Is Nullification an Option?

The country is deeply divided, with huge political differences between the countries and their individual citizens. From the November 2020 election, California voters favored the Biden-Harris ticket over President Donald Trump by more than five million votes and a margin of 29 points. In other states, voters preferred Trump over Biden-Harris with a similarly lopsided margin. In Tennessee, where I reside, Trump won over 60 percent of their vote, and in my home county that the split had been 71-27 percent.  Regardless of the opposition of more than 74 million voters, constituting an electoral majority of 25 countries, in winner-takes-all style the Biden-Harris administration is pursuing an unprecedented schedule of far-left policies, such as H.R. 1, the PRO Act, the Equality Act, multi-trillion-dollar lending plans, the Green New Deal, statehood to the District of Columbia, and lots of contentious executive orders. These suggestions have galvanized conservative resistance, frequently under the banner of their Tenth Amendment.

In our constitutional system, the national government is supposed to exercise no more than the limited powers specifically granted for this, and the states should retain all powers not so expressly delegated. The hallmark of a national program is that the nations continue to exist as significant political units–autonomous entities, albeit part of the Union–not as mere appendages of their federal Leviathan. A majority of countries (27) have Republican governors. Federal policies ranged from the nation’s capital are anathema to many citizens. Thus, some conservatives and libertarians in red states, viewing the unfolding Biden-Harris schedule with alert, have started discussing”nullification.” Legislation embracing various types of nullification was suggested in Republican enclaves such as Montana, Wyoming, South Dakota, Texas, and Oklahoma.

What exactly does this mean, and can it be a viable option?

A Checkered History

“Nullification” is a phrase that’s been utilized throughout the life of the Republic in many different means. Writing anonymously, Thomas Jefferson and James Madison advocated the doctrine of nullification in the Virginia and Kentucky Resolutions at 1798, enacted by these states in opposition to the Federalist Party’s Alien and Sedition Acts. The resolutions, although not equal, both affirmed that states retain jurisdiction under the Constitution to ascertain the validity of national legislation and also to declare legislation unconstitutional. The resolutions were strongly-worded protests, and called for other nations to join in opposition to the federal law. While the resolutions condemned the Acts as unconstitutional, they didn’t explicitly threaten non-compliance or resistance, and disavowed any move toward secession.

Even the legislatures of Virginia and Kentucky implicitly claimed that the Supremacy Clause in Art. VI only applies to national legislation created”in Pursuance” of the Constitution, and that states could decide whether legislation are unconstitutional. The Constitution is a compact, yet the resolutions emphasized, that nations had entered into only depending on the limited powers granted to the national authorities and the rights held by the countries. Obliterating those constraints would comprise”tyranny,” in Jefferson’s ghost-written (and somewhat florid) words to the Kentucky Resolution. Virginia, in contrast, averred that an infinite federal authorities would”transform the present republican system of the United States into an absolute, or at best, a mixed monarchy.” However, unless states affirmatively withstand an objectionable government regulation, protests in the name of nullification are only words.

Regardless of the resolutions’ lack of teethnullification was a daring position in 1798, when the construction of the Republic remained an open issue. Considering that our intervening history, it appears even more tenuous in 2021.

If a country believes that a federal statute or executive order violates the Constitution, the solution is to question its constitutionality in court, even as state attorneys general frequently do.The repeal 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 when the state of South Carolina purported to declare”null and void” a national tariff law (that the Tariffs of 1828 and 1832) it found objectionable. Unlike the Virginia and Kentucky Resolutions, South Carolina’s Ordinance of Nullification threatened secession when the national government tried to collect tariff obligations with force. Jackson, none to back away from a fight, warned South Carolina who”disunion by armed force is treason,” and ready to use military power against South Carolina when needed. Jackson told that a congressman from the Palmetto State which”when a single drop of blood will be shed there in opposition to the legislation of the United States, I’ll hang the first man I can put my hands on participated in these treasonable behavior, upon the very first tree I could reach.”

The Civil War has been fought over secession, not nullification, and offers little useful advice regarding the doctrinal issue of states’ ability to declare federal laws unconstitutional (while providing lots on the question of secession). Nor are any of those small skirmishes over nullification in the 19th century particularly dispositive.

The Framers never cried addressed nullification. In Federalist No. 46, Madison proposed that the dual sovereignty of the states will serve as a check on national authority exceeding its proper bounds:

[S]hould an unwarrantable measure of the national government be unpopular in particular States, which would seldom fail to be true, or even a warrantable measure be so, which might sometimes be the case, that the means of opposition to it are powerful and at hand. [T]he powers proposed to be lodged in the national government are as little formidable to those reserved to the individual States, as they are indispensably necessary to achieve the goals of the Union; and that all those alarms that have been sounded, of a meditated and consequential annihilation of the State governments, must, to the most favorable interpretation, be ascribed to the chimerical fears of the authors of them. (Emphasis added)

Proponents of nullification occasionally reverted to this essay support to their philosophy as a check on national overreaching, but Madison didn’t move that far. The gist of Federalist No. 46 is pro-ratification”happy talk” directed at dubious nations, placating them with assurances that, as a practical matter, national usurpation–that the”annihilation” of country governments–was not possible. Inside this, and several other respects, the cynical and pessimistic Anti-Federalists were prescient.

Exactly what Madison wrote in the Federalist isn’t controlling in any function.  Can the Constitution–in its text as interpreted by the Supreme Court–allow states unilaterally to disregard federal legislation regarding the grounds that they believe the law is unconstitutional? The philosophy of judicial review and the Court’s subsequent assertion of judicial supremacy at Cooper v. Aaron (1958) complicate the investigation, at least when”nullification” can be employed in the sense of resisting or dismissing federal law. Cooper v. Aaron dealt with a kind of nullification–that the gigantic resistance to the desegregation dictated by Brown v. Board of Education (1954)–and also unambiguously refused it.

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. 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 what the Supreme Court says it means, and the decision of the unelected five-person majority is final and binding on the rest of the nation–as the Anti-Federalists predicted. Unlike the weak alliance considered from the Articles of Confederation, under the Constitution unanimity of these states isn’t required for national actions.

Clearly, then, under the jurisdiction of Cooper v. Aaron individual countries can’t merely defy federal law, or perhaps the Supreme Court’s interpretation of the Constitution, however honest –or legitimate –their objection for it.  Defiance of the legislation –the most aggressive kind of nullification–isn’t in accord with the rule of law.

Nullification Light?

In recent years, however,”nullification” has been utilized in a looser sense (occasionally referred to as”interposition”), in the context of countries legalizing marijuana (the possession and sale of that are prohibited under national regulation ), cities declaring themselves”sanctuaries” for illegal aliens, and so on. Opposition brief of outright defiance isn’t prohibited by the Supremacy Clause.

Countries are free to drop to assist in the enforcement of federals legislation to which they aim, but they can’t actively interfere with the government’s operations. On account of their double sovereignty, state governments (and their political subdivisions) are permitted, within limitations, to disagree with national law. In a dispute concerning Pennsylvania’s apology to the federal Fugitive Slave Act, the Court held in Prigg v. Pennsylvania (1842) that the nations can’t be forced to use state law enforcement tools to apply federal law.  This principle, re-affirmed at New York v. United States (1992) and Printz v. United States (1997) as the belief that the national government can’t”commandeer” state officials to apply federal law, allows states to refuse to collaborate with national government regarding the enforcement of legislation they find objectionable, even when they can’t affirmatively interfere with law enforcement of national law.

Occasionally mere non-cooperation is popularly known as”nullification.” In the wake of the November 2020 electionsome conservative states are mimicking the progressive model by proposing to eventually become”Second Amendment sanctuaries.” A pending bill in Tennessee, for example, would prohibit”the state and political subdivisions from using public resources to apply, administer, or collaborate with law enforcement or administration of” any law abridging the Second Amendment. Other authorities are thinking about legislation declaring themselves”sanctuaries to the furry,” in opposition to Roe v. Wade (1973) and its progeny. Laws restricting abortion would remain subject to challenge in federal court.

How much can this go? Countries are free to drop to assist in the enforcement of federals legislation to which they aim, but they can’t actively interfere with the government’s operations. In light of these overwhelming funds at the disposal of the national authorities, non-cooperation by recalcitrant states isn’t a substantial impediment. A few suggestions –under the rubric of”restoring nation sovereignty”–go farther, purporting to require state courts to reject federal judicial precedents when hearing cases challenging the constitutionality of laws. This method is all but certainly unavailing under the Supremacy Clause.

Other suggestions, such as constitutional amendments to overturn specific Supreme Court decisions, to demand super-majorities of the Court to invalidate state legislation, to allow Congress or the states to veto Supreme Court decisions and so on, according to Texas Gov. Greg Abbott (among others), could seek to nullify federal law within the structure of the Constitution. This approach, although consistent with constitutional norms, is unlikely to succeed as a practical matter. As I mentioned in Law & Liberty at 2016,”34 states will never support a constitutional convention, and even when they did–and adopted these nine alterations –it’s barely possible that three-fourths of those countries (38) would ratify them”

Some notions advanced by conservative activists are clearly extra-constitutional, such as the Reformation age”Lesser Magistrate Doctrine,” that is a pseudo-religious rationale for civil disobedience. Similarly, the Declaration of Independence–a statement of rebellion–finally rested on mankind’s inherent right”to change and abolish” an oppressive regime,”and to institute new Government” This is a call for revolution, always resulting in war. Because of this, it’s a step of last resort, to not be undertaken (or advocated) lightly. The road to Appomattox was cluttered with over 600,000 corpses.

It’s unfortunate that the Biden-Harris administration, with the backing of the Pelosi-led House and the Schumer-led Senate, appears intent on pushing a split nation to the brink. Neither moderation nor admiration to federalism temper the Democrats’ policy schedule. Americans dissatisfied with this situation don’t have any simple –or simple–alternatives. They are absolutely free to take part in and affect all levels of government, but only within the established institutional framework and utilizing the recognized resources of legislatures, executives, and courts. This might not guarantee results, however it’s the sole legitimate route ahead.

“Nullification,” in the sense of either both repudiating or defying duly enacted national legislation, is a futile action that, at best, will waste time and make disappointment; in the worst, it is going to lead to armed confrontation of the type Andrew Jackson jeopardized in 1832-33. After the events of January 6, it should be clear that”going rogue” isn’t a viable strategy in the 21st century. To be able to preserve constitutional government, Americans need to work within the Constitution and its own processes.