Episode 124: August 31, 2012
by Adam Freedman
Today’s topic: Nullification. Can states opt out of federal laws they don’t like?
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
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What is Nullification?
The term “nullification” refers to the ability of a state to resist or ignore a federal law that it considers to be unconstitutional. The idea has been getting a lot of attention lately as dozens of state legislatures are considering laws to block the implementation of the new federal healthcare law within their borders. As I’ll explain in a minute, such measures have dubious legal effect, but they can have enormous practical impact.
Can States Opt Out of the New Federal Health Care Law?
In an earlier episode, Is the Health Care Law Unconstitutional, I explained some of the arguments for and against the constitutionality of the new health care law. Well, a number of state legislatures have apparently decided that the law is not constitutional. According to press reports, 36 states are considering legislation to block implementation of the new law within their borders. Many--if not most-- supporters of these laws invoke what they consider to be an inherent right of states to “nullify” federal laws that they consider exceed the federal government’s constitutional power.
And that’s not the only recent example of nullification. A similar wave of state laws swept the nation over the last few years in reaction to the REAL ID Act, a 2005 law signed by President Bush, requiring states to conform to certain federal standards for drivers’ licenses and identification cards, and requiring states to share certain data. Some 25 states have passed legislation denouncing the legislation and--in the case of some states--flatly refusing to cooperate with the law.
Who Decides What Federal Laws States Can Block?
The Supreme Court itself declared that it had the power to strike down unconstitutional laws, in the 1803 case of Marbury vs. Madison.
The legal basis for nullification is the Tenth Amendment to the Constitution which provides that the powers not delegated to the federal government generally belong to the states or to the citizens. But the Tenth Amendment does not answer one very important question: who gets to decide whether a particular power was or was not delegated to the federal government?
If at this point, you’re furiously raising your hand and saying “I know, I know, it’s the Supreme Court!” then you’re at least partially right. For 200 years, most Americans have looked to the Supreme Court as the ultimate authority on the constitutionality of federal laws. But nothing in the Constitution specifically grants the Supreme Court that power. Instead, the Supreme Court itself declared that it had the power to strike down unconstitutional laws, in the 1803 case of Marbury vs. Madison.
Supporters of nullification argue that even if the Supreme Court has the power to strike down unconstitutional laws, there’s no reason the Court should have exclusive power to do so. After all--the argument goes--isn’t it a little strange to give the federal government the exclusive power to determine the extent of its own power? Shouldn’t the states have the power to smackdown the federal government when it oversteps its bounds?
One quick point: in case you’re wondering, state nullification has nothing to do with “jury nullification” which is a completely different concept. Jury nullification is a term used to describe situations in which a jury refuses to apply the law in a particular case.
It Began in 1798
According to experts, the state nullification movement has its roots in the earliest days of the American republic. When John Adams was President, Congress passed the infamous Alien and Sedition Acts, a series of laws which, among other things, made it essentially illegal to criticize the government. In 1798, Virginia and Kentucky each passed resolutions asserting their power to “nullify” federal legislation. And these resolutions were not the product of fringe lunatics--they were backed by James Madison and Thomas Jefferson.
Other Nullification Examples
Jefferson and Madison may have come to regret their impetuousness. Some years later, when Jefferson was President, a number of New England states asserted their right to “nullify” federal law, specifically a federal embargo on all foreign trade imposed by Jefferson as an attempt to punish France and England. And a few years after that, when Madison was President, Connecticut invoked its right to nullify federal law when it refused to call up its militia to fight in the War of 1812.
Nullification arose again in 1828 and 1832, when South Carolina passed nullification resolutions to resist certain tariff laws. In the 1850s a number of northern states refused to comply with the Fugitive Slave Act, a law that put all runaway slaves under federal jurisdiction, where they were denied jury trials and other aspects of due process.
Is Nullification “Legal?”
What is the legal effect of nullification? It’s a little hard to say. Certainly, the Supreme Court would say that state nullification laws have no effect whatsoever because only the Supreme Court can strike down a federal law. But the supporters of nullification argue that the States can trump the Supreme Court. I don’t have the ultimate answer but it’s worth noting that James Madison didn’t think that the nullification resolutions he helped to write were actually binding. He called the resolutions “expressions of opinion,” whose intent was to bring about results by swaying public opinion.
By that measure, nullification can be a powerful tool. Remember the REAL ID Act? It was supposed to go into effect in 2008. But the resistance from the states has led to several delays in its implementation. President Obama--who opposed REAL ID during the campaign--does not appear to be moving very aggressively on implementation of the law; and it’s likely that he takes some comfort in the fact that so many states oppose the measure. But, as we saw with Jefferson and Madison, two can play at the nullification game, and the President is probably none too pleased at the nullification resolutions directed at his healthcare reform.
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