Is Nullification an Option?

The country is deeply divided, with tremendous political differences among the countries and their respective citizens. From the November 2020 election, California voters preferred the Biden-Harris ticket on President Donald Trump by over five million votes and a margin of 29 points. In other states, Republicans favored Trump over Biden-Harris with a similarly lopsided margin. Back in Tennessee, where I live, Trump won over 60% of their vote, and also in my home county that the divide has been 71-27 percent.  Despite the opposition of more than 74 million voters, constituting an electoral majority of 25 countries, in winner-takes-all fashion the Biden-Harris administration is pursuing an unparalleled 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 for the District of Columbia, and several controversial executive orders. These suggestions have galvanized conservative resistance, frequently beneath the banner of their Tenth Amendment.
In our constitutional system, the national government is designed to exercise only the limited powers expressly granted for it, and the countries are supposed to keep all powers not so expressly delegated. The benefit of a national program is that the states are still exist as significant political units–sovereign entities, albeit a part of the Union–not as mere appendages of their federal Leviathan. A vast majority of countries (27) have Republican governors. Federal policies ranged from the country’s capital are anathema to many taxpayers. Thus, some conservatives and libertarians in red states, viewing the unfolding Biden-Harris schedule with alarm, have started talking about”nullification.” Legislation embracing a variety of forms of nullification has been suggested in atomic enclaves such as 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 of the Republic in various means. Composing anonymously, Thomas Jefferson and James Madison advocated the doctrine of nullification in the Virginia and Kentucky Resolutions at 1798, commissioned by those countries in opposition to the Federalist Party’s Alien and Sedition Acts. The resolutions, although not identical, both confirmed that countries retain authority under the Constitution to determine the validity of national legislation and to declare laws unconstitutional. The resolutions were strongly-worded protests, also called for other states to join in opposition to the objectionable federal law. While the resolutions condemned the Act as unconstitutional, they didn’t explicitly threaten non-compliance or resistance, also disavowed any movement toward secession.
Even the legislatures of Virginia and Kentucky implicitly claimed the Supremacy Clause in Art. VI only applies to national laws made”in Pursuance” of the Constitution, and that states could determine whether laws are unconstitutional. The Constitution is a compact, the resolutions emphasized, that nations had entered into only depending on the limited powers granted to the national authorities and the rights retained by the countries. Obliterating those constraints would comprise”tyranny,” in Jefferson’s ghost-written (and somewhat florid) phrases for the Kentucky Resolution. Virginia, by comparison, averred an infinite federal authorities would”transform the present republican system of the United States to an absolute, or at best, a mixed monarchy.” Yet, unless countries affirmatively resist an objectionable federal regulation, protests in the title of nullification are just words.
Despite the resolutions’ lack of teeth, nullification was a bold position in 1798, when the structure of the Republic remained an open question. Considering that our history, it seems even more tenuous in 2021.
If a country believes that a federal statute or executive order violates the Constitution, the solution is to challenge its constitutionality in court, as state attorneys general frequently do.The breach of the Alien and Sedition Act after Jefferson’s election in 1800 obviated a nullification crisis, however the issue of nullification re-surfaced at 1832-33 during the presidency of Andrew Jackson as soon as the nation of South Carolina supposed to declare”null and void” a national tariff law (that 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 attempted to collect tariff obligations with force. Jackson, none to back away from a fight, cautioned South Carolina who”disunion by armed force is treason,” and ready to use military force against South Carolina if needed. Jackson told a congressman from the Palmetto State who”if a single drop of blood will be shed in opposition to the laws of the United States, I will hang the first man I can lay my hand on engaged in such treasonable behavior, on the first tree I could reach.”
Perhaps mindful of Jackson’s martial prowess, and with the inducement of a tariff-reduction compromise brokered by Sen. Henry Clay, South Carolina blinked and rescinded the nullification ordinance.
The Civil War has been fought on secession, maybe not nullification, also offers little useful advice regarding the doctrinal issue of states’ authority to declare federal laws unconstitutional (while supplying lots on the question of secession). Nor are some of those 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 nations 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 at times 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 respective States, as they are indispensably necessary to accomplish the functions of the Union; and that 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.
Proponents of nullification occasionally lent to the particular article support for their doctrine for a check on national overreaching, but Madison did not move that far. The gist of Federalist No. 46 is pro-ratification”happy talk” aimed at dubious states, placating them with assurances that, as a practical matter, national usurpation–that the”annihilation” of country authorities –was not possible. In this, and many other respects, the more skeptical and pessimistic Anti-Federalists were prescient.
