February 18, 2013

Numerous articles speculate whether the Republican Party is undergoing a change in philosophy and direction or merely is contemplating cosmetic changes. The fact that Governor Jindal pleads for it to cease being the stupid party while supporting regressive tax policies suggests the latter. Although the Party as a whole is reactionary and often factually challenged, there are degrees on the right and some effort apparently is being made by Karl Rove and others to marginalize the sort of opinions and attitudes usually identified with the Tea Party "movement." That undertaking arises less from philosophical disagreement than from the belief that the hard right is hurting Republican chances at the polls; there is no indication of sudden enlightenment in the GOP mainstream.

However, in Tea Party country philosophy is all, and the folks teetering on the lip of the precipice have a new cause: nullification.[11] Actually it’s a very old cause, but old ideas are all the right allows, and mostly bad old ones. It is remarkable the degree to which politicians on the far right advance policies which are not merely reactionary but Constitutionally and historically ignorant.

The most significant flirtation with nullification in our history occurred in South Carolina. In 1832, prompted by a dispute over tariffs, that state held a "Nullification Convention," a procedure proposed by its Senator John C. Calhoun. The Convention adopted an ordinance declaring that the tariffs of 1828 and 1832

are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens; . . .

Further,

it shall not be lawful for any of the constituted authorities, whether of this State or of the United States, to enforce the payment of duties imposed by the said acts within the limits of this State; . . .

It concluded with this threat:

[W]e will consider . . . any . . . act on the part of the federal government, to . . .enforce the acts hereby declared to be null and void, otherwise than through the civil tribunals of the country, as inconsistent with the longer continuance of South Carolina in the Union; and that the people of this State . . .will forthwith proceed to organize a separate government, and do all other acts and things which sovereign and independent States may of right do.[12]

The state legislature responded with preparations for resistance to potential federal coercion, including raising twenty-five thousand volunteer militiamen.[13]

The nullification crisis in 1832 passed quickly, in part because Congress amended the tariff law, but also because President Andrew Jackson issued a proclamation telling the people of South Carolina to think carefully about what the convention had proposed. He declared that its ordinance proposed "a course of conduct, in direct violation of their duty as citizens of the United States, contrary to the laws of their country, subversive of its Constitution, and having for its object the destruction of the Union . . . ."[14] As the ordinance threatened secession in the case of action by the federal government to enforce the law, nullification, in his view, was tantamount to secession.[15]

Justification for nullification seems to alternate between a theory that states are sovereign and one that places sovereignty in the people. As to the latter, a present-day advocate, Thomas Woods, put it this way: "In the American system no government is sovereign, not the federal government and not the states. The peoples of the states are the sovereigns."[16] Why not the people of the nation, as in "We the People of the United States . . . do ordain and establish this Constitution for the United States of America"? However, the nullifiers’ reference to the people may not be meant very seriously, as the same source alleges that "it would be absurd for the states, the fundamental building blocks of the United States, not to be able to defend themselves against the exercise of usurped power. The logic of sovereignty and the American Union demand it." A review of a book by Woods summarizes his view as follows: "The basic idea of nullification is that the states should formally resist unconstitutional laws. They are the partners that created the federal government, so if the federal government violates the restrictions on its actions, the states have no duty to comply. Indeed, they must resist."[17] The people merely are a smokescreen; nullification always is an attempt by a state to avoid federal law.

The South Carolina precedent certainly leans toward power in the states, not the people:

South Carolina . . . was the only state that had successfully resisted political democratization in the years since independence. By a compromise agreed in 1808, the tidewater controlled one house of the state legislature and the more populous up-country the other; large planters dominated both houses through property qualifications and local custom. The legislators in turn chose the governor and most other state officers as well as the presidential electors. . . .[18]

Not much about the people there.

