Nullifying Obama - State governments revive a Jefferson- Madison theory

[blackascoal]

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.
http://www.washingtontimes.com/news/2013/may/28/nullifying-obama/#ixzz2Uc4N26eo

 

[Billy the Great Khan]

The future of freedom is bright and glorious indeed.

 

[Howey]

Ahh...selective editing by the Times. Who woulda thunk?

Why no mention of the Kentucky 1799 second resolution in which they reverse themselves?

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution

Fact is, both were in response, and solely in response to the Alien and Sedition Acts, which were automatically annulled in 1802. Funny how the Federalists, who claim to be sooooo literal, forget this little matter, don't they?

From the Virginia Resolution of 1798;

That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it's existence and the public happiness.

As far as nullification in general, it'll never fly. You may call ignoring a federal law nullification, but it's merely ignoring a law.

Here's an intelligent look at it (as is; not from the Washington Times):

I've been writing a fair amount about the right and nullification efforts of late, but after having my hat handed to me by Jonathan Adler yesterday, it occurred to me it might be worth getting back to basics about what is and isn't constitutionally permissible.

I got in touch with David Gans, the director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center. Gans is also the former program director of Cardozo Law School's Floersheimer Center for Constitutional Democracy and a former NYU law professor.

So, what's nullification and why is the right re-litigating a discredited argument?

"Nullification was a 19th century theory, identified most closely with South Carolina Senator John C. Calhoun, based on the notion that the states created the Constitution and retained the power to determine whether the federal government complied with limitations on its power. This theory has been universally rejected throughout the course of American history by the courts as inconsistent with the Constitution. As the Constitution's preamble makes clear, 'We the People,' not the states, 'ordain[ed] and establish[ed] th[e] Constitution.'

"The Constitution's Supremacy Clause provides that federal law is the 'supreme Law of the Land,' and Article III of the Constitution gives to the federal judiciary the power to decide "all cases arising under the Constitution.' States, thus, cannot simply declare that the acts of the federal government are null and void. But, despite the rock-solid arguments against nullification, state governments continue to press the idea that they have the power to treat certain federal laws as null and void. These arguments, while not new, have no basis in the Constitution."

So far, so good. But what about measures like the one pending in Kansas?

"Under the Commerce Clause, Congress has the power to enact nationwide gun laws. Kansas cannot limit the scope of these laws on the theory that the guns are only manufactured within state lines. Such arguments have been repeatedly rejected by the courts. Kansas also cannot prevent the enforcement of federal laws within the state. As the Supremacy Clause provides, federal law is the supreme law of the land and trumps any conflicting state law."

All right, but then there's that Texas story, which relates to state and federal law enforcement. That struck me as raising nullification concerns; it struck Adler as an example of me being an idiot. What does Gans have to say? It's complicated.

"This issue is slightly more complicated because of the Supreme Court's 5-4 ruling in Printz v. United States, 521 U.S. 898 (1997), that the federal government cannot require state law enforcement officers to enforce federal law. Even though Printz leaves state and local governments some discretion, there is a strong argument that the Supremacy Clause forbids a state from singling out a class of federal laws it disagrees with and refusing to enforce them."

But what the general argument about states not having the luxury of picking and choosing which federal laws they'll honor and which they won't?

"As the Supremacy Clause provides, the Constitution and federal laws made pursuant to it are the supreme law of the land. Throughout, state efforts to nullify federal laws they disagree with have been rejected. This does not mean that states always have to enforce federal law, but they cannot ignore the Constitution's command that federal law is supreme and trumps conflicting state law."