States' Fights Nullification makes a comeback – and not just on the Right

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by Jeff Taylor by Jeff Taylor Recently by Jeff Taylor: Thomas Frank v. Sarah Palin


John C. Calhoun is back with a vengeance, warming the hearts of Old South romantics while chilling the blood of modern liberals. He conjures up images both appealing and appalling: old-fashioned patriotism, partisan demagoguery, genuine fears, love of liberty. The modern Tea Party movement owes much of its inspiration to the Ron Paul campaign, the only national effort in recent years to mention the Tenth Amendment. Yet inevitably talk of nullification evokes memories of Calhoun and the Lost Cause – even though the roots of the idea run much deeper.

The re-emergence of nullification – the repudiation or ignoring of a federal law by a state government – poses an interesting challenge to the power of the federal government and its monopoly on constitutional interpretation.

In recent decades, the first organized attempt came from the Left and libertarian Right’s advocacy of medical marijuana. The movement achieved success in California in 1996 with passage of Proposition 215 – a direct affront to federal anti-drug laws – and has since spread to 13 other states. But in 2005, the U.S. Supreme Court ruled in Gonzales v. Raich that the Constitution’s commerce clause gives the federal government the right to criminalize marijuana. This trumping of states’ rights was supported by George W. Bush, Dick Cheney, John Ashcroft, and Alberto Gonzales as plaintiffs, and was advanced by Justice Antonin Scalia. In addition to being joined by three of the court’s Republican justices, Scalia allied with two liberals in declaring that Angel Raich, a woman with a brain tumor, substantially affected interstate commerce when she grew a plant in her backyard and used it to alleviate her own suffering.

To his credit, Clarence Thomas dissented, writing, “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 states. This makes a mockery of Madison’s assurance to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined,’ while those of the States are ‘numerous and indefinite.’” He was referencing Federalist 45. Thomas further invoked the principle of original intent by noting, “In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.”

Chief Justice William Rehnquist also dissented. Similarly, the attorneys general of Alabama, Mississippi, and Louisiana filed an amicus curiae brief supporting the defendant on states’ rights grounds. The Deep South is not a hotbed of NORML members, but it does have a longstanding suspicion of federal usurpation of state prerogatives.

Although the Controlled Substances Act was deemed superior to the Tenth Amendment, the Obama administration has backed away from strict enforcement in clear cases of medical use in legalized states. De facto nullification has won a partial victory. But it is likely that the Justice Department’s stance has more to do with politics than principle. Barack Obama is a former professor of constitutional law, but he is not known as a friend of states’ rights.

Nullification has been gaining popularity in states North, South, and West. One week before Obama assumed office, Joel Boniek introduced the Montana Firearms Freedom Act into the state legislature. The freshman Republican legislator previously affiliated with the Constitution Party was a veteran of Paul’s 2008 campaign. His legislation challenged ATF authority, declaring federal firearms laws within the state to be null and void on the basis of the Second, Ninth, and Tenth Amendments. It was written and advanced by two other Paul admirers between 2004 and 2007, while Bush was president, but was twice defeated by the state senate. It eventually passed both houses and was signed into law by Gov. Brian Schweitzer, a Democrat. Firearms Freedom Acts have since been adopted by Tennessee, Utah, Wyoming, Arizona, South Dakota, and Idaho, and are under consideration in 20 other states.

Another recent nullification effort concerns the Real ID Act of 2005, which sets national standards for state driver’s licenses. According to the law, Americans without federally sanctioned licenses would be denied access to commercial airlines and federal buildings. The regulations were to take effect in 2008, but resistance forced the deadline back – first to 2010 and then to 2011. Half of the states have approved resolutions or laws refusing to follow the federal requirements.

As with firearms law, opposition to Real ID is a bipartisan effort. Following the lead of their more consistent brethren in the Constitution and Libertarian Parties, Republicans have been most vocal in objecting, but many Democrats have come aboard. In 2007, a de facto nullification resolution in Maine was approved by the state house 137-4 and by the state senate 34-0. The Utah legislature and Missouri senate also unanimously refused to co-operate with Real ID.

Governor Schweitzer, a strong opponent of Real ID, is former chairman of the Democratic Governors Association. Calling the law a “harebrained scheme” when interviewed by NPR in 2008, he ended with this verbal blast: “There’s nothing in the Constitution that tells Homeland Security that they’re supposed to do this or they must do this. … This is another bluff by some bureaucrats in Washington, D.C., and thank God, we live a long ways from Washington, D.C.” Former Gov. Tim Kaine, who signed Virginia’s anti-Real ID bill into law last year, is today the chairman of the Democratic National Committee.

Now the recently enacted healthcare reform stands to become the subject of nullification efforts. There could be “mass noncompliance with the law without any consequences,” say Lisa Lambert and Karen Pierog of Reuters news service. Immediately after President Obama signed the legislation, 13 state attorneys general filed a lawsuit to block implementation on constitutional grounds. Five more have since joined in. (A collective suit represents Florida and 17 other states. Virginia has staked out a separate legal challenge.)

Unlike the medicinal marijuana, firearms freedom, and anti-Real ID endeavors, the anti-healthcare reform effort is lopsidedly partisan. Opposition is almost entirely Republican, which may explain why Fox News is promoting this cause while remaining silent on the others. Another difference is that resistance to Obamacare is being carried out through lawsuits in federal courts by a handful of top state-level politicians, rather than by declarations and defiance by the people and their legislators en masse.

Examples of direct nullification attempts are still rare. One is the recently adopted Virginia Health Care Freedom Act, which prevents the federal government from requiring mandatory insurance coverage. In 2009, a state sovereignty resolution overwhelmingly passed both chambers of the Tennessee legislature. Although relatively toothless, it did mark the first time a state sovereignty resolution had been signed by a governor. Alaska, North Dakota, South Dakota, Idaho, and Oklahoma have passed similar resolutions.

The author of the Tennessee resolution, state Rep. Susan Lynn, had healthcare reform in mind when she announced last December that she would introduce stronger legislation to declare null and void any federal law deemed unconstitutional by the state. Prospects of passage are not good – it’s one thing to pass a symbolic resolution, quite another to claim the power of nullification. Glen Casada, a leading conservative Republican in the state house, told a reporter, “Susan’s a sharp girl, but I don’t know. I didn’t realize states had that right to nullify specific laws passed by the federal government.”

Ignorance of nullification is not confined to the political class. With their focus on hot-button issues of immediate concern, few modern reformers are even aware of the historical context. But nullification has roots in an honorable tradition and a powerful legacy of curbing centralized power.

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Jeff Taylor [send him mail] is a political scientist. His book Where Did the Party Go?: William Jennings Bryan, Hubert Humphrey, and the Jeffersonian Legacy was published by University of Missouri Press. Visit his website.

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