Recently there has been talk of states nullifying federal laws. But what exactly does nullify mean? Can a state simply say that a law passed by the federal government is not enforceable? Aren’t federal laws above all others? There really isn’t a simple yes or no answer. But, hopefully, by the end of this article you will understand what nullification means and how states can use it to defend against federal overreach.
Nullification is a legal theory that a state has the right to nullify, or invalidate, any federal law which a state has deemed unconstitutional. This is somewhat in contrast to Article VI, Clause 2 of the United States Constitution. This is more commonly known as the “Supremacy Clause.”
But the courts have been mixed on the subject of nullification. The following cases give perspective into how courts have looked at the issue in the past.
In the 1997 Supreme Court case Printz v. United States, 521 U.S. 898 the court looked at whether or not the federal government could order, and you can read “order” as “force,” officials [law enforcement officers] to undertake certain actions. In this case the court held that the federal government could not force the state to do so [yeah for State’s Rights]. States cannot be forced to absorb the financial burden of implementation of federal government regulations.
A much older case that gives some clarity into the issue was Ableman v. Booth, 62 U.S. (21 How.) 506 (1859). The case answered the question of “Can a state impede or interfere with federal authorities from enforcing federal laws if the state deems the law to be unconstitutional?” The answer is “No,” although more ardent nullification proponents would disagree. The federal view is that if a State court says a law is unconstitutional it’s only an “expression of that States’ opinion.” Until the case goes before the Supreme Court, the law stands as is.
If you’re keeping track, the last paragraph should raise some concerns. Because this means the U.S. Supreme court is the final say deciding if Federal laws are unconstitutional. It also means that even if a State decided not to enforce something, the State could not stop the Federal government from doing so.
For a recent example of this you need look no further than marijuana laws. Many states have legalized its possession and use. However, marijuana has remained illegal under Federal law. So Federal agencies could come into a State that has legalized marijuana and arrest a citizen of that state under federal law. If the state attempted to interfere or “protect” that citizen from the Federal government under current case law, the state would be in violation. I won’t get into the legal mechanisms or procedures that would take place in these circumstances, but you can see where the friction starts.
As recent as February 2021 Newton County Missouri has passed a bill that blocks federal enforcement of unconstitutional gun policies. But what makes this more controversial is that the bill actually criminalizes their enforcement. It would seem there’s about to be a showdown that will involve relooking at Ableman v. Booth.
The further the Federal government pushes, the more the States will try to use nullification to stop their overreach. And if enough of a State’s population is unhappy with a ruling coming from a Federal court on these kind of cases, we’ll start hearing about the next phase in this decay of the nation, secession. But secession is a discussion for another day.
American Monitor recommends that you urge your State’s representatives to push for state’s rights. While there is certainly a need for our Federal government, allowing it to continue unrestrained is a recipe for disaster.