COLUMN: States have nullfication up sleeves
When politicians in Washington, D.C. have gone too far, what are the people – and the states – to do? By too far, I mean passing laws that are unconstitutional. The primary response is to challenge the law before the Supreme Court. However, states have another option – nullification.
States have the right to nullify federal laws when the state determines the federal government is beyond the scope of the constitution. It is a right that has been undermined repeatedly by the federal government, but one that we the people must reassert to keep the government in check.
Why shouldn’t we the people, or the states, need another means beyond the Supreme Court to question federal laws? Should we always expect the Supreme Court, chosen entirely by the other two branches of the federal government, to not have a bias in favor of granting power to the federal government? As states reserve the right to sovereign authority not explicitly granted by the constitution to the Congress of the United States, they also may determine when Congress has overstepped its bounds.
The federal government has expanded its power enormously in the last few decades. In response, concerned states are once again considering nullification. What exactly is nullification? It is the doctrine that a state has a right to declare a federal law unconstitutional. And, having done so, to refuse to enforce it. The federal government has effectively quashed this right several times. However, the last few years have seen a large resurgence of support for nullification. And we all ought to get on board.
Both Presidents Bush and Obama have championed unconstitutional bills that many states have worked to nullify. For Bush, it was the REAL ID Act. For Obama, it is, of course, ObamaCare. Half the states in the union, including Utah, passed bills effectively nullifying REAL ID and implementation of the bill has stalled indefinitely. As for ObamaCare, 12 states have already introduced nullification bills. In addition, Arizona introduced a bill to create a committee that would review federal law and recommend nullification bills to its legislature.
First, there is the question of whether or not these bills are, in fact, constitutional. Such may be the subject of another column.
The question here is whether nullification is a justifiable doctrine. Do states have the right and authority to nullify federal laws? Would an assertion of such a right not be an endorsement of general lawlessness, an effective nullification of the union itself?
If we look to the constitution, what do we find? The word nullification never appears, but neither does the notion of judicial review, whereby the Supreme Court derives its authority to determine the constitutionality of laws.
What did the founders have to say on the matter of nullification? The matter was first raised in 1798 in response to the Alien and Sedition Acts. The specific matter was the laws making it illegal to publish “false, scandalous, and malicious writing” against the government or its officials. Kentucky and Virginia responded by passing resolutions nullifying the law. The writers of these resolutions? Thomas Jefferson and James Madison – the writer of the Declaration of Independence and the “Father of the Constitution.” Both men also served as U.S. presidents.
Fast forward to the present. As with all things political, who supports nullification largely comes down to a case-by-case basis, and falls along party lines. The ability of states to nullify REAL ID has been largely accepted. This is largely due to the bill’s unpopularity. The bill was rolled into one to fund emergency appropriations for the Iraq war and tsunami relief funding. This means that it passed largely because lawmakers did not want to be seen opposing emergency relief funding. Its passing did not make REAL ID popular, however.
REAL ID was passed in 2005, with an implementation date in 2008. Because of its nullification by half the states in the union, it still has no traction and should be seen as a great victory. It turns out that it doesn’t require a large ideological battle for states to beat a federal law. Rather, it simply takes enough state opposition.
The doctrine of nullification has gained momentum by being effectively used against REAL ID. This is the perfect opportunity for the states to assert their rights against the federal government’s overextension of power. Utah should join with other states in nullifying ObamaCare based on the unconstitutionality of the individual mandate.
Charles Major is a graduate student studying business. He can be reached at charelsrmajor@gmail.com.