Can States Nullify Federal Law?
Until recently, when Americans talked about nullification, they meant jury nullification. Juries have the right to nullify bad laws by finding a person accused of violating a bad law not guilty. Famous cases of jury nullification included an abolitionist accused of harboring fugitive slaves, and more recently a state-registered user of legal medical marijuana accused under federal law of possessing marijuana. Judging the law as well as the accused is one of the reasons we have trails by jury. In the last few years, however, nullification has acquired a second meaning.
In an assertion of states’ rights, several states have sought to nullify federal laws under the theory that the federal government’s legitimate powers include only those powers enumerated in the Constitution. On one issue, the federal government has compromised with resistant states by allowing some states to opt out of setting up state health insurance exchanges. This is not much of a compromise, however, since in those states the exchanges will simply be operated by the federal government instead of the state, which is arguably a step backwards for state sovereignty.
On a completely different issue, the federal government is not backing down its assertion that the federal TSA has the right to conduct unwarranted searches without probable cause to suspect a crime. The federal government has chosen to ignore resistance by local law enforcement officials. Even when local sheriffs pledge to arrest TSA screeners for sexual assault, the federal government has not taken this civil rights issue seriously and has not engaged in dialogue with local governments.
I asked some experts whether nullification is legal, if it will stand, and if it will increase our freedoms. I also asked them whether the nullification movement will result in changes to federal law through public pressure.
Fergus Hodgson, Policy Advisor at The Future of Freedom Foundation and
Host of The Stateless Man on the Overseas Radio Network says, “Nullification already is standing and will continue to do so. Before the outright legalization of marijuana in Washington and Colorado, more than a dozen states were already defying federal laws by legalizing medical marijuana (http://news.medill.northwestern.edu/chicago/news.aspx?id=210388). Consider also that since 2007, 25 state legislatures have passed measures to oppose the Real ID Act (http://tenthamendmentcenter.com/nullification/real-id/). In so far as it has reduced unwarranted impositions from state officials and lessened such impositions from federal officials, yes it has increased the freedoms of people in the relevant states, and it will continue to do so.
“As long as nullification stands, it is a benefit to the people of the United States, with the exception of those who benefit from criminal, unconstitutional activity at the federal level. Nullification, when done in a careful manner, enhances federalism and decentralization, allowing for more responsive government, closer to the will of the people. The most vulnerable federal laws are those that cross ideological boundaries and are blatantly unconstitutional. Drug laws and violations of civil liberties, in particular, meet the criteria. Given the popularity of the initiatives against illegal federal activity, enforcement from federal officials will become more and more difficult. Unless they are willing to accept widespread disregard for and defiance of federal laws, which they will be powerless to stop, they will have to engage in reform. Additionally, passage of nullification legislation brings such heightened attention to particular laws, that the absurdity and unconstitutionality of many of them finally sees the light of day.”
Richard Michael, Common Law Advocate says, “Government is always a battle of jurisdiction. A government able to
enforce its will on another government is the victor. Nullification as expressed by Thomas Jefferson and James Madison in
the Kentucky Resolutions ( http://www.constitution.org/cons/kent1798.htm ) and the Virginia
Resolutions (http://www.constitution.org/cons/virg1798.htm ) is based
on a simple concept: “That the several States composing, the United States of America, are
not united on the principle of unlimited submission to their general
“If the Federal government operates beyond its enumerated powers, it is
acting unlawfully. Nullification is a remedy that the States can and
should use. It will stand as long the Federal government is not able to bribe
state legislatures like it has been doing since World War II. Freedom and government are part of a continuum. More government always
equals less freedom. Conversely, less government equals more freedom.
“Because of California’s huge farming output and the contention about
the use of water and land, the stage is set for confrontation with all
the Federal agencies that regulate the use of natural resources. The
movement by the sheriffs in northern California and southern Oregon to
protect the people of their counties against Federal agencies like the
Fish and Wildlife Service, the Forest Service, the Bureau of Land
Management, and the EPA will probably be the next battleground.
“Initially, special interest groups with popular support will benefit,
but ultimately we all benefit when government power is reduced.
The laws most vulnerable are those that the People find unpopular or
have had their fill of. The most obvious ones are behavioral control
laws. Prohibition didn’t work for exactly that reason. The poster
child for those are drug-control laws. California has disregarded both
Federal law and a Supreme Court decision on marijuana. Other states,
like Colorado and Washington most recently, have followed. The
Department of Justice blusters about it, but you haven’t yet seen
public officials in California go to prison over the issue. The States
are playing ‘chicken’ with the Federal government. Popular support in
the States makes it easier not to blink.
“There is no urgency to change the federal law, once nullification
occurs because it doesn’t matter at that point. Once the States start
reclaiming their numerous powers from the Federal government, the
movement will grow of its own force, because it weakens Federal
authority, much like the secession movement did 150 years ago. It
remains to be seen if the Federal government will, at some point, try
to use force to re-establish its authority.
Nullification on the State level is one thing. That takes a lot of
popular support. The most effective thing that the people can do is to
use their own nullification power when they sit on juries and grand
juries. ( See http://fija.org/ ) When government attacks individuals
through the legal system, those individuals are virtually defenseless.
The inability of the government to convict people because of the
refusal of juries to cooperate during the Prohibition Era lead
directly to the end of those laws.”
Democratic Party operative Michael Embrich says, “Technically nullification is illegal and has been rejected by the supreme
court as a legal means of protest, yet it will stand in some cases. Lets
say for instance the Washington State and Colorado state laws that make
recreational use of marijuana legal. The federal government could step in
at any time in those states and arrest those using marijuana. But, the
federal government doesn’t have the resources to do so. Arresting those
using pot in those states would be impossible to achieve. Therefore they
leave that alone. I think the decision by the states of Washington and
Colorado to legalize marijuana will impact the federal government to change
its laws, being there has been no major negative impact due to legalization
in those states so far.”
The future of any public policy in a nation that votes depends on what the next generation of voters thinks. Recent college graduate Aaron Friedman from New York City represents the perspective of today’s youth. “1. Nullification is not legal. Let’s define nullification: an act by a state whereas the state rejects the authority of a legally passed piece of legislation in the US Congress and enacted in to law. 2. No, nullification is illegal and cannot stand. There is no sound legal argument in the US for the right of a state to overthrow federal legislation. 3. Nullification in no ways amounts to an increase in freedom for the American population. Nullification does the opposite. Nullification serves to diminish the power of the federal government, which has, since the Civil War and increasingly since the 1960′s, stood up for the rights and freedoms of all Americans when state laws limited freedom. For examples, look to Civil Rights, Women’s Rights, LGBTQ Rights, Labor Rights, etc. 4. In my two home states, NY and NJ, I am unaware of any issue between these states and the federal government that could bring about nullification, but I am by no means the authority on present day constitutional crises. 5. Nullification is a vital threat to the stability of the United States. The world will lose the credibility of the US if nullification is able to tear these states apart.. In the worst scenarios of nullification, the proper collection of taxes, the freedom of trade, and ultimate personal freedoms, can all be thrown away by a rush of nullification throughout the states. 6. There are no nullification statutes likely to stand in the next year. Most people inaccurately assume that any state that allows non-heterosexual marriage is nullifying federal law: the defense of marriage act. This is incorrect. The individuals who marry illegally (according to DOMA) are not nullifying federal law, but breaking it as a criminal would (this is not a judgement of non-traditional marriage, but merely an understanding of the legal equation, I do not consider a homosexuality or any variety of sexual orientation a crime, nor do I consider the individual a bad person for breaking federal law). The state, by enacting a law contrary to federal law, is creating a legal conflict that must be remedied in by the courts, which will take place soon! In fact, DOMA will be up for review by the Supreme Court next session, and I am positive that the federal law will be deemed unconstitutional for its action of limiting freedom, which flies in the trend of a Constitutionally protected expansion of freedom. Many people perceive the legalization of recreational marijuana as a potential nullification crisis. According to the state laws passed, the two states will collect taxes from the cultivation, sale and distribution of a federally banned substance. But this is not a nullification crisis because the structure of the American balancing act of distributed powers is not in jeopardy. Again, there are now state laws in conflict with a federal law, but this is not a slippery slope. The Courts will have to hear these cases, but in this case will not be able to extend the ‘expansion of freedom’ concept to marijuana use. The Courts will not say that marijuana use is a freedom that cannot be abridged, because it can legally be prohibited by voters. The Courts will only strike down federal law (classifying marijuana as a schedule 1 substance that has no medicinal purpose an cannot be cultivated, traded, or consumed within US borders) until more states show a trend toward legalization, where the Courts can say that the evolving ethics of the time no longer support the absolute ban. Therefore, it is likely that the Courts will strike down the new legalizing laws and keep the status quo. Why are ‘gay-marriage’ and marijuana not nullification crises? The only time there is a nullification crisis is when the state interferes with the enforcement of federal laws. No state will actually do that, but rather proceed in a manner in hopes to affect change in the federal laws. If the Courts uphold DOMA and the Marijuana Ban, the states will likely continue on without a change. It will be up to the federal government to enforce its laws. The federal government will not enforce these laws with fines, imprisonment, or violence, and therefore the laws are not nullified, but toothless. The failure of the federal government to enforce these laws will not lead to a general failure to collect taxes, and will not lead to the loss of federal property by state bodies. To summarize, nullification is illegal and dangerous. We are fortunate not to be in a nullification crisis. What is occurring between the states and federal government regarding DOMA and the Marijuana Ban do not amount to a nullification crisis and are best understood as a gradual study and potential shift in current legislation. There is no threat of nullification arising from these two issues.
Friedman continues, “There were nullification crises against whiskey taxes almost as soon as there was a Constitution. Thomas Jefferson had once believed in nullification as the ultimate protector of states’ rights from a federal power grab. Andrew Jackson thought that nullification was an extreme threat to federal government, publicly disagreeing with his own Vice President and famous States Rights advocate John Calhoune. Abolitionists desired nullification as the Compromise of 1850 brought about strong enforcement of Fugitive Slave Laws (a negative outcome of the result of avoiding secession and Civil War, brought about by the greatest American statesman Henry Clay) which they abhorred, and rightly perceived as making them aid in the strengthening of the worst American institution, slavery. General Grant wisely understood that the states had no right to secede from the Union, in the same way a state has no right to nullify federal law. He understood that, if the Union would be dissolved, it would not be by the individual states but rather by the American people as a whole. Only when federal laws would be so wrong as to force the people of the nation to fight back and overthrow either a particular law, or all laws (revolution), is such break with federal law allowed with the full understanding of the over-throwers that all of their own is willfully forfeited by engaging in war.”
States that have ended marijuana prohibition have done so via the initiative process. Ballot initiatives are a form of direct democracy, which is quite different from the representative democracy of voting for people who would then vote on laws. The direct democracy movement is gaining strength on the internet, spawning sites such as http://www.public-voice.org/ and the popular Facebook app Causes, which both crowdsource petitions. It would take a Constitutional convention to bring initiatives to a federal level in the U.S. Or, as Friedman pointed out, a revolution. Whether either is likely may depend on how responsive to the will of the people the federal government appears to be as state and local jurisdictions challenge federal law.