Tuesday, March 18, 2014 | 3 comments

Nullification: How it Should and Shouldn’t Be Used

By Amy Pomeroy

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Part I:
What Nullification Should Not Be

Nullification means many things to many people. Perhaps the most extreme version is when a state passes a law purporting to override a federal law. Last year, for example, Missouri nearly passed a bill that explicitly claimed to make the Federal Gun Control Act of no effect within Missouri and making it a misdemeanor for federal agents to enforce federal gun laws. The bill justified its nullification on the grounds that “The people of the several states have given Congress the power ‘to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,’ but ‘regulating commerce’ does not include the power to limit citizens’ right to keep and bear arms . . .”

The federal government regularly oversteps the powers delegated to it by the Constitution, and states are justifiably frustrated and outraged. However, the version of nullification resorted to by Missouri puts states in the position of delineating the boundaries of the Constitution. This is problematic for several reasons: first, it could potentially lead to fifty different interpretations of the Constitution; second, there is no guarantee that states will do a better job of interpreting the Constitution than federal courts. While most proponents of nullification see it as a way to counteract federal overreach, there is no reason that it could not also be used by states to circumvent federal Constitutional protections. Finally, it undermines the legitimate purposes for which the federal government was created. For a federal government to be of any use, it needs to be supreme in certain areas. (Of course, its supremacy is far more limited than many today claim it to be.)

A recent Supreme Court case, McCullen v. Coakley, highlights the second of these problems. McCullen involves a Massachusetts law creating a 35-foot buffer zone around abortion clinics which protesters may not enter. At issue is whether or not this violates the rights of protesters to free speech as guaranteed by the First Amendment.

In a world where states could nullify federal law, Massachusetts would be the final arbiter of whether or not its law is valid; it would interpret the meaning and extent of First Amendment protections for itself. Just as Missouri sought to define the boundaries of the commerce clause in a way that delegitimized the Federal Gun Control Act, Massachusetts sought to define the boundaries of the First Amendment in a way that would limit some protesting.

In the world we currently live in, where people look to the courts to delineate the extent of constitutional protections and federal powers, the Supreme Court determines whether or not the Massachusetts law infringes on Constitutional protections.  And as near as anyone can tell, it looks like the Supreme Court is going to strike down the Massachusetts law.

In other words, nullification can cut both ways. While proponents typically want to use it as a sword to whack at federal overreach, it can also be used by states to violate constitutionally guaranteed rights.

Do courts decide correctly all the time? Absolutely not. Bad Supreme Court precedent is largely responsible for federal overreach today. However, there is a core of constitutional protections, consisting of most of the rights enumerated in the Bill of Rights, which the courts still do a respectable job of protecting. Abandoning the protection courts provide by adopting extreme versions of nullification could prove disastrous for the constitutional protections which remain intact. 

Part II:
What Nullification Should Be

In a general sense, to nullify simply means to make something ineffective. Fortunately there are a variety of tools states can use to make bad federal laws ineffective without explicitly claiming that a federal law is itself void.

Just Say No

Many of the federal government’s most onerous regulations are accepted voluntarily by states. Utah voluntarily accepts federal control of education in exchange for money. Utah voluntarily accepts onerous federal mandates regarding health insurance for the poor (and simultaneously skews its entire healthcare market) in exchange for Medicaid dollars. And while sending tax dollars to Washington and then refusing to accept the money that is returned with strings attached might be painful, it is certainly an effective nullification tool.

If rejecting federal money is too painful, there may be legal grounds for overturning the conditional funding altogether. The Court has long held out the possibility that at some point, financial incentives to states become coercive and therefore violative of the Tenth Amendment. Buried in NFIB v. Sebelius (the Obamacare case), the Supreme Court for the first time held that this line in the sand had been crossed. The Court held that the Affordable Care Act’s Medicaid expansion provisions, which required states to expand coverage or lose all Medicaid funding, was “unmistakably” coercive.

Whether by rejecting federal funding outright or challenging it as coercive, states have options for nullifying conditional grants.

Drop Parallel Laws

Many federal laws are parroted at the state level, effectively lowering the federal government’s burden of enforcement. For example, the USDA sets standards for meat and poultry processing and Utah has taken it upon itself to pass and enforce identical laws. Because meat processing is more appropriately a job for states—not the feds—they should be able to do so on their own terms. Forcing the federal government to bear the burden of enforcing the meat processing regime it created might nudge it toward getting out of the business altogether, allowing the issue to devolve to state-based alternatives.

Until recently states have mirrored federal marijuana laws. Partial or total legalization in over two dozen states has demonstrated just how impotent federal law can be without state help. Last November, the DEA conducted the biggest raids since medical marijuana became legal in Colorado: twelve dispensaries, two homes, and several grow operations. However, now that recreational marijuana is legal, there are over 400 marijuana shops in the Denver area alone. In other words, the DEA would have to increase its efforts dramatically to even make a dent in Colorado marijuana distribution. By dropping their parallel marijuana laws, some states have effectively nullified federal marijuana laws. This pattern can be followed in other areas of law.

Offer Greater Protection

Overreach is not the sole flaw of federal government—often it doesn’t provide adequate protection. As one example, the Fifth Amendment requires adequate compensation when a city uses its eminent domain power to forcibly acquire property. Traditionally, the eminent domain power was used to acquire property for truly public purposes like building roads. However in Kelo v. City of New London, the Supreme Court held that cities could use eminent domain power for economic development purposes. In other words, if a city believes a new business development will bring in more tax revenue than a neighborhood of single family homes, it may use eminent domain to forcibly purchase the neighborhood and then sell the land to a private developer.

In the wake of Kelo, however, forty-three states passed laws or constitutional amendments to limit eminent domain to its more traditional role. By providing more protection than the federal government, states can effectively nullify federal laws and court rulings.

Non-Cooperation

In Printz v. United States, the Supreme Court overturned a law requiring state law enforcement officers to conduct background checks on gun purchases. The Court reasoned that the federal government may not commandeer state officers to enforce federal laws. The federal government may also not commandeer state legislative processes by requiring states to pass laws (New York v. United States). The anti-commandeering doctrine gives states the ability to nullify federal law by not cooperating with federal mandates. And without state cooperation, federal enforcement of many laws becomes difficult, if not impossible.

Legal Recourse

Even though the Supreme Court has often favored federal power to the detriment of state and individual rights, it sometimes gets it right. When it does, it creates a legal precedent that states can use in court against future federal encroachment.  The anti-commandeering doctrine, limits on conditional grants, and some limits on the commerce clause have all sprung from suits against the federal government by states. This should give states confidence, even if only a small degree of it, to hold the federal government in check under existing legal precedent and to assert novel legal theories in hopes of upholding the law.

Conclusion

The federal government is invasive and oppressive—a reality that has a majority consensus. Much of its activities and mandates exceed the bounds of the Constitution. However, if states wish to preserve the advantages of a federalist system, they must push back without explicitly claiming to invalidate federal law. Fortunately, they have many tools at their disposal to do so.



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About the Author

While earning her B.A. in Political Science at BYU, Amy Pomeroy spent time working with the Scottish Nationalist Party for devolution. She worked as a Legislative Director in Oregon before attending J. Reuben Clark Law School and graduating cum laude. She practiced constitutional law before taking time to raise her two children with her husband.


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