Is Nullification an Alternative?

The country is deeply polarized, with huge political differences among the countries and their individual citizens. In 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 different states, Republicans favored Trump over Biden-Harris by a similarly lopsided margin. Back in Tennessee, where I reside, Trump won over 60% of the vote, and in my house county that the divide has been 71-27 percent.  Regardless of the resistance of over 74 million voters, constituting an nearly all 25 countries, 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 many contentious executive orders. These suggestions have galvanized conservative resistance, frequently beneath the banner of the Tenth Amendment.

In our constitutional system, the federal government is assumed to exercise no more than the limited powers specifically given for this, and the states are supposed to keep all powers not expressly delegated. The hallmark of a federal system is that the nations continue to exist as meaningful political units–autonomous entities, albeit part of the Union–not as mere appendages of the federal Leviathan. A vast majority of countries (27) have Republican governors. Federal policies emanating from the country’s capital are anathema to many citizens. Thus, some conservatives and libertarians in red states, seeing the unfolding Biden-Harris agenda with alert, have begun discussing”nullification.” Legislation embracing a variety of types of nullification has been suggested in Republican enclaves such as Montana, Wyoming, South Dakota, Texas, and Oklahoma.

What exactly does this mean, and is it a feasible option?

A Checkered History

“Nullification” is a term that has been utilized throughout the life span of this 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 those states in opposition to the Federalist Party’s Alien and Sedition Acts. The resolutions, although not identical, both confirmed that states maintain authority under the Constitution to ascertain the validity of federal laws and to declare legislation unconstitutional. The resolutions were strongly-worded protests, and called for different nations to join in resistance to the federal law. While the resolutions condemned the Act as unconstitutional, they did not explicitly threaten non-compliance or resistance, also disavowed any move toward secession.

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

Regardless of the resolutions’ lack of teeth, nullification was a bold position in 1798, once the construction of this Republic remained an open question. Considering that our intervening history, it seems even more tenuous in 2021.

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 regularly do.The repeal of the Alien and Sedition Act after Jefferson’s election in 1800 obviated that a nullification crisis, but the issue of nullification re-surfaced at 1832-33 through the presidency of Andrew Jackson as soon as the nation of South Carolina supposed to announce”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 by force. Jackson, none to back away from a battle, warned South Carolina who”disunion by armed force is treason,” and willing to use military power against South Carolina if necessary. Jackson told that a congressman from the Palmetto State that”if one drop of blood will be shed in resistance to the legislation of the USA, I will hang the first man I can lay my hand on engaged in such treasonable behavior, upon the very first tree I can reach.”

Perhaps conscious of Jackson’s martial prowess, 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 over secession, maybe not nullification, also offers little helpful advice regarding the doctrinal issue of states’ authority to declare federal laws unconstitutional (while supplying plenty on the subject of secession). Nor are some of those small 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 the countries would serve as a check on federal authority exceeding its proper bounds:

[T]he powers proposed to be lodged in the federal government are as little formidable to those reserved to the respective States, because they are indispensably necessary to achieve the purposes of this Union; which all those alarms which 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 these. (Emphasis added)

Proponents of nullification occasionally lent to this article support for their philosophy for a check on federal overreaching, but Madison did not move that far. The gist 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 authorities –wasn’t possible. In this, and several different respects, the more skeptical and pessimistic Anti-Federalists were prescient.

What Madison wrote in the Federalist isn’t controlling in any function.  Does the Constitution–either in its text as interpreted by the Supreme Court–allow states unilaterally to disregard federal legislation regarding 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 investigation, at least if”nullification” can be used in the feeling of resisting or dismissing federal lawenforcement. Cooper v. Aaron coped with a form of nullification–that the large resistance to this desegregation ordered by Brown v. Board of Education (1954)–and unambiguously rejected it.

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 this 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 this 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. 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. Chief Justice Marshall spoke for a unanimous Court in saying that:”When the legislatures of the several nations will at will, annul the judgments of the courts of the USA, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” (Emphasis added)

Simply speaking, the Constitution means exactly 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 country –as the Anti-Federalists predicted. Unlike the poor alliance contemplated from the Articles of Confederation, under the Constitution unanimity of the states isn’t required for federal action.

Certainly, then, under the authority of Cooper v. Aaron individual countries cannot merely defy federal legislation, or perhaps the Supreme Court’s interpretation of this Constitution, however honest –or legitimate –their objection to it.  Defiance of the legislation –the competitive type of nullification–isn’t in accord with the principle of law.

Nullification Light?

In recent decades, yet,”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 which are prohibited under federal legislation ), cities announcing themselves”sanctuaries” for illegal aliens, and such. Opposition short of outright defiance isn’t forbidden by the Supremacy Clause.

Countries are free to decline to help in the enforcement of federals legislation to which they aim, but they cannot actively interfere with the government’s operations. As a result of their double sovereignty, state authorities (and their political subdivisions) are permitted, within limits, to disagree with federal 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 cannot be compelled to use 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 idea that the federal government can’t”commandeer” state officials to apply federal legislation, allows states to refuse to cooperate with federal authorities regarding the enforcement of legislation they find objectionable, even if they cannot affirmatively interfere with law enforcement of federal law.

Sometimes mere non-cooperation is inaccurately called”nullification.” In the wake of this November 2020 election, some conservative countries have been mimicking the innovative model by proposing to become”Second Amendment sanctuaries.” A pending bill in Tennessee, as an example, would prohibit”the nation and political subdivisions from using public funds to apply, administer, or cooperate with law enforcement or administration of” any law abridging the Second Amendment. Legislation restricting abortion would remain subject to challenge in court.

Just how far can this go? Countries are free to decline to help in the enforcement of federals legislation to which they aim, but they cannot actively interfere with the government’s operations. In light of the overwhelming funds in the disposal of the federal authorities, non-cooperation by recalcitrant states isn’t a significant 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 approach is all but certainly unavailing under the Supremacy Clause.

Other suggestions, including constitutional amendments to overturn specific Supreme Court decisions, to demand super-majorities of this Court to invalidate state legislation, allowing Congress or the states to veto Supreme Court decisions and the like, according to Texas Gov. Greg Abbott (among others), would try to nullify federal legislation within the structure of this Constitution. This strategy, while consistent with constitutional norms, is unlikely to succeed as a practical matter. As I noted in Law & Liberty at 2016,”34 states will never support a constitutional conference, and even if they did–and embraced these nine amendments–it is barely conceivable that three-fourths of those countries (38) would ratify them.”

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

It is unfortunate that the Biden-Harris government, together with the backing of this Pelosi-led House and 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 don’t have any simple –or simple–options. They are absolutely free to participate in and influence all levels of government, but just within the established institutional frame and utilizing the recognized resources of legislatures, executives, and judges. This might not guarantee results, but it is the sole legitimate route ahead.

“Nullification,” in the sense of repudiating or defying duly enacted federal legislation, is a futile action which, at best, can waste time and make disappointment; at worst, it is going to lead to armed confrontation of this type Andrew Jackson threatened in 1832-33. Following the events of January 6, it ought to be evident that”going rogue” isn’t a viable strategy in the 21st century. So as to maintain constitutional government, Americans need to work within the Constitution and its procedures.