Monday, March 11, 2013

States are Wild but Federal Law Trumps

You're a GOP controlled state government, unhappy with the Democratic administration, and frustrated with what you perceive as ever increasing federal encroachment. So what do you do? You initiate legislation to counteract what you consider to be intrusive federal laws, of course:

- An Oklahoma House committee has approved a bill that would make it a felony to enforce the Affordable Care Act ("Obamacare")
- Texas, Wyoming, Missouri, Oklahoma, Tennessee, Iowa, and other states are considering legislation to nullify federal gun control laws, some even criminalizing federal law enforcement 
- A Missouri newspaper analyzed pending state legislation and found that "almost 20 bills introduced this year either seek to invalidate existing federal law or stop enforcement of possible future law".

Well, not so fast. Nullification - the idea that a state has the right to reject any law that they deem unconstitutional - has a long and colorful history, but from a legal standpoint has been dead since the early 19th century.

It was none other than Thomas Jefferson and James Madison who, in 1798 in opposition to the Alien and Sedition Acts, initiated a strategy of individual states standing up to federal legislation that they deemed unconstitutional. That effort ultimately went nowhere. 

The Supreme Court first ruled against nullification in 1809, reinforcing the concept that the federal judiciary is empowered to rule on the constitutionality of federal legislation. 

A big blow came in the so-called Nullification Crisis of 1832-1833 when South Carolina passed an Ordinance of Nullification, declaring the Tariffs of 1828 and 1832 null and void and threatening secession. President Andrew Jackson stared them down, promising military action if necessary, and the Ordinance was repealed.  It is noteworthy that at this time James Madison himself wrote of nullification being unconstitutional.

There were subsequent nullification attempts - in particular from northern states seeking to strike down Fugitive Slave Laws - but the Supreme Court held firm. The issue died down with the conclusion of the Civil War, which of course dealt definitively with the related issue of secession.

Nullification was revived in the 1950s when southern states passed laws to contradict federal orders to desegregate schools. Of course, the Supreme Court acted decisively and the nullification technique again fell away … until now.

The avenues available to states that want to fight what they consider to be unconstitutional legislation are well known: a federal lawsuit or a constitutional amendment. Every state legislator should be fully aware of the unconstitutional status of nullification.

Thus the recent state legislative energy amounts to no more than political grandstanding and perhaps an outlet to let off some steam from the electorate. The legal outcome of the legislation is certain, though perhaps not that of their citizens who may be subject to felony violations in following the dubious state laws.

In the Nullification Crisis, states' rights advocate and southern President Jackson took a strong unionist stance, explicitly labeled the nullification behavior as treasonous, and threatened the violators with facing the consequences of such actions. But there were important differences compared to now - his opposition was formidable and he took them seriously. 

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