Is Nullification an Option?

The country is deeply polarized, with enormous political differences among the countries and their individual citizens. From the November 2020 election, California voters favored the Biden-Harris ticket on President Donald Trump by more than five million votes along with 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 the vote, and in my house county the split had been 71-27 percent.  Regardless of the resistance of over 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, including H.R. 1, the PRO Act, the Equality Act, multi-trillion-dollar paying plans, the Green New Deal, statehood for the District of Columbia, and many contentious executive orders. These suggestions have galvanized conservative immunity, frequently under the banner of the Tenth Amendment.
In our constitutional system, the national government is supposed to exercise only the limited powers explicitly given for this, and the states should keep all powers not so expressly delegated. The benefit of a national program is that the states continue to exist as significant political units–autonomous entities, albeit part of the Union–not as mere appendages of the federal Leviathan. A majority of countries (27) have Republican governors. Federal policies ranged from the nation’s capital are anathema to a lot of citizens. Therefore, some conservatives and libertarians in red states, seeing the unfolding Biden-Harris schedule with alert, have begun talking about”nullification.” Legislation embracing various types of nullification was suggested in Republican enclaves like Montana, Wyoming, South Dakota, Texas, and Oklahoma.
Just what does this mean, and is it a feasible option?
A Checkered History
“Nullification” is a term that has been used throughout the life span of the Republic in various ways. Writing anonymously, Thomas Jefferson and James Madison urged the doctrine of nullification in the Virginia and Kentucky Resolutions at 1798, enacted by those states in opposition to the Federalist Party’s Alien and Sedition Acts. The resolutions, but not equal, both confirmed that states retain authority 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 states to join in resistance to the objectionable federal law. While the resolutions condemned the Acts as unconstitutional, they did not expressly 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.
Even the legislatures of Virginia and Kentucky implicitly claimed the Supremacy Clause in Art. VI merely applies to national legislation created”in Pursuance” of the Constitution, and that states could determine whether legislation are unconstitutional. The Constitution is a compact, the resolutions emphasized, which says had entered into only dependent on the limited powers granted to the national government and the rights held by the countries. Obliterating those limits would comprise”tyranny,” in Jefferson’s ghost-written (and somewhat florid) phrases for the Kentucky Resolution. Virginia, by comparison, averred an unlimited federal government would”change the present republican system of the United States to an absolute, or at best, a mixed monarchy.” Yet, unless states affirmatively withstand an objectionable federal regulation, protests in the name of nullification are words.
Regardless of the resolutions’ lack of teethnullification was a bold position in 1798, once the construction of the Republic remained an open issue. Given our history, it appears more tenuous in 2021.
If a country believes a federal statute or executive order violates the Constitution, the remedy is to question its constitutionality in court, as state attorneys general frequently do.The repeal of the Alien and Sedition Act after Jefferson’s election in 1800 obviated that a nullification crisis, however the dilemma of nullification re-surfaced at 1832-33 through the presidency of Andrew Jackson when the state of South Carolina supposed to announce”null and void” a national tariff law (the Tariffs of 1828 and 1832) it found objectionable. Contrary to the Virginia and Kentucky Resolutions, South Carolina’s Ordinance of Nullification threatened secession if the national government tried to collect tariff obligations with force. Jackson, none to back away from a battle, cautioned South Carolina that”disunion by armed force is treason,” and prepared to use military power against South Carolina if necessary. Jackson told that a congressman in the Palmetto State that”if a single drop of blood will be shed there in resistance to the legislation of the United States, I will hang the first man I can put my hand on participated in these treasonable conduct, on the very first tree I could achieve.”
Perhaps mindful of Jackson’s martial arts, and together with the inducement of a tariff-reduction compromise brokered by Sen. Henry Clay, South Carolina blinked and rescinded the nullification ordinance.
The Civil War was fought on secession, maybe not nullification, and offers little helpful advice on the doctrinal issue of states’ ability to declare federal laws unconstitutional (while providing lots on the issue of secession). Nor are any of the minor skirmishes over nullification in the 19th century particularly dispositive.
The Framers never cried addressed nullification. In Federalist No. 46, Madison suggested that the dual sovereignty of the countries will serve as a check on national authority exceeding its proper boundaries:
The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the Statethe embarrassments created by legislative devices, which could often be added on such occasions, would oppose, in any State, difficulties not to be despised; would kind, in a large State, very serious impediments; and in which the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter… [The federal government] won’t possess the confidence of these individuals, and its schemes of usurpation will be easily defeated by the State governments, who would be supported by the public…. (Emphasis added)
Proponents of nullification occasionally lent to the article support for their philosophy as a check on national overreaching, but Madison didn’t go that far. The basis of Federalist No. 46 is pro-ratification”happy talk” directed at dubious states, placating them with assurances that, as a practical matter, national usurpation–the”annihilation” of country governments–wasn’t possible. In this, and many other respects, the more skeptical and pessimistic Anti-Federalists were prescient.
