federal government is supposed to exercise no more than the limited powers explicitly given to it, and the countries should keep all powers not so expressly delegated. The benefit of a federal program is that the nations continue to exist as meaningful political units–sovereign entities, albeit part of the Union–not as mere appendages of the federal Leviathan. The vast majority of states (27) have Republican governors. Federal policies ranged from the country’s capital are anathema to a lot of taxpayers. Thus, some conservatives and libertarians in red states, seeing the unfolding Biden-Harris agenda with alarm, have begun talking about”nullification.” Legislation embracing various kinds of nullification was proposed in Republican enclaves such as Montana, Wyoming, South Dakota, Texas, and Oklahoma.

Just what does this mean, and is it a viable option?

A Checkered History

“Nullification” is a term that has been used throughout the life of the Republic in a variety of ways. Composing anonymously, Thomas Jefferson and James Madison urged the doctrine of nullification at the Virginia and Kentucky Resolutions at 1798, commissioned by these countries in opposition to the Federalist Party’s Alien and Sedition Acts. The resolutions, though not identical, both confirmed that countries maintain authority under the Constitution to ascertain the validity of federal legislation and to declare legislation unconstitutional. The resolutions were strongly-worded protests, and called for different nations to join in opposition to the objectionable federal law. While the resolutions resisted the Acts as unconstitutional, they failed to explicitly threaten non-compliance or immunity, and disavowed any movement toward secession. The resolutions ultimately were calls for Congress to repeal the Alien and Sedition Acts.

The legislatures of Virginia and Kentucky implicitly claimed that the Supremacy Clause in Art. VI only applies to federal legislation created”in Pursuance” of the Constitution, and that states could determine whether legislation are unconstitutional. The Constitution is a compact, yet the resolutions emphasized, which countries had entered into just based on the limited powers granted to the federal authorities and the rights retained by the states. Obliterating those constraints would constitute”tyranny,” in Jefferson’s ghost-written (and slightly florid) phrases for the Kentucky Resolution. Virginia, by comparison, averred that an unlimited federal authorities would”change the present republican system of the United States into an absolute, or at best, a mixed monarchy.” Yet, unless countries affirmatively withstand an objectionable federal law, protests in the name of nullification are mere words.

Despite the resolutions’ lack of teethnullification was a daring position in 1798, when the construction of the Republic remained an open issue. Given our intervening history, it seems more tenuous in 2021.

If a country believes that a federal statute or executive order violates the Constitution, the remedy would be to challenge its constitutionality in court, even as state attorneys general regularly do.The breach of the Alien and Sedition Acts following Jefferson’s election in 1800 obviated that a nullification crisis, however the problem of nullification re-surfaced at 1832-33 during the presidency of Andrew Jackson as soon as the state of South Carolina purported to declare”null and void” a federal tariff legislation (that the Tariffs of 1828 and 1832) it found objectionable. Unlike the Virginia and Kentucky Resolutions, South Carolina’s Ordinance of Nullification threatened secession if the federal government attempted to collect tariff duties with force. Jackson, never one to back away from a fight, cautioned South Carolina that”disunion by armed force is treason,” and willing to use military force against South Carolina if needed. Jackson told that a congressman in the Palmetto State which”if a single drop of blood will be shed in opposition to the legislation of the United States, I’ll hang the first man I can lay my hand on participated in these treasonable conduct, upon the very first tree I could achieve.”

The Civil War has been fought on secession, maybe not nullification, and offers little helpful guidance regarding the doctrinal issue of states’ authority to declare federal laws unconstitutional (while providing lots on the question of secession). Nor are some of the minor skirmishes over nullification in the 19th century especially dispositive.

The Framers never squarely addressed nullification. In Federalist No. 46, Madison indicated that the dual sovereignty of these nations will serve as a check on federal authority surpassing its proper bounds:

[T]he powers proposed to be lodged at the federal government are as little formidable to those reserved to the respective States, since they are indispensably necessary to achieve the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them. (Emphasis added)

Proponents of nullification sometimes ascribe to this article support for their doctrine for a check on federal overreaching, but Madison didn’t go that far. The essence of Federalist No. 46 is pro-ratification”happy talk” aimed at dubious nations, placating them with assurances that, as a practical matter, federal usurpation–that the”annihilation” of country governments–was not possible. Inside this, and a lot of different respects, the cynical and pessimistic Anti-Federalists were prescient.

What Madison wrote in the Federalist isn’t controlling in any occasion.  Does the Constitution–in its text or as interpreted by the Supreme Court–permit countries unilaterally to disregard federal legislation regarding the grounds that they think the law is unconstitutional? The doctrine of judicial review and the Court’s later assertion of judicial supremacy at Cooper v. Aaron (1958) complicate the investigation, at least if”nullification” is employed in the sense of defying or dismissing federal lawenforcement. Cooper v. Aaron coped with a form of nullification–that the large resistance to the desegregation dictated by Brown v. Board of Education (1954)–and unambiguously rejected it.

