Can a state simply choose to ignore a federal law? by Don Goins
(libertarian)
Saturday, January 22, 2011
Idaho has become the latest state to invoke the idea of nullification in regards to their opposition of the nearly year old Patient Protection and Affordable Care Act (ACA). Maine, Montana, Nebraska, Oregon, Texas and Wyoming are also considering "nullification" laws. This is clearly a different and controversial move. Other state governments challenging the ACA are seeking to overturn the act through more traditional methods such as in federal court and their representatives in Congress.
Nullification is the legal theory that under the 10th Amendment the states have the right to reject laws passed by the federal government that it deems unconstitutional. This theory places the states above the federal government and even the rulings of the U.S. Supreme Court.
While the word "nullification" does not appear in the Constitution, proponents claim that it is an implied power for the states. They point to a quote Thomas Jefferson made in 1799:
"That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy."
Jefferson argued that since the states were the creators of the federal government, "being sovereign and independent, have the unquestionable right to judge of its infraction."
At different points in our history, states have tried to apply nullification. The first attempt was made in 1832 when South Carolina passed its Ordinance of Nullification. The ordinance was in response to tariffs passed in 1828 which South Carolina felt violated its sovereignty. Although threaten, nullification was not needed as a compromise was reached with the federal government.
Nullification was tried again in the years leading to the Civil War but failed, which led to secession.
More recently, nullification has been proposed to negate federal gun regulations. The Firearms Freedom Act, first introduced in Montana, seeks to disregard regulations imposed by the ATF. The claim is that if the weapon is manufactured and kept within the state then it is beyond regulation of the federal government. To date, no court has upheld this premise and the ATF issued a stern letter to gun dealers not to violate federal law.
Is nullification a viable path for the states to reject federal law? Article VI, Clause 2 clearly states:
"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."
Given that, and the lack of history supporting nullification, the answer seems to be no.
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Posted By: Oldranger
Date: January 22, 2011 11:31:45 PM
Nullification has been used successfully in the past, by Northern states refusing to abide by the Dred Scott decision; and today, by several states in open defiance of federal marijuana laws. I suggest Goins and interested others read Thomas E. Woods, Jr.'s book, Nullification, for a history of the concept and a nuanced discussion of its application and prospects.
