Arizona jumps into the Nullification bandwagon. by Don Goins
(libertarian)
Sunday, February 6, 2011
Do Arizona Republicans have a different copy of the Constitution? In light of recent legislation one might believe that's the case.
Last year Arizona passed the highly controversial SB 1070 in which state authorities and police may detain an individual if they have "reasonable suspicion" that a person has entered the country illegally. Many legal scholars questioned the constitutionality of this clause in the law and a federal judge has ruled that the law does indeed violate the supreme law of the land.
Now Arizona is joining other states in creating legislation to effectively prevent President Obama's health care reform from being enforced.
Arizona SB 1433, written by state Senator Lori Klein, R-Anthem, would establish a committee to review pending and past federal laws and regulations to determine whether they fall " outside the scope of the powers delegated by the people to the federal in the United States Constitution." This is the doctrine of nullification.
I've written about nullification before, but let's review. Nullification is the idea that a state can nullify any law passed down from the federal government regardless of how the Supreme Court rules on the law. In effect, the states would determine the validity of a law bypassing Congress and the Court.
The main justification of the Nullifiers (for lack of a better term) comes from the Virginia Resolution, written by James Madison, and the Kentucky Resolutions (plural) written by Thomas Jefferson, both passed in 1798. The resolutions were in response to the Federal government's Alien and Sedition Acts; a series of legislation passed by Congress in the same year.
The problem with this justification is not whether Jefferson or Madison felt that a state could nullify a federal law; they did. The problem is the resolutions didn't amount to anything. The Alien and Sedition Acts were enforced regardless. Virginia and Kentucky objected to the Acts, but obeyed them. There was no nullification. In fact, there is no example of nullification in U.S. history. The other instances claimed by Nullifiers were either idle threats made by the states or settled by the Court.
Bear in mind that the Supreme Court's ability of judicial review was not yet established in 1798 and the Sedition Act had expired two years before Marbury v Madison created that role for the Court. The Court has also ruled in Cooper v Aaron that nullification violates the Constitution. The proper and legal way of dealing with unpopular laws is remedied through voting.
Back to Senator Klein and Arizona. In her proposed legislation, she states that the only ruling Arizona will accept is that of the U.S. Supreme Court. That is not nullification as defined. States have the right to sue the federal government, but are bound by the ruling of the Court. So it would seem she's politically capitalizing on using the term nullification (which is a hot topic among Libertarians and the Tea Party) yet in reality just following proper procedure as per the Constitution.
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