In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as”the fundamental and paramount law of the country,” declared in the notable case of Marbury v. Madison that”It is emphatically the province and duty of the judicial department to say what the law would be.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3″to support this Constitution.” … No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. (Emphasis added)

Simply speaking, the Constitution means exactly what the Supreme Court says it means, and the decision of an unelected five-person bulk is final and binding on the rest of the country –just as the Anti-Federalists predicted. Unlike the poor alliance considered from the Articles of Confederation, under the Constitution unanimity of these countries isn’t required for federal actions.

Obviously, then, under the authority of Cooper v. Aaron individual states can’t simply defy federal legislation, or perhaps the Supreme Court’s interpretation of the Constitution, no matter how sincere–or valid–their objection to it.  Defiance of the law–the competitive kind of nullification–isn’t consistent with the rule of law.

Nullification Light?

In recent decades, however,”nullification” has been used in a looser sense (sometimes known as”interposition”), in the context of states legalizing marijuana (the ownership and sale of which are illegal under federal legislation ), cities announcing themselves”sanctuaries” for illegal aliens, and so on. Opposition short of outright defiance isn’t prohibited by the Supremacy Clause.

States are free to decline to assist in the enforcement of federals legislation to which they object, but they can’t actively intervene with the national government’s operations. Due to their dual sovereignty, state governments (and their political subdivisions) are allowed, within limits, to disagree with federal law. In a dispute regarding Pennsylvania’s apology to the federal Fugitive Slave Act, the Court held in Prigg v. Pennsylvania (1842) that the nations can’t be compelled to utilize state law enforcement tools to enforce federal law.  This principle, re-affirmed at New York v. United States (1992) and Printz v. United States (1997) as the belief that the federal government cannot”commandeer” state officials to apply federal law, allows countries to refuse to collaborate with federal authorities concerning the enforcement of legislation they find objectionable, even if they cannot affirmatively interfere with the enforcement of federal law.

Sometimes mere non-cooperation is popularly known as”nullification.” In the aftermath of the November 2020 electionsome conservative nations are mimicking the innovative model by proposing to become”Second Amendment sanctuaries.” A pending bill in Tennessee, by way of instance, would prohibit”the state and political subdivisions from using public funds to apply, administer, or collaborate with the enforcement or administration of” any law abridging the Second Amendment. Legislation restricting abortion would stay subject to challenge in federal court.

How far can this go? States are free to decline to assist in the enforcement of federals legislation to which they object, but they cannot actively intervene with the national government’s operations. In light of the overwhelming funds in the disposal of the federal authorities, non-cooperation by recalcitrant states isn’t a substantial impediment. Some proposals–under the rubric of”restoring nation sovereignty”–go farther, purporting to require state courts to deny national judicial precedents when hearing cases challenging the constitutionality of national laws. This strategy is almost certainly unavailing under the Supremacy Clause.

Other proposals, including constitutional amendments to overturn specific Supreme Court decisions, to require super-majorities of the Court to invalidate state legislation, to allow Congress or the countries to enact Supreme Court decisions and so on, according to Texas Gov. Greg Abbott (amongst others), would attempt to nullify federal legislation within the structure of the Constitution. This strategy, although consistent with constitutional norms, is not likely to succeed as a practical matter. As I mentioned in Law & Liberty at 2016,”34 countries will never support a constitutional conference, and even if they did–and then adopted these nine alterations –it is barely conceivable that three-fourths of the states (38) would ratify them.”

Some theories advanced by conservative activists are definitely extra-constitutional, such as the Reformation age”Lesser Magistrate Doctrine,” which is a pseudo-religious rationale for civil disobedience. Likewise the Declaration of Independence–an announcement of rebellion–ultimately rested on mankind’s inherent right”to change and abolish” an oppressive regime,”and to institute new Government.” That is really a call for revolution, invariably resulting in war. Because of this, it is a measure of last resort, not to be undertaken (or recommended ) lightly. The path to Appomattox was littered with over 600,000 corpses.

It is unfortunate that the Biden-Harris government, with the backing of the Pelosi-led House along with also the Schumer-led Senate, seems intent on pushing a split state to the verge. Neither moderation nor respect for federalism temper the Democrats’ policy agenda. Americans dissatisfied with this situation have no easy–or simple–options. They are free to participate in and affect all levels of government, however, just within the established institutional frame and utilizing the recognized instruments of legislatures, executives, and judges. This might not guarantee results, however it is the sole legitimate path forward.

“Nullification,” in the sense of both repudiating or defying duly enacted federal legislation, is really a futile act which, at best, can waste time and create disappointment; at worst, it is going to lead to armed confrontation with the type Andrew Jackson threatened in 1832-33. Following the events of January 6, it should be obvious that”going rogue” isn’t a viable approach in the 21st century. To be able to preserve constitutional government, Americans should work within the Constitution and its procedures.