The recent effort to revive nullification may have just met its high water mark.
In the last 6 months, various laws with the objective of “nullifying” Obamacare have been introduced in thirteen states: Arizona, Idaho, Indiana, Maine, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, Oregon, South Dakota, Texas, and Wyoming. To date, the farthest along had been Idaho, where a nullification bill declaring Obamacare “void and of no effect” and stopping its enforcement had passed the House and the governor was itching to sign it in to law. But in a victory for common sense and constitutional government, the legislation has been defeated in the Idaho Senate’s State Affairs Committee.
“I find no constitutional justification for the things that we are talking about here today,” said Senate President Pro Tempore Brent Hill. “I commend you for your goals, for the passion with which you pursue those. I cannot pursue them in the manner that some of you are prescribing.”
Nullification is the argument that individual states have a constitutional authority to void federal laws. John C. Calhoun made this claim back in 1832 and James Madison vehemently opposed it during the Nullification Crisis leading up to the Civil War. President Andrew Jackson (himself a strong advocate of “states’ rights”) settled the matter: nullification is
“incompatible with the existence of the Union, contradicted expressly be the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.”
At the center of our system of government is the Constitution and all federal and state officers and judges are bound by oath to support it and the laws of the United States made in pursuance thereof. The Constitution is the supreme law of the land—not the Supreme Court, or the federal government, or the states for that matter. This principle of the rule of law dates back at least to the Magna Carta, and was the centerpiece of American constitutional thinking.
So how do we enforce the Constitution over unconstitutional laws? The document itself lays out the best options: change the law, stop its implementation, challenge it in the courts and, if necessary, amend the Constitution. But there is no state nullification clause. The constitutional case against Obamacare can be made in detail and in general, but it does not trigger the nascent constitutional power of a state to unilaterally make it null and void.
Some mistakenly claim that state nullification was intended as a regular matter by Thomas Jefferson and James Madison in their Kentucky and Virginia Resolutions of 1798, both written in opposition to the Alien and Sedition Acts. Jefferson did use the term “nullification” in his draft of the Kentucky Resolution, but he makes it clear he is speaking in terms of an assertion of a natural right to revolution—admittedly and of necessity outside the constitutional structure. Even so, as a practical matter, after declaring the offensive laws “void and of no force,” Kentucky only called on other states to “unite with this commonwealth in requesting their repeal” by Congress.
Madison was much more tempered in the Virginia Resolution. His language does not speak of nullification or voiding laws, but the right of the states to “to interpose for arresting the progress of evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.” By interposition, as he explained in his Report of 1800, Madison meant “expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection.” That is, state actions meant to arouse public opposition, challenge federal actions and ultimately change the objectionable action.
The important distinction between Madison’s idea of interposition and Calhoun’s theory of nullification should be kept clear and bright, and has practical application in today’s debates.
Many of the options states are pursuing seem to fall within Madison’s categories of legitimate state action. The Health Care Freedom Acts passed by eight states last year and being considered in several others this year are a perfect example. Virginia used its HCFA as the basis for their so far successful legal challenge to Obamacare (Commonwealth of Virginia v. Kathleen Sebelius). A different approach can be seen in the Firearm Freedom Acts passed in 8 states (proposed in 22 more) cleverly designed to challenge expansive federal claims of regulatory authority under the Commerce Clause. South Carolina is doing the same with the Incandescent Light Bulb Freedom Act. These acts are aggressive state actions that challenge federal laws—but they are not nullification. Nor is it nullification when states refuse to participate in federal programs and mandates, such as the REAL ID Act.
If we do not remember the past, the old saying goes, we are bound to repeat its mistakes. In one state at least, it looks like that is not going to happen this time around.
Let’s hope that the other state legislators—all well-meaning, focused and impassioned as they are—follow that good example and uphold the Constitution.