It has been said that the Civil War decided several questions, among them that "United States" thereafter would be a singular term, that we are not merely a conglomeration of independent units. (The South Carolina Nullification Ordinance referred to them as "co-states.") In this spirit, Daniel Howe thought, in 2007, that after the Jackson-South Carolina confrontation, "never again would Calhoun’s theory of nullification be taken seriously enough to be tried."[19]Unfortunately, we live in a no-lessons-learned age. Accordingly, nullification bills are being considered in legislatures across the country.

Today, the principal insignia of oppression are the Affordable Health Care Act, possible firearms regulation and the domestic enforcement provisions of the National Defense Authorization Act.[20] There is widespread opposition to the last among liberals as well as conservatives, but nullification as a remedy remains a reactionary, states-rights-fantasy device.

The bills seem to have four features, in various combinations: direction to state agents not to cooperate with federal agents; criminal penalties for state agents who cooperate; criminal penalties for federal agents who attempt to enforce the federal law; and express nullification i.e., a declaration that a federal law is void in the state. Most, if not all, would run afoul of the Supremacy Clause (see below).

I’ve found only one bill which has moved as far as passage by one house of a state legislature. The Wyoming state House passed a bill which contains two not entirely consistent provisions. It decrees that

Any federal law, rule, regulation or order created or effective on or after January 1, 2013 shall be unenforceable within the borders of Wyoming if the law, rule, regulation or order attempts to:

(i) Ban or restrict ownership of a semiautomatic firearm or any magazine of a firearm; or

(ii) Require any firearm, magazine or other firearm accessory to be registered in any manner.

It also would prohibit a "public servant (presumably of the state) from attempting to enforce any federal law or regulation "relating to a personal firearm, firearm accessory or ammunition that is owned or manufactured commercially or privately in Wyoming and that remains exclusively within the bord1ers of Wyoming," and would make it a misdemeanor for a federal employee to attempt to do so. The latter provisions are not limited to laws, etc, coming into force after January 1.[21]

Although the bill doesn’t refer to nullification, its language has that effect. According to a news report, the bill "will now go to the Wyoming Senate where, with a 23-7 Republican majority, it will likely enjoy broad support."[22]

Two years ago, the Idaho House passed a bill to nullify Obamacare, but the state Senate rejected that measure as unconstitutional. There is agitation for similar action now.[23]

A bill was proposed in Mississippi which didn’t refer to any present or threatened federal law, but purported "to assert the sovereignty of the state under the Mississippi Constitution of 1890." Rather than nullification, it spoke in terms of neutralization: "If the Mississippi State Legislature votes by simple majority to neutralize any federal statute, mandate or executive order on the grounds of its lack of proper constitutionality, then the state and its citizens shall not recognize or be obligated to live under the statute, mandate or executive order."[24] The bill apparently died in committee.[25]

Our state has not escaped the epidemic. Two bills are pending here, one of which contains operative sections virtually identical to those in Wyoming quoted above.[26] For good measure, and somewhat redundantly, the Washington bill adds this declaration:

Any federal law, rule, order, or other act by the federal government violating the provisions of this act is hereby declared to be invalid in this state, is not recognized by and is specifically rejected by this state, and is considered as null and void and of no effect in this state.

The other local bill addresses itself to the domestic enforcement provisions of the National Defense Authorization Act. After a long preamble devoted primarily to a detailed analysis of the relevant federal statutes, it makes a statement of principle:

To condemn . . . section 1021 of the 2012 NDAA as it purports to . . . authorize the president of the United States to utilize the armed forces of the United States to police United States citizens and lawful resident aliens within the United States of America, indefinitely detain United States citizens and lawful resident aliens captured within the United States of America without charge until the end of hostilities authorized by the 2001 authorization for use of military force, subject American citizens and lawful resident aliens captured within the United States of America to military tribunals, and transfer American citizens and lawful resident aliens captured within the United States of America to a foreign country or foreign entity.