What Madison wrote in the Federalist is not controlling in any function.  Can the Constitution–either in its text or as interpreted by the Supreme Court–allow countries unilaterally to violate national regulation regarding the grounds that they believe the law is unconstitutional? The doctrine of judicial review and also the Court’s later assertion of judicial supremacy at Cooper v. Aaron (1958) complicate the analysis, at least if”nullification” can be employed in the feeling of resisting or dismissing federal lawenforcement. Cooper v. Aaron dealt with a kind of nullification–that the massive resistance to the desegregation ordered by Brown v. Board of Education (1954)–also also unambiguously refused 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, 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 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. 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.” 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 saying that:”When the legislatures of the several states will at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”
In short, the Constitution means what the Supreme Court says it means, and also the decision of the unelected five-person majority is final and binding on the rest of the nation–as the Anti-Federalists predicted. Contrary to the poor alliance considered from the Articles of Confederation, under the Constitution unanimity of these countries is not required for national action.
Clearly, then, under the authority of Cooper v. Aaron individual countries cannot simply defy national law, or perhaps the Supreme Court’s interpretation of the Constitution, no matter how honest –or legitimate –their objection for it.  Defiance of the law–the most competitive type of nullification–is not consistent with the rule of law.
Nullification Light?
In recent decades, yet,”nullification” has been used in a looser sense (occasionally known as”interposition”), in the context of countries legalizing marijuana (the possession and sale of which are prohibited under national regulation ), cities announcing themselves”sanctuaries” for illegal aliens, and such. Opposition brief of outright defiance is not prohibited by the Supremacy Clause.
States are free to drop to help in the enforcement of federals laws to which they object, but they cannot actively intervene 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 regarding Pennsylvania’s objection to the federal Fugitive Slave Act, the Court held in Prigg v. Pennsylvania (1842) the states cannot be compelled to use state law enforcement resources to apply federal law.  This principle, re-affirmed at New York v. United States (1992) and also Printz v. United States (1997) as the belief that the national government can’t”commandeer” state officials to apply federal law, allows countries to refuse to cooperate with federal authorities concerning the enforcement of laws they find objectionable, even if they cannot affirmatively interfere with law enforcement of national law.
Sometimes mere non-cooperation is popularly known as”nullification.” In the aftermath of the November 2020 election, some conservative nations 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 country and political subdivisions from using public funds to apply, administer, or cooperate with law enforcement or administration of” any law abridging the Second Amendment. Other jurisdictions are contemplating legislation declaring themselves”sanctuaries for the unborn,” in opposition to Roe v. Wade (1973) and its progeny. Laws restricting abortion would remain subject to challenge in federal court.
Just how far can this go? States are free to drop to help in the enforcement of federals laws to which they object, but they can’t actively intervene with the government’s operations. In light of these overwhelming funds at the disposal of the national authorities, non-cooperation by recalcitrant states is not a substantial impediment. A few proposals–under the rubric of”restoring state sovereignty”–go farther, purporting to require state courts to reject federal judicial precedents when hearing cases challenging the constitutionality of laws. This approach is nearly 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 laws, to allow Congress or the states to veto Supreme Court decisions and such, according to Texas Gov. Greg Abbott (amongst others), could want to nullify federal law inside the structure of the Constitution. This approach, while consistent with constitutional norms, is not likely to succeed as a practical issue. As I mentioned in Law & Liberty at 2016,”34 countries will never support a constitutional convention, and even if they did–and adopted these nine alterations –it is barely conceivable that three-fourths of those countries (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 civic disobedience. Similarly, the Declaration of Independence–a statement of rebellion–finally rested on humanity’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. For this 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’s unfortunate that the Biden-Harris administration, with the backing of the Pelosi-led House and the Schumer-led Senate, seems intent on forcing a broken country to the verge. Neither moderation nor regard for federalism temper the Democrats’ policy schedule. Americans dissatisfied with this situation have no easy–or easy –solutions. They are free to participate in and influence all levels of government, but only inside the established institutional frame and utilizing the recognized instruments of legislatures, executives, and judges. This might not guarantee results, however it is the only legitimate path forward.
“Nullification,” in the sense of repudiating or hammering duly enacted national laws, is really a futile action that, at best, will waste time and create disappointment; in the worst, it is going to result in armed confrontation with the kind Andrew Jackson threatened in 1832-33. Following the events of January 6, it ought to be evident that”going rogue” is not a viable approach in the 21st century. To be able to preserve constitutional government, Americans should work inside the Constitution and its procedures.