Exactly what Madison wrote in the Federalist isn’t controlling in any event.  Does the Constitution–either in its text or as interpreted by the Supreme Court–allow states unilaterally to violate national law on the grounds that they think the law is unconstitutional? The philosophy of judicial review and the Court’s later assertion of judicial supremacy at Cooper v. Aaron (1958) complicate the analysis, at least if”nullification” can be used in the sense of resisting or ignoring federal law. Cooper v. Aaron coped with a form of nullification–the huge resistance to the desegregation ordered by Brown v. Board of Education (1954)–also unambiguously rejected it. The Court unanimously held that
Article VI of the Constitution makes the Constitution the”supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, speaking 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 is.” 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. It follows that the representation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3″to support this Constitution.” (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 remainder of the country –just as the Anti-Federalists predicted. Contrary to the poor alliance considered by the Articles of Confederation, under the Constitution unanimity of these states isn’t required for national action.
Certainly, then, under the authority of Cooper v. Aaron individual countries cannot merely defy national law, or even the Supreme Court’s interpretation of the Constitution, no matter how sincere–or legitimate –their objection to it.  If a country believes that a federal statute or executive order violates the Constitution, the remedy is to question its constitutionality in court, as state attorneys general frequently do. Defiance of the law–the most aggressive form of nullification–isn’t consistent with the principle of law.
Nullification Light?
In recent years, yet,”nullification” has been used in a looser sense (occasionally referred to as”interposition”), in the context of countries legalizing marijuana (the ownership and sale of which are illegal under national law), cities announcing themselves”sanctuaries” for illegal aliens, and such. Opposition short of outright defiance isn’t forbidden by the Supremacy Clause.
States are free to decline to help in the enforcement of federals legislation to which they aim, but they cannot actively interfere with the national government’s operations. Because of their dual sovereignty, state authorities (and their political subdivisions) are allowed, within limits, to disagree with national law. In a dispute regarding Pennsylvania’s apology to the federal Fugitive Slave Act, the Court held in Prigg v. Pennsylvania (1842) the states cannot be compelled to use state law enforcement tools to enforce national law.  This principle, re-affirmed at New York v. United States (1992) and Printz v. United States (1997) since the idea that the national government cannot”commandeer” state officials to enforce federal law, allows states to refuse to collaborate with national government concerning the enforcement of legislation they find objectionable, even if they cannot affirmatively interfere with the enforcement of national law.
Sometimes mere non-cooperation is inaccurately called”nullification.” In the aftermath of the November 2020 electionsome conservative countries have been mimicking the progressive model by suggesting to become”Second Amendment sanctuaries.” A pending bill in Tennessee, by way of example, would prohibit”the state and political subdivisions from using public resources to enforce, administer, or collaborate with the government or government of” any law abridging the Second Amendment. Other jurisdictions are considering legislation declaring themselves”sanctuaries for the unborn child,” in opposition to Roe v. Wade (1973) and its progeny. Legislation restricting abortion would remain subject to challenge in federal court.
How much can this go? States are free to decline to help in the enforcement of federals legislation to which they aim, but they cannot actively interfere with the national government’s operations. In light of these overwhelming sources in the disposal of the national government, non-cooperation by recalcitrant states isn’t a significant impediment. Some proposals–under the rubric of”restoring state sovereignty”–go further, purporting to require state courts to reject federal judicial precedents when hearing cases challenging the constitutionality of national legislation. This approach is nearly certainly unavailing under the Supremacy Clause.
Other suggestions, including constitutional amendments to overturn specific Supreme Court decisions, to require super-majorities of the Court to invalidate state legislation, allowing Congress or the states to veto Supreme Court decisions and such, according to Texas Gov. Greg Abbott (amongst other people ), would try to nullify federal law within the structure of the Constitution. This strategy, although consistent with constitutional norms, is unlikely to succeed as a practical matter. As I mentioned in Law & Liberty at 2016,”34 states won’t ever support a constitutional convention, and even if they did–and then adopted these nine alterations –it is barely conceivable that three-fourths of the countries (38) would ratify them”
Some notions advanced by conservative activists are clearly extra-constitutional, like the Reformation era”Lesser Magistrate Doctrine,” which is a pseudo-religious rationale for civic disobedience. Similarly, the Declaration of Independence–a statement of rebellion–ultimately rested on humanity’s inherent right”to alter and abolish” an oppressive regime,”and to institute new Government” This is really a call for revolution, invariably resulting in war. For this reason, it is a measure of last resort, to not be undertaken (or advocated) lightly. The path to Appomattox was cluttered with over 600,000 corpses.
It’s unfortunate the Biden-Harris administration, together with the backing of the Pelosi-led House along with also the Schumer-led Senate, appears intent on forcing a divided country to the verge. Neither moderation nor respect for federalism temper the Democrats’ policy schedule. Americans frustrated with this situation don’t have any easy–or simple–solutions. They’re free to participate in and influence all levels of government, however, only over the established institutional framework and using the recognized tools of legislatures, executives, and judges. This may not guarantee results, however it is the sole legitimate path forward.
“Nullification,” in the sense of repudiating or defying duly enacted national legislation, is really a futile action which, at best, will waste time and create disappointment; in the worst, it is going to lead to armed confrontation with the kind Andrew Jackson jeopardized in 1832-33. After the events of January 6, it should be clear that”going rogue” isn’t a viable approach in the 21st century. So as to maintain constitutional government, Americans must work within the Constitution and its procedures.