February 23, 2015—Last week, Ron Paul stirred up a firestorm when he called states defying the feds “a good thing.”
I would like to start off by talking about the subject and the subject is secession and nullification, the breaking up of government, and the good news is it’s gonna happen. It’s happening.
Unsurprisingly, the establishment on both the left and the right threw an apoplectic fit. One progressive website called Dr. Paul “a moron” for even daring to suggest that states can nullify unconstitutional federal acts or regions might want to secede from centralized, monopoly government. And the Sean Hannity, Sarah Palin, Glenn Beck supported Convention of States Project used Paul’s comments to attack the principles of nullification.
Despite legitimate secession movements in Scotland, Italy and Canada, the idea remains primarily theoretical in the United States—an option for the future if things continue to deteriorate, as Paul put it. But a robust nullification movement continues to grow and gain momentum across the country today.
Less than two months into the 2015 state legislative season, the Tenth Amendment Center counts more than 250 nullification bills introduced in state legislatures across the United States.
Sponsored by both Democrats and Republicans, these bills range from narrowly focused legislation that would allow terminally-ill people access to experimental drugs and medical treatments despite FDA regulations, to bills that would deny resources and assistance from states to the NSA. Other legislation addresses the federal violations of the Second Amendment, the federal prohibition of hemp and marijuana, common core, the use of drones for surveillance, the Affordable Care Act, and even federal grant programs that arm local police with battlefield-ready military equipment.
Despite the number of states considering nullification legislation, the attacks from both the establishment left and right continue. Aside from the ridiculous name-calling and accusations of racism, opponents most often challenge the legality and legitimacy of nullification. But these attacks on the modern nullification movement focus on just one mode of nullification seldom used today, ignoring the widely applied, Supreme Court sanctioned, strategy employed in the vast majority of nullification efforts across the country today.
James Madison provided the blueprint for the modern nullification movement in Federalist 46. During the ratification debates, the founding generation wrestled with the question: what will we do if the federal government oversteps its bounds? Madison wrote that the “means of opposition is powerful and at hand.” He went on to list several action states could take to thwart unwarranted actions – and even unpopular “warranted” actions. Among the steps Madison recommended was “refusal to cooperate with officers of the union.” He argued that even a single state employing this strategy would present serious impediments, “and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”
Nearly all modern nullification efforts today rely on refusal to cooperate with the federal government. This strategy does indeed create obstructions because the feds rely on state assistance and resources for almost everything they do. When states withdraw support, the federal government finds itself in a position where it simply can’t implement its programs or enforce its mandates. Its lacks the resources and manpower to do so. This leads to nullification in practice and effect.
And nullification through non-cooperation is absolutely legal.
The strategy rests on the well-established anti-commandeering doctrine, resting primarily on four SCOTUS cases. Justice Scalia summed up the anti-commandeering doctrine in the Printz v. US majority opinion.
We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.
Opponents fixate on the more radical mode of nullification advance by Sen. John C. Calhoun and other South Carolina politicians during the “Nullification Crisis” of the late 1820s and early 1830s. This strategy involves declaring a law unconstitutional and therefore void, and then physically impeding the feds from enforcing it within the borders of a state. While we can debate the constitutional legitimacy of such actions, in practice it will likely end up in a legal battle that states will lose in federal court. And there likely isn’t a state that would defy a federal court in practice.
But the fact is, of the more the 250 nullification bills introduced in state legislatures this year, only a handful employ this approach. The vast majority rely on non-cooperation based on the legally sound anti-commandeering doctrine.
Ron Paul is right: the nullification movement is happening. And it is a good thing!
For more information on nullification bills across the country, visit the Tenth Amendment Center bill tracking page HERE.