Nullifying the Federal Leviathan

As states react to Obama initiatives that press the outer edges of mainstream public policy, they are passing laws that defy the federal government and federal power.

By Andrew Thomas | August 14, 2013

With its polarizing policies on a range of hot-button issues, the Obama administration has sharply divided the American electorate. This has breathed new vigor into federalism, as these initiatives have invited a backlash at the state level on a comparable array of issues. In turn, these challenges to federal authority have resurrected hoary theories of such luminaries as Thomas Jefferson, James Madison, and largely forgotten political figures at the very opposite end of the ideological and historical spectrum where the current president sits.

The byword is nullification. As states react to Obama initiatives that press the outer edges of mainstream public policy, they are passing laws that defy the federal government and federal power. These states are invoking the long-standing theory they can “nullify” encroachments on their power by the federal government by passing simple state legislation.

The issues provoking this battery of opposition are familiar. Gun control, health care, national identification standards for driver’s licenses, and marijuana use have become, in recent years, the most common battlegrounds. An Associated Press analysis recently found almost four out of five states have enacted laws in recent years that seek to nullify federal laws in one or more of these areas.

California led the way, as it often does, with a 1996 medical marijuana law that conflicted with federal strictures. Across the nation, at least 37 states recently considered or implemented challenges to federal power to regulate firearms in their jurisdictions. Kansas and Alaska approved such laws this year; two others are considering overriding gubernatorial vetoes that were the last line of state-level defense against them. Twenty states have challenged or opted out of mandatory parts of Obamacare. Half the states have approved legislation to undermine the federal Real ID Act of 2005, which governs requirements for issuing driver’s licenses.

State actions purporting to negate federal law are on the upswing in direct response to Obama administration initiatives, and these challenges assume different forms. They range from simple lawsuits to legislatures promulgating instructions to local police officers not to enforce federal law.

State efforts to protect the rights of gun owners are especially common. Some states have sought to build on a U.S. Supreme Court ruling in 1997 that Congress cannot require local police to enforce federal gun laws. A Missouri bill passed by the Republican-led state legislature but vetoed by Democratic Governor Jay Nixon has gone so far as to declare it a misdemeanor for federal agents to enforce, within the state’s boundaries, federal firearms laws and regulations that “infringe on the people’s right to keep and bear arms.” Lawmakers will try to override the governor’s veto in September.

In next-door Kansas, a new law makes it a felony for a federal agent to attempt to enforce federal regulations governing firearms manufactured or owned in Kansas. The law mirrors one passed in Wyoming in 2010, which made such actions a misdemeanor. U.S. Attorney General Eric Holder sent a letter to Kansas Governor Sam Brownback declaring the law null and void.

Opponents of these state-level challenges to Obama federal policy often claim they lack a basis in history or law. Nullification, in fact, has an impressive lineage, even if it remains unsuccessful in practice.

No less than Thomas Jefferson and James Madison articulated and defended the doctrine of state nullification of federal laws before they became president. They wrote, respectively, the Kentucky and Virginia Resolutions in 1789 and 1799. Jefferson penned the former resolution anonymously, while he was vice president; their authorship was hidden for almost a quarter century.

Touched off by public outrage at the Alien and Sedition Acts, the resolutions were approved by the state legislatures, whence they derive their names. They asserted the federal government existed because of a compact of sovereign states, and it could exercise only those limited powers that were expressly delegated by the states. The states, accordingly, could judge when the federal government had exceeded those powers and declare such acts null and void and of “no force.” Jefferson’s Virginia Resolution held that the state retained the right and duty “to interpose for arresting the progress of the evil” flowing from excessive federal regulation. Northern states, anticipating what would later become the law of the land, responded that the federal judiciary should decide the constitutionality of federal laws.

The author of the Virginia Resolution was also the author of the Bill of Rights, and the Tenth Amendment to the Constitution, part of the Bill of Rights, reflected this understanding. Madison’s Tenth Amendment provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The federal government was not the reservoir of political power for the nation. The opposite was true: The states and the people retained those powers not expressly given to the new federal government.

Likewise, Jefferson’s Kentucky Resolution was true to his view of the original understanding of the federal compact. “Whensoever the general government assumes undelegated powers,” he noted, “…a nullification of the act is the rightful remedy.”

John C. Calhoun, Vice President under President Andrew Jackson, built on these theories thirty years later in constructing a doctrine of states’ rights. Calhoun anonymously wrote a tract in 1829 that denounced the Tariff of 1828, the so-called Tariff of Abominations, and argued that state “interposition” could halt enforcement of federal laws. He offered a theory of a “concurrent majority,” whereby states could veto federal actions to protect minority rights from a tyrannical majority. When, in 1832, the South Carolina legislature adopted an Ordinance of Nullification in a special convention, branding the recent federal tariffs to be “not binding” on the state, President Jackson promptly issued his own “Proclamation to the People of South Carolina,” asserting the supremacy of the federal government and warning that “disunion by armed force is treason.” Calhoun resigned from the administration, in part because of this disagreement, and South Carolina eventually backed down.

In the nearly two centuries since, the federal judiciary has declared such exercises in state nullification unconstitutional. The federal courts have interpreted the Supremacy Clause of the U.S. Constitution as giving federal law supreme status so that it trumps state laws that conflict with it. As a result, states today are left with more modest practical challenges to federal overreach, if they wish for them to stand up in court. These include certain legal challenges based on the Commerce Clause, refusing to fund federal programs at the state level, or instructing state or local officers not to be conscripted for such enterprises.

Yet nullification efforts today do enjoy some pragmatic victories. They focus public attention and bring political pressure on the federal government on certain issues, sometimes forcing federal authorities to back off. States that have passed medical-marijuana laws have done so in the face of a federal law that criminalizes marijuana possession and distribution. In response, the Obama administration has quietly instructed federal prosecutors not to bring cases against those who flout federal law in this area. Likewise, federal authorities repeatedly have delayed implementation of the 2005 Real ID Act, which was passed as an anti-terrorism measure but has drawn broad opposition at the state level.

So it is that the spirit of Jefferson, Madison and even Calhoun live on, as states continue to flex their muscles against the federal leviathan.

Andrew Thomas is a graduate of the University of Missouri and Harvard Law School. Twice elected as Maricopa County Attorney, the district attorney for greater Phoenix, Arizona, Thomas served a county of four million residents and ran one of the largest prosecutor’s offices in the nation. He established a national reputation for fighting violent crime, identity theft, drug abuse and illegal immigration. He is the author of four books, including The People v. Harvard Law: How America’s Oldest Law School Turned Its Back on Free Speech. Mr. Thomas is also a contributor to SFPPR News & Analysis.