If beauty is in the eye of the beholder, so is nullification — the idea that states can limit the enforcement of federal laws within their borders.
Supporters of nullification see it as a necessary and effective tool to protect states and citizens from the ever-growing power of the federal government. Detractors think this debate was settled by the Civil War, painting proponents of the idea as “neo-Confederates.” In fact, nullification is a growing movement with support on both sides of the political aisle.
As author and historian Thomas Woods notes, nullification is as old as the republic. Its first advocates were Thomas Jefferson and James Madison, who drafted the Virginia and Kentucky Resolutions of 1798, which declared, “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Jefferson and Madison acted out of dismay over the Alien and Sedition Acts, which Congress adopted to make it a misdemeanor to speak out against the government, bringing Congress and the president into “contempt or disrepute.”
Early in our history, nullification was also prominently used by free states to ignore the federal fugitive slave laws that forced free states to return runaway slaves back to slave states. The Civil War tainted and shelved the idea of nullification, but the states are bringing back the concept in response to the continued expansion of the federal government. They’ve wiped the dust from the 10th Amendment with state laws seeking to nullify federal statutes.
Over a dozen states, with South Carolina being the most recent, have passed legislation aimed at preventing the Obamacare health care mandate from being enforced in their jurisdictions. South Carolina’s goes the furthest by proposing to grant taxpayers a state tax deduction equal to the federal penalty for failing to purchase health care. Montana, Kansas and Alabama have joined the gun-control fight by enacting laws preventing federal gun-control enforcement within their borders. South Carolina enacted a law allowing its residents to produce the incandescent light bulbs banned by Congress.
Even liberals are joining the trend. In California, the state Senate has joined dozens of other states in approving legislation designed to prevent the president from executing the indefinite detention provisions of the National Defense Authorization Act. Colorado and Washington state have effectively nullified the federal government’s prohibition on marijuana. When Congress mandated creation of a national ID card in the 2005 REAL ID Act, red and blue states joined together to reject the federal mandate.
The White House response has been “it depends.” The Justice Department tiptoes around Colorado’s pot legalization while threatening lawsuits over nullification of federal gun laws in Kansas.
Federal courts aren’t likely to be so accommodating. Judges have sat back since the New Deal and allowed the federal government to do anything it wants in the name of “interstate commerce,” even in matters that have nothing to do with buying and selling between states. It’s a legal fight worth having, as something needs to be done to check the intrusion of the federal bureaucracy into our lives.
The Washington Times