Thus far, the bill is unexceptionable. However, it proceeds to the interposition-rebellion level so characteristic of these measures. With certain exceptions, no agent of the state "shall knowingly cooperate with an investigation or detainment of a United States citizen or lawful resident alien located within the United States of America by the armed forces of the United States of America." Violation would be a felony. Also, with the same exceptions, no member of or person acting on behalf of the armed forces would be permitted to conduct within Washington, "an investigation or detainment of a United States citizen or lawful resident alien located within the state." Again violation would be a felony.[27] This bill does not mention nullification or expressly state that the federal law is invalid, but the effect is much the same.

All of these proposals fly in the face of the supremacy clause of the United States Constitution, which provides as follows:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.[28]

Neo-nullifiers argue that only laws made "in pursuance of" the U.S. Constitution are supreme, and that states may decide which are so made. The last half of the formula ignores logic, the role of the Supreme Court, its decisions and the language of the Constitution.

Their argument depends on a belief in the sovereignty of the states. "Sovereignty" is a loose term. It may refer merely to authority over a limited geographic area or an issue, or it may be more inclusive. The form and degree of state sovereignty which is claimed by nullifiers, that of an independent polity, is denied by multiple provisions of the Constitution:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.[29]

In addition to those limitations,

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.[30]

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.[31]

No entity subjected to those restraints can be called "sovereign" in the way imagined by nullification theory. Nullification is dangerous nonsense.

In Cooper v. Aaron ,[32] the Supreme Court ruled that a desegregation order "can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes . . ." As Justice Frankfurter put it in a concurring opinion, "Criticism need not be stilled. Active obstruction or defiance is barred." That is the lesson the neo-nullifiers must learn, and no amount of rhetoric about the Tenth Amendment will change that.

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11. See, e.g., http://www.teaparty911.com/blog/tag/state-nullification/ ;
http://www.teapartynation.com/forum/topics/obamacare-can-be-nullified ;
http://dailyteaparty.com/2011/02/15/14-ways-the-tea-party-is-restoring-the-constitution-with-the-10th-amendment-nullification-movement/ .
12. http://en.wikisource.org/w/index.php?title=The_Federalist_(Ford)/South_Carolina_Ordinance_ of_ Nullification
13. Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815-1848 (part of The Oxford History of the United States ), p. 404
14. Proclamation of December 11, 1832: http://en.wikisource.org/wiki/President_Jackson%27s_ Proclamation_against_the_Nullification_Ordinance_of_South_Carolina
15. What Hath God Wrought , p. 405
16. Thomas Woods, at http://tenthamendmentcenter.com/2013/02/07/ is-nullification-unconstitutional/
17. http://wmugop.blogspot.com/2012/09/nullification-by-thomas-woods.html
18. What Hath God Wrought , p. 401
19. What Hath God Wrought , p. 410
20. See http://tenthamendmentcenter.com/legislation/federal-health-care-nullification-act/ ; http://www.sltrib.com/sltrib/politics/55791106-90/bills-federal-greene-gun.html.csp ; http://www.examiner.com/article/thirteen-states-currently-battling-for-anti-ndaa-legislation .
21. http://legisweb.state.wy.us/2013/introduced/hb0104.pdf . The penalty for a federal agent may be a felony; the status of that provision isn’t clear.
22. http://thinkprogress.org/justice/2013/01/31/1521151/wyoming-nullification-gun/
23. http://www.idahostatesman.com/2013/02/05/2440162/about-200-people-attend-idaho.html#storylink=cpy
24. http://billstatus.ls.state.ms.us/documents/2013/html/HB/0400-0499/HB0490IN.htm
25. http://msbusiness.com/blog/ 2013/02/05/federal-law-nullification-bill-killed-by-committee-chair/  
26. House Bill 1371: http://apps.leg.wa.gov/documents/billdocs/2013-14/Pdf/Bills/House%20Bills/1371.pdf
27. House Bill 1581: http://apps.leg.wa.gov/billinfo/summary.aspx?bill=1581&year=2013
28. Constitution Article VI Clause 2
29. Const. Art. I Section 10 Clauses 1-3
30. Const. Art. IV Sect. 1
31. Const. Art. IV Sect. 2 Cls. 1
32. 358 U.S. 1 